Karnataka High Court
H S Suresh vs S Panchakshari on 21 June, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.1155 OF 2012
BETWEEN:
H.S. SURESH,
S/O SOMBEGOWDA,
AGED ABOUT 31 YEARS,
R/A TAVAREKERE VILLAGE,
KASABA HOBLI,
THOREMAVINHALLI POST,
TURUVEKERE TALUK,
TUMKUR DISTRICT-572227. .. PETITIONER
(BY SRI.K.A. CHANDRASHEKARA, ADVOCATE)
AND:
S. PANCHAKSHARI,
S/O SHIVAPPA,
AGED ABOUT 43 YEARS,
R/A P.H.C. QUARTERS,
TURUVEKERE TOWN,
TUMKUR DISTRICT-572227. .. RESPONDENT
(BY SRI.M.B. CHANDRA CHOODA, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C BY THE ADVOCATE FOR THE
PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO CALL FOR THE ENTIRE RECORDS AND SET ASIDE
THE ORDER DATED 11TH SEPTEMBER 2012 IN CRIMINAL
APPEAL NO.48/2011, PASSED BY THE FAST TRACK AT TIPTUR,
(CONFIRMING THE JUDGMENT AND SENTENCE PASSED BY THE
Crl.R.P.No.1155/2012
2
CIVIL JUDGE & JMFC TURUVEKERE, IN C.C.NO.378/2009
DATED 18/5/2011 BY ALLOWING THIS CRIMINAL REVISION
PETITION IN THE INTEREST OF JUSTICE.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD THROUGH PHYSICAL HEARING/VIDEO CONFERENCING
HEARING AND RESERVED ON 09.06.2022 AND COMING ON
FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
The petitioner has challenged in this revision petition, the confirmation of his conviction for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as "the N.I. Act").
2. The respondent in this revision petition is the complainant in C.C.No.378/2009 filed in the Court of the learned Civil Judge and J.M.F.C, Turuvekere (hereinafter for brevity referred to as "the Trial Court") against the present petitioner (accused) alleging the offence punishable under Section 138 of the N.I. Act.
3. The summary of the case of the complainant in the Trial Court was that on 6.6.2008, accused has Crl.R.P.No.1155/2012 3 borrowed a sum of `50,000/- from him for the purpose of purchase of Maruti Omni Van and had agreed to return the said amount within six months. When the complainant demanded the accused for the return of the loan amount, the accused issued him a cheque bearing No.338349 dated 3.1.2009, drawn on State Bank of Mysore, Turuvekere branch, for a sum of `50,000/- in favour of the complainant. On the same day, complainant presented the cheque for its realization, however, it returned unpaid with the banker's endorsement of ""funds insufficient" in the account of the drawer. The complainant thereafter got issued a legal notice to the accused demanding the payment of the cheque amount. Since the accused failed to make payment of the cheque amount, the complainant was constrained to file a criminal case against him in C.C.No.378/2009 in the Court of the Civil Judge and JMFC, Turuvekere for the offence punishable under Section 138 of the N.I.Act.
Crl.R.P.No.1155/20124
4. The accused appeared in the Trial Court and contested the matter through his counsel. He pleaded not guilty and claimed to be tried. Accordingly, the Trial Court by its judgment dated 18.05.2011, held the accused guilty for the alleged offence punishable under Section 138 of the N.I. Act and convicted him for the said offence and sentenced him accordingly.
5. Aggrieved by the said judgment of conviction passed by the Trial Court in C.C.No.378/2009, the petitioner preferred a Criminal Appeal No.48/2011 in the Court of the Fast Track at Tiptur, (hereinafter for brevity referred to as "the Sessions Judge's Court).
6. After hearing both side, the learned Sessions Judge's Court, by judgment dated 11.09.2012, dismissed the appeal and confirmed the impugned judgment passed by the Trial Court. Aggrieved by the same, the petitioner has preferred this revision petition.
Crl.R.P.No.1155/20125
7. The Trial Court and Sessions Judge's Court's records were called for and the same are placed before this Court.
8. The learned counsel for the petitioner and learned counsel for the respondent are physically present in the Court.
9. Heard the arguments from both side. Perused the materials placed before this Court including the Trial Court and Sessions Judge's Court's records.
10. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.
11. After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is:
Whether the judgment under revision is
perverse, illegal and erroneous, warranting
interference at the hands of this Court?
Crl.R.P.No.1155/2012
6
12. The complainant who got himself examined as PW1 in his examination-in-chief in the form of affidavit evidence, has reiterated the contentions taken up by him in his complaint. In support of his contention, he got produced and marked the returned dishonored cheque at Ex.P-1, bankers endorsement for returning the cheque at Ex.P-2, counterfoil at Ex.P-3, another bankers endorsement at Ex.P-4, copy of the legal notice at Ex.P-5, postal receipt at Ex.P-6, acknowledgement card at Ex.P-7, Certificate of Posting at Ex.P-8 and the complaint filed by him under Section 200 of Cr.P.C. at Ex.P-9. The complainant got examined one Sri.Athik Chandra Rao - the Deputy Manager of State Bank of Mysuru at Turuvekere branch as PW2, who in his evidence has stated that the cheque at Ex.P-1 was issued by their bank to the accused and when presented for realization by the complainant, the same has returned for the reason of ""funds insufficient"" in the account of the drawer.
The accused got himself examined as DW1 and got examined one Sri.Kantharaju, one
Sri.Mahalinga and Sri.Aslamsab as DW2, DW3 and DW4 Crl.R.P.No.1155/2012 7 respectively. No documents were marked as exhibits from the accused side. The accused both in the cross- examination of PW1 and in his evidence as DW1, has taken a contention that at no point of time, he had availed any loan of `50,000/- from the complainant, however, on 6.10.2008, he had taken a loan of `20,000/- from the complainant, at which time, the complainant had collected three blank but duly signed cheques from him as security. Even though the said loan amount of `20,000/- was repaid to the complainant on 20.12.2008, however, the complainant did not return the cheques collected by him as security on the pretext that those cheques are in his house at Tumakuru and that he would get them back within a week. However, he failed to return those cheques. On the other hand, he misused one among those cheques by presenting to the bank, which cheque is the subject matter of the present case. However, PW1 did not admit those suggestions made to him in his cross-examination, as true. Further, he made denial suggestions to DW1 in his cross-examination.
Crl.R.P.No.1155/20128
13. In the light of the above, it was the argument of the learned counsel for the petitioner/accused that the alleged loan of `50,000/- said to have been given by the complainant to the accused has not been proved by him. The evidence of the accused and the cross-examination of PW1 creates a serious doubt in the existence of alleged legally enforceable debt. However, both the Trial Court as well as the Sessions Judge's Court did not notice the said fact but in a mechanical manner, have held that the complainant has proved the alleged guilt against the accused, as such, those two impugned judgments warrants interference at the hands of this court.
14. Learned counsel for the respondent/complainant in his arguments submitted that the accused has not denied taking a loan of `50,000/-. No suggestion was made to PW1 in that regard. He also submitted that the accused did not reply to the legal notice taking his defence at the earliest point of time. Thus, the defence of the accused is purely an after-thought. He also submitted the Crl.R.P.No.1155/2012 9 statement about Sri.Aslamsab that at his recommendation, the complainant has filed the present complaint which has come in the cross-examination of PW1, is a typographical error. With this, he submitted that both impugned judgments under revision do not warrant any interference in them.
15. From the analysis of the evidence of both side, the undisputed fact remains that complainant and the accused were known to each other and that the cheque at Ex.P-1 was drawn by the accused. It is also not in dispute that the said cheque shown to have been drawn in the name of the complainant was presented for its realization by the complainant through his banker but the same came to be returned unpaid with the banker's shara "funds insufficient" in the account of the drawer. It is also not specifically denied that after the return of the cheque at Ex.P-1, the complainant got issued a legal notice to the accused as per Ex.P-5 demanding from him the cheque amount, as could be seen from the postal receipt at Ex.P-6 Crl.R.P.No.1155/2012 10 and the postal acknowledgement card at Ex.P-7, the said notice was served to the addressee. However, the accused failed to repay the cheque amount to the complainant. A legal notice was also sent to the accused under Certificate of Posting, as could be seen in Ex.P-8. These facts form a presumption in favour of the complainant under Section 139 of the N.I.Act about the existence of a legally enforceable debt. However, the said presumption is rebuttable.
16. In order to rebut the presumption, the accused has taken a defence of non-existence of alleged legally enforceable debt of a sum of `50,000/- alleged to have been given by the complainant in his favour on 6.6.2008. On the other hand, he has taken a contention that he had availed a loan of only a sum of `20,000/- from the complainant on 6.10.2008, at that point of time, the accused had collected three blank duly signed cheques from him as a security. Even after the repayment of the said loan amount of `20,000/- to the complainant in Crl.R.P.No.1155/2012 11 December 2008, he did not return those three cheques but misused one among them in the present form.
17. The said defence of the accused was first taken in the cross-examination of PW1 in the form of several suggestions made to PW1 in that regard. However, PW1 did not admit those suggestions except stating that he knows three persons by name Sri.Aslamsab, Sri.Kantha and Sri.Mahalingappa. The witness specifically denied a suggestion that the accused had availed a loan of a sum of `20,000/- from him and in that regard as a security, three blank but duly signed cheques of State Bank of Mysore, Turuvekere branch, were given by the accused to him.
18. In his cross-examination as PW1, the complainant in order to show that the alleged transaction of a loan of `50,000/- from him to the accused is a fact, has stated that the accused has got the cheque in question written through Sri.Aslamsab on 3.1.2009 and it was the said Sri.Aslamsab who himself brought that cheque and gave it to him (PW1) and taken back Maruti Omni Van Crl.R.P.No.1155/2012 12 bearing registration No.KA 20-2789. He further stated that the complaint in question was given by him on the recommendation made by the said Sri.Aslamsab.
19. On the contrary, the said Sri.Aslamsab who was examined as DW4 from the accused side in his examination-in-chief, has categorically and specifically stated that on 3.1.2009, the accused has not got any cheques returned by him in favour of the complainant. He also stated that in his presence, Maruti Omni vehicle bearing registration No.KA 20-2789 was not taken back. He also stated that he has not stated to the complainant to lodge a complaint against the accused. These three very material and important statements made by none-else than Sri.Aslamsab about whom the complainant himself has stated in his evidence, has not been denied or disputed in the cross-examination of said Sri.Aslamsab (DW4). Therefore, the very contention of the complainant that the cheque in question was not only written by Sri.Aslamsab but also was brought and delivered to him through Crl.R.P.No.1155/2012 13 Sri.Aslamsab and that it was at the recommendation of Sri.Aslamsab, he has filed the present complaint against the accused, proves to be not true.
20. On the other hand, apart from the accused who got himself examined as DW1, the remaining three witnesses i.e., Sri.Kantharaju as DW2, Sri.Mahalinga as DW3 and Sri.Aslamsab as DW4 in their examination-in- chief, have specifically stated that the accused had availed a loan of only a sum of `20,000/- from the complainant in their presence and it was at that time, the complainant had collected three blank but duly signed cheques from the accused for the security purpose. These witnesses have also stated that it was in their presence only, the said loan amount was repaid to the complainant. However, the complainant did not return the three cheques collected by him as a security purpose on the pretext that those three cheques were at his home in Tumakuru and that he would get them within a week. However, all these three witnesses in their cross-examination have expressed their Crl.R.P.No.1155/2012 14 ignorance about the alleged loan transaction dated 6.6.2008 of a sum of `50,000/- between the complainant and the accused. Thus, according to DW1 to DW4, the three blank cheques were given to the complainant by the accused while he availed a loan of `20,000/-.
21. Even though DW2, DW3 and DW4 in their cross- examination have admitted as true that they were not aware of alleged loan transaction between the complainant and the accused dated 6.6.2008, however, by that itself, it cannot be concluded that the complainant has shown that there was any such loan transaction dated 6.6.2008 where under the accused availed a loan of `50,000/- from him. It is for the reason that throughout in his cross-examination, PW1 has contended that there was no loan transaction dated 6.10.2008 and that he had not given any loan on the said day much less of a sum of `20,000/- to the accused. If that is the contention of the complainant, then he has to show as to what happened to three blank signed cheques said to have been collected by him from the accused on Crl.R.P.No.1155/2012 15 the said date of 6.10.2008. Merely because PW1 denies the loan transaction dated 6.10.2008 and he receiving three blank cheques, by that itself, it cannot be held that there was no loan transaction dated 6.10.2008 and no blank cheques were given by the accused to the complainant. It is because apart from DW1, all the three remaining witnesses i.e., DW2, DW3 and DW4 admittedly acquainted with the complainant have stated uniformly that on the said day, three blank cheques of the State Bank of Mysore, Turuvekere branch and belonging to the account of accused, was given to complainant at his insistence. The said uniform evidence of DW2, DW3, DW4 cannot be disbelieved. Therefore, it is for the complainant to show as to what happened to those three cheques, since according to DW1, corroborated by the evidence of DW2, DW3 and DW4, the complainant is alleged to have misused the one among those three cheques in the form of the present complaint. The alleged loan transaction as canvassed by the complainant appears to be highly doubtful. Crl.R.P.No.1155/2012 16
22. The above view also gains support from the fact that according to PW1, as has come out in the cross- examination, the cheque in question which is at Ex.P-1, was got filled by the accused from Sri.Aslamsab (DW4) and that it was the very said Sri.Aslamsab who brought the said cheque and gave it to the complainant and collected Maruti Omni vehicle bearing registration No.KA 20-2789. It is also his case that, asked by said Sri.Aslamsab, he has filed the present complaint against the accused. All these four important and vital statements made, have been categorically and specifically denied by the very said Sri.Aslamsab who was examined as DW4. As analyzed above, the said statement of Sri.Aslamsab that he had not written any cheque on behalf of the accused on 3.1.2009 and that the vehicle was not collected in his presence and also that he had not asked the complainant to lodge the complaint against the accused, having remained undenied, clearly falsifies the statement of PW1 that cheque at Ex.P-1 was written by Sri.Aslamsab and that he himself brought that cheque and delivered it to him (complainant) and that Crl.R.P.No.1155/2012 17 he asked the complainant to file complaint. Therefore, the very basis of delivery of the cheque dated 3.1.2009 from the accused side to the complainant and the alleged scribe of the cheque, everything having been falsified, it creates a serious doubt in the case of the complainant that he had lent a sum of `50,000/- to the accused on 6.6.2008. On the other hand, it further makes more probable to believe the evidence of DW1 to DW4 who have uniformly stated that the complainant had collected three blank cheques from the accused on the date 20.12.2008 while lending a sum of `20,000/- to the accused and that even after repayment of the said loan amount of `20,000/- to the complainant, he on some false pretext, did not return those cheques to the accused and has misused one among them in the form of the present complaint. This is more than sufficient to hold that accused has successfully rebutted the presumption formed in favour of the complainant.
Crl.R.P.No.1155/201218
23. The learned counsel for the respondent also canvassed a point in his argument that accused has not denied taking of loan of `50,000/- from the complainant. A careful reading of the cross-examination of PW1 go to show that it was suggested to the witness that without giving any loan to the accused of a sum of `50,000/- and only giving `20,000/- as loan, the complainant had collected three cheques as security. Though PW1 did not admit the said suggestion as true but by making the said suggestion, the accused has specifically suggested to the witness (the complainant) that he has not given loan of `50,000/- to the accused. Therefore, the argument of the learned counsel for the respondent that accused has not denied taking of loan of `50,000/-, is not acceptable.
24. The learned counsel for the respondent also submitted that even after service of notice, the accused did not send any reply to the legal notice, as such, the defence taken up by him is purely an afterthought.
25. It is a fact that the respondent did not reply to the legal notice sent by the complainant to him demanding the Crl.R.P.No.1155/2012 19 payment of the cheque amount. However, merely because the accused has not replied to the legal notice sent to him by the complainant, by that itself, it cannot be inferred that the accused had no defence in the matter and that he has admitted his liability under the cheque. In the instant case, even though the accused has not replied to the legal notice sent to him by the complainant, however, he has put his defence in the cross-examination of PW1 and also himself has entered into the witness box and got examined himself as DW1 and examined three more witnesses from his side as DW2, DW3 and DW4. The defence taken by the accused is also not of any subsequent events happened, if any, subsequent to the institution of the complaint or that there are anything to suspect that the said defence taken up by the accused is an afterthought. Hence, the argument of the learned counsel for the petitioner on the said point is also not acceptable.
26. Lastly, the learned counsel for the respondent submitted that few statements of PW1 made by him in his Crl.R.P.No.1155/2012 20 cross-examination with respect to the involvement of one Sri.Aslamsab in the transaction, was a mere typographical error.
As analyzed above, before making those statements with respect to Sri.Aslamsab, the complainant as PW1 himself in his cross-examination has stated that he knows not only the said Sri.Aslamsab but also two more persons by name Kantha and Mahalingappa but incidentally, later examined by the accused as witness from his side i.e., as DW4, DW2 and DW3 respectively. The statement made by PW1 about DW2 to DW4 in his cross-examination and more particularly about the alleged role of DW4 in the alleged loan transaction has come in a natural flow and sequence in his cross-examination and that at no stretch of imagination, those statements made by PW1 can be considered as typographical error.
Further, had it been a typographical error, the witness should have brought the same to the notice of the learned Presiding Officer of the Court who recorded the said evidence when the said evidence was read over to him Crl.R.P.No.1155/2012 21 before the Presiding Officer subscribing his signature to the deposition and also obtaining the signature of the witness himself to the said depositions. Now since those statements made by PW1 were proved to be detrimental to the case of the petitioner, more particularly after examining the said Sri.Aslamsab as DW4, the petitioner through his learned counsel in this Revision Petition, has come up with the contention that the statement with respect to Sri.Aslamsab made by PW1 in his cross- examination are mere typographical error. Thus, the said argument of the learned counsel for the respondent also is not acceptable.
27. From the analysis made above, it is clearly established that though the complainant attempted to show that there existed a legally enforceable debt and attempted to encash the benefit of presumption formed in his favour but the accused could able to rebut the said presumption successfully. Needless to say that as observed by the Hon'ble Apex court in Sumeti Vij vs. Paramount Crl.R.P.No.1155/2012 22 Tech Fab Industries, reported in 2021 SCC Online SC 201, the scope of Section 139 of the N.I.Act is that when an accused has to rebut the presumption, the standard of proof for doing so is that of "preponderance of probabilities".
The accused in a trial under Section 138 of the N.I.Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case, the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed.
28. In the instant case, as analyzed above, though a presumption about existence of legally enforceable debt was initially formed in favour of the complainant under Section 139 of the N.I.Act, however, the accused by eliciting several statements in the cross-examination of PW1 in his favour and also leading evidence by examining four witnesses from his side, could able to successfully make this court to suppose that no consideration and debt Crl.R.P.No.1155/2012 23 existed. Thus, the presumption formed in favour of the complainant was successfully rebutted by the accused. Once the presumption formed in favour of the complainant stands rebutted, the onus would be upon the complainant to prove the existence of legally enforceable debt or passing of the consideration to the drawer of the cheque towards the cheque issued in his favour. In the instant case, except attempting to show that a presumption was formed in his favour under Section 139 of the N.I.Act, since the complainant has not taken any further steps to show that there existed a legally enforceable debt or that consideration towards the cheque under Ex.P-1 was passed on to accused, suffice it to say that the complainant had failed to prove the alleged guilt against the accused. However, both the Trial Court and the Sessions Judge's Court without analyzing the evidence placed before them in their proper perspective, have hastily embraced the fact that both the parties to the case were known to each other and the cheque that was issued by the accused, was presented by the complainant and the same came to be Crl.R.P.No.1155/2012 24 dishonored and also of the fact that a legal notice was also sent by the complainant after dishonor of the cheque, calling upon the accused to pay the cheque amount, have jumped to a conclusion that complainant has proved the alleged guilt of the accused. Since the said finding of both the Trial Court and the Sessions Judge's Court now proved to be perverse and erroneous, the same warrants interference at the hands of this Court.
Accordingly, I proceed to pass the following:
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The impugned judgment of conviction and order on sentence dated 18.05.2011 passed by the learned Civil Judge and J.M.F.C, Turuvekere, in C.C.No.378/2009, holding the revision petitioner (accused) guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him for the alleged offence, is set aside;Crl.R.P.No.1155/2012
25
Consequently, the judgment passed by the Court of Fast Track at Tiptur, dated 11.09.2012, in Criminal Appeal No.48/2011, is also set aside.
(iii) The revision petitioner/accused - Sri. H.S. Suresh, S/o Sombegowda, age 31 years, r/o Tavarekere Village, Kasaba Hobli, Thoremavinhalli post, Turuvekere Taluk, Tumkur District-572227, is acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
Registry to transmit a copy of this order to both the Trial Court and also the Sessions Judge's Court along with their respective records, at the earliest.
Sd/-
JUDGE CBC