Karnataka High Court
Sudheendra K Joshi vs Jayadev on 8 July, 2011
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 21° DAY OF FEBRUARY, 20) 1. _ BEFORE ~ THE HON'BLE MR. JUSTICE ANAND BYRAREDDY CRIMINAL APPEAL. NO. 903 /2 005 - BETWEEN: Mr. Sudheendra K. Joshi S/o, Krishnaji Joshi Aged about 32 years Madhinal, Dt harw ag, APPELLANTS (By Sri. P..N. Hostunane; P, C.4 Godt: Ramesh P. Kulkarni, Advs.): oA ANID: Mr. Ja swadev S/o: Davenand Dodwad 28 years: Kirani Me rchant Subhas Roac ad, Dharwad oO i os RESPONDENT (av Sri Jo. Shetty. Adv. a A This CrLAis filed U/ aside the pudement dated at Cr.P.C praying to set 5 passed by the i Addl. CoulfSr. Dn 3 and CUM, Dharwad in C.C NG. 21S /2003 acquitting the respondent-accused for the offence u/s. 138 of NLL. Act Ca This appeal coming on for hearing this day, the Court delivered the following: ae 2. The appellant was. the complainant, .The complainant had alleged that the Ace used had com mitted an offence punishable wnder Sections { 38 of the Negotiable Instruments Act- (herein after referred ts as "NL. Act' for brevity) read. with Seetion 420.98 the indian Penal Code (herein after referred lon as 'I PC for brevity). The Court below had "recorded . the sworn statement of the complainant and: had issued process to the accused. The ACCUSEQ had appeared and contested the case. Originally "Leo" persons:were named as the accused and at the i instance of the complainant, accused No.1 was given up and-it thé only present respondent, who remained on ~ record as the accused. po pot, Spargon ach 5, reed Sal ee : mh =
ned syne rote "it was the case of the complainant that "~-respondent had issued a cheque in his favour for a sum of ve a aes Rs.7S,000/-, it was claimed that the present respondent and one Vijayanand were the petitioners and wer e. dealt 1g . in fire works. The said Vuayanand an aa the present respondent had purchased fire works from one Pe C. Hakkapakki of Gokak. It was the complain an Us. case t hat :
he was acted as mediator or middleman an a he en abled the said respondent or his brother to produce fire works at. Rs.75,000/- on credit basis... The-respondent and his brother had agreed to clear the loan on or before 22.09.2002. - Bit the 'Tespondent had failed to do so.
However, the . pecused respondent had issued a cheque as security wn favour ofthe complainant. Since the respondent "had 'tailed to discharge the loan, when the
- com plana ni _ approached the accused demanding the "same, tite . accused had instructed nim to present the ch eque, which was initially offered as security and on "presentation, the same has been discharged for want of ficient funds. The proceedings were initiated for . issuance of lewal notice and the complaint was lodged. At S the trial, the respondent had admitted the issuance of cheque, He admitted the signature on the cheatic and tre. amount indicated therein. However, it was.sdugnt to be denied that there was any outstanding liability: :
claimed that the amount pay d by the compiain an t was duly repaid to the com plainant by the 'respondent. However, the com plainant was" only seekin to take advantage of the cheque, "whieh had been' issued in the first instance as Security and which had been retained by Aest him notwithstanding the discharge of loan. It was thus contended that there. was no legal labilitv or legally recoverable debt, which. was outstanding in respect of which, the cheque was issued. [t is this argument, that owasaccepted by the Court below, in holding that the "complainant "had not proved otherwise and had accordingiy, cismissed the complaint. itis thar. which is "sought to be challenged in the present appeal. CA ea
3. The learned Counsel for the complainant would Pop fg vba PRES O. submit thar m terms of Section 139 of the presumption was in favour of the complainant that. the cheque had been issued in discharge of a legal babiity. Jt.
is for the accused to prove otherwise. if it is Seught to be raised as a defence, if there is no legal liebility cr legally recoverable debt, in respect of which @-cheque had been issued. The learned Coursel for the cearnplainant would therefore, submit'that the Cheque Having been admitted and the signature not being denied.and the transaction, in respect of which the cheque had been issued also having as Only sought to be contended been admitted, bus it Ww:
that the amount, repayment of which has sought to be ecuired. by issuance of cheque has been duly repaid and re, the ability stood wiped out, is not a contention that. could have been accepted by the trial Court, in the "absence..of any evidence tendered by the accused to suppert the defence. Hence he would submit that the J). Act ought not . oltence alleged under Section 136 G have been hold true and appropriate relief ought to.have been granted to the complainant.
repeatedly sought for time on the last seve al occasion Son | the ground that there is possibilities of settleinent 'and that ne would report settlement, however, is absent today and request is made "on ; 'his - behalf for further adjournments on the footing that, the. respondent has remained out of touch and-that he would make effort to contact him and réport'settlement. circumstan ces, the trial Court was cleariv in error in "holding "that thee was duty on the complamant to ; establish 7 hav. there was a transaction, whereby tne cheque wag issued in discharge of iegal liability and the "tial Co art having accepted the defence that, though the £ ~ mnaeney was borrowed from the complainant, the same had 9€ accepted on the face of it, if any evidence in this regard is clearly in apposition to the taw. The Apex Court has held in the case of Rafigappu. wv. Mohan 2010(3) AIR Kar R 330, while taking 'note of the earlier judgment, namely in the case of K nshna Janardhan. Bhat v. Dattatraya CG. Hegde (2008) 4 SCC &4, wherem it was held to the effect that though the statute mandates raising of presumption but it stons at-that. It does not say how presumption drawn should be held to have been _legal rebutted. Other. important ~pruyciples of _famelry, presuniption of innocence as a furisprudernce leeally recoverable debt is not a and that existence of under Section 139 of the Act. [tk cheque llral the same has been issued for discharge of any "debt or other liability. This reasoning possibly would have supported the defence set up by the accused. Zz,
6. However, the larger Bench of the Supreme Court in the above decision has distinguished the. earker~ reasoning and has held that the earlier. decision .was consideration apparentiv does not. appear ta be any defence. Something which is probable has to be Jbrought on record for getting the benefit ef shifting the onus of proving to the plaintilf. 'To disprove 'the presumption, the defendant has to bring "on record. such facts and circumstances upon consideration of which the court may either believe. thatthe consideration did not exist or its bable tht_a prudent man would, ot non-existenve was so. pr under the circumstances of the case, act upon the plea
7. Having regard to the legal position as it stands, . the Court below was clearly in error in holding that the "burcen was on the present complainant to prove that there was outstanding legal nability in respect of which Z 9 the said cheque was issued. Accordingly, in the opirion of this Court and having regard to the material On. record, -. the appellant has clearly proved that the respondent has . committed an olfence punishable under Section 138 of the. NwD. Act.
8. Accordingly, the respondent is sentenced to pay a fine of Rs.1,20.000/-, out of which the appellant shall be paid Rs.1,15,000/>. as compensation in. terms of Section 357(3) of the Code-ef Criminal Procedure within a period of three months and in, default, the petivoner shall suller Simple imprisonment fora period of six months.