Karnataka High Court
Umadevi Kumar vs Goverdhan Dass on 10 December, 2010
Equivalent citations: 2012 ACD 294 (KAR), 2012 (1) AIR KAR R 739 (2011) 3 ALLCRILR 135, (2011) 3 ALLCRILR 135
Author: N.Ananda
Bench: N.Ananda
_. 1 an
IN THE HEGH COURT op" KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF DEcEMB13:Ii2o'_1ek?:;~ ~
BEFORE A A" 2
THE HONBLE MR.JUs"fiCE ~N.ANz24z\itjA__
CRIMINAL NQ.9'Q1/2004 " . 2
BE'I'WEEN: A. ' " .
Smt.UInadevi Kurnar
W/o Sri.Keshava Kumar
Aged about 40 Years J
No.284, 3431 Cross, 93* Main _ ,
4th Block, Jayanagar, Barigaiore. E } A ...APPELLANT
[By Sri.K.Raghavendra, AdVovcat'Ve'fo'r Sri.Cv.V~..Nagesh, Sr.
Advocate} r 7 "
AND: H
Sri.Goverdhan«.Dass'_V__ '
S/0 ;£{.K.Dassg.. 4 _
Aged';91§c=ut 44'yea.rst _ -. ' '
No.124., 2021 Cross .:_K_.R;Layo:.;t
Bib Phase, J;~P.Na*gaf,.Ban'galore W 560 078.
Presently V' "
N(;j.78,_.19th Mainf 2011 Cross
S.fv'[.S,_La3(out, 5fi'rP1.1.as'e, J .P.Nagar
.Banga1ore?--.560 078. ...RESPONDENT
' {By E-3-1_I1t;Ncthravathi.K, Advocate for K. Giridhar 8: P.V.Vasudevan
Ass_oeta'Les'; .Ak.ivocates)
V'.I'}'1is:'.y.ai3peal is flied under section 378(4) Cr.P.C., to set
aside "---the' judgment dated 29.05.2004 passed by the XX
Additvionai City Civil} and Sessions Judge at Bangalore in
A. VC_r1.A.VNo.671/2003 and restore the judgment dated 04.11.2003
passed by the XV} Additional Chief Metropoiitan Magistrate,
A Bangalore City in C.C.No.3-4945/2001.
This appeal coming on for finai hearing this day, the Court
A delivered the following:
discharged, the
M2
JUDGMENT
The appellant was the comp.lai11_"' .;.V in C.C.No.34945/2001 initiated for an undersecfion 138 oftheINegouabh:insUinnenE§AcLsL881 [for short, 'the Act}, alleging-y_that Viieslponde1'1t,{accuse;d'had'; drawn a cheque favouringui"eoinplainanti for 19321 sum of Rs.70,000/-- to discharge'_Vl legal--lylrecoverable debt; on presentation, cheque statutory notice caused by the 'r';VQmplé._inantxto'"acciis~e.d.Was refused.
2. Then not disputing signature on the chequesyghad cor;-tended "that the complainant A frequently visiting his ..house must have stolen blank signed cheque 'i it - g V f'rom3--th.e "housed of "accused. The accused also contended that he had borrowed a sum of Rs.70,000/-- from by pledging his L.i.C. Policy as a collateral security; during the month of October 1999, he settled it V._entire loan amount with interest. After entire loan was complainant demanded a sum of Rs.20,000/-- as penal interest. When the accused refused to I\.7< 5/'~"'-"'"
& '\1
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pay, complainant has used stolen cheque.«....to:i.':
complaint before trial Court. The accusedi__ha.s. receipt of statutory notice. The accuse'd he had shifted his residence froIn__"house 20th Cross, K.R.Layout, J 6*}; to "house bearing No.78; .l9ih Main,"'S.M§.S.Layout, 5th Phase, J .P.Nagar,
3. The ;Ti11dgt€.:_4'oii'.j/'app;-eciation of evidence has disbelieved that complainant had stole::ii"the'_' The learned trial Judge has also of accused that he had paid entire loan" which he had borrowed from the co1npl:ai.nant. """ 'learned trial Judge has held that caused statutory notice and accused avoided of notice, therefore there is deemed service of The learned trial Judge convicted accused. The accused challenged the judgment of conviction in Criminal 'Appea1No.671/2003. ,r\,_
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4. The learned Judge of {appellate Court reversed the judgment of conviction by holding that there was of notice on accused; therefore, there was no cause.V'o--£_l:action for the complainant to initiate complaint. ' of Lappellate Court has found Judge, by holding that posta1_cover--~niarked , an endorsement "left the and iziraslnolldeemedl service of notice. The ~-Ifappellate Court has relied on the admission' th.fe:vlbl__c.omplainant that aCCU.S€d"'h.7:.jl.li-ileffiihis p«revious"house about one year prior to the date 4' of " 'complainant before the trial Court. of Lappellate Court has referred to'-tthell'provisions______of General Clauses Act, which is not » :relpevant.pte,_fac_ts and circumstance of the case. The learned Court holding that there is no proper selfzicelgprextersed the judgment of conviction and acquitted C 'aecpusveld. The learned Judge of {appellate "Court did not C"-bother to answer other points, which were considered and W ' f _ 5 _ decided by the learned trial Judge. Ther'e1'o.r"e.,Vp'""..the Complainant has filed this appeal.
5. I have heard Sri Raghavendra;K,, l'ea1fI1e0c:3I.f70r ' 1. the complainant and Miss NethraVathi,'llearr1ed_couf1s.elV'lfor accused and I have bee--na"'1~.t_hr0ti'gh v:1;¢v~.ev:'¢1e11cLe judgments of the Courts below...'
6. The statutory notice s'ent--»fpo__'.Vaccused under a registered The same was returned. postal envelope and ackr1ow'ledgrner1t..§1vas'lVinarlged as EX.P.6.
7. As'=«coul.dlbeA'see13:~'b0'fr0rn the contents of Ex.P.6, notice E ton 'tile-...respor1dent/accused namely Goverdhan ' .l'DapAs--,__res;id1f1g_at N0.124, K.R.Layout, 20*" Cross, 6th Phase, " . l}§3angal0re--78.
8; V-._"Z\s 'could be seen from postal endorsement, concerned . Vpostfnan had visited address of respondent on 07.06.2001, "f"»06".06.2001, 09.06.2001, 11.06.2001 and 12.06.2001, on which day he had made an endorsementmiVffiécfpithe intimation". If addressee had left addressp,""'thev postman would not have made a'riAAendorsem;eritV:' b T visited address of respondent 3,, 09.06.2001, 11.06.2001 it i'2.i0.0'.2o0f0ivsihéreforé; ' observation of learned Jizdgehii'oifiljappellateV-tlourt that concerned postman as "left the address" is erroneougsiidddd V V d d
9. It diiririgmcross--examination on aaccused was not residing in the preyious vacated previous house about one yeadrvpanordpto The accused might have vacated house on"O6_.__Q6..v2001. The learned Judge of Lappeiiate ' 'reiying___on this admission has heid that complainant H '-- Addbeiné of shifting of residence by accused had deiiberatedlvy sent notice to earlier address of accused. As " already stated, complainant was examined on 14.11.2002. complainant has deposed that accused had Vacated his 'T house in occupation about one year prior to 14.11.2002, !\?.=--~:+Q~'0'w~<L, _ 7 _ which relates to 14.11.2001. Therefore, date Vacating his earlier house relates to a statutory notice was sent on O6..G6'.2.OO1.'_:a1r.eadyA_statedl 2 j 2' the concerned postman had Visited 07.06.2001, 08.06.2001,"'._Vo*a..V_0s.l2'o<i_i,. 12.06.2001. The learned 1w«appe'll'ate_AAC"o:L1rt Without properly reading postal endorsement has recorded it
10. purporting to be exe(:::uted2_'by*.fh1's respect of house bearing No.78, 199* 'Cross, Chengama Raja Garden, J.P.Nagar"V.fPl1ase, .Bangalore«~56O 078. This lease deed Was A (;"x.ect1'ted"l*on 20.20'4'.'2001. The lease deed is written on a half The contents of lease deed do not inspire 'c_onfid.e.nce..'2The person mentioned as landlord was not examined before the trial Court. Even if contents of lease 3" , ideed are accepted on their face value, we do not find date of delivery of premises to accused either on 20.04.2001 or on a subsequent date. f\; _ 0,_ L ' 8 V
11. At this juncture, it is relevant to state thattoauccused had relied on Ex.D.2. The accused has not had taken delivery of possession of premises. hp The accused was examined on T contended that he vacated: his e;u1_i§r house. "afig1'ta:"it¢r_ execution of alleged lease Thettaccused has not produced that he had left his previous In the normal course, if a were to shiftf'huismresidence, he has to necessarily' samewto domestic gas supplier, telephone intimate postal department rega.rdingfl°chVa11ge of postal address. The accused has not p pro'dt1'eedi~a scrap"'o"f paper to prove that he had shifted his 20.04.2001. The lease deed as per Ex.D.2 is a T 'ooncoctedidocument. The Courts below have disbelieved the doctzment marked as E3x.D.2.
12;: Thus from the above, it is clear that statutory notice as per E3x.P.7 was sent to correct address of affugsed. The r' I 3'\_?, (x " C5"-"""£;\, accused was not available at the time of of registered post. The postman had Visitedfthe-A.hou'seV_$_"of" respondent on 07.06.2001, ..0a..0e.2001i_,d7--02.'0e'.120o..1,V' 11.06.2001 and 12.00.2001, o£~.,w€1:ich intimation, which is c1ear__.fr.om end0rse1nei1t""'made in Ex.P.6. As already stated, d.udge_of,ii~appeilate Court has misread in the copy of LIC policy heldhy aceushedr, 13.3.0.1, address of accused is Cross, K.R.Layout, 6"' Phase, Therefore, finding of learned of_ Court that there was no proper servicedcféd accepted. The notice sent to accused was returned, as it was not claimed by accused. ' 9' _ in avvhclecisioriddredported in 1999 (8) Supreme 608 (in the case' ..of«...huK.i3h.a.skaran Vs. Sankaran Vaidhyan Balan & aiaother}, tlfieA9SupreIr1e Court has he1d:~ "On the part of the payee he has to make a it demand by "giving a notice" in writing. If that A was the only requirement to complete the offence on the failure of the drawer to pay the (V. c que . /I A. fix 'L~.£: ,1 1, All! 10 _u amount within 15 days from the date "giVing". the travails of the proseculéiicil . have been very much lessened...-.V.Al_jBu?[~l,/Qthe b legislature says that failure on.1;_he'_ of drawer to pay the amount'ishr_)'u1d days "Of the receipt' of the'-said' V therefore, clear that notice". the context is not the sameyyas retceipt"of"notice.« is a process of whichilllreceihpig,is accomplishment. It is for the payeevihto. p'¢rn$_n~ii'tijefiprmer process by the iiéiice. l:to:."'tl.1..¢:.fldrawer in the co: __ t it
14. NpouiilaClVerting.to~.t_he defence of accused, I find that accused has ta_1{enA'irico__n"sistent and contradictory stands.
15.~ . in éi' decisionlreported in AIR 2010 so 1898 (in the l V. = p V ciasvs:/jf Rangappd"u.lMohan). the Supreme Court has held:--
V " fllie presumption mandated by 3139 of does indeed include the existence of "leg'ally enforceable debt or liability. This 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 t '~._&\.k"C}.\_' f\.7. CL' W 11 --.
constested. However there can be no doubt;_ that there is an initial presumption...vv'h.ichf favours the complainant. S. 139 of "
example of a reverse onus clause that included in furtherance objective of improving credibility'. negotiable instruments' 2 While of the Act specifies a strong criminall_reme};:1y in relation to disshoQnotu_* for'. cheduesv, the rebuttable presdumpptioniutndier-V:f_Section 139 is a device prevent*undue._d_elayf the course of litiga{tiorQ»' 'Elovvevgver, it .mU's'i:----~'.:>e remembered punishable by S. 138 can be 'better'described--__as a regulatory offence since the bouncing of'c'heques is largely in nature of a c'ivilV'wrong'*wh~ose impact is usually confined Vito the "private parties involved in commercial .t1*ans.actions. In such a scenario, the test of :::"»proportj.onality should guide the construction arid interpretation of reverse onus clauses and accused/ defendant cannot be expected to . discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping N' \___£L<1 _12 , this in view, it is a settled position that when accused has to rebut the presumption'.under: *' Section 139, the standard of proof is that of 'preponderancell of g_11srobabi'1it_ieg§fl Therefore, if the accused"gis?'_A_Aablle probable defence which creates the existence of a enfor'ce_able-I debtmor liability, the prosecution--.c_anl'fail. 'l'he=acc:used can rely on the[materials""-svbrliaiitted by the complainant in__order ipraiselvsiiiclii a defence and it'i:s__i'_conceiv;ib1e cases the accused adduce evidence of his/11.1e'r . «.
the 1 accused has disputed that cheque 'r1O.t_iV-ssued' discharge legally recoverable debt. to 'accused, he had borrowed a sum of '.V."Rs.g7*'@,,oQo,/:41rrom the complainant on 06.11.1996 by "11.1.C.Po1icy as a collateral security and he was demanded to pay interest at 5% per month. In his evidence it it 'byway of affidavit, DWI has stated that he had settled entire loan amount during the month of October 1999 and 9 obtained an acknowledgment dated 06. 11.1996, duly signed !'\'?. L4'/\~ '14- .
,13 , by the complainant. This document was neither confronted to complainant nor it bears date on which was discharged. On the other hand, Ex.D.1 gives that on 06.11.1996, accused had pledged_his_u_L..l.VC,:'Policy"tol secure loan of Rs.70,000/--. soecalled at ' E3x.D.l. does not relate, to tranlsactionflbetwee}>l.,a¢hep complainant and accused.l'V'T:he. endorsefneiit 'reads "this policy is with SLMCB_&_ Cooperative Bank) from 27.10.1999;"-1Thlev'velndo:sefienti.made on EX.D.1, does.»"n'ot any''- 'meaning. Above all, L.I.C.Policy 0btE1Vi'K1€d:OI"1 cannot be secured to raise loan. L.l'.C:bPolicy".'obtained by a person is not a transferable scizuritv. Therefore, accused has miserabl failed to rove _ _ __3 pg .. ..... _. Y P » ;'pl.ea o_f'd1scha_rge.
2 1v':3,r ._second version of accused that complainant had stcl.eri-Viacheque from the house of accused is ridiculous. b 'A The accused has not made it clear as to why he had left signed blank cheque in his house. The accused does not "give date on which he noticed theft of his slgned blank A, 14 _ cheque. The accused has no case that contents of cheque were filled up by the complainant. 'Iherefore.vp.th:fleo.ry of complainant stealing blank signed cheque of accused and thereafter filling up conteiitslvjfqopfp presentation and making use' ' complaint is totally absurd. defence». accused is hardly sufficient ayailable to complainant under ~.s_ectionM1 ofthe Act'.H° 17'. From the above discu'ssion,__._it~.i's_clear that accused had Viu1'itvenablefdefenceto a\foid-- consequences of dishonour of Cfh.eq'~._1'e.' accused had short--lived success before Iuiap-pellate this juncture, it is necessary to reiterate that""short¢.lived success of accused was due to .A ymiscofncpepition of facts by the learned Judge of I--appe1late 2 I hold that complainant has proved that accused "has drawn disputed cheque in favour of hi ~ complainant to discharge legally recoverable debt. On '"._Vp'resentatior1, cheque was dishonoured. The complainant "had caused statutory notice to the address in which 5 R?' ///L..~__ f\/'__.».,_ w