Karnataka High Court
Peter S/O. Calista Rego vs Akshaya Co Operative Credit Society on 1 September, 2023
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CRL.R.P No.100117 OF 2021
C/W CRL.R.P No.100118 OF 2021
CRL.R.P.No.100120 OF 2021
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1ST DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO.100117 OF 2021
C/W
CRIMINAL REVISION PETITION NO.100118 OF 2021
CRIMINAL REVISION PETITION NO.100120 OF 2021
IN CRL.RP.No.100117 OF 2021
BETWEEN:
PETER
S/O.CALISTA REGO.
AGED ABOUT 56 YEARS
CHANDRASHEKAR
LAXMAN
OCC: BUSINESS REGO FURNITURES
KATTIMANI
CMC COMPLEX SHIVAJU CHOWK
Digitally signed by R/O.TSS ROAD
CHANDRASHEKAR
LAXMAN SIRSI-581 401
KATTIMANI
...PETITIONER
(BY SRI.SHIVAKUMAR S BADAWADAGI, ADVOCATE)
AND:
AKSHAYA CO-OPERATIVE
CREDIT SOCIETY
CHURCH ROAD
SIRSI-581 401
...RESPONDENT
(BY SRI.DINESH M KULKARNI, ADVOCATE)
***
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CRL.R.P No.100117 OF 2021
C/W CRL.R.P No.100118 OF 2021
CRL.R.P.No.100120 OF 2021
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C., PRAYING TO CALL FOR THE
RECORDS AND TO SET ASIDE THE JUDGMENT DATED 23.09.2020
PASSED BY THE 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE
AT UK KARWAR SITTING AT SIRSI IN CRIMINAL APPEAL
NO.5003/2017 WHEREBY CONFIRMED THE JUDGMENT AND
CONVICTION PASSED BY ADDITIONAL CIVIL JUDGE AND 2ND
ADDITIONAL JMFC COURT AT SIRSI IN C.C.NO.1370/2009 DATED
28.12.2016 AND CONSEQUENTLY BE PLEASED TO DISMISS THE CC
NO.1370/2009 FILED BY THE RESPONDENT ON THE FILE OF 2ND
ADDITIONAL JMFC COURT AT SIRSI OFFENCES PUNISHABLE U/S 138
OF N.I. ACT.
IN CRL.RP.No.100118 OF 2021
BETWEEN:
PETER
S/O.CALISTA REGO.
AGED ABOUT 56 YEARS
OCC: BUSINESS REGO FURNITURES
CMC COMPLEX SHIVAJU CHOWK
R/O.TSS ROAD
SIRSI-581 401
...PETITIONER
(BY SRI.SHIVAKUMAR S BADAWADAGI, ADVOCATE)
AND:
AKSHAYA CO-OPERATIVE
CREDIT SOCIETY
CHURCH ROAD
SIRSI-581 401
...RESPONDENT
(BY SRI.DINESH M KULKARNI, ADVOCATE)
***
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C., PRAYING TO CALL FOR THE
RECORDS AND TO SET ASIDE THE JUDGMENT DATED 23.09.2020
PASSED BY THE 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE
AT UK KARWAR SITTING AT SIRSI IN CRIMINAL APPEAL
NO.5001/2017 WHERE BY CONFIRMED THE JUDGMENT AND
CONVICTION PASSED BY THE ADDITIONAL CIVIL JUDGE AND 2ND
ADDITIONAL JMFC COURT AT SIRSI IN C.C.NO.836/2009 FILED BY
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CRL.R.P No.100117 OF 2021
C/W CRL.R.P No.100118 OF 2021
CRL.R.P.No.100120 OF 2021
THE RESPONDENT ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND 2ND ADDITIONAL JMFC COURT AT SIRSI OFFENCE PUNISHABLE
U/S 138 OF N.I. ACT.
IN CRL.RP.No.100120 OF 2021
BETWEEN:
PETER
S/O.CALISTA REGO.
AGED ABOUT 56 YEARS
OCC: BUSINESS REGO FURNITURES
CMC COMPLEX SHIVAJU CHOWK
R/O.TSS ROAD
SIRSI-581 401
...PETITIONER
(BY SRI.SHIVAKUMAR S BADAWADAGI, ADVOCATE)
AND:
AKSHAYA CO-OPERATIVE
CREDIT SOCIETY
CHURCH ROAD
SIRSI-581 401
...RESPONDENT
(BY SRI.DINESH M KULKARNI, ADVOCATE)
***
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C., PRAYING TO CALL FOR THE
RECORDS AND TO SET ASIDE THE JUDGMENT DATED 23.09.2020
PASSED BY THE 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE
AT UK KARWAR SITTING AT SIRSI IN CRIMINAL APPEAL
NO.5002/2017 WHEREBY CONFIRMED THE JUDGMENT AND
CONVICTION PASSED BY THE 2ND ADDITIONAL CIVIL JUDGE AND
2ND ADDITIONAL JMFC COURT AT SIRSI IN C.C.NO.838/2009 DT;
28.12.2016 AND CONSEQUENTLY BE PLEASED TO DISMISS THE CC
NO.838/2009 FILED BY THE RESPONDENT ON THE FILE OF
ADDITIONAL CIVIL JUDGE AND ADDITIONAL JMFC COURT AT SIRSI
FOR OFFENCES PUNISHABLE U/S 138 OF N.I. ACT.
THESE CRIMINAL REVISION PETITIONS COMING ON FOR
ADMISSION AND THE SAME HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 26.06.2023, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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CRL.R.P No.100117 OF 2021
C/W CRL.R.P No.100118 OF 2021
CRL.R.P.No.100120 OF 2021
ORDER
Revision petitioner/accused in all these cases feeling aggrieved by the judgment of First Appellate Court on the file of I Additional District and Sessions Judge, U.K. Karwar, sitting at Sirsi, preferred these revision petitions, as per the chart shown below:
Sl. Criminal Date of Criminal Date of Crl.R.P Nos. No. Case No. Judgment Appeal Nos. Judgment in Trial Court
1. 1370/2009 28.12.2016 5003/2017 23.09.2020 100117/2021
2. 836/2009 28.12.2016 5001/2017 23.09.2020 100118/2021
3. 838/2009 28.12.2016 5002/2017 23.09.2020 100120/2021
2. Parties to all these revision petitions are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. Since accused is same in the aforementioned three cases, who has issued cheques to complainant society, the question of law, defence of accused being common, all these revision petitions are taken up together and disposed of by this common judgment.
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CRL.R.P No.100117 OF 2021 C/W CRL.R.P No.100118 OF 2021 CRL.R.P.No.100120 OF 2021
4. Heard the arguments of both sides.
5. The necessary particulars in respective cases are as follows:
i) Crl.RP No.100117/2021 arising out of CC No.1370/2009 Ex.P.1-Cheque No.163733, dated 20.11.2018-Rs.2,21,850/-.
Ex.P.2-Bank Endorsement dated 22.11.2008. Ex.P.3-Demand Notice dated 19.12.2008. Ex.P.4-Acknowledgment Card for having served demand notice, dated 20.12.2008.
Ex.P.5-Complaint filed on 30.01.2009.
ii) Crl.RP No.100118/2021 arising out of CC No.836/2009 Ex.P.1-Cheque No.163732, dated 20.11.2018-Rs.2,42,800/-. Ex.P.2-Bank Endorsement dated 21.11.2008. Ex.P.3-Demand Notice dated 19.12.2008. Ex.P.4-Acknowledgment Card for having served demand notice, dated 20.12.2008.
Ex.P.5-Complaint filed on 30.01.2009.
iii) Crl.RP No.100120/2021 arising out of CC No.838/2009 Ex.P.1-Cheque No.163731, dated 20.11.2018-Rs.2,28,430/-. Ex.P.2- Bank Endorsement, dated 21.11.2008. -6-
CRL.R.P No.100117 OF 2021 C/W CRL.R.P No.100118 OF 2021 CRL.R.P.No.100120 OF 2021 Ex.P.3-Demand Notice, dated 19.12.2008. Ex.P.4-Acknowledgment Card for having served demand notice, dated 20.12.2008.
Ex.P.5-Complaint filed on 30.01.2009.
6. On careful perusal of oral evidence of PW.1 and the aforementioned documents relied by the complainant, it would go to show that cheque issued by accused in respective cases for lawful discharge of debt came to be bounced for want of sufficient funds in the account of accused. Complainant has intimated the said fact to the accused by issuing demand notice. Accused did not respond to demand notice and therefore, complainant was constrained to file the complaint for the offence under Section 138 of Negotiable Instruments Act, 1881, (for short 'N.I. Act'). In the first case, as per the particulars referred above, accused was the surety for the loan availed by his wife. Accused in order to discharge the debt of his wife being surety issued the cheque. In other two cases, the accused himself has availed overdraft facility and issued cheque for the amount due to complainant as -7- CRL.R.P No.100117 OF 2021 C/W CRL.R.P No.100118 OF 2021 CRL.R.P.No.100120 OF 2021 shown in the above referred particulars. Accused do not dispute issuance of cheque in respective cases with his signature on the account maintained by him and the said cheque in each case came to be dishonoured for want of sufficient funds in the account of accused. The demand notice issued by the complainant is duly served to the accused. However, accused has neither replied to the demand notice nor paid the amount under the cheque. Complainant has complied the necessary requirement in terms of Section 138 and 142 of N.I. Act. Therefore, statutory presumption in terms of Section 118 and 139 of N.I. Act will have to be drawn.
7. In this context of the matter, it is useful to refer the judgment of Hon'blel Apex Court in APS Forex Services Pvt. Ltd. Vs. Shakti International Fashion Linkers and others reported in AIR 2020 SC 945, wherein it has been observed and held that once the issuance and signature on cheque is admitted, there is always a presumption in favour of complainant that there exist -8- CRL.R.P No.100117 OF 2021 C/W CRL.R.P No.100118 OF 2021 CRL.R.P.No.100120 OF 2021 legally enforceable debt or liability. Plea by accused that cheque was given by view of security and same has been misused by complainant is not tenable.
8. It is also profitable to refer another judgment of Hon'ble Apex Court in P. Rasiya vs. Abdul Nazer and another reported in 2022 SCC OnLine SC 1131, wherein it has been observed and held that:-
" Once the initial burden is discharged by the complainant that the cheque was issued by the accused and signature of accused on the cheque is not disputed, then in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for discharge of any debt or other liability. The presumption under Section 139 of N.I. Act is statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the complainant/holder of the cheque, in that case it is for the accused to prove the contrary."-9-
CRL.R.P No.100117 OF 2021 C/W CRL.R.P No.100118 OF 2021 CRL.R.P.No.100120 OF 2021 In view of the principles enunciated in the aforementioned two judgments of Hon'ble Apex Court, it is evident that when once issuance of cheque with signature of accused on the account maintained by him is admitted or proved then statutory presumption in terms of Section 118 and 139 of N.I. Act will have to be drawn. Now, it is up to the accused to place rebuttal evidence to displace the statutory presumption available in favour of the complainant.
9. In this context of the matter, it is useful to refer the judgment of Hon'ble Apex Court in Basalingappa Vs. Mudibasappa reported in 2019 Cr.R. page No. 639 (SC), wherein it has been observed and held that:
"Presumption under Section 139 is rebuttable presumption and onus is on accused to raise probable defence. Standard of proof for rebutting presumption is that of preponderance of probabilities. To rebut presumption, it is open for accused to rely on evidence laid by him or accused can also rely on materials submitted by complainant in order to raise a
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CRL.R.P No.100117 OF 2021 C/W CRL.R.P No.100118 OF 2021 CRL.R.P.No.100120 OF 2021 probable defence. Inference of preponderance of probabilities can be drawn not only from materials brought on record by parties, but also by reference to circumstances upon which they rely. It is not necessary for accused to come in witness box in support of his defence. Section 139 imposed an evidentiary burden and not a presumptive burden".
In view of the principles enunciated in this judgment, it is evident that the accused to probabilise his defence can rely on his own evidence or also can rely on material submitted by complainant. It is not necessary for the accused to step into witness box to probabilise his defence.
10. The courts below have recorded concurrent finding that accused has issued cheque in all the cases for lawful discharge of debt. The Trial Court has recorded finding that accused has failed to probabilised his defence that cheque was issued for previous loan transaction which has been misused by complainant finance, further negated the
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CRL.R.P No.100117 OF 2021 C/W CRL.R.P No.100118 OF 2021 CRL.R.P.No.100120 OF 2021 contention of learned counsel for the accused on maintainability of complaint.
11. The first defence of accused is that society is not properly represented and PW.1 has no any authority to give evidence regarding the transaction between complainant and accused. Complainant has produced authority letter of complainant bank Ex.P.6 and the relevant documents evidencing the transaction between the complainant society and accused. It is true that in the first case shown in the above particulars accused was the surety for the loan availed by his wife. Indisputably, cheque Ex.P.1 was issued with signature of the accused on the account maintained by him in Corporation Bank, Sirsi. The liability of accused being surety is co-extensive with that of principal borrower. Therefore, when the accused has taken responsibility of amount due to society by his wife, it cannot be contended subsequently by accused that he is not concerned to the said transaction. It is true that in the cause-title of the complaint, who is representing the
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CRL.R.P No.100117 OF 2021 C/W CRL.R.P No.100118 OF 2021 CRL.R.P.No.100120 OF 2021 society has not been stated. However, the Branch Manager of the Society with the authority of General Manager Ex.P.6 has filed the complaint and the said fact has not been denied by the accused. It has also been elicited in the cross-examination of PW.1 that he has also availed the loan from the society and never questioned the documents and issuance of cheque in the respective cases till the cross-examination of PW.1. The complainant society is duly represented through the Manager with due authority under Ex.P.6. The mere non-mentioning of the person representing the society cannot by itself said as sufficient evidence to hold that complaint is not maintainable particularly when no any basic foundation has been made by the accused.
12. It is elicited in the cross-examination of PW.1 that he was not working in the complainant society at the time of alleged transaction. The records produced by complainant evidencing the transaction between the complainant and the accused has not been denied by the accused. It is not
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CRL.R.P No.100117 OF 2021 C/W CRL.R.P No.100118 OF 2021 CRL.R.P.No.100120 OF 2021 necessary that the person who was Manager at the time of sanctioning overdraft facility or loan has to be examined. The offence of like this nature are based on documents and no personal knowledge is required to give evidence on the documents available with the society. The evidence of PW.1 would go to show that he has got sufficient knowledge based on the documents produced in the case to give evidence. Therefore, the said contention of accused also cannot be legally sustained.
13. The next defence of accused is that the cheque is issued by him for previous loan transaction and the same is mis-used by the complainant. Accused has not given any particulars regarding the previous transaction and in that context cheque was issued. Indisputably, the demand notice issued by the complainant in all the cases is duly served to accused and inspite of it, accused has neither replied the demand notice nor paid the amount under cheque. The service of demand notice has not been specifically denied by the accused. The postal
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CRL.R.P No.100117 OF 2021 C/W CRL.R.P No.100118 OF 2021 CRL.R.P.No.100120 OF 2021 acknowledgement produced in each of the case also would go to show that demand notice has been duly served to the accused. It was the duty of accused to make basic foundation of issuance of cheque regarding previous transaction by giving all particulars on the first available opportunity. In this context, it is useful to refer the judgment of Hon'ble Apex Court in Tedhi Singh vs. Narayan Dass Mahant reported in 2020 Livelaw (SC) 275, wherein it has been observed and held that basic foundation has to be made on the first available opportunity in the reply given to the demand notice by questioning the financial capacity. Otherwise, the complainant has no any opportunity to place any evidence on record in proof of his financial capacity. Therefore, in view of principles enunciated in this judgment, the mere defence of accused in challenging the financial capacity of complainant or in the present case service of demand notice, so also the cheque was issued for previous transaction without making any basic foundation cannot be legally sustained.
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14. Learned counsel for respondent relied on the judgment of Hon'ble Apex Court in T Vasanthakumar vs. Vijaya Kumari reported in (2015)8 SCC 378. In the said case before the Hon'ble Apex Court, the High Court has set aside the judgment of conviction passed by the Trial Court on the ground that complainant has not proved legally enforceable debt or liability. The said finding came to be set aside by Hon'ble Apex Court holding that High Court was misplaced in putting the burden on complainant. It has been held that it is for the accused to displace the presumption available in favour of complainant in terms of Section 118 and 139 of N.I. Act.
15. Learned counsel for the respondent also relied on the co-ordinate bench judgment of this Court in Gajanan vs. Appasaheb Siddamallappa Kaveri reported in (2023)2 KCCR 1231 and another co-ordinate Bench judgment of this Court in Toufiq Ali and another vs. State of Karnataka reported in (2023)3, KCCR 2459 regarding the exercise of revisional power in terms of Section 397 of
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CRL.R.P No.100117 OF 2021 C/W CRL.R.P No.100118 OF 2021 CRL.R.P.No.100120 OF 2021 Cr.P.C. The court has to verify whether there is any illegality or impropriety in recording the finding by the Courts below and the revisional court cannot re-appreciate the evidence. There cannot be any dispute with regard to proposition of law laid down in the said decisions.
16. In the present case, the accused has failed to substantiate any of his defence as referred above. Therefore, necessary statutory presumption in terms of Section 118 and 139 will have to be drawn. The Courts below have rightly appreciated the oral and documentary evidence placed on record and the findings recorded are based on material evidence on record. There are absolutely no any valid reason to interfere with the finding recorded by the Trial Court and also in imposition of sentence. Consequently, proceed to pass the following:-
Order Revision Petition filed by the revision petitioner is hereby dismissed.
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CRL.R.P No.100117 OF 2021 C/W CRL.R.P No.100118 OF 2021 CRL.R.P.No.100120 OF 2021 The judgment of First Appellate Court on the file of I Additional District and Sessions Judge, U.K. Karwar, sitting at Sirsi, in the above referred Criminal Appeals dated 23.09.2020 stands confirmed.
Registry is directed to send back the records to the Trial Court along with a copy of this order.
Sd/-
JUDGE gsr/mv