Karnataka High Court
S.N. Rajesh vs S. Ananda Rao on 2 September, 2020
Equivalent citations: AIRONLINE 2020 KAR 2229, 2021 (1) AKR 573
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL REVISION PETITION No.717/2015
BETWEEN:
S N RAJESH
S/O S NAGESH RAO
AGED ABOUT 31 YEARS
R/O YELIYA HOUSE
SARVE VILLAGE
KEDAMBADY POST
PUTTUR TALUK
D.K.DISTRICT - 574 201. ...PETITIONER
(BY SRI SACHIN B S, ADVOCATE)
AND:
S ANANDA RAO
S/O LATE VYASARAMA
MUDUAMBADITHAYA
AGED ABOUT 55 YEARS
R/O. NEKKILU HOUSE
SARVE VILLAGE AND POST
BANTWAL TALUK
D.K.DISTRICT - 574 205. ...RESPONDENT
(BY SRI S RAJASHEKAR, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 CR.P.C. PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT DATED 23.6.2015
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PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS
JUDGE, DAKSHINA KANNADA, MANGALORE SITTING AT
PUTTUR, D.K. IN CRL.A.No.37/2014 AND CONSEQUENTLY
ALLOW THE CRL.A.No.37/2014 AS PRAYED FOR.
THIS CRIMINAL REVISION PETITION COMING ON
FOR FURTHER HEARING THIS DAY, THE COURT THROUGH
VIDEO CONFERENCE AT BENGALURU MADE THE
FOLLOWING:
ORDER
This matter is taken up through Video Conference. Heard learned counsel Sri. Sachin B.S. for petitioner who has appeared before the court and learned counsel Sri. S. Rajashekar, for respondent present through VC.
2. This Criminal Revision petition is directed against the judgment and order dated 23.6.2015 passed by the V Additional District and Sessions Judge, Dakshina Kannada, Mangalore sitting at Puttur, D.K in Crl.A.No.37/2014 and consequently allow the Crl.A.No.37/2014 as prayed for.
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3. Being aggrieved by the said judgment and order passed by the learned Appellate Judge, accused S.N.Rajesh has come in this revision petition.
4. In order to avoid confusion and overlapping, the parties herein are referred to in accordance with their status and rankings as held by them before the trial court.
5. In order to save the judicial time, the substance of the complaint as extracted from the certified copy of the judgment dated 23/6/2015 in Crl.A.No.37/2014 is as under:
In respect of money due to the complainant the accused had handed over a post dated cheque for a sum of Rs.4,00,000/- bearing No.793485 dated 20.4.2011 of State Bank of Mysore, Puttur Branch. Apart from that he has also executed a D.P.Note and affidavit before the notary public. The said cheque was issued by him to present the same on or after 20.4.2011.4
The complainant presented the said cheque for encashment, the same was returned with an endorsement 'funds insufficient'. Hence, complainant got issued legal notice to the accused on 13.10.2011 calling upon him to make payment of the money due under the cheque. Notice was duly serve don the accused on 13.10.2011. The accused instead of complying the legal notice, has issued a frivolous reply on 5.11.2011. Thereafter, complainant filed a complaint before the court on 23.11.2011.
6. The trial court took cognizance of the offence punishable under Section 138 of N.I, Act. After recording of sworn statement of the complainant, the trial judge directed the office to register a criminal case against the accused for the said offences and ordered to issue summons him. Accused entered appearance and resisted the claim of the complainant.
Plea of the accused was recorded, he pleaded not guilty and came to be tried.
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7. During the trial, complainant got himself examined as PW1 and got marked 8 documents as Exs.P1 to P8. In sofar as accused is concerned, he has not produced any oral and documentary evidence.
8. After hearing the parties, learned trial Judge found the accused guilty and convicted him of the offence punishable under Section 138 of N.I. Act and sentenced him to pay a fine of Rs.5,50,000/- and in default to undergo S.I. for three months. Out of which, Rs.5,45,000/- is ordered to be paid to the complainant by way of compensation.
9. Against which, accused-S.N.Rajesh preferred Crl.A.No.37/2014 and complainant preferred Crl.A.No.40/2014. After hearing the parties, the learned Appellate Judge dismissed both the appeals on 23/6/2015 and thereby confirmed the judgment and order passed by the learned trial Judge in 6 C.C.No.115/2012 on 18-01-2014. The judgment and order passed by the appellate Judge in Crl.A.No.37/2014 is challenged by the accused S.N.Rajesh in this revision petition.
10. Learned counsel Sri. B.S. Sachin, for petitioner would submit that the extent of responsibility of the accused to discharge the burden cast on him need not be from the evidence or statement filed or relied upon by him. Per contra, he can very well demonstrate the caselessness for the complainant through the evidence of the complainant. The responsibility of the accused is not beyond reasonable doubt. On the other hand it is preponderance of probabilities. Bunch of cheques or cheque books of the accused are contended to have been lost when he was running business at Annapoorna Complex, Harady, Puttur D.K. and he was 7 not knowing about the same till he receive the legal notice Ex.P3.
11. Learned counsel for petitioner Sri B.S.Sachin would also submit that complainant is not having financial capacity to lend the amount of Rs.4.00 lakh nor there existed a legally recoverable debt by the accused in favour of the complainant. The sum and substance of the contentions of the accused is that the complainant has mis used the cheques that came into his possession, more over with the signed negotiable instrument.
12. Learned counsel Sri S.Rajashekhar for complainant would submit that accused has been banking on two defences, namely, first he states that he lost the cheque when he was running business at Annapoorna Complex at Harady Puttur and immediately without much delay he states that the 8 cheque was issued as a security for repayment of a debt, but the complainant was misusing the same even after the purpose of security was over.
13. Basically, this is a revision petition filed under Section 397 read with 401 Cr.P.C. The claim and contention between the complainant and accused are that: the complainant claim that accused borrowed an amount of Rs.4.00 lakh on a particular date, issued cheque an other factors being already stated above right from dis honour of the cheque till the filing of the criminal case.
14. Here it is necessary to mention Section 118 and 139 of Negotiable Instruments Act, which read as under:
"118 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, 9 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;
(f) as to stamps --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.
"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.]"10
15. No doubt, holder of negotiable instrument is a holder in due course who come into possession of the negotiable instrument for consideration. In the present case, the negotiable instrument relied upon by the complainant is the cheque bearing No. 793485 dated 20.4.2011 drawn on State Bank of Mysore, Puttur Branch in favour of the complainant as per Ex.P1.
16. The trial judge has observed that it was not open for the accused to take two opposite defences as to loosing of the cheque on one hand and mis use of the same by the complainant on the other. Learned counsel for petitioner/accused also brought to my notice regarding Section 65 of the Indian Evidence Act, which reads as under:
"65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may 11 be given of the existence, condition, or contents of a document in the following cases:--
(a) When the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1[India] to be given in evidence2; 1[India] to be given in evidence2;"
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a),
(c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a 12 certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
17. Learned counsel for petitioner/accused would submit that without examining the attestor and documents which requires to be attested cannot be proved, more particularly, when it is denied. In this connection, I find that basically, there is a difference between compulsory attestable documents and those which are optional. A promissory note need not be a attested like a Will. But when once if it is attested, one of the attestors has to be examined. But the counter to this analogy would be the present case is not a civil suit filed for recovery of money on the basis of the promissory note and the documents which is to be attested document which has attested has not 13 been proved because of non examination of the attestor.
18. Per contra, this is a complaint filed for the offence punishable under Section 138 of N.I. Act and the promissory note- Ex.P7 is filed as a collateral document to believe the existence and issuance of cheque. Thus the principle in respect of attestable document cannot be applied for adjudicating a matter under Negotiable Instrument Act.
19. Nextly, when the cheque was lost and accused was also claims to be a businessman there should be an attempt to establish before the court to the satisfaction the circumstances that were followed the losing of the cheque or the cheque book because it is not a simple matter and also it is expected from the accused as to how and why he has developed the practice of keeping the cheque book or the leaves 14 blank after signing them. It is not that the accused has to adduce separate set of evidence in support of his evidence. He can always establish the defence or the caselessness for the complainant in the very evidence as a written or oral or records filed or relied upon by the complainant. Though the learned counsel submitted that he can bank upon the pot holes in the case of the complainant, but no such areas are seen. It is not a case of mere denial that can replace the evidence. The evidence is the truth that is required either by the documents or the circumstances relied upon by the accused or thus they are available in the complaint.
20. In the whole set of circumstances, I do not find there is lapse or illegality or irregularity in the judgment rendered by the learned trial Judge in CC No. 115/2012 or by the learned appellate Judge in Crl.A.No.37/2014.
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The revision petition lacks ground for admitting and proceeding further. Accordingly, it is rejected at the stage of admission itself.
Sd/-
JUDGE tsn*