Karnataka High Court
Sri K S Manjunath vs Sri K Ganesh Rao on 26 September, 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL REVISION PETITION NO.749/2015
Between:
Sri K.S. Manjunath
S/o. Late Sundareshwara Rao
Aged about 57 years
R/at No.451, Sagar Residency
G-2, 3rd Main, Coffee Board Layout
Hebbal Kempapura
Bangalore - 560 024. ...Petitioner
(By Sri S.V. Lakshminarayana, Advocate)
And:
Sri K. Ganesh Rao
S/o. B.S. Krishnoji Rao
Aged about 45 years
R/at No.13, 9th Cross
3rd Main, Chandra Layout
Vijayanagara
Bengaluru - 560 040. ... Respondent
(By Smt. M. Shashikala, Advocate)
This Criminal Revision Petition is filed under Section
397(1) of Cr.P.C., praying to set aside the judgment and
order dated 02.07.2015 passed by the LII Additional City
Civil and Sessions Judge (CCH-53), Bangalore City in
Crl.A.No.768/2014 and etc.,
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This Criminal Revision Petition coming on for Orders,
this day, the Court made the following:
ORDER
This petition is filed by the petitioner/accused challenging the judgment passed by the LII Additional City Civil & Sessions Judge, Bengaluru City in Crl.A. No.768/2014 dated 02.07.2015 whereunder the judgment of conviction and order of sentence passed by XV A.C.M.M., Bengaluru in C.C.No.31518/2011 dated 27.06.2014 was confirmed by dismissing the appeal.
2. I have heard the learned counsel for the petitioner/accused and learned counsel for the respondent.
3. The factual matrix of the case of the complainant before the Court below are that complainant and accused were well acquainted with each other since past several years. On 26.06.2011, the accused borrowed a hand loan of Rs.16 lakhs to meet -3- out his urgent financial crisis promising to refund it within a period of one month and on the same day, he issued a post dated cheque by putting the date as 27.07.2011 for a sum of Rs.16 lakhs drawn on State Bank of India. It is further contended that the cheque was presented on 27.07.2011 and the same was dishonoured with shara as 'Refer to drawer'. Thereafter, the complainant got issued notice on 20.08.2011 to the address of the accused. The said notice returned as unclaimed and notice sent to other two addresses have been duly served on 22.08.2011. Since the accused neither paid the amount nor given any reply, the complainant filed a complaint.
4. Thereafter, the learned Magistrate took cognizance and secured the presence of the accused. After hearing, the plea was recorded and accused pleaded not guilty and as such the prosecution got examined the complainant as PW.1 and one more -4- witness as PW.2 and got marked 10 documents as Exhibits P.1 to P.10. Thereafter, the accused was examined under Section 313 of Cr.P.C., and he got himself examined as DW.1 and got marked 3 documents as Exhibits D.1 to D.3. After hearing the learned counsel appearing for the parties, the trial Court convicted the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter the 'Act' for short). Being aggrieved by the same, the petitioner/accused preferred the appeal and the same was also came to be dismissed.
5. It is the submission of the learned counsel for the petitioner/accused that the petitioner and respondent were not acquainted with each other and no transactions have been taken place between them. It is a fictitious transaction. It is submitted that the petitioner was working as a Manager in SBI Bank, Bengaluru at the time of alleged transaction, he has -5- been transferred to Chamarajanagar and there he was working as a Field Officer. He came to know about the misusing of cheque by the complainant only when warrant has been issued as against him on 26.11.2011. It is his further submission that he used to permanently reside in Chamarajanagar and there was no transaction taken place on 26.06.2011. It is further submitted that the cheque leaf which has been used as Exhibit P.1 is of the year 2006 but the said transaction taken place in the year 2011. It is further submitted that his brother and himself were having some difference of opinion and dispute and in collusion with him complainant has misused the cheque of the petitioner/accused. It is his further submission that no notice has been served as contemplated under Section 138 of the Act. In the absence of service of notice, the complaint itself is not maintainable. He further submitted that there is no corroborative evidence to substantiate the case of the complainant. It is further submitted that the -6- respondent/complainant was not having any source of income and he is not having capacity of lending money. He further submitted that in collusion with one more person another complaint was filed by misusing of cheque and in the said case accused has been acquitted. He further submitted that the Court below as well as first appellate Court, while looking into the material placed on record have a given a wrong conclusion. It is his further submission that signature found in Exhibit P.1 does not belongs to the petitioner. On these grounds, he prays to allow the petition and to set-aside the impugned order of the first appellate Court as well as trial Court.
6. Per contra, the learned counsel appearing for the respondent/complainant vehemently argued and submitted that the complainant got examined as PW.1 and in his evidence he has clearly deposed about the capacity to make payment of Rs.16 lakhs. He owns -7- agricultural property and the property has been sold and out of the said amount Rs.16 lakhs has been paid. She further submitted that 26.06.2011 falls on Sunday and as the petitioner/accused was working in Chamarajanagar and he has gone to the place of the complainant and there the transaction has taken place and the same fact has also been admitted during the course of cross-examination. She further submits that the cheque bears the signature of the accused and even the said fact has also been deposed by PW.2. In his evidence, he has stated that the said cheque has been signed in his presence by the accused and hand writing which has been found on Exhibit P.1 is written by him. She further submits that though it is contended by the petitioner/accused that the cheque leaves of the accused have been misused by the complainant but no action has been taken in this behalf. Even it is suggested during the course of the cross-examination of PW.1 that the said cheques have been forcefully taken -8- by Tilak Nagar police station in collusion with constable. No complaint or action has been taken for having forcefully taken the cheque from the accused. She further submits that subsequently at the time of the filing of written argument a final report of the handwriting was produced but that also not substantiate the case of the accused since the said report has not been obtained by the Court below. All these materials including the evidence of PW.2 clearly goes to show that there exists legally recoverable debt, there was transaction between the accused and the complainant and after taking the loan, he has issued the cheque as per Exhibit P.1. It is her further contention that though the income tax returns and other materials have been produced by the complainant, it does not falsify the case of the complainant. In order to substantiate the said contention, she relied upon the decision in the case of Bir Singh v. Mukesh Kumar reported in (2019) 4 SCC 197.
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7. She further submitted that it is well settled proposition of law enunciated by the Hon'ble Apex Court that when the accused admits the signature on the cheque, then the Court has to draw presumption under Section 139 of the Act. In the case of Rangappa Vs. Sri Mohan reported in (2010) 11 SCC 441, the Hon'ble Apex Court has observed that presumption mandated under Section 139 of the Act includes the presumption that there exists legally enforceable debt or liability. It is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence, wherein the existence of a legally enforceable debt or liability can be contested.
8. She further submitted that the first appellate Court as well as the trial Court after considering the evidence and material placed on record has rightly recorded the findings and come to a right conclusion. There are no good grounds to interfere with the
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judgment of the trial Court. On these grounds, she prays to dismiss the petition.
9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
10. Learned counsel on both the sides have taken me through the evidence of the trial Court and I have carefully and cautiously gone through the said records. It is the specific contention of the respondent- complainant that the petitioner/accused borrowed a sum of Rs.16 lakhs on 26.06.2011 and he has issued a post dated cheque for a sum of Rs.16 lakhs. It is the contention of the petitioner/accused that on the date of the transaction he was working in Chamarajanagar as a Field Officer and no such transaction has been taken place between the complainant and the accused and they were not familiar with each other.
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11. As could be seen from the evidence of PW.2 it clearly goes to show that in his evidence he has categorically deposed before the Court below that the said transaction has taken place in his presence and in his presence the accused has signed the said cheque at Ex.P1 and he has written on the said cheque, the date and other details as per the instruction of the accused. This aspect has been elicited during the course of cross- examination by the accused and the said evidence has not been rebutted by the accused by further cross- examination so as to discard the said evidence, which has been brought by him.
12. Be that as it may. When the petitioner/accused has contended that the said cheques are of the year 2006 and as there were some dispute between himself and his brother Arun Kumar he obtained some cheques from him during the year 2006 and the said cheque is one of such cheques which has
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been taken up by Arun Kumar. If the said cheque has been taken without the knowledge of the petitioner/accused, then under such circumstances, immediately after coming to know the fact that the said cheque has been misused by the complainant, the accused/petitioner has not taken any steps. But however, during the course of arguments, learned counsel for the petitioner/accused submitted that in the year 2013, he has filed the complaint, in his arguments itself he contended that he came to know about filing of the case only on 26.11.2011 when once warrant has been issued against him, when he has been brought to the Court on 26.11.2011. Then under such circumstances, on that date itself he was knowing that on the basis of the cheque, a case has been registered against him. If really, the contention of the accused is that the said cheque has been issued to Arun Kumar and if complainant has taken the said cheques, then under such circumstances, definitely, he would have
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taken action forthwith as against his brother Arun Kumar and the complainant. If the complaint is filed after two years that itself goes to show that it is only with an intention of overcoming the liability in this case such a complaint was filed. a false complaint has been registered. Even it is submitted that during the course of arguments that in the said complaint, a 'B report' has been submitted and the learned Magistrate has also accepted the said 'B report'. Learned counsel for the petitioner/accused submitted that he has challenged the said order before the learned District and Sessions Judge. On going through the said circumstances, it clearly goes to show that the petitioner/accused was not diligent in taking action and it is after thought complaint. When admittedly, the petitioner/accused is working as a Bank Manager that too in State Bank of India and if the cheque has been misplaced or misused by his brother then under such circumstances, definitely, he would have given application or complaint
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to the concerned bank intimating that the said cheques have been taken away by his brother and the same should not be honoured. After filing the complaint to the concerned police, he would have taken steps regarding the said cheques. Being the bank manager if he has not taken any steps that itself creates doubt on the contention taken up by the petitioner/accused. It is well known fact that if the counsel or the banker or the doctor if they commit mistakes, there will not be any excuse. Keeping in view the above said facts and circumstances and all the contentions taken up by the learned counsel for the petitioner/accused that the said cheque has been misused and signature has been forged is not acceptable.
13. Be that as it may. If the signature is forged in collusion with PW.2, then under such circumstances, definitely, the accused would have filed an application before the Court below by sending the same to FSL to
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verify the signature found on the cheques and admitted signature. Such exercise has also not been done by the petitioner/accused. During the course of arguments it is contended that the said certified copy of the cheque has been sent to the Truth Lab and report has been obtained. But the said report cannot be looked into only because of the reason that the original cheque has been kept in the court itself. The Xerox copy has been sent to the Truth lab and on the basis of the Xerox copy, if the report has been obtained by accused without there being any order of the Court, then the same cannot be looked into as a valid and acceptable report. In that light also the contention taken up by the learned counsel for the petitioner is not acceptable. When once the complainant proves by the evidence of PW.2 and other material that the cheques which have been issued bears the signature of the accused, then under such circumstances, it raises a presumption mandated under Section 139 of the Act including the presumption that
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there exists legally enforceable debt or liability. It is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence, wherein the existence of a legally enforceable debt or liability can be contested. This proposition of law has been laid down in the case of Rangappa (Cited supra) wherein at paragraph 16, which has been observed as under:-
"16. All of these circumstances led the High Court to conclude that the accused had not raised a probable defence to rebut the statutory presumption. It was held that:
"6. Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption.
What is required to be established by the accused in order to rebut the presumption is
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different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court.
The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered. ..."
Hence, the High Court concluded that the alleged discrepancies on part of the complainant which had been noted by the trial court were not material since the accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act. Accordingly, the High Court recorded a finding of conviction.
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14. On going through the said paragraph, it clearly goes to show that there must be a cogent and acceptable evidence in rebutting the said presumption, then under such circumstances, the Court can accept the said evidence. Even in the case of Bir Sing quoted supra at paragraphs 18, 20 and 24, it has been observed as under:
18. In passing the impugned judgment and order dated 21-11-2017 [Mukesh Kumar v. Bir Singh, 2017 SCC OnLine P&H 5352] , the High Court misconstrued Section 139 of the Negotiable Instruments Act, which mandates that unless the contrary is proved, it is to be presumed 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. Needless to mention that the presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque.
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20. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact as held in Hiten P. Dalal [Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 : 2001 SCC (Cri) 960] .
24. In K.N. Beena v. Muniyappan [K.N. Beena v. Muniyappan, (2001) 8 SCC 458 : 2002 SCC (Cri) 14] , this Court held that in view of the provisions of Section 139 of the Negotiable Instruments Act read with Section 118 thereof, the Court had to presume that the cheque had been issued for discharging a debt or liability. The said presumption was rebuttable and could be rebutted by the accused by proving the
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contrary. But mere denial or rebuttal by the accused was not enough. The accused had to prove by cogent evidence that there was no debt or liability. This Court clearly held that the High Court had erroneously set aside the conviction, by proceeding on the basis that denials/averments in the reply of the accused were sufficient to shift the burden of proof on the complainant to prove that the cheque had been issued for discharge of a debt or a liability. This was an entirely erroneous approach. The accused had to prove in the trial by leading cogent evidence that there was no debt or liability.
15. On close reading of the said paragraphs it has been observed that Section 139 of the Act mandates that unless the contrary is proved, it is to be presumed 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. It is a rebuttable presumption. However, the onus of proving that cheque was not issued in discharge of any debt or other liability is on the accused drawer of the cheque. If
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he fails, then the case of the complainant stands proved.
16. On close reading of the evidence of DW.1, who came to be examined before the Court below has taken inconsistent stands at one stretch, he has contended that the said cheques have been is of the year 2006 and the same have been taken by his brother Arun Kumar and the same have been misused in collusion with the complainant and at another stretch, he has contended that said cheques have been taken with force in the pressure of police in Thilak Nagar Police Station. Then under such circumstances, it can be safely held that only to overcome the liability, such a false contentions have been taken. Looking from any angle, the contentions taken up by the petitioner/accused do not have any force. The same are liable to be rejected.
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The petition is devoid of merits and the same is dismissed. No order as to cost.
In view of disposal of the main matter, I.A.Nos.1/2018 and 1/2019 do not survive for consideration. Accordingly, the same are disposed of.
Sd/-
JUDGE nms/NR