Karnataka High Court
N. Mohammed Khaja S/O Mohidden Sab vs Parshanth Varnekar S/O Vasanthappa ... on 14 October, 2020
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRIMINAL REVISION PETITION NO.2319 OF 2011
BETWEEN:
N.MOHAMMED KHAJA,
S/O.MOHIDDEN SAB,
AGE : 33 YEARS, OCC : AGRICULTURE,
R/O.NEAR VIJAYANAGAR BADAVANE SCHOOL,
RAJEEVA NAGAR, HADAGALI TOWN, BELLARY.
... PETITIONER
(BY SHRI S.S.BETURMATH, ADVOCATE)
AND:
PRASHANTH VARNEKAR,
S/O.VASANTHAPPA VARNEKAR,
AGE : 34 YEARS, OCC : BUSINESS,
R/O.HUVINAHADAGALI, DIST : BELLARY.
... RESPONDENT
(BY SHRI ARAVIND H., ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C., PRAYING
TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE
PASSED BY FAST TRACK COURT-III, HOSPET IN CRIMINAL
2
Crl.R.P.No.2319/11
APPEAL NO.32/2011 DATED 22.08.2011 WHEREBY CONFIRMED
THE CONVICTION AND SENTENCE PASSED BY CIVIL JUDGE
AND J.M.F.C, HUVINAHADAGALI IN C.C.NO.349/2010 DATED
21.05.2011, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition has been preferred by the accused against the Judgment of conviction and order of sentence passed by Fast Track Court-III, Hospet in Criminal Appeal No.32/2011 dated 22.08.2011 confirming the order passed in C.C.No.349/2010 by Civil Judge and J.M.F.C. Huvinahadagali, dated 21.05.2011 convicting the petitioner herein for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'the Act') and sentencing the petitioner herein to suffer simple imprisonment for three months and to pay a fine of Rs.1,15,000/-. Out of the fine amount, Rs.1,10,000/- to be paid to complainant as compensation and the remaining amount of Rs.5,000/- to be deposited to the State Government.
3Crl.R.P.No.2319/11
2. The parties herein shall be referred to as per their status and rank before the trial Court.
3. Brief facts leading to the filing of this revision petition is as under :
3.1. It is the case of complainant that accused had availed hand loan of Rs.1,00,000/- for his domestic expenses in the month of October-2009. In order to repay the said amount, the accused issued cheque bearing No.378731 drawn on S.B.M. Bank, Hadagali Branch, on 16.01.2010 towards repayment of said loan amount. Complainant presented the cheque for encashment before the Urban Co-
Operative Bank Ltd., Hadagali which was returned with an endorsement "insufficient balance" on 16.01.2010. Though the same was intimated to accused, he did not repay the amount; accordingly the complainant got issued a legal notice on 29.01.2010 which was served on accused on 30.01.2010. Accused failed to pay the amount as demanded by complainant through the legal notice, however accused got issued untenable reply. Thereafter, the complainant got 4 Crl.R.P.No.2319/11 initiated this present complaint for the offence under Section 138 of the Act.
4. Pursuant to filing of the complaint and after taking cognizance, summons was issued to accused who appeared before the Court and was enlarged on bail. The plea was recorded. Accused pleaded not guilty and claimed to be tried for the offence. Accordingly, he was tried.
5. In order to prove the guilt of accused, complainant got examined himself as P.W.1 and the Manager of State Bank of Mysore as P.W.2 and Manager of Urban Co-operative Bank as P.W.-3 and got marked Exs.P.1 to P.5. Thereafter, the statement of accused was recorded under Section 313 of Cr.P.C and accused stepped into the witness box to lead his evidence and accordingly, defence evidence was led as D.W.1 to 3 and got marked Exs.D.1 to D.28 in support of his case.
6. After going through the material evidence, both oral and documentary, trial Court came to the conclusion that complainant had made out necessary ingredients to invoke 5 Crl.R.P.No.2319/11 the provisions of Section 138 of the Act and the offence having been made out convicted accused for the offence punishable under Section 138 of the Act sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.1,15,000/- and further, out of Rs.1,15,000/- an amount of Rs.1,10,000/- to be paid to complainant as compensation under Section 357 of Cr.P.C. and to remit the remaining amount of Rs.5,000/- to the account of State Government.
7. Aggrieved by the Judgment of conviction and order of sentence, accused preferred an appeal before the Fast Track Court-III Hospet in Criminal Appeal No.32/2011. Appellate Court considered the entire material on record and submissions made by the learned counsel and after analyzing and re-appreciating the evidence came to a conclusion that accused has not made out any ground to interfere with the conclusion of the trial Court and that accused had utterly failed to rebut onus of presumption which was shifted on him and failed to establish any defence against the claim of 6 Crl.R.P.No.2319/11 complainant and held that the trial Court had rightly found accused guilty for the aforesaid offence and dismissed the appeal filed by accused and confirmed the order passed by trial Court.
8. Aggrieved by the dismissal of the appeal and confirmation of Judgment of conviction and order of sentence passed by the trial Court, accused is before this Court challenging the legality, correctness and propriety of both the Courts below.
9. I have heard the learned counsel Sri.S.S.Beturmath, on behalf of accused. He contends that Judgment of conviction and order of sentence passed by trial Court and confirmed by appellate Court is arbitrary, perverse and illegal. Hence, the same deserves to be set aside. It is further contention of the learned counsel for accused that the Courts below have failed to observe and appreciate the mandatory requirement of Section 138 of the Act which has not been fulfilled by complainant. It is further contention of the learned counsel for accused that complainant has miserably 7 Crl.R.P.No.2319/11 failed to prove that there was any subsisting legally recover debt against accused and complainant has failed to prove that he had parted and given a loan to accused.
10. It is the contention of learned counsel for accused that the Courts below have misdirected itself and have considered only the evidence of P.W.1 without properly analyzing the material evidence of the defence namely D.W.1 to 3 and arrived at a wrong conclusion in confirming the order of the trial Court. It is further contention of the learned counsel for accused that both the Courts below have grossly erred in not appreciating the evidence of the expert Doctor- D.W.3 who has stated on oath with regard to the personality disorder and atypical disorder of accused. It is further contended by the learned counsel for accused that both the Courts below have failed to notice a fundamental aspect of the ground raised by the accused with regard to mental disability and mental disorder of accused, thereby causing miscarriage of justice to accused. It is further contention of the learned counsel for accused that, he has rebutted the 8 Crl.R.P.No.2319/11 presumption contemplated under the Act and shifted the burden of proof to complainant which complainant has not established and proved beyond reasonable doubt. Hence, he contends that Judgment of conviction and order of sentence passed by the trial Court and confirmed by the appellate Court is illegal, perverse and arbitrary and hence same deserves to be set aside by this Court.
11. It is further contended by the learned counsel for accused that when the legal notice was issued demanding the payment of cheque amount, in the reply notice itself which was given by the father of accused who has deposed before the Court as D.W.2 it is clearly stated that accused is mentally disabled and suffering from mental illness and mental disorder, thereby he was unable to reply to notice and accordingly, he has sent reply to complainant which is produced and marked as Ex.P.5. Therefore, on these submissions learned counsel seeks for allowing the revision petition and setting aside the Judgment of conviction and 9 Crl.R.P.No.2319/11 order of sentence passed by the trial Court and confirmed by the appellate Court.
12. It is noticed from the records that Sri.Aravind H. and Sri.Jayawant Savgaon learned counsel have filed power on behalf of respondent and the respondent is duly represented. It is also noticed from the order sheet that this matter was argued by the learned counsel for accused on 10.09.2020 and thereafter, the matter was posted on 18.09.2020 and subsequently on 25.09.2020 and once again on 01.10.2020 to hear the learned counsel for respondent/complainant and matter is posted today to hear the parties.
13. I have heard the learned counsel for accused. After having heard the learned counsel for the accused, the points that arise for consideration before this Court are, (1) Whether there is any illegality, perversity in the order passed by the trial Court which is confirmed by the first appellate Court?
10Crl.R.P.No.2319/11 (2) Whether the Judgment of conviction and order of sentence passed by the trial Court and confirmed by the appellate Court deserves to be set aside?
14. In order to consider these two points, this Court will have to go through the facts once again at the cost of repetition. According to complainant, he has parted with sum of Rs.1,00,000/- in the month of October-2009 as hand loan to the accused as accused was in requirement of amount for domestic expenses, towards which, the accused had got issued cheque bearing No.378731 drawn on S.B.M. Bank, Hadagali on 16.01.2010. On presentation of the said cheque, the same came to be dishonored for insufficient balance and the complainant got issued legal notice to the accused on 29.01.2010 which came to be served on accused on 30.01.2010. As the accused did not repay the amount demanded in the legal notice and sent an untenable reply, the complainant got filed complaint under Section 200 of 11 Crl.R.P.No.2319/11 Cr.P.C. for the offence punishable under Section 138 of the Act.
15. The Section 138 of the Act reads as under:
"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 amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 6 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;12 Crl.R.P.No.2319/11
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 7 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.".
16. On fulfillment of the provisions (a), (b) and (c) of Section 138 of the Act, the offence is made out and the presumption is cast in favour of the complainant.
17. Section 139 of the Act reads as under :
"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."13 Crl.R.P.No.2319/11
18. Section 118 of the Act, reads as under :
"Presumptions as to negotiable instruments.-Until the contrary is proved, the following presumptions shall be made:-
(a) of consideration- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date- that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance- that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer- that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of indorsements- that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;14 Crl.R.P.No.2319/11
(f) as to stamp- that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course-
that the holder of a negotiable instrument is a holder in due course :
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."
19. Once the presumption is infavour of the holder of cheque-complainant herein, the burden of proof shifts on the accused to rebut the said presumption and disprove the case of complainant to succeed in the matter. Therefore, it becomes the duty of accused to place relevant material and both oral and documentary evidence, or to cross-examine complainant in such a manner which raises a probable defence thereby rebutting the presumption raised against him. This Court sitting in revisional jurisdiction will have to 15 Crl.R.P.No.2319/11 see, whether the accused has made out any ground to establish before this Court that the Courts below have committed serious illegality and perversity in passing the order of conviction and the confirmation of the same.
20. On perusal of the entire material evidence and documents placed before this Court and on submissions made by the learned counsel for the accused, it is noticed that accused has taken the defence that he has been suffering from mental disorder and therefore, he was incapable of issuing any cheque to complainant much less receiving the loan amount from complainant. It is vehemently argued by the learned counsel for accused that even in the reply notice as per Ex.P.5, the defence is taken that accused is mentally ill and hence, he is under the care and custody of his father i.e., Sri.N.Mohiddinsab who has replied on behalf of accused by stating that accused had not borrowed any hand loan and denied all other contentions. It was specifically stated that his son is suffering from mental disorder and he was taking treatment from a specialist for 16 Crl.R.P.No.2319/11 long time and he is still suffering mental disorder as on issuance of legal notice on 10.02.2010.
21. It is noticed that the accused has filed his vakalat before this Court and under his signature engaged counsel to represent his case and has duly cross examined complainant/P.W.1 denying the contentions raised. It is seen that accused has led his evidence as D.W.1 and he has also led in further evidence of his father and Doctor as D.W.2 and
3. It is noticed from the evidence of accused that he was mentally ill from 10 years prior and thereafter intermittently he was not keeping well. It is admitted by accused that he is maintaining his four Bank accounts which have been in existence from 1996 and he has obtained Bank cheque books of these accounts and he also states that all these accounts are personally in operation. But, he says that he has not carried out any transactions due to his mental illness, he has given Power of Attorney to his father in the year 2003 as he was operating Bank accounts on his behalf. It is also noticed 17 Crl.R.P.No.2319/11 that accused has admitted the fact that he has got married in the year 2000 and he is having a child from the marriage.
22. Though, it is denied by accused that Ex.D.1 belongs to him, signature is that of the accused. Accused has not placed material evidence before this court to show that as to how the cheque belonging to him reached the hands of complainant.
23. Father of accused has examined himself as D.W.2 and stated about the mental illness of accused. But he has further stated that he does not know about the Bank transactions, the cheque books and other business transactions of accused and he even states that he does not know whether his son operating the Bank accounts. D.W.3- Doctor who has treated the accused in the year 2004, has deposed that the accused suffers from atypical effective disorder and anti-personality disorder by issuing Ex.P.18. It is also to be noticed that nothing is forthcoming in the documents produced by accused or the Doctor examined as D.W.3 with regard to examination of accused to state his 18 Crl.R.P.No.2319/11 mental and medical condition of illness and mental unsoundness of mind as in the year 2010 or whether Doctor examined in the year 2011 while he deposed before the Court.
24. Even accused has not produced any material to show that as on issuance of the cheque he was suffering from mental unsoundness of mind. Though, the accused has produced Exs.D.24 and D.25 which are prescriptions issued by one Dr.Riyaz Basha. Accused has failed to examine the said Dr.Riyaz Basha, Director and Consulting Neuro- Psychiatrist to show that as in the year 2010 accused was suffering from mental disorder leading to unsoundness of mind. It was also duty of the accused, who has raised the defence with regard to unsoundness of mind, to produce material to prove the fact of such unsoundness and incapacity before the Court. Pursuant to which, it becomes the duty of the trial Court to examine the such unsoundness of mind and incapacity by referring and considering such medical and other evidence as may be produced by accused 19 Crl.R.P.No.2319/11 to take necessary steps in that regard. It is important to note the provisions of Section 329 (1) of the Code of Criminal Procedure, 1973 reads as under:
329. Procedure in case of person of unsound mind tried before Court.--(1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case.
[(1A) If during trial, the Magistrate or Court of Sessions finds the accused to be of unsound mind, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be shall report to the Magistrate or Court whether the accused is suffering from unsoundness of mind:
Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as the case may be, to the Magistrate, 20 Crl.R.P.No.2319/11 he may prefer an appeal before the Medical Board which shall consist of--
(a) head of psychiatry unit in the nearest government hospital; and
(b) a faculty member in psychiatry in the nearest medical college.]
25. On going through the provisions of Section 329(1) of Cr.P.C., it is clear that when any person claims to be unsound mind and incapable of making his defence before the Magistrate, the Magistrate shall in the first instance try the such unsoundness, and incapacity, and if Magistrate or Court, after considering the such medical and other evidence that may be produced before him, or it, is satisfied of the fact he or it shall record a finding that effect and shall postpone further proceedings in the case. Rule (1A) of Section 329 would come into play of satisfaction of Rule (1) of Section 329 of Cr.P.C. In the present case on hand, Rule (1A) does not arise before the learned Magistrate in view of the fact that the trial Court had examined all the documents produced by accused and the evidence adduced by the Doctor to a satisfactory conclusion that there was no 21 Crl.R.P.No.2319/11 existence of any unsoundness of mind of accused. So also the first appellate Court, on re-appreciation of evidence has held on the admissions made by accused that he was operating several Bank accounts and he has not produced material documents to show that he was suffering from mental unsoundness of mind.
26. It is also noticed that though the accused has stated that because of his mental disorder he had executed a Power of Attorney in favour of his father. The same has also not been produced before the trial Court or before this Court. Infact on the contrary, accused has produced Exs.P.22 and P.23 which are Newspaper Publications, wherein, he claims to show his mental status to the general public pertaining to certain land transactions. It is also to be noted that it is clear admission of accused-DW-1 in his evidence that, he has got married and has children. In case accused was of unsound mind, the question of marrying would not arise and same is null and void under the relevant laws. Looking at all these aspects, this Court will have to examine whether there is any 22 Crl.R.P.No.2319/11 illegality committed by Courts below in passing the order of conviction and sentence?
27. It is to be noted that the trial Court has given sufficient opportunity to accused to produce any such material to prove the fact of his unsoundness of mind and when person raises this fact of unsoundness of mind, duty and onus is on him to prove the said fact of unsoundness and incapacity. In the present case on hand, on examination of relevant medical records placed by accused himself, and the evidence of the Doctor, trial Court has came to a satisfactory conclusion that there is no mental incapacity or unsoundness of mind. Hence, did not venture into exercising option under Section 329(1A) of the Cr.P.C. to refer the accused to Psychiatric for clinical treatment or summoning of any such report. Therefore, there is no illegality committed by the trial Court with regard to the plea of mental disorder and personality disorder taken by the accused.
28. The next point for consideration would be, whether accused has rebutted the presumption cast against him; Trial 23 Crl.R.P.No.2319/11 Court and the first appellate Court have rightfully come to the conclusion that accused had utterly failed to discharge the onus i.e., shifted on him. He has not placed any material evidence in his defence to disprove the case of complainant. Therefore, under the above said facts and circumstances of the case and having gone through the materials placed before the Court and the submissions of learned counsel for the parties, this Court is of the considered opinion that there is no illegality or perversity committed by the Courts below and accused has not made out any ground for interference in the Judgment of conviction and order of sentence of trial Court which is confirmed by the appellate Court. In view of the above, I pass the following order :
ORDER Revision petition filed by petitioner is devoid of merits and the same is dismissed. The Judgment of conviction and order of sentence passed by the learned Civil Judge and J.M.F.C. Huvinahadagali dated 21.05.2011 in Criminal Case No.349/2010 convicting the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 24 Crl.R.P.No.2319/11 1881 and the sentence imposed therein and confirmation of the same by the Fast Track Court-III, Hospet in Criminal Appeal No.32/2011 vide its order dated 22.08.2011 is upheld.
Sd/-
JUDGE ckk