Karnataka High Court
B.P. Venkatesulu vs K.P. Mani Nayar on 28 November, 2000
Equivalent citations: 2001(1)ALD(CRI)544, [2001]104COMPCAS348(KAR), 2001CRILJ745, 2001 AIR - KANT. H. C. R. 310
Author: Mohamed Anwar
Bench: Mohamed Anwar
JUDGMENT Mohamed Anwar, J.
1. Heard the arguments of learned Counsels for both sides.
2. This petition by the complainant in CC No. 22663 of 1991 disposed of on the file of the learned XIV Additional CMM, Bangalore, is directed against the judgment dated 23.7.1999 of the lower Appellate Court viz., IV Additional City Civil and Sessions Judge, Bangalore, passed allowing respondent's Cr. A. No. 15008 of 1999 and setting aside the latter's conviction and sentence recorded by the learned trial Magistrate by his judgment of conviction dated 26.3.1999.
3. On 10.5.1991, the complaint under Section 200, Cr.PC was presented by the complainant before the trial Magistrate in PCR No, 77 of 1991 against respondent K.P. Mani Nayar alleging Commission of the offence under Section 138 of the Negotiable Instruments Act, 1881 ('the Act' for short) by him. The material allegations in the complaint were that on 14.8.1987, the respondent (hereinafter referred to as 'the accused') borrowed a loan of Rs. 1,50,000/- in cash from the complainant agreeing to repay the same with interest at 12% per annum within four years and that Ex. P6 agreement dated 14.8.1987 to this effect was executed by the accused in complainant's favour. At the same time, Ex. P6 post-dated cheque bearing the date 14.12.1990 towards discharge of the said loan of Rs. 1,50,000/- was also issued on the date of Ex. P6 agreement i.e., 14.8.1987 itself. Subsequently, when Ex. P1 cheque which was drawn on Canara Bank, HAL, Bangalore, was presented to the Bank on 6.4.1991, it was returned dishonoured with Ex. P2 Bank's endorsement dated 9.4.1991 for want of sufficient funds. Therefore, Ex. P3 demand notice dated 16.4.1991 was sent by the complainant by Registered Post Acknowledgement Due to the accused on his residential address and his business address as well. Both the said demand notices were served on the latter on 18.4.1991 and 20.4.1991 as borne out by the postal acknowledgements at Exs. P4 and P5 respectively. When the accused failed to respond to the said notices, the said complaint was presented before the learned Magistrate against him alleging commission of the said offence.
4. In due course, cognizance for the offence under Section 138 of the Act was taken and the process was issued by the learned Magistrate against accused and he was tried for the said offence. At the trial, the complainant furnished his evidence examining himself as PW1 in support of the complaint allegations against accused. Documents Exs. P I to P7 were also produced by him. Ex. P7 is the Bank Account extract of the accused, to corroborate that the said cheque was bounced for want of sufficient funds to his credit.
5. The defence of the accused was that of total denial of the complainant's case. Even he denied issue of Ex. P1 cheque to him. It was further contended by him that, in fact, the complainant had obtained his signature on a blank stamp paper with certain ulterior motive and, therefore, he had got a legal notice issued to the complainant about eight months prior to his complaint calling upon him to return the said blank stamp paper. But, the accused failed to respond to the said notice in any manner whatsoever.
6. On appreciation of the complainant's evidence on record, the learned trial Magistrate held the accused guilty of the offence under Section 138 of the Act, pronounced his judgment of conviction and sentenced him to pay fine of Rs. 1,55,000/-, in default to suffer simple imprisonment for six months with a further direction that out of the said fine amount, a sum of Rs. 1,50,000/- be paid over to the complainant.
7. In appeal by the accused, the learned Sessions Judge, on re-appreciation of the prosecution evidence on record and in the light of the defence of the accused, arrived at his contrary negative finding on the guilt of the accused and found the impugned Trial Court's judgment of conviction unsustainable in law. Therefore, the learned Sessions Judge pronounced his judgment of acquittal impugned herein, setting aside the Trial Court's judgment of conviction and acquitting the accused of the said offence.
8. Learned Counsel for petitioner-complainant vehemently argued assailing the legality and correctness of the impugned judgment of lower Appellate Court. Referring to the evidence on record, she maintained that it does not justify the negative conclusions of the learned Sessions Judge, but it fully supports the Trial Court's judgment of conviction.
9. Learned Counsel for respondent-accused, per contra, argued upholding the impugned judgment.
10. The material question, therefore, which calls for determination is whether the impugned judgment of the lower Appellate Court is legally sustainable in the light of the evidence on record.
11. For determination of the above question, it is necessary that relevant provisions in Sections 138 and 139 of the Act be kept in view. The material portion of the penal provision in Section 138 pertaining to substance of the guilt of an accused is extracted below :
"138. Dishonour of cheque for insufficiency, etc., of funds in the account--Where any cheque drawn by a person on an account maintained by him with a Banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the Bank unpaid, either because of....."
The provision makes it clear that one of the essential ingredients of the offence thereunder is that, any cheque drawn by a person on an account maintained by him with a Banker in favour of another must be for the discharge, in whole or in part, of any debt or other liability towards that person. Section 139 of the Act which provides for presumption in favour of existence of such liability speaks:
"139. Presumption in favour of holder--It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability."
A plain reading of Section 139 goes to show that the presumption created by it is, as has been rightly observed by the learned Sessions Judge, a rebuttable presumption. That presumption may get displaced by the prosecution evidence on record itself, or the accused may choose to lead independent evidence in rebuttal thereof. If the circumstances of suspect character emerge proved from the prosecution evidence which are found to be badly damaging the credibility of the prosecution case, they are sufficient to displace the presumption available to the complainant under Section 139. Once that presumption gets dislodged by such suspicious circumstances borne out by prosecution evidence, then heavy burden would lie on the complainant to prove by independent positive evidence the most material fact of existence of debt or other liability against the accused drawer of the cheque in respect of that particular cheque amount. The case of the complainant is, therefore, required to be examined in the backdrop of this legal position.
12. One vital discrepancy which seriously reflects on the veracity of the complainant's version about the loan transaction alleged in his complaint arises out of the date which Ex. P1 cheque bears i.e., 14,12.1990. As per one of the clauses of Ex. P6 agreement dated 14-8-1987, and which is also the case of the complainant, the accused was granted time of four years to repay the alleged loan amount of Rs. 1,50,000/- to the complainant. In other words, the liability of the accused to repay the said amount was to arise after expiry of this period of four years from the date of Ex. P6 agreement, which was to expire on 13.8.1991. Therefore, the further case of complainant that the post-dated cheque at Ex. P1 bearing the date 14.12.1990 was given to him by the accused on the date of Ex. P6 is self-contradictory since as on 14.12.1990, as per the said clause in Ex. P6, the accused could not have incurred any liability to repay the said amount to the complainant. Be that as it may. Besides the issuance of Ex. P1 cheque for Rs. 1,50,000/-, which was for the actual loan amount i.e., principal only, by the accused is another strong intrinsic circumstance of suspicious character inasmuch as the cheque amount does not include the amount of interest on the loan payable for the period from 14.8.1987 to 14.12.1990 agreed at the rate of 12% per annum as per the evidence of PW1 complainant as also according to one of terms of Ex. P6 agreement. There is no explanation, whatsoever, furnished by the complainant at the trial as to exclusion of this interest amount from the said cheque amount. This is a vital defect in the prosecution story which badly damages its credibility. This apart, indisputably, that figure "12" occurring for the month December in the date 14.12.1990 contained in one of the clauses of Ex. P6 agreement relating to issuance of Ex. P1 cheque was shown by the defence in cross-examination of PW1 as typewritten afresh by erasing the earlier figure for the month appearing in the original date. This tampering of the date of Ex. P1 in a clause of Ex. P6 is not explained by PW1 and it further aggravates the situation of the complainant's case.
13. Apart from the above vital defects, it further transpires from the complainant's (PWl's) evidence, as has been justifiably observed by the learned Sessions Judge, that the complainant himself was a person living in penury as he was an employee of a certain concern drawing the meagre salary of Rs. 2,600/- per month, that at no point of time he had any considerable amount to his credit in his Bank account, and that at the relevant time himself was a debtor to a third person in a sum of Rs. 15,000/- for recovery of which his creditor had filed a suit and obtained a decree against him granting instalment facility for discharge of his liability under that money decree. Added to this, admittedly, about eight months prior to the complainant filing his complaint before the learned Magistrate against accused, the latter had issued a written notice to the former stating that a few years earlier, the complainant had obtained the signature of the accused on a blank stamp paper and, therefore, he was called upon to return the same to the accused, to which notice the complainant neither sent any reply nor did he respond thereto in any manner whatsoever. Another such related circumstance reflecting on PW1's reliability is that, curiously, except producing and getting the said agreement marked as Ex. P6, he does not speak a word in his examination-in-chief about the said loan transaction or to the contents of Ex. P6. This is a serious lacuna in his evidence.
14. The cumulative effect of all the aforestated material legal infirmities in the story of the complainant effectively displaces and successfully rebuts the presumption under Section 139 of the Act available in favour of existence of debt or liability against accused. There being no any further relevant believable evidence brought on record by the complainant in independent proof of the fact of the said loan transaction between him and the accused, the learned Sessions Judge of the lower Appellate Court has rightly held that complainant has miserably failed to prove the charge against accused.
15. Hence, for the reasons aforesaid, the revision is dismissed.