Karnataka High Court
S A Suryanarayana vs M.S. Devendrappa on 14 August, 2012
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
CRIMINAL REVISION PETITION NO.483/2009
BETWEEN:
S.A. Suryanarayana,
S/o. G. Adinarayanaiah,
Aged about 51 years,
Ramaiah Farm,
Resident of Hosur, Gujanur Post,
Shimoga Taluk.
... PETITIONER
(By Sri A.N. Radhakrishna, Adv.)
AND:
M.S. Devendrappa,
S/o. Shivalingappa,
Aged 53 years,
Resident of Mudigere Village,
Channagiri Taluk.
... RESPONDENT
This Crl.R.P. is filed under S.397 r/w 401 Cr.P.C.,
praying to set aside the judgment of conviction and
sentence passed in C.C.No.729/2003 on the file of the Prl.
Civil Judge (Jr.Dn.) and JMFC., Channagiri dated 7.3.2008
and confirmed in Crl.A.No.37/2008 on the file of the Addl.
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Sessions Judge & Presiding Officer, FTC-I, Davanagere
dated 13.4.2009 and acquit the petitioner.
This Crl.R.P. coming on for hearing this day, the
Court made the following:
ORDER
The respondent (who will hereinafter be referred to as 'the complainant') presented a cheque, which bears the signature of the petitioner (hereinafter referred to as 'the accused') before the Canara Bank, Shimoga main branch for encashment. The cheque was for an amount of `1,70,000/-. The bank bounced the cheque due to insufficiency of funds in the account of the accused. The complainant then issued a notice by RPAD in the address of the accused on 15.7.2003. The notice was served on the accused on 16.7.2003. The accused sent a reply dated 5.8.2003. A complaint was filed on 12.8.2008 before the JMFC, Chennagiri against the accused, under S.138 of Negotiable Instruments Act, 1881 ('the Act' for short). The accused appeared and pleaded not guilty. 3
2. The complainant examined himself as PW-1 and marked Exs.P.1 to P.7. Accused was questioned under S.313 Cr.P.C., about incriminating evidence. The accused denied such evidence as false and opted to lead defence evidence. He examined himself as DW-1 and got marked Exs.D-1 to D-6. During cross examination of DW-1, Exs.P- 8 and P-9 were confronted and marked.
3. The learned Magistrate did not accept the defence put forth by the accused. Finding merit in the complainant's case, accused was held guilty of the offence under S.138 of the Act and was sentenced to suffer simple imprisonment for a period of one year and to pay compensation of `3,40,000/- to the complainant.
4. Crl.A.No.37/2008 filed by the accused in the Sessions Court having been assigned to the Fast Track Court-I at Davanagere, by a judgment dated 13.4.2009 was allowed in part. The judgment of conviction for the offences under S.138 of the Act was confirmed, but, the sentence imposed by the trial court was modified. Accused 4 was sentenced to pay fine of `10,000/- and in default of payment of fine, to undergo S.I. for 3 months. Further, the accused was directed to pay compensation of `2,50,000/- to the complainant, within two months and in default of payment of compensation amount, to undergo S.I. for 6 months. Feeling aggrieved, accused has filed this Criminal Revision Petition.
5. Learned Advocate for the petitioner reiterated the contentions urged before the trial court and the appellate court and submitted that the ingriedients of S.138 of the Act having not been made out, the conviction of the accused-petitioner and even the modified sentence imposed on him is unjustified. Reliance was placed on the decisions (1) Kamala.S. Vs. Vidhyadharan M.I. and another, reported in (2007) 5 SCC 264 and (2) Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, reported in (2008) 2 SCC (Cri) 166.
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6. Learned Advocate appearing for the respondent, on the other hand, would support the view taken by the Courts below. He relied upon the decision in the case of S.R. Muralidar Vs. Ashok.G.Y., reported in 2001 (4) Kar. L.J. 122.
7. In view of the rival contentions and the record of the case, the points for consideration are:
(i) Whether the ingredients of the offence enumerated in S.138 of the Act has been met?
(ii) Whether the accused is able to rebut the statutory presumption contemplated by S.139 of the Act?
8. In the case of Rangappa Vs. Sri Mohan, reported in (2010) 11 SCC 441, Apex Court, has held that the presumption mandated by S.139 of the Act does indeed include the existence of a legally enforceable debt or liability and the same being a rebuttable presumption, it is open to the accused to raise a defence, wherein, the existence of the legally enforceable debt or liability can be 6 contested. It was made clear that there is an initial presumption which favours the complainant.
9. In the instant case, as the signature in the cheque (Ex.P-2) is admitted to be that of the accused, the presumption envisaged in S.118 of the Act can legally be inferred that the cheque was made and drawn for consideration on the date which the cheque bears. S.139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden is on the accused to rebut the burden. The Trial Court and the Appellate Court have not been persuaded to rely on the evidence of the accused-DW-1 to rebut the statutory presumption.
10. The essential ingredients of the offence under S.138 of the Act are; (i) drawing of the cheque, (ii) presentation of the cheque to the bank, (iii) returning of the cheque by the drawee bank, (iv) giving notice in writing to the drawer of the cheque demanding of payment of the cheque amount and (v) failure of the drawer to 7 make payment within the statutorily permitted period after receipt of the demand notice.
11. Ex.P-8 is the reply of the accused to the demand notice of the complainant i.e., Ex.P.5. In Ex.P.8, the accused has specifically admitted the issue of cheque Ex.P-2. Accused has drawn Ex.P.2, which was presented to the Bank by the complainant and was returned as per Exs.P.3 and P.4, with an endorsement 'funds insufficient', whereafter, notice Ex.P.5 demanding payment of Ex.P.2 cheque amount was given and the payment was not made and hence the complaint was filed within the period of limitation.
12. Both the Courts below have dealt with the rival contentions in detail. The defence of the accused being inconsistent and not probable was rightly not accepted. The Courts below upon appreciation of evidence have pointed out the inconsistency and improbable nature of the case of the accused. In view of the concurrent finding of fact by the Courts below and there being no dispute with 8 regard to the issuance of the cheque Ex.P.2 and in view of the provisions contained in Ss.118 and 139 of the Act, it is not open to the accused to contend contrary, on the said aspect of the matter. In the aforesaid background and the materials on record, the conviction of the petitioner for the offence under S.138 of the Act is justified.
13. Learned Appellate Court Judge, while rightly modifying the sentence imposed on the accused, has observed that, while imposing sentence to pay compensation, the Court has to consider the capacity to pay the fine amount. However, without assigning any reason in that regard, by taking into consideration, interest which would have accrued, if, the cheque amount had invested in fixed deposit, has modified the sentence. In my opinion, the learned Judge of the Appellate Court has also committed error in directing the payment of compensation amount of `2,50,000/-, though the cheque amount is `1,70,000/- only. While fixing the quantum of compensation, the court has to consider what would be the 9 reasonable amount payable to the complainant. The amount of compensation which has been ordered to be paid, keeping in the facts and circumstance of the case is unreasonable.
In the result, the conviction of the accused-petitioner for the offence under S.138 of the Act is upheld. The sentence imposed on the accused-petitioner is modified. The accused-petitioner is sentenced to pay fine of `1,71,000/- and in default of payment of fine amount, he shall undergo S.I. for a period of 3 months. From the fine amount, when realized, `1,70,500/- be paid as compensation to the respondent-complainant.
In Crl.A.No.37/2008, by an order dated 3.4.2008, the appellant-accused was directed to deposit within 2 months period, 50% of the compensation ordered by the Trial Court. The petitioner-accused was directed to deposit `25,000/- within 8 weeks period, by an order passed on 11.6.2009. If the said amounts, have been deposited by the accused, the amount in deposit be released in favour 10 of the complainant. The accused-petitioner, if has not deposited the amount in terms of the said interim orders, the fine amount as above, shall be deposited with the trial court within 30th September 2012, failing which, the trial court shall resort to the steps permitted to realize the same from the petitioner. The Criminal Revision Petition is disposed of accordingly.
Sd/-
JUDGE Ksj/-