Karnataka High Court
Sri Mahadevaswamy vs Sri B P Raju on 5 December, 2023
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NC: 2023:KHC:44017
CRL.RP No. 43 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 43 OF 2016 (397)
BETWEEN:
SRI MAHADEVASWAMY
S/O M.LINGAPPA
AGED ABOUT 39 YEARS
DOOR NO.1174, ALANAHALLI VILLAGE,
KASABA HOBLI
MYSORE TALUK
MYSORE DISTRICT-570 012
...PETITIONER
(BY SRI.DILIP M.R., ADVOCATE)
AND:
SRI B.P.RAJU
S/O PUTTASWAMY GOWDA
AGED 45 YEARS
Digitally R/O BANDIPALYA VILLAGE,
signed by KASABA HOBLI,
SUMITHRA R
MYSORE TALUK
Location: MYSORE DISTRICT-570 012
HIGH
COURT OF ...RESPONDENT
KARNATAKA (BY SRI.PRASANNA KUMAR P. DAROJI, ADVOCATE)
THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C, PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER IN
CRL.A.NO.52/2012 BY THE JUDGMENT DATED 18.04.2015
PASSED BY THE PRL. DIST. AND S.J., MYSORE CONFIRMING
THE JUDGMENT AND DATED 18.02.2012 IN C.C.NO.211/2008
PASSED BY THE II CIVIL JUDGE AND JMFC, MYSORE.
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NC: 2023:KHC:44017
CRL.RP No. 43 of 2016
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Revision Petitioner/accused feeling aggrieved by the judgment of First Appellate Court on the file of Prl.District and Sessions Judge, Mysuru in Crl.A.No.52/2012, dated 18.04.2015, in confirming the judgment of Trial Court on the file of II Addl.Civil Judge and JMFC first class, Mysuru in C.C.No.211/2008, dated 18.02.2012 preferred this Revision Petition.
2. Parties to the Revision Petition are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. Heard the arguments of both sides.
4. After hearing both the sides and on perusal of Trial Court Records with judgment of both the Courts below, the following points arise for consideration:
1) Whether the impugned judgment under revision passed by the First Appellate Court in confirming the judgment of the -3- NC: 2023:KHC:44017 CRL.RP No. 43 of 2016 Trial Court for the offence punishable under Section 138 of N.I.Act is perverse capricious and legally not sustainable?
2) Whether any interference by this Court is required?
5. On careful perusal of oral and documentary evidence placed on record, it would go to show that accused has borrowed an amount of Rs.3,00,000/- from complainant on 01.10.2007 for his financial necessities and home needs. Accused assured to repay the money within a short period. However, accused has not repaid the money as agreed. Complainant demanded his money back, accused in order to discharge legally enforceable debt issued the cheque bearing No.317296 drawn on Cauvery Grameena Bank, dated 01.03.2008 for Rs.3,00,000/- Ex.P.1. Complainant presented the said cheque through his banker Mysuru Merchant Co-operative Bank ltd., Mysuru and the same was dishonoured with the endorsement "Insufficient funds" and "drawer's signature incomplete/required/differs from specimen signature" vide -4- NC: 2023:KHC:44017 CRL.RP No. 43 of 2016 Bank endorsement Ex.P.3 and the same is duly intimated to the banker of complainant vide endorsement Ex.P.2. Complainant issued demand notice on 07.03.2008 Ex.P.4. The demand notice sent through RPAD returned unserved as addressee did not claim Ex.P.5 and notice was also sent through under certificate of posting Ex.P.8 and the receipt is produced at Ex.P.7. The notice sent through RPAD Ex.P.5 returned as not claimed and the notice sent to accused through under certificate of posting was not returned to the complainant. Complainant has pleaded that the postal authority has returned the envelop containing demand notice on 19.03.2008. The accused has neither replied to the notice nor paid the amount covered under the cheque. Therefore, complainant filed the complainant on 04.04.2008. If the above referred sequence of events with reference to the documents are perused and appreciated with the evidence of PW.1, then it would go to show that, the cheque issued by accused Ex.P.1 was dishonoured with endorsement "Insufficient funds" and also "specimen signature differs". The demand notice was -5- NC: 2023:KHC:44017 CRL.RP No. 43 of 2016 issued within 30 days in terms of Section 138(b) of N.I.Act. The postal authority has returned the envelop containing the demand notice on 19.03.2008 and the complaint is filed on 04.04.2008. The said evidence would go to show that complainant has complied necessary legal requirements in terms of Sections 138(a) to (c) of Negotiable Instruments Act, 1881(herein after for brevity referred to as "N.I.Act"). Therefore, statutory presumption in terms of Sections 118 and 139 of N.I.Act will have to be drawn.
6. In this context of the matter, it is useful to refer the judgment of Hon'ble Apex Court in APS Forex Services Pvt. Ltd. Vs. Shakti International Fashion Linkers and others reported in AIR 2020 SC 945, wherein it has been observed and held that once the issuance and signature on cheque is admitted, there is always a presumption in favour of complainant that there exist legally enforceable debt or liability. Plea by accused -6- NC: 2023:KHC:44017 CRL.RP No. 43 of 2016 that cheque was given by view of security and same has been misused by complainant is not tenable.
7. It is also profitable to refer another judgment of Hon'ble Apex Court in P. Rasiya vs. Abdul Nazer and another reported in 2022 SCC OnLine SC 1131, wherein it has been observed and held that:-
" Once the initial burden is discharged by the complainant that the cheque was issued by the accused and signature of accused on the cheque is not disputed, then in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for discharge of any debt or other liability. The presumption under Section 139 of N.I. Act is statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the complainant/holder of the cheque, in that case it is for the accused to prove the contrary."
In view of the principles enunciated in the aforementioned two judgments of Hon'ble Apex Court, it is evident that -7- NC: 2023:KHC:44017 CRL.RP No. 43 of 2016 when once issuance of cheque with signature of accused on the account maintained by him is admitted or proved then statutory presumption in terms of Section 118 and 139 of N.I. Act will have to be drawn. Now, it is up to the accused to place rebuttal evidence to displace the statutory presumption available in favour of the complainant.
8. In this context of the matter, it is useful to refer the judgment of Hon'ble Apex Court in Basalingappa Vs. Mudibasappa reported in 2019 Cr.R. page No. 639 (SC), wherein it has been observed and held that:
"Presumption under Section 139 is rebuttable presumption and onus is on accused to raise probable defence. Standard of proof for rebutting presumption is that of preponderance of probabilities. To rebut presumption, it is open for accused to rely on evidence laid by him or accused can also rely on materials submitted by complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from materials brought on record by -8- NC: 2023:KHC:44017 CRL.RP No. 43 of 2016 parties, but also by reference to circumstances upon which they rely. It is not necessary for accused to come in witness box in support of his defence. Section 139 imposed an evidentiary burden and not a presumptive burden".
9. The Hon'ble Apex Court in it's latest judgment in Rajesh Jain v/s Ajay Singh reported in 2023 SCC OnLine SC 1275, wherein it has been observed and held that, once issuance of cheque with signature of accused is either admitted or proved then, statutory presumption will have to be drawn in favour of the complainant.
In view of the principles enunciated in both the aforementioned judgment of Hon'ble Apex Court, it is evident that the accused to probabilise his defence can rely on his own evidence or also can rely on material submitted by complainant. It is not necessary for the accused to step into witness box to probabilise his defence.
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NC: 2023:KHC:44017 CRL.RP No. 43 of 2016
10. It is the specific defence of accused that signature appearing on Ex.P.1 is not signed by him and secondly the lost cheque leaf has been misused by complainant to file this false case. Learned counsel for the Revision Petitioner has argued that complaint is pre matured complaint and the same cannot be legally entertained. The Trial Court and the First Appellate Court have not appreciated the evidence of DW.1 and document at Exs.D.1 to 3, in the light of the defence taken by accused. The contrary findings recorded by both the Courts below cannot be legally sustained.
11. Per contra learned counsel for the respondent has argued that accused has taken inconsistent stand and before Trial Court has denied his signature on Ex.P.1. Whereas in the First Appellate Court he claims that he has lost the cheque leaves and the same has been misused by the complainant. However accused has not taken any action either for loss of cheque leaf or for complainant misusing the cheque Ex.P.1. The Courts below have
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NC: 2023:KHC:44017 CRL.RP No. 43 of 2016 assigned appropriate reasons to reject the contention of accused and rightly refused to accept the rebuttal evidence of accused and justified in convicting the accused for the offence punishable under Section 138 of N.I.Act. The said findings recorded by both the Courts below are based on legal evidence on record and the same does not call for any interference by this Court.
12. The Revision Petitioner submits that there is no reference in the complaint regarding the mode of payment. There is no legal requirement to plead as to how the money was paid. Complainant has specifically pleaded that he has paid the money on 01.10.2007 and accused in order to discharge legally enforceable debt issued cheque in question. It is for the accused to place rebuttal evidence that no money was paid by the complainant on the said date.
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NC: 2023:KHC:44017 CRL.RP No. 43 of 2016 The accused either during the course of his evidence or in the reply notice Ex.D.1 challenged the mode of payment made by the complainant.
13. Accused apart from the aforementioned two defences has also tried to make out the case of demand notice was not duly served to him. Complainant has issued demand notice Ex.P.4 on the address given in the cause title of the complaint. The postal endorsement would go to show that the addressee did not collect the article inspite of giving intimation. Demand notice was also sent through under certificate of posting vide Ex.P.7 and the copy of the notice is produced at Ex.P.8 on the very same address shown in the cause title of the complainant. DW.1 in his evidence has produced the reply notice issued to the demand notice of complainant dated 26.08.2008 Ex.D.1. Therefore, it is now not open for the accused to contend that there is no proper service of demand notice to the accused. The Courts below have rightly rejected the contention of accused.
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NC: 2023:KHC:44017 CRL.RP No. 43 of 2016
14. The accused has denied his signature on cheque Ex.P.1 and contrary to that also taken second defence that he has lost cheque leaves and the same has been misused by the complainant to file this false case. It is true that the bank endorsement Ex.P.3 would go to show that the cheque in question Ex.P.1 was dishonoured for two reasons. The first one is "Insufficient funds" and the second one is "drawer signature differs from specimen signature". The signature of accused differs from the specimen signature provided to the bank does not mean that it is not the signature of accused. The signature of a person slightly differs from time to time. However, such specimen signature of accused provided to the bank differs with the one found cheque on Ex.P.1 itself cannot be a ground to hold that it is not the signature of accused. It is for the accused to examine the banker or to seek an expert opinion that signature appearing on Ex.P.1 is not that of accused. However, accused for the reasons best known to him did not made any effort in this regard to
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NC: 2023:KHC:44017 CRL.RP No. 43 of 2016 place the evidence on record to show that the signature appearing onEx.P.1 is not that of accused.
15. It is the evidence of DW.1 relied only to prove issuance of reply to the demand notice Ex.D.1 and return of the same Ex.D.2 with postal receipt Ex.D.3 and the returned envelop at Ex.D.4, so also acknowledgement card Ex.D.5. However, the evidence of DW.1 is conspicuously absent regarding the aforementioned two defences taken by accused in placing the rebuttal evidence as against the statutory presumption available if favour of complainant. The examination-in-chief of DW.1 even without the test of cross-examination cannot be accepted as sufficient rebuttal evidence to displace the statutory presumption available in favour of complainant. DW.1 in his cross- examination admits that cheque in question related to his bank account and he has also used the cheque after the cheque in question Ex.P.1. Accused has not brought any material evidence on record either in cross-examination of PW.1 or through his own evidence as DW.1, as to how one
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NC: 2023:KHC:44017 CRL.RP No. 43 of 2016 signed cheque leaf alone came to be placed in the hands of complainant, so as to misuse the same to file this false case. The accused in reply to the demand notice Ex.D.1 claims that he has kept unsigned cheque which was lost and probably must have been found by complainant and by forging signature of accused filed this false case. However, to substantiate the said fact no any further steps have been taken by accused against complainant for committing forgery of his signature. The belated reply given by accused in making aforementioned two defences as an after thought contention cannot be ruled out. It is also pertinent to note that accused even during the course of recording of his 313 Cr.P.C. statement has not made any such defence and reference of giving reply, so also the documents Exs.D.1 to D.5 produced in this regard. Otherwise also the evidence of DW.1 and the document Exs.D.1 to D.5 cannot be said as sufficient rebuttal evidence to displace the statutory presumption available in favour of complainant.
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16. Learned counsel for Revision Petitioner has lastly contended that it is a pre matured complaint filed by the complainant. Complainant has pleaded in the complaint averments that the demand notice sent through RPAD was returned by the postal authority on 19.03.2008. In terms of Section 138(b) of N.I.Act the demand notice was given within 30 days on 07.03.2008 Ex.P.4. Complaint is to be filed within the period of one month under Section 142 (b) of N.I.Act and the day on which cause of action arises under clause (c) of the proviso to the Section 138 of N.I.Act provided that the cognisance of complaint may be taken by the Court after the prescribed period if the complainant satisfies the Court when he had sufficient cause for not making the compliant within such period. It means that the cause of action accrues to the complainant in terms of Section 138(c) of N.I.Act on the date of receipt of the notice.
17. In the present case the postal authority has returned the demand notice to the complainant on
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NC: 2023:KHC:44017 CRL.RP No. 43 of 2016 19.03.2008 as addressee did not collect the article. The period of 15 days from the date of 19.03.2008 will expire on 03.04.2008, the cause of action has accrued to the complainant to file the complaint within a period of one month. The complaint is filed on 04.04.2008 in terms of Section 142(b) of N.I.Act within one month from the date of accrual of cause of action. In the present case the complaint is filed within one month after accrual of cause of action. The accused in his evidence or in the reply notice did not mention or claimed as to when the demand notice was served to him. Therefore, in view of Section 142(b) of N.I.Act, complaint can be file at any time within a period of one month from the date of accrual of case of action. In the present case the cause of action accrued to the complainant on 19.03.2008 when he received the postal cover within a period of 15 days is calculated from the said period, then 15 days time will come to an end on 03.04.2008. The complainant has chosen to file the complaint on 04.04.2008. Therefore, under these circumstances the contention of learned counsel Revision
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NC: 2023:KHC:44017 CRL.RP No. 43 of 2016 Petitioner that the complaint is pre matured also does not survive. The defence evidence lead by the accused in the form of DW.1 and documents Exs.D.1 to D.5 is not at all touching to the defence of accused as referred above. When the rebuttal evidence placed on record by accused is held to be insufficient to substantiate the defence of accused and the explanation is unsustainable. The Courts below have rightly rejected the defence evidence of accused.
18. When once the issuance of cheque is admitted or proved by complainant out of the evidence of PW.1 and the documents referred above Exs.P.1 to P.8, then statutory presumption in terms of Section 118 and 139 of N.I.Act will have to be drawn in the absence of any rebuttal evidence of accused or the rebuttal evidence placed by accused cannot be legally sustained, then statutory presumption will continue to operate in favour of complainant. The Courts below have rightly appreciated the evidence on record and justified in holding that
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NC: 2023:KHC:44017 CRL.RP No. 43 of 2016 accused has committed the offence punishable under Section 138 of N.I.Act. The said findings recorded by Courts below are based on legal evidence on record.
19. Now coming to the question of imposition of sentence is concerned. The Trial Court has sentenced to pay fine of Rs.3,25,000/- in default of payment of fine shall undergo simple imprisonment for a period of 6 months. The First Appellate Court has confirmed the judgment of conviction and order of sentence passed by the Trial Court. Looking to the period for which the accused has with held the money due to the complainant, the imposition of sentence as ordered by the Trial Court which is confirmed by the First Appellate Court no any interference is required even on question of imposition of sentence. Consequently proceed to pass the following.
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NC: 2023:KHC:44017 CRL.RP No. 43 of 2016 ORDER Revision petition filed by the Revision Petitioner is hereby dismissed as devoid of merits.
Registry to send back the records to Trial Court with a copy of this order.
SD/-
JUDGE GSR List No.: 1 Sl No.: 5