Karnataka High Court
Sri R Vidyashankar vs Smt Gayathridevi on 2 March, 2020
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.1214/2010
Between:
Sri R. Vidyashankar
S/o late A.N. Ramachandraiah
Aged about 52 years
No.1595, Sri Rampura Extension
2nd Stage, 2nd Cross
Mysore. ... Appellant
(By Sri V. Vinay Raghavendra, Advocate for
Sri T.N. Raghupathy, Advocate)
And:
Smt. Gayathridevi
Nurse, Primary Health Center
Hullahally Govt. Hospital
Hullahally Village
Nanjangud Taluk
R/at D.No.1407, 6th Cross
Sri Ranganatha Nilaya
Srirampura 2nd Stage
Near Naidu Stores
Mysore. ...Respondent
(By Sri P. Nataraju, Advocate)
This Criminal Appeal is filed under Section 378(4) of Cr.P.C.
praying to set aside the order dated 16.09.2010 passed by the II
Additional District and Sessions Judge, Mysore in
Crl.A.No.41/2010 acquitting the respondent/accused for the
offence punishable under Section 138 of N.I. Act and confirm the
order dated 08.04.2010 in CC No.745/2009 passed by the V
Additional I Civil Judge and JMFC, Mysore and etc.,
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This Criminal Appeal coming on for Hearing this day, the
Court delivered the following:
JUDGMENT
This appeal is preferred by the complainant challenging the judgment and order dated 16.09.2010 passed in Crl.A.No.41/2010 on the file of the Court of II Additional District and Sessions Judge at Mysore, whereby the learned Sessions Judge acquitted the accused- respondent by setting aside the judgment and order dated 08.04.2010 passed in C.C.No.745/2019 on the file of V Additional I Civil Judge, JMFC, Mysore, convicting the accused for an offence punishable under Section 138 of N.I. Act, 1881 ('N.I. Act' for short).
2. It is the case of the complainant that the accused borrowed a sum of Rs.1,00,000/- from him for her legal necessity, assuring that she will make the payment soon. On good faith, the complainant made the payment. Further, the accused issued a post dated cheque for a sum of Rs.1,00,000/- in favour of complainant, drawn on State Bank of Mysore, Nanjangud Branch vide cheque No.637068 dated 06.03.2009. When the complainant 3 presented the said cheque for realization at Karnataka Bank Ltd., Vivekananda Circle Branch, Mysore on 06.03.2009, it was returned with an endorsement "Funds Insufficient" on 13.03.2009. The complainant issued a legal notice on 21.03.2009 both by RPAD and under certificate of posting. Inspite of service of notice, accused neither replied to the notice nor paid the amount mentioned in the cheque within the stipulated time and therefore he committed an offence punishable under Section 138 of the N.I. Act.
3. Before the trial Court, to prove the case, the complainant got himself examined as PW.1 and got marked Exs.P1 to P9.
4. The trial Court, by judgment and order dated 08.04.2010 passed in CC.No.745/2019, convicted the accused for the offence under Section 138 of the N.I. Act and sentenced her to pay a sum of Rs.1,25,000/- as fine and in default of payment to undergo simple imprisonment for a period of three months.
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5. Aggrieved by the judgment and order of conviction and sentence passed by the trial Court, the accused preferred Crl.A.No.41/2010 on the file of the Court of II Additional District and Sessions Judge at Mysore. Learned Sessions Judge by judgment dated 16.09.2010, acquitted the accused by setting aside the impugned judgment and order of conviction and sentence passed by the trial Court. Hence, this appeal by the complainant.
6. The contention of the learned counsel for the appellant is that the accused has admitted the signature in the cheque in question and it is also not disputed that the cheque belongs to him. As such, there is a legal presumption which would arise that the transaction was a genuine transaction and the cheque was issued to the complainant in discharge of legally recoverable debt. He submits that a legal presumption is available in favour of the complainant under Sections 118 and 139 of the N.I. Act. He contends that the learned Sessions Judge was not proper in acquitting the accused on the ground that the appellant has not mentioned the date of lending the money 5 and for the reason that the transaction is not reflected in the income tax returns. He submits that even if it is to be accepted that the contents of the cheque are not filled by the accused, but subsequent filling in of an unfilled signed cheque is not an alteration. The payee may fill up the amount and other particulars and that in itself would not invalidate the cheque. He submits that the respondent having admitted her signature on the cheque, has failed to rebut the presumption by entering into the witness box and therefore the impugned judgment now passed by the learned Sessions Judge is opposed to law, facts and probabilities of the case and hence, the same is liable to be set aside.
7. In support of his contention, the learned counsel for the appellant has placed reliance on the following decisions;
1. (2019)4 SCC 197 in case of Bir Singh V/s Mukesh Kumar.
2. ILR 2007 KAR 3614 in case of Mr. Mohammed Iqbal V/s Mr. Mohammed Zahoor.
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8. Per contra, learned counsel appearing for the respondent contends that the accused has not borrowed any loan as alleged by the complainant. A blank cheque which was given as security on 11.11.2007 while receiving a loan of Rs.25,000/- from the complainant has been misused by him, though the said amount was repaid. He submits that the complainant has failed to state as to when he advanced a loan of Rs.1,00,000/- to the accused. He submits that during the cross-examination of PW.1, though he has admitted that he has documents to show regarding source of income, no such documents are produced. He submits that the complainant though stated that the amount of Rs.1,00,000/- lent to the accused has been reflected in the income tax returns, but Ex.P7 shows that the income tax returns was filed subsequently. He submits that the learned Sessions Judge having taken note of all the relevant facts and admission made by the complainant has rightly acquitted the accused. Accordingly, he seeks to dismiss the appeal. 7
9. The case of the complainant is that he advanced a sum of Rs.1,00,000/- to the accused and in this regard the accused issued a post dated cheque for the said sum, vide cheque No.637068 dated 06.03.2009 and when the said cheque was presented, the same was dishonored with an endorsement "Funds Insufficient". The accused failed to repay the amount mentioned in the cheque within the stipulated time, inspite of receipt of the legal notice and hence, he committed the offence under Section 138 of N.I. Act.
10. The specific defence taken by the accused is that he had borrowed a sum of Rs.25,000/- from the complainant and in this regard he issued a blank cheque dated 11.11.2007 as security and though the said amount was repaid, the cheque which was given as security was misused by the complainant.
11. PW.1 has reiterated the averments made in the complaint. In the cross-examination he has stated that he has necessary documents to show that he had in possession, a sum of Rs.1,00,000/-. However the said 8 documents are not produced before the Court. According to him, he had an annual income of Rs.1,00,000/- from agriculture and business. He has stated that a sum of Rs.30,000/- was his expenses. He has stated that he is a income tax assessee and he has shown in the income tax returns regarding lending of Rs.1,00,000/- to the accused. He has admitted that only once he has lent loan to the accused. He has admitted that he had lent a sum of Rs.25,000/- to the accused by way of cheque and the accused had repaid the said amount on 11.11.2007. He has admitted that the colour of ink of the signature and other contents of the cheque-Ex.P1 are different.
12. Though it is the case of the complainant that the accused issued the cheque for a sum of Rs.1,00,000/-, he has admitted in the cross-examination that the signature and the other contents in Ex.P1 are in different ink. Hence, it is difficult to accept the version of the complainant that the accused issued a post dated cheque for a sum of Rs.1,00,000/- to him by filing the amount mentioned in the cheque.
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13. Learned counsel for the complainant would place strong reliance on the decision of the Hon'ble Apex Court in the case of Bir Singh (supra) by referring to paragraphs 32 to 34 and 38, which are extracted hereunder;
32. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post-dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act.
33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is 10 otherwise valid, the penal provisions of Section 138 would be attracted.
34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
38. In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the 11 respondent-accused of the charge under Section 138 of the Negotiable Instruments Act.
14. The proposition of law laid down by the Hon'ble Apex Court is that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption. It is immaterial that the cheque may have been filled in by any person other than the drawer. If the cheque is otherwise valid, the penal provision of Section 138 of the N.I. Act would be attracted. A signed blank cheque if voluntarily presented to the payee, the payeee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The subsequent filing up of an unfilled cheque is not an alteration.
15. Learned counsel for the appellant does not dispute that, to rebut the presumption, the accused need not enter into the witness box and he is also not required to establish his defence beyond all reasonable doubt. According to him even if there is difference of ink, if the accused has admitted his signature on the cheque then it 12 has to be presumed that the cheque was issued in respect of legally enforceable debt. The payee may fill up the amount and other particulars. This in itself would not invalidate the cheque.
16. In the instant case it is the specific case of the complainant that the accused issued a post dated cheque for a sum of Rs.1,00,000/-. It is not his case that a signed blank cheque was issued to him and later he filed the other contents. When he has specifically stated that the accused has issued the cheque for a sum of Rs.1,00,000/- then he cannot contend that even though the signature and other contents of the cheque are in different ink, it has to be presumed that the amount mentioned in the cheque is towrads a legally recoverable debt. When the holder of the cheque specifically asserts that the accused has issued a cheque for a sum of Rs.1,00,000/- by mentioning the amount then he cannot contend that the complainant may fill up the contents of the cheque and subsequent filing is not an alteration.
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17. Accordingly to the complainant, only once he lent loan to the accused. He has admitted that a sum of Rs.25,000/- was advanced to the accused by way of cheque and it was repaid by the accused on 11.11.2007. This admission by the complainant support the defence taken by the accused that while advancing the said sum of Rs.25,000/- to the accused, the complainant obtained a blank signed cheque from him as security. Admission by the complainant that there is variance in the color of ink of the signature and other contents of the cheque would further support the case of the accused.
18. Learned counsel for the appellant by placing reliance in the case of Mr. Mohammed Iqbal (supra) contends that Section 269-SS of the Income Tax Act only provides for the mode of acceptance, payment or repayment in certain cases to counteract evasion of tax. Section 269-SS does not declare all transaction of loan by cash in excess of Rs.25,000/- as invalid. Hence, he submits that the reason assigned by the learned Sessions Judge is not proper.
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19. In the present case, in the cross-examination conducted on 21.10.2009, the complainant has stated that he has shown the transaction in question in the income tax returns. He has produced and marked Ex.P7 i.e., acknowledgment for having submitted the income tax returns for the assessment year 2009-10. Ex.P9 is the balance sheet, wherein payment of Rs.1,00,000/- to the accused is shown. It is pertinent to see that though at the time of cross-examination the complainant has stated that he has already shown in the income tax returns regarding the transaction between the accused and complainant, however as per Ex.P7, the income tax returns was submitted on 17.11.2009, which shows that after the cross-examination of the complainant, the returns were filed. The learned Sessions Judge having considered all the above aspects has acquitted the accused by setting aside the judgment and order of conviction and sentence passed by the trial Court.
20. From the evidence and material on record, it can be seen that the accused has been able to rebut the 15 presumption which was available in favour of the complainant. No grounds are made to interfere with the impugned judgment and order passed by the learned Sessions Judge.
Hence, the following;
ORDER Appeal is dismissed.
Sd/-
JUDGE ssb