Karnataka High Court
Sri. N. Vasudevamurthy vs Smt. Anusuya on 23 September, 2019
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL REVISION PETITION No.1103/2019
BETWEEN:
Sri N.Vasudevamurthy
S/o late Narayanappa
Aged about 60 years
R/at No.140/A, "Rajashree",
10th Main, Rajamahal Vilas,
Bengaluru-560 080.
...Petitioner
(By Sri M.G.Srinivasa, Advocate)
AND:
Smt. Anusuya
D/o late Narayanappa
W/o K.N.Ramanna
Aged about 52 years
R/at No.143, 1st Cross
1st Stage, Kurubarahalli,
Shankaramata,
Bengaluru-560 086.
...Respondent
(By Sri K.Vijayakumar, Advocate)
This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C praying to set aside the order and
judgment dated 15.06.2019, passed by the Hon'ble LXV
Additional City Civil and Sessions Judge (CCH-66)
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Bengaluru in Criminal Appeal No.2158/2018, confirming
the judgment and order dated 27.09.2018, passed by the
Hon'ble VI Additional Small Causes Judge and XXXI
ACMM, (SCCH-2) at Bengaluru in C.C.No.18849/2017
and etc.
This Criminal Revision Petition coming on for
Admission, this day the Court made the following:-
ORDER
This petition has been filed by the petitioner/accused challenging the judgment passed by LXV Additional City Civil and Sessions Judge, Bengaluru, in Criminal Appeal No.2158/2018 dated 15.6.2019, whereunder the judgment of conviction and order of sentence passed by VI Additional Small Causes Judge and XXXI Additional Chief Metropolitan Magistrate Court, Bengaluru, in C.C.No.18849/2017 dated 27.9.2018 was confirmed.
2. I have heard the learned counsel for the petitioner/accused and the learned counsel for the respondent/complainant.
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3. Though this case is listed for admission, with the consent of the learned counsels appearing for the parties, the same is taken up for final disposal.
4. It is the case of the complainant before the Court below that she filed a suit for partition against the accused in respect of the joint family properties in O.S.No.551/2011. The same came to be compromised on 21.11.2015. In the said compromise accused agreed to pay a sum of Rs.1 Crore towards her share in the joint family property within one year from the date of the compromise, but accused failed to pay the said amount and after repeated requests the accused issued post dated cheque bearing No.922204 dated 25.5.2017 for a sum of Rs.10,00,000/- drawn on Karnataka Bank, Rajajinagar Branch, Bengaluru. When the complainant presented the said cheque for encashment through her banker, the same was returned with a shara 'payment stopped by drawer' on 03.6.2017. Thereafter, complainant got issued legal notice on 10.6.2017 for making the payment. On being service of -4- notice, the accused failed to pay the amount under the cheque and as such the complaint was registered. Thereafter, the learned Magistrate took the cognizance, secured the presence of the accused and after hearing, the plea was recorded. The accused pleaded not guilty, he claims to be tried and as such the trial was fixed.
5. In order to prove the case of the complainant, complainant got examined herself as PW1 and got marked Exs.P1 to P6. Thereafter accused was examined under Section 313 Cr.P.C. He denied the same and he has not stepped into the witness box and has neither led any defence evidence nor got marked any documents. After hearing the learned counsel appearing for the parties the trial Court convicted the accused. Challenging the same, accused preferred an appeal before the learned District Judge. The learned District Judge dismissed the appeal by confirming the trial Court's order. Challenging the legality and correctness of the orders of the Courts below, the petitioner/accused is before this Court. -5-
6. It is the submission of the learned counsel for the petitioner/accused that the trial Court as well as the first appellate Court without looking into the facts and law have came to a wrong conclusion and have wrongly convicted the accused. The said order is perverse and illegal, contrary to evidence on record. It is his further submission that the trial Court has passed the impugned order only on assumptions and presumptions. He further submitted that the said compromise has been entered into in the year 2015 and he has disputed the signature on the cheque Ex.P1. He further submitted that some cases have also been filed and the total amount involved in the said cases is Rs.80 Lakhs. For Rs.80 Lakhs, cheques have been issued, that itself clearly goes to show that some amount has been already been paid to the respondent/complainant. It is his further submission that how much amount has to be paid has not been specifically stated in this particular record. He further submitted that the said complaint is not valid and it has not proved in -6- accordance with law. It is his further submission that there is no liability whatsoever towards the respondent/complainant, the handwriting over the cheque in question does not belongs to the petitioner/accused. Under such circumstances, the trial Court ought to have set aside the impugned order of the trial Court. On these grounds he prayed to allow the petition and to set aside the impugned order.
7. Per contra, the learned counsel appearing on behalf of the respondent/complainant vehemently argued and submitted that the petitioner/accused is none other than the brother of the complainant. It is not in dispute that a civil case in O.S.No.551/2011 has been filed and the same has been compromised as per Ex.P6 and in the said compromise accused agreed to pay a sum of Rs.1 Crore and in pursuance of the said compromise he has issued 5 cheques and when the said cheques have been presented, the same have been returned with shara 'payment stopped' and after service of notice also he has not paid any -7- amount. He further submitted that the trial Court as well as the first appellate Court after analyzing the evidence and material placed on record have rightly convicted the accused. The present revision petition has been filed against the concurrent order of the Courts below, the only remedy left open to the petitioner/accused is that he has to say only jurisdictional bar or error of law to entertain the present petition. In the absence of any such material, the revision petition has to be dismissed.
8. In order to substantiate the said contention he relied upon the decision in the case of BIR SINGH Vs. MUKESH KUMAR reported in (2019) 4 SCC 197. He further submitted that the accused has also admitted the issuance of the cheque in question. When he admits, then under such circumstances the presumption under Section 139 of the Negotiable Instruments Act has to be raised and it is for the accused to rebut the said presumption on preponderance of probabilities. The petitioner/accused has not stepped into the witness box to rebut the said -8- presumption. When he fails to rebut the said presumption, then the accused is liable to be convicted. On these grounds he prayed 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 certified copies of the deposition and exhibited documents made available by the learned counsel for the respondent/complainant.
10. It is the specific case of the complainant that when civil dispute was pending between the parties and the same has been compromised as per Ex.P6 and accused has agreed to pay a sum of Rs.1 Crore and when repeatedly the complainant requested for payment, the accused has issued the post dated cheques. Though it is contended by the learned counsel for the petitioner/accused that he has given endorsement for stop payment and even though after issuance of a cheque if he gives any instructions to stop payment, then under such circumstances the provisions of -9- Section 138 of the Negotiable Instruments Act are attracted and in that light accused cannot contend that he has issued the instructions to the banker for stop payment and as such petition is liable to be dismissed.
11. As could be seen from the evidence of PW1, she has reiterated what has been stated in the complaint. During the course of cross-examination it has been elicited from the mouth of this witness before the Court to the effect that the handwriting on Ex.P1 is not known in whose writing it is there and she has volunteered that the said cheque has been issued by the accused and it has been suggested that when the accused used to visit the house of the accused, at that time the said cheques have been taken and the same have been misused.
12. Though it is contended by the learned counsel for the petitioner/accused that he has disputed the signature, the suggestions which has been made during the course of cross-examination indicates that the said cheque bears the
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signature of the accused and it belongs to the accounts of the accused. At one stretch he has taken up the contention that he has given instructions to the banker for 'stop payment' and at another stretch he has disputed the signature. But however, he has taken up the contention that the said cheques have been taken by the complainant when she used to visit the house of the accused. When the signature on the cheque has been admitted and it belongs to the accounts of the accused, then under such circumstances Section 139 of the N.I. Act raises a presumption of law that cheque which has been duly drawn was given in discharge of debt or liability and the burden shifts upon the accused to rebut the said presumption on preponderance of probabilities either by adducing cogent evidence to the contrary or during the course of cross-examination it can be rebutted.
13. Admittedly the accused has not stepped into the witness box and he has not led any evidence. During the course of cross-examination he has tried to take up the
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various defence, but he has taken up inconsistent stand without there being any proof of the said material. At one stretch he disputes the signature and on another stretch he has contended that when the complainant used to visit his house, the said cheque has been taken and misused. That itself goes to show that accused only with an intention to drag on the proceedings has taken up a false contention. When he fails to rebut the said presumption drawn under Section 139 of the N.I. Act, then under such circumstances the case of the complainant stands proved and accused is liable to be convicted.
14. This proposition of law has been laid down by the Hon'ble Apex Court in the case Bir Singh Vs. Mukesh Kumar 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
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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.
19. xxxxxxx
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
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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] .
21. xxxxxx xxxxxx xxxxxx
22. xxxxxx xxxxxx xxxxxx
23. xxxxxx xxxxxx xxxxxx
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 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
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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. Keeping in view the said facts and circumstances, I am of the considered opinion that though the petitioner/accused has taken up several contentions but none of the contentions are supported with cogent and acceptable evidence. I am conscious of the fact that this Court while exercising the revisional powers has to look into the jurisdictional error of law, but however, in order to meet the ends of justice, this Court has scrutinized the evidence and has come to the conclusion that there is no jurisdictional error or error of law while passing the impugned order as held in the decision quoted supra. In
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that light various contentions raised by petitioner/accused do not have any force.
16. During the course of argument the learned counsel for the respondent submitted that already the entire fine amount has been deposited by the petitioner/accused. However, it is submitted by the learned counsel for the petitioner/accused that the said amount has been deposited under inevitable circumstances and warrant has been issued. It is very difficult for this Court to accept the same.
17. Looking from any angle, the petitioner has not made out any good grounds so as to interfere with the judgment of the Courts below. The petition is devoid of merits and it is accordingly dismissed.
IA No.1/2019 does not survive for consideration and the same is disposed.
Sd/-
JUDGE *AP/-