Karnataka High Court
R Rakesh vs H G Guruprasad on 30 July, 2019
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL REVISION PETITION No.161/2015
BETWEEN:
1. M/s. Manjunatha Wood Works
No.242/43, 6th Cross,
Venkatapura, Koramangala,
Bengaluru-560 034,
Represented by its Proprietor.
2. Sri Murthy
S/o Thammaiahchar
Aged about 42 years
R/at No.242/43, 6th Cross
Venkatapura, Koramangala,
Bengaluru-560 034.
...Petitioners
(By Sri M.D.Basavanna, Advocate)
AND:
Sri A.Babu
S/o late Armugam
Aged about 40 years
R/at No.492, 8th Main,
4th 'A' Cross, Hampi Nagar,
Bengaluru-560 104.
...Respondent
(By Sri Naveen Chandra N., Advocate)
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This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C praying to set aside the judgment
and order dated 19.06.2012 passed by the XIII ACMM,
Bengaluru, in C.C.No.12230/2009 and consequently set
aside the judgment and order dated 08.01.2015 passed by
the Presiding Officer, Fast Track Court-IV, Bengaluru in
Criminal Appeal No.423/2012.
This Criminal Revision Petition coming on for
Admission this day, the Court made the following:-
ORDER
This petition has been filed by the petitioners/accused challenging the judgment passed by the City Fast Track Court-IV, Bengaluru, in Criminal Appeal No.423/2012 dated 8.1.2015, whereunder the judgment of conviction passed by XIII Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.No.12230/2009 dated 19.6.2012 has been confirmed by dismissing the appeal.
2. I have heard the learned counsel for the petitioners/accused and the learned counsel appearing for the respondent/complainant.
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3. The facts leading to the complaint are that since past five to six years complainant and accused were good friends. Because of the said relationship accused No.2 approached the complainant in the 1st week of December, 2008 seeking financial assistance of Rs.1,50,000/- assuring to repay the said loan amount after three months. When the complainant demanded to repay the said amount, accused has issued the cheque bearing No.299969 dated 19.3.2009 drawn on The National Co- operative Bank Limited, Koramangala Branch, Bangalore- 560095. When the said cheque was presented for encashment same was returned with the endorsement "funds insufficient" on 19.3.2009. Thereafter, a legal notice was issued on 28.3.2009. After service of notice the accused has issued untenable reply and has not paid the amount and as such a complaint was registered. Thereafter, the accused appeared and his plea was recorded.
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4. The complainant got himself examined as PW1 and got marked Exs.P1 to P10, thereafter the statement of the accused was recorded under Section 313 of Cr.P.C. and accused got examined himself as DW1 and also got examined one more witness as DW2. Thereafter, the Court below has come to the conclusion that the accused has committed the offence under Section 138 of Negotiable Instruments Act and convicted the accused. Being aggrieved by the said judgment, the present petitioner/accused preferred the appeal and the appeal was also came to be dismissed.
5. It is the submission of the learned counsel for the petitioners/accused that the cheque Ex.P1 has been materially altered, behind Rs.50,000/-, '1' has been inserted patently and the said alteration has been found. Even the said fact has also been substantiated in the evidence of DW1. In his evidence he has specifically deposed that when the accused brought the said cheque, he has written only Rs.50,000/-, but subsequent -5- suggestions which have been made that '1' has been inserted has been denied. It is his further submission that complainant is stranger to DW2 and if he has issued the cheque in favour of the complainant, then under such circumstances, the question of he requesting DW2 does not arise at all. It is his further submission that the said cheque was given to DW2 and there was some dispute between DW2 and the accused and a false complaint has been filed against the accused. It is his further submission that the evidence of the accused clearly substantiates his case. This aspect has not been properly considered and appreciated by the Courts below. It is his further submission that in order to enforce the said complaint there must be a debt and without there being any debt the cheque has been submitted and requested the accused to pay Rs.1,50,000/-. He further submitted that the source of income with which the complainant had paid the said amount has not been substantiated by producing any documents or evidence. It is his further submission that -6- though the said cheque has been issued in the year 2009 and the conduct of the complainant and the accused if they are looked into, that itself clearly goes to show that there was no enforceable debt and in that light he prays to allow the petition and to set aside the impugned judgment of conviction and order of sentence.
6. Per contra, the learned counsel appearing on behalf of the respondent/complainant vehemently argued and submitted that the evidence which has been produced that of DW2 and DW1 itself clearly goes to show that it is accused and DW1 have colluded but falsely contending that he colluded with the complainant. He further submitted that no complaint has been registered as against DW2 for having played fraud. He further submitted that there is consistency in the evidence of the complainant and the trial Court has clearly appreciated the said evidence and has come to a right conclusion that the accused has committed the offence under Section 138 of the Negotiable Instruments Act and thereafter it has rightly convicted the -7- accused. The first appellate Court after considering the said evidence has rightly dismissed the said appeal. There are no good grounds to interfere with the orders of the trial Court. The orders of the trial Court deserves to be confirmed by dismissing the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the lower court records secured in this behalf and also other material which has been produced along with the petition.
8. The first and foremost contention which has been taken up by the learned counsel for the petitioner/accused is that there is material alteration in the cheque Ex.P1 and when material alteration of a cheque is there, then it is not a instrument worthy of reliance. In order to substantiate the said fact he relied upon the decision of the Hon'ble Apex Court in the case of M.B.Rajasekhar Vs. Savithramma reported in 2012 Crl.LJ 1463. I have carefully and -8- cautiously gone through the said decision. The facts of the case on hand and the facts therein are quite different. Therein, at the place of alteration, the signature was not there. Keeping in view the said fact the said decision has been rendered. Keeping in view the submissions and the decision quoted let us consider the evidence on record. As per the case of the complainant the accused borrowed the hand loan of Rs.1,50,000/- and when it has been demanded to return he has issued the cheque. Insofar as issuance of cheque is admitted by DW1 also. The only contention which has been contended is that there is material alteration of the figure '1' behind '50'. But as could be seen from Ex.P1 the said Rs.1,50,000/- has also been written in words. As per Section 20 of the Negotiable Instruments Act, when once the drawer of the cheque signs and delivers to another, then if it is incomplete negotiable instrument thereby he gives prima facie authority to the holder thereof to make or complete the instrument as a Negotiable Instrument.
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9. Taking into consideration the above said facts and circumstances the figures and words written tallies with each other. Then under such circumstances the contention of the petitioner/accused that there is a material alteration of '1' in the said cheque Ex.P1 does not stand to any reason.
10. Be that as it may. If at all it is the specific contention of the petitioner/accused that there is alteration, in order to substantiate the said fact he has got examined DW2 Ramesh. In his evidence he has stated that the cheque was brought by the accused and he has written '50', but subsequently when it has been suggested that the figure '1' has been inserted in the said cheque, the said suggestion has been denied. Be that as it may. Even as could be seen from the evidence of DW2 there is no examination-in-chief made by the learned counsel appearing on behalf of the accused. Only the said witness has been cross-examined for the reasons best known to the
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learned counsel who was appearing on behalf of the accused. In order to call it as evidence before the Court there must be examination-in-chief and there after cross-examined. If the said witness resile from the examination-in-chief, then under such circumstances he will get a right of cross-examination as if that witness has been treated as hostile. If that witness has been cross- examined, that evidence itself is no evidence before the Court in accordance with law. Under such circumstances the evidence of DW2 cannot be accepted in law in any way in this behalf. If the evidence of DW2 goes, then under such circumstances, the contention which has been taken up by the learned counsel for the petitioner/ accused that there is a material alteration of cheque Ex.P1, cannot be accepted.
11. Leave apart that, if at all it is the specific contention that the figure '1' has been inserted behind '50', then under such circumstances atleast he could have sent the said Ex.P1 for handwriting experts opinion to ascertain
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whether subsequently figure '1' has been inserted. But in this behalf no efforts have been made and even no other material has been produced. Under such circumstances also the contention cannot be accepted in this behalf.
12. It is the specific contention of the learned counsel for the petitioner/accused that the complainant is a stranger to accused and he was not acquainted with the complainant, but the evidence of the accused who has been examined as DW1 in his examination-in-chief has admitted that the signature found on the cheque Ex.P1 belongs to him and it is his specific case that the said cheque has been issued to DW2 Ramesh. It is well proposed principles of law in the case of Rangappa Vs. Sri.Mohan reported in (2010)11 SCC 441, wherein it has been observed by the Hon'ble Apex Court that once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised, it is
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a mandatory presumption and if at all any contentions has been taken by the accused, it is the accused who has to rebut the said presumption on preponderance of probabilities.
13. Keeping in view the above said proposition of law, if the other contentions which have been taken, are looked into, the said cheque has been issued to one Ramesh DW2, but as could be seen from the evidence of DW2, therein nowhere he has stated that the said cheque has been issued in his favour and even it is suggested by showing Cheque Ex.P1 that it is issued by the accused and the said suggestion has been denied by the said witness. Even he has admitted the fact that handwriting found in the said Ex.P1 is belonging to him.
14. When he himself has come with a version that Ex.P1 has been brought by the accused in blank, after signing it and he has only requested him to fill up the same and accordingly he filled up. Then under such
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circumstances the contention taken up by the accused that the complainant is a stranger and he has not issued the cheque and cheque has been issued in favour of Ramesh DW2 also cannot be accepted.
15. It is the 3rd contention of the petitioner accused that there was no enforceable debt. But as per the provisions of Sections 139 and 118 of the Negotiable Instruments Act when once the accused admits the signature on the cheque, then under such circumstances there is a presumption that there was legally recoverable debt and in pursuance of the same, the said cheque has been issued. When once that particular thing has been established, the Court has to presume that there is legally recoverable debt. In that light also the accused has not made out any case in this behalf so as to come to the conclusion that the said presumption has been rebutted by any other means.
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16. Looking from any angle the contention taken up by the accused have remained as contention without there being any substantial proof in this behalf.
17. I am conscious of the fact that if there is presumption, the presumption can be rebutted by preponderance of probabilities and no strict proof of the evidence is required, however, the said proof must stand to reasons and it is acceptable one.
18. By looking to the material and evidence placed on record it shows that he has taken up inconsistent stand and without there being any basis. Under such circumstances I feel that the petitioner/accused has not made out any good grounds so as to interfere with the orders of the trial Court. The orders of the trial Court deserves to be confirmed.
Accordingly, the petition is dismissed.
Sd/-
JUDGE *AP/-