Karnataka High Court
Sri B Vijay Kumar S/Oc Benjamin vs Smt Sheela W/O S S Kumar on 29 August, 2018
Author: S.Sujatha
Bench: S.Sujatha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
CRIMINAL REVISION PETITION No.447/2011
BETWEEN:
SRI B.VIJAY KUMAR
S/O C.BENJAMIN
AGED ABOUT 33 YEARS,
R/AT NO.C-95,
RAJAMMA SHAMANNA LAYOUT,
GARVEBHAVIPALYA
BANGALORE-68. ... PETITIONER
(BY SRI M.S.RAJENDRA PRASAD, SENIOR COUNSEL A/W
SRI N.MANJUNATH, ADV.)
AND:
SMT.SHEELA
W/O S.S.KUMAR
AGED ABOUT 49 YEARS,
R/A NO.218, MUNIREDDY LAYOUT,
GARVEBHAVIPALYA,
NEAR MAHAVEER INDUSTRY
NEAR ST. MARY SCHOOL,
BANGALORE-560068 ... RESPONDENT
(BY SRI M.G.RAVISHA, ADV.)
THIS CRL.R.P. IS FILED UNDER SECTION 397 R/W 401
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 14.08.2006 PASSED BY THE C.J., (JR.DN.) AND JMFC,
CHINTAMANI IN C.C.NO.29/2005 AND ORDER DATED 03.02.2010
PASSED BY THE P.O., FTC-II, CHINTAMANI IN
CRL.A.NO.37/2007.
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THIS CRL.R.P. IS COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This appeal is filed under Section 397 read with Section 401 of Code of Criminal Procedure ('Code' for short) calling in question the legality and correctness of the judgment and order dated 18.2.2011 passed by the learned Sessions Judge, Bangalore City, in Criminal Appeal No.743/2010, whereby the judgment and sentence passed by the learned XIII ACMM, Bangalore, in C.C.No.3286/2008 dated 25.9.2010 has been confirmed, dismissing the appeal.
2. Briefly stated, the facts are:
The respondent had filed a private complaint against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments, 1881 ('Act' for short) alleging that the petitioner approached the respondent for financial assistance and accordingly on 11.5.2007 the respondent had lent a sum of Rs.3,50,000/- to the petitioner. Thereafter, when the respondent demanded the petitioner to pay the said sum, the petitioner issued a 3 cheque bearing No.822312 dated 15.10.2007 drawn on City Bank- N.A., Bangalore for the said sum of Rs.3,50,000/-
towards discharge of loan; on presentation, the said cheque was returned with an endorsement 'account closed'; the respondent issued a statutory notice to the petitioner.
Despite the same, the cheque amount was not repaid and hence complaint under Section 200 of the Code was filed before the learned Magistrate which was registered as C.C.No.3286/2008. After taking cognizance of the offence by the Trial Court, the petitioner not having pleaded guilty and claimed to be tried, trial was held. PWs 1 to 3 were examined on behalf of the complainant and Exhibits P1 to P25 came to be marked. The accused was examined under Section 313 of the Code who denied the incriminating circumstances. The accused led defence evidence by examining himself as DW-1 and Exhibits D1 to D8 were marked.
3. The Trial Court after hearing the arguments of both the sides, considering the material evidence available 4 on record, passed the judgment of conviction for the offence punishable under Section 138 of the Act and sentenced the accused to pay a fine of Rs.3,50,000/-, in default of payment of fine amount, to undergo simple imprisonment for six months. Out of the fine amount, a sum of Rs.3,50,000/- shall be paid as compensation to the complainant and the balance amount of Rs.5,000/- shall be remitted as fine to the State.
4. Being aggrieved by the said judgment and order passed by the Trial Court, the accused preferred an appeal before the learned Sessions Judge who dismissed the appeal confirming the judgment of conviction and the order of sentence passed by the Trial Court. Hence, this revision petition.
5. Learned senior counsel Sri. M.S.Rajendra Prasad, appearing for the petitioner would contend that the complainant had no financial capacity to make the payment of Rs.3,50,000/- to the accused since the complainant has admitted that she was working in a garment factory drawing 5 a salary of Rs.350/- per day. She and her husband, an auto driver, are residing in a rented house paying Rs.1200/- rent per month. It is argued that the complainant has no lending capacity, much less an amount of Rs.3,50,000/-, as contended by the complainant. It is submitted that the provisions of Section 138 of the Act shall be attracted only if the legally enforceable debt is established by the complainant. No such legally enforceable liability being established, proceedings initiated under Section 138 of the Act are vitiated.
6. Nextly, it was argued that the cheque dated 15.10.2007, Ex.P1 was stolen by the husband of the complainant who was working with the accused and his father on a daily wage basis. The said bank account was closed on 19.8.2000. Further, it was argued that the cheque was not signed by the accused. The signature found in Ex.P1 is disputed by the accused. Elaborating the arguments on these points, learned senior counsel invited the attention of this Court to paragraph 10 of the order of 6 the Appellate Court to point out that the Appellate Court referred to 'some' documents said to have been produced to show that husband of the complainant was earning money by doing tempo services. Such vague reference made by the Appellate Court discloses that there was no application of mind in analyzing the evidence on record.
7. Nextly, it was pointed out that, the Appellate Court exercising the power under Section 73 of the Evidence Act, had compared the admitted and disputed signatures. Thus, the intent of the Legislature has not been properly appreciated by the Court below in exercising the power under Section 73 of the Evidence Act. In support of his contention, learned senior counsel has placed reliance on the following judgments.
1) Krishna Janardhan Bhat Vs. Dattatraya G. Hegde reported in 2008 Crl.L.J.1172
2) Amzad Pasha Vs. H.N.Lakshmana reported in 2011 Crl.L.J.552
8. Per contra, learned counsel Sri.M.G.Ravisha, appearing for the respondent justifying the impugned 7 judgment and order passed by the courts below would submit that the complainant had substantial income to lend the loan of Rs.3,50,000/- to the accused which was handed over to the accused in the presence of PW-2 on 11.05.2007. Complainant's husband was carrying on the business in the name & style of M/s Kumar Tempo Services and ample evidence was placed on record at Exhibits P10 to P17 to establish the income of the husband. PW-2 was working as a partner with the accused in Velangani Auto Consultancy Services and also stood as a surety to the accused for raising loan. To prove the same, Ex.P25 was marked. These documents establish that the complainant was financially stable to lend the loan to the accused on his request.
9. Nextly, it was contended that the cheque was issued by the accused whereas the alleged theft in the business premises of the accused during 2007 is not substantiated, more particularly allegation against PW-2 having stolen the cheque. The cheque presented for encashment with the bankers was returned as 'account 8 closed'. The accused has issued the cheque dated 15.10.2007 on 27.9.2007 to the complainant and the same was presented to the bank on 15.10.2007 and was returned on 16.10.2007 with an endorsement 'account closed on 19.8.2000'. There was no necessity to keep the signed cheque in the business premises of the accused during 2007 as the account was closed on 19.8.2000.
10. PW-3 Bank official of the City Bank who was examined has supported the case of the complainant. It is thus submitted that the initial presumption under Section 139 of the Act has not been rebutted by the respondent. The courts below analyzing the evidence in extenso recorded a concurrent finding in favour of the complainant which is justifiable. Accordingly, he seeks for dismissal of the revision petition.
11. Learned counsel for the respondent in support of his submission placed reliance on the following judgments:
1) 2017(2) AKR 527 in case of Arjun Vs. E. Shekar 9
2) 2017(3) AKR 365 in the case of C.N.Dinesha Vs. Smt.C.G.Mallika
3) 2017(4) KCCR 2933 in the case of N. Manjegowda Vs. N.V.Prakash
4) AIR 2010 SC 1898 in the case of Rangappa Vs. Mohan
5) AIR 2001 SC 3897 in the case of Hiten P. Dalal Vs. Bratindranath Banerjee
12. Before adverting to the rival arguments advanced by the learned counsel appearing for the parties, it is beneficial to collate the legal position on the issue involved herein.
13. In the case of Krishna Janardhan Bhat (supra), the Hon'ble Apex Court has observed thus:
"21. The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a 10 holder of the cheque that the same has been issued for discharge of any debt or other liability.
22. The courts below, as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct.
23. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different."
14. In the case of Amzad Pasha Vs. H.N.Lakshmana (supra) in the context of the complainant therein not placing 11 any evidence to show that he had financial capacity to lend an amount of Rs.4,50,000/-, the court held that the complainant had lent Rs.4,50,000/- to the respondent, is highly improbable and not acceptable.
15. As could be seen from the said judgment, it is clear that no witnesses were examined before the learned Magistrate though it was pleaded that the loan amount was paid to the accused in the presence of two persons namely Jakir Hussain and Ramalinge gowda. Further, on the basis of the very cheque, complainant had filed a Civil Suit O.S.No.85 of 2004 on the file of the Civil Judge (Sr.Dn.), Maddur, which was later renumbered as O.S.No.68 of 2006 on the file of the Civil Judge (Sr.Dn.), Malavalli. Ex.D6 in the said suit, a sale deed executed by the accused for sale of an agricultural land for a consideration of Rs.44,000/- has been adjusted towards the amount due to him under the cheque as claimed in the suit and the balance amount was claimed in the suit. Nevertheless, it was contended by the accused, another sale deed was executed for the sale 12 consideration of Rs.4,16,000/- towards the balance amount of the cheque which was not conceded by the complainant- plaintiff. Ultimately, the Trial Court dismissed the suit holding that the plaintiff has received the entire amount and the matter has been settled. In such circumstances, the complainant again claiming the entire cheque amount of Rs.4,50,000/-, was held to be not falling under Section 138 of the Act.
16. The judgment of the Hon'ble Apex Court in Krishna Janardhan Bhat referred to supra, has been considered in a subsequent judgment of the Hon'ble Apex Court in the case of Rangappa Vs. Mohan reported in AIR 2010 S.C. 1898. The relevant paragraphs of the said judgment are quoted hereunder:
"14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct.13
However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, 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 contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the 14 test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.
15. Coming back to the facts in the present case, we are in agreement with the High Court's view that the accused did not raise a probable defence. As noted earlier, the 15 defence of the loss of a blank cheque was taken up belatedly and the accused had mentioned a different date in the `stop payment' instructions to his bank. Furthermore, the instructions to `stop payment' had not even mentioned that the cheque had been lost. A perusal of the trial record also shows that the accused appeared to be aware of the fact that the cheque was with the complainant. Furthermore, the very fact that the accused had failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version. Apart from not raising a probable defence, the appellant-accused was not able to contest the existence of a legally enforceable debt or liability. The fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the complainant having spent his own money for the same purpose. As per the record of the case, there was a slight discrepancy in the complainant's version, in so far as it was not clear whether the accused had asked for a hand loan to meet the construction-related expenses or whether the complainant had incurred the 16 said expenditure over a period of time. Either way, the complaint discloses the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his money was used for the construction- expenses. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant."
17. The presumption mandated by Section 139 of the Act does indeed include the existence of legally enforceable debt or liability is the view of the Hon'ble Apex Court in Rangappa, supra, and to that extent the observations in Krishna Janardhan Bhat (supra), is held not to be correct.
18. In the case of Arjun (supra), the Co-ordinate Bench of this Court has observed thus:
"9. Looking to the judgment of the trial Court, it has discussed the oral as well as documentary evidence placed on record. It is observed by the trial Court in its judgment, at 17 paragraph-4, that in order to disprove the case of the complainant, the accused filed his affidavit by way of examination in chief. In the affidavit, he states that he knows the complainant for the last 10 to 15 years, and he was residing adjacent to his business concern as he was doing the kerosene business for the last 15-20 years. The trial Court has also observed in the said paragraph about the defence of the accused that during the year 2001, he borrowed a sum of Rs.20,000/- from the complainant by way of hand loan, and at that time, the accused pledged his kerosene licence and also issued a blank signed cheque as a security to the complainant. It is also the defence of the accused that he paid the entire loan amount of Rs.20,000/- by the end of 2002 and there is no liability payable to the complainant. The trial Court has also referred to the contention of the accused that he never issued the cheque of Rs.2.00 lakh for discharge of the debt to the complainant. Therefore, on the basis of the said defence, the trial Court discussed that the accused has admitted his signature on the cheque issued in favour of the complainant. Though it may be his contention that it was a 18 blank signed cheque, the burden is on the part of the accused person to rebut the presumption raised in favour of the complainant as per the provision under Sections 118 and 139 of the Negotiable Instruments Act. Further, it has been observed by the trial Court on page No.6 of its judgment that the accused has to rebut the presumption by leading cogent evidence. Mere plausible explanation is not sufficient to disprove the case of the complainant. The trial Court has also made reference to another contention of the accused that complainant himself filled up the entire body of the cheque and he admits the signature. Therefore, by making reference to the pleadings, the oral evidence of the complainant as well as to the defence of the accused, the trial Court held that the accused has failed to rebut the presumption and the complainant has proved his case.
10. The other important aspect of the matter observed by the trial Court is that though it is the contention of the revision petitioner-accused that he has sent reply to the legal notice, but, he has not produced any documents in proof of the same before the 19 Court. Hence, perusing the materials, ultimately, the trial Court came to the conclusion that the accused is guilty of the offence punishable under Section 138 of the Negotiable Instruments Act."
19. In the case of C.N.Dinesha (supra), the Co- ordinate Bench of this Court has observed thus:
"9. To commence from the premise of admitted facts, the parties were known to each other. If the case of the accused is to be accepted, though the complainant was a married lady, he had intimate relationship with her. On his own showing in the year 2005 itself, cheque bearing his signature was in the possession of the complainant and she had indicated to implicate him in a criminal case by using the said cheque. Even in his reply notice to the demand notice issued by the complainant, he alleged that cheque issued by him for a sum of Rs.50,000/- is tampered. Despite the same, he did not take any action against the complainant in respect of the said cheque. The complainant had produced the certified copy of the sale deed/Ex.P7 wherein she along with her husband and on behalf of 20 their minor children had sold a immovable property for consideration of Rs.5,75,000/- vide registered sale deed dated 5.5.2005. The alleged loan transaction since is of January 2006 being in close proximity in time to the date of sale of her property, the complainant had successfully established her financial capacity to lend Rs.3,50,000/-. No acceptable evidence was brought on record to the effect that the sale amount did not reach the complainant. Thus, financial capacity of the complainant was accepted by the courts below.
10. The defence that parties were in intimate relationship with each other coincides with the case of complainant that without getting documentation, the amount was lent to the accused. Of course, for a naked eye, the first number '3' appears to have been written with different pen pressure and ink. But at the same time, it is to be noted that author of the cheque while writing the figures in the box, why would he leave exact space, so that at a later stage, someone can implant figure '3' before '50,000'. Having admitted the fact that the cheque bears his signature and issued from his 21 account, the accused never made attempt to seek scientific evidence to disprove the case of the complainant. It was the case of the complainant that the entire cheque is in the handwriting of the accused. It was never the case of the complainant that the accused wrote the cheque in her presence. Thus, the probability of the complainant tampering the cheque does not find a base."
20. In the case of N.Manjegowda (supra), the Co- ordinate Bench of this Court has observed that, plea as to loss of signed cheques in Bus and no complaint lodged with Police would be nothing but the accused having failed to produce acceptable rebuttal evidence as to how the complainant came in possession of cheques.
21. In the case of Hiten P. Dalal (supra), it is held by the Hon'ble Apex Court that presumption that the cheque was drawn for discharge of liability or of drawer is presumption of law ought to be raised by Court in every case. Mere plausible explanation is not sufficient to disprove the presumption of law.
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22. In the light of these judgments, the factual aspects of the case on hand are examined.
23. As regards financial capacity of the complainant, Exhibits P10 to P17 clearly demonstrates that the husband of the complainant had sufficient income and it is the testimony of PWs-1 and 2 that the savings made by them out of their earnings was lent as loan to the accused, which cannot be disbelieved. The presumption under Section 139 of the Act can be rebutted by the accused only by leading cogent evidence. The evidence let in by the accused is not plausible evidence to rebut the statutory presumption. Both the courts below have observed that the evidence on record establishes the intimacy between the accused and the husband of the complainant. Both the accused and PW-2 were working at Velangani Auto Consultancy Services and there are instances of financial transactions between the accused and PW-2, one such financial transaction is proved as per Ex.P25. Nothing positive is elicited in the cross examination of PW-1- 23 complainant, PW-2-complainant's husband and PW-3- Service Relationship Manager, City Bank. Testimony of PW- 3 indeed supports the case of complainant.
24. Section 139 contemplates that it shall be presumed, unless the contrary is proved, that the holder of the 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. The burden is on the accused to rebut this presumption which is not discharged. Hence, the arguments of the learned senior counsel that it is for the prosecution to prove the presumption under Section 139 and not for the accused, holds no water, in the light of the judgment of the Hon'ble Apex Court in the case of Rangappa, supra.
25. In the light of the judgment of the Hon'ble Apex Court in Rangappa, supra, reliance placed by the learned senior counsel appearing for the petitioner on Kirshna Janardhan Bhat (supra), cannot lend any assistance to the accused. Similarly, the judgment of Amzad Pasha also 24 would not come to the assistance of the petitioner, for the reasons discussed in the preceding paragraphs 14 and 15.
26. However, judgments referred to by the learned counsel for the respondent supports the case of the complainant.
27. As regards the dispute of signature in the cheque, the arguments of the learned senior counsel cannot be countenanced since the case of the complainant is that the signature found in the cheque is in the handwriting of the accused. No attempt was made by the accused to seek scientific evidence to disprove the case of the complainant. Thus the probability of the complainant tampering the cheque also cannot be accepted as no police complaint was lodged for the alleged theft said to have been committed by the husband of the complainant PW-2 or complainant allegedly forging the signature of the accused on the cheque. It casts a doubt in the mind of the Court in as much as the accused keeping the signed cheque in his office - business premises albeit closing the account. The intimate 25 relationship between the accused and the husband of complainant supports the case of the complainant.
28. Any observation made by the Appellate Court while examining the signature in terms of Section 73 of the Evidence Act would not invalidate the proceedings which are otherwise held to be justifiable.
29. In the light of the above firm position of law and on facts, it is clear that the accused failed to dislodge the statutory presumption under Sections 118 and 139 of the Act that he had issued the cheque for consideration towards legally enforceable debt, could not be shaken. The Courts below have rightly found the petitioner-accused guilty of the offence under Section 138 of the Act and convicted, which do not call for any interference by this Court.
Accordingly, the revision petition stands dismissed.
Sd/-
JUDGE Dvr: