Karnataka High Court
Fazlur Rahaman R. S/O. Mohammed Sab vs Smt.P. Juulekha Bi W/O. P Dadapeer on 11 September, 2024
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NC: 2024:KHC-D:12998
CRL.RP No. 100084 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.100084 OF 2018
(397(Cr.PC)/438(BNSS))
BETWEEN:
FAZLUR RAHAMAN R. S/O. MOHAMMED SAB,
AGE ABOUT 39 YEARS, OCC. PRIVATE SERVICE,
R/O. WARD NO.16, SINDHIGI COMPOUND,
BEHIND RAGHAVENDRA TALKIES, BELLARY.
...PETITIONER
(BY SRI RAJASHEKHAR B.HALLI, ADV. FOR PETITIONER)
AND:
SMT. P. JUULEKHA BI W/O. P. DADAPEER,
AGE. 40 YEARS, OCC. MONEY LENDING BUSINESS,
R/O. OPP. RAGHAVENDRA TALKIES, K.C, ROAD,
FORMERLY R/O. AT REDDY STREET, BELLARY.
...RESPONDENT
(BY SRI B.S. SANGATI, ADV. FOR RESPONDENT)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE
ORDER DATED 31.01.2018 PASSED IN CRIMINAL APPEAL
Digitally signed by
BHARATHI H M NO.40/2017 BY THE II ADDITIONAL DISTRICT AND SESSIONS
Location: HIGH JUDGE, BALLARI BY CONFIRMING THE ORDER IN C.C.NO.809/2015
COURT OF DATED 30.08.2017 PASSED BY THE I ADDL. CIVIL JUDGE AND JMFC,
KARNATAKA
BELLARI HEREBY CONVICTING THE PETITIONER FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND DIRECTING THE
PETITIONER TO PAY A FINE OF RS.6,50,000/- FOR COMMITTING THE
SAID OFFENCE AND IN CASE DEFAULT OF PAYMENT OF FINE
AMOUNT, THE ACCUSED SHALL UNDERGO SIMPLE IMPRISONMENT
FOR A PERIOD OF 6 MONTHS AND OUT OF FINE AMOUNT OF
RS.6,40,000/- SHALL BE PAID TO THE COMPLAINANT AS
COMPENSATION AND RS.10,000/- SHALL BE REMITTED TO THE
GOVERNMENT AND ETC.,
THIS CRIMINAL REVISION PETITION, COMING ON FOR
DICTATING ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:12998
CRL.RP No. 100084 of 2018
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
ORAL ORDER
(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI) This revision petition is filed under Section 397 read with Section 401 of Criminal Procedure Code (for short, "Cr.P.C") by the accused, who is convicted by the Trial Court for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short, "N.I.Act"), which came to be confirmed by the Sessions Court by dismissing the appeal filed by him.
2. For the sake of convenience, the parties are referred to by their ranks before the Trial Court.
3. Complainant filed a complaint under Section 200 Cr.P.C. against the accused alleging that they are known to each other since many years. With that acquaintance, accused borrowed some of Rs.6,00,000/- for business purpose and issued the cheque dated 15.01.2015 for Rs.6,00,000/- with an assurance that it will be honoured on presentation. However, when -3- NC: 2024:KHC-D:12998 CRL.RP No. 100084 of 2018 presented through her account, it was dishonoured. When this was brought to the notice of the accused, he requested the complainant to represent it. As per the direction of the accused, when the complainant presented the cheque for the second time in the month of February 2015, on 25.02.2015, it was returned with an endorsement 'funds insufficient'. In this regard, complainant got issued a legal notice. Though it was duly served, the accused has neither sent reply nor complied with the notice and hence, the complaint.
4. Accused pleaded not guilty and claimed trial.
5. In order to prove her case, complainant has examined herself as PW1 and relied upon Exs.P1 to 5.
6. During the course of his statement, accused has denied the incriminating evidence led by the complainant.
7. Accuse has not led any defence evidence, but, got marked one document during cross-examination of the complainant as Ex.D1.
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NC: 2024:KHC-D:12998 CRL.RP No. 100084 of 2018
8. Both the Trial Court and the Sessions Court have rejected the defence of the accused and convicted him. He is sentenced to pay a fine Rs.6,50,000/- in default to undergo simple imprisonment for six months.
9. Aggrieved by the same, accused has filed this petition contending that the concurrent orders passed by the Trial Court and the Sessions Court are contrary to facts, law and evidence on record. The complainant has failed to produce any piece of evidence to prove that there exists legally enforceable debt. The signature in the cheque is forged, and this aspect is not appreciated by the Trial Court. Despite the accused challenging the financial capacity of the complainant, the Trial Court as well as the Sessions Court has not given any findings on this aspect. Accused was not given proper opportunity to prove his defence. They have also not appreciated the fact that intentionally the complainant has not produced all the documents for the perusal of the Court. The impugned judgment and order are contrary to the -5- NC: 2024:KHC-D:12998 CRL.RP No. 100084 of 2018 evidence placed on record as such perverse. Viewed from any angle, they are not sustainable in law and prays to allow the petition, set aside the impugned judgments and orders and acquit the accused.
10. In support of his arguments, learned counsel for the accused has relied upon the following decisions;
i) John K.Abraham Vs. Simon C. Abraham & Anr (John K.Abraham)1
ii) Yeshwanth Kumar Vs. Shanth Kumar N., (Yeshwanth Kumar)2
iii) Charles Harry Vs. Praveen Jain, (Charles Harry)3
iv) K.Govinda Nayak Vs. Janardhana Naik, (K.Govinda Nayak)4
v) S.P.Rajkumar Vs. M.J. Prabhakar, (Rajkumar)5 1 (2014) 2 SCC 236 2 2020 (1) KCCR 505 3 2024 (1) KCCR 545 4 2024 (3) KCCR 2584 5 2024(1) KCCR 166 -6- NC: 2024:KHC-D:12998 CRL.RP No. 100084 of 2018
11. On the other hand, supporting the impugned judgments and orders, learned counsel for the complainant submitted that in the light of presumption under Section 139 of the N.I. Act, the initial burden is on the accused to prove his defence after which the burden shift on the complainant to prove her case. However, the accused has failed to discharge the initial burden. Taking into consideration the oral and documentary evidence placed on record, the Trial Court as well as the Sessions Court have rightly held that the charges against the accused are proved and there is no perversity calling for interference by this Court and pray to dismiss the petition also.
12. Thus, it is the definite case of the complainant that the accused borrowed hand loan of Rs.6,00,000/- and towards repayment of the same, he issued the subject cheque. However, on presentation, it came to be dishonoured for want of sufficient funds. Despite issue of legal notice, the accused has neither sent any reply nor -7- NC: 2024:KHC-D:12998 CRL.RP No. 100084 of 2018 paid the amount due and hence, the complaint.
13. In the light of the presumption under Section 139 of the N.I. Act, initial burden is on the accused to rebut the presumption only after which the burden shift on the complainant to prove her case.
14. Though the accused admit that the cheque in question belongs to him and issued to his account, at the trial, he has disputed that it bears his signature. On the other hand, claimed that the signature on the cheque is forged. Accused has also challenged the financial capacity of the complainant to lend huge some of Rs.6,00,000/- and therefore, unless complainant prove her financial capacity presumption would not be pressed into service and the burden would not shift on the accused to rebut the same.
15. However, in John K.Abraham, the Hon'ble Supreme Court held that in order to draw presumption under Sections 118 and 139 of N.I Act, the burden lies on the complainant to show that:
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i) She had the requisite funds for advancing the sum of money/loan in question to accused.
ii) The issuance of cheque by accused in support of repayment of money advanced was true and
iii) The accused was bound to make payment as had been agreed while issuing cheque in favour of the complainant.
16. In Tedhi Singh Vs Narayan Das Mahant (Tedhi Singh)6, the Hon'ble Supreme Court held that where the accused has failed to send reply to the legal notice, challenging the financial capacity of the complainant, at the first instance, complainant need not prove his financial capacity. However, if during the course of trial accused has taken up such defence, then it is necessary for the complainant to prove his financial capacity, when he allegedly advanced the amount and towards repayment of it, the accused has issued the cheque.
17. In fact, in APS Forex vs Shakti International 6 2022 SCC OnLine SC 302 -9- NC: 2024:KHC-D:12998 CRL.RP No. 100084 of 2018 Fashion Linkers Pvt. Ltd (APS Forex)7, the Hon'ble Supreme Court held that when accused rises issue of financial capacity of complainant in support of his probable defence, despite presumption in favour of complainant regarding legally enforceable debt under Section 139, onus shifts again on the complainant to prove his financial capacity by leading evidence, more particularly when it is a case of giving loan by cash and thereafter issue of cheque.
18. In the light of the ratio of above decisions, it is necessary to examine whether the complainant has proved her financial capacity to lend sum of Rs.6,00,000/- to the accused, after which the presumption under Section 139 attract placing the burden on the accused to rebut the same.
19. At the outset, it is relevant to note that in the complaint, the complainant has not stated her avocation or whether she is having any source of income. During 7 (2020) 12 SCC 74
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NC: 2024:KHC-D:12998 CRL.RP No. 100084 of 2018 the course of her cross-examination, the complainant has stated that she is doing tailoring, real estate and bedding business. She also owns a shop. She is getting income of Rs.12,000/- to 15,000/- per month. Her husband is an auto driver and he is also engaged in real estate business. However, the complainant has not produced any documents to prove her income. She has deposed that when she lent Rs.6,00,000/- to the accused, she had Rs.4,00,000/- in cash with her and remaining Rs.2,00,000/- was received by her after she vacated the mortgaged property. Again, she has stated that Rs.4,00,000/- was in her account in Karnataka Bank, and she withdrew the same and paid to the accused. She could have produced her passbook to show that at the relevant point of time, she withdrew Rs.4,00,000/- from her account and paid the same to the accused. She could have also produced evidence to show that, she had vacated the mortgaged property and received back the amount given to the mortgager, and together with it and Rs.4,00,000/- withdrawn from her account, she paid total
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NC: 2024:KHC-D:12998 CRL.RP No. 100084 of 2018 sum of Rs.6,00,000/- to the accused.
20. In the complaint, the complainant has stated that the accused borrowed Rs.6,00,000/- for carrying on his business. However, during her cross-examination, the complainant has stated that the accused borrowed Rs.6,00,000/- from her for purchasing a car. She has not produced any documents to show that the money borrowed from her was utilised for the business of the accused or for purchasing a car. Evidence establishing this fact would have supported her contention that at the relevant point of time, accused had the necessity to borrow Rs.6,00,000/- from her, whether for business purpose or for purchasing a car.
21. The accused has taken a specific defence that his wife and complainant are known to each other and they were members of the Stree Shakti Sangha, and at that time the complainant came in possession of cheque belonging to the accused and by forging his signature, she has presented it to the bank and filed the complaint.
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NC: 2024:KHC-D:12998 CRL.RP No. 100084 of 2018 Of course, complainant has denied the said suggestion. It is pertinent to note that the complainant has presented the cheque twice for realisation. She has claimed that when she presented the cheque for the first time, it was returned dishonoured for want of sufficient funds, and when she brought this fact to the notice of the accused, he requested her to represent it, and on the second time, also, it was dishonoured for want of sufficient funds. The complainant has not produced the endorsement given by the bank at the first instance to ascertain for what reason it was dishonoured.
22. It is relevant to note that when the cheque was presented for the second time, it was not dishonoured on the ground that the signature on the cheque is not tallying with the specimen signature and therefore, there is no burden on the complainant to prove the signature on the cheque by sending it to handwriting expert. For reasons best known to her, the complainant has not produced the endorsement given by the bank on
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NC: 2024:KHC-D:12998 CRL.RP No. 100084 of 2018 the first occasion. However, perusal of the signature on the cheque in comparison with the signature of the accused available in the vakalath and his statement under Section 313 of Cr.P.C. clearly indicate that the disputed signature in the cheque at Ex.P1(a) differ from his admitted signature in his statement under Section 313 of Cr.P.C.
23. It is also relevant to note that that there are 2 endorsements in pencil on the cheque at Ex.P1, which appears to have been made by the Manager or the concerned bank official. One endorsement state that SS differ meaning the signature differs from specimen signature. The other endorsement is I/F meaning insufficient funds. Admittedly, on the second occasion, the cheque was dishonoured due to insufficient funds. Therefore, necessarily the other endorsement must have be made on the dishonoured cheque on the first occasion. The production of the first endorsement given by the bank would have thrown light on this aspect. Though it is
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NC: 2024:KHC-D:12998 CRL.RP No. 100084 of 2018 not safe for the Courts to compare the admitted and disputed signatures and it is always desirable to get experts opinion, in the light of the above endorsements available on the cheque at Ex.P1, for the purpose of examining the preponderance of probabilities, this Court is of the considered opinion that, it is justified in comparing the disputed and admitted signatures as provided under Section 73 of the Indian Evidence Act.
24. In fact, in order to prevent anyone from erasing the said endorsements made in pencil on the cheque at Ex.P1, the relevant portion is got marked with highlighter through the Registry.
25. Thus, when the complainant has failed to prove her financial capacity, as held in APS Forex, the presumption under Section 139 cannot be raised and the burden has not shifted on the accused to rebut the same. At the same time, on preponderance of probabilities, the accused has proved that the signature in the cheque is not his signature and it is forged. For this
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NC: 2024:KHC-D:12998 CRL.RP No. 100084 of 2018 reason also, the presumption under Section 139 of N.I. Act has not arisen. Therefore, the entire burden is on the complainant to prove her case independent of the presumption, which she has failed to.
26. In Yeshwanth Kumar, Charles Harry, K.Govinda Naik and Rajkumar also the claim of the complainant was rejected as they failed to prove their financial capacity.
27. The trial Court as well as the Sessions Court have not examined this aspect. Only on the basis of presumption, they have proceeded to hold that allegations against accused are proved and convicted and sentenced him. Both Courts have also erred in holding that the accused has admitted his signature on the cheque in question. Their findings on this aspect is contrary to the evidence on record and as such perverse. The impugned orders have caused gross miscarriage of justice. There is manifested illegality and as such, liable to be interfered with by this Court in exercise of the
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NC: 2024:KHC-D:12998 CRL.RP No. 100084 of 2018 power under Section 397 read with Section 401 Cr.P.C.
28. In the result, the petition is allowed, and accordingly the following;
ORDER
i) Petition filed by the accused under Section 397 read with 401 Cr.P.C. is allowed
ii) The impugned Judgment and Order dated 30.08.2017 passed in Criminal Case No.809/2015 by the I Additional Civil Judge and JMFC, Ballari and Judgment and Order dated 31.01.2018 in Criminal Appeal No.40/2017 by the II Additional District and Sessions Judge, at Ballary is set aside.
iii) The petitioner/accused is acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
iv) The bail bond of petitioner/accused and his surety stands discharged.
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v) Registry is directed to send back the records along with copy of this order to the trial Court and Sessions Court forthwith.
Sd/-
(J.M.KHAZI) JUDGE Vmb List No.: 1 Sl No.: 32