Dismissed

Mehaboob Basha S/O S. Sarmas Sab v. R.K.Khalander Basha S/O Abdul Razak Sab

Karnataka HC10 Dec 2020CRL.RP/100109/2019

Case brief

AI extract

What is this about?

Criminal Revision sought to set aside conviction under Section 138 NI Act for cheque dishonour. The High Court upheld the conviction, finding the accused failed to rebut the presumption of legally recoverable debt despite claiming the cheque was for chit fund security, rejecting claims regarding notice service.

What did the court decide?

Petition dismissed; judgment of conviction and sentence by both courts affirmed.

Mehaboob Basha S/O S. Sarmas Sab Vs R.K.Khalander Basha… — Cheque Dishonour | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 10^{T H} DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

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CRIMINAL REVISION PETITION NO.100109/2019

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BETWEEN:

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MEHABOOB BASHA S/O.S.SARMAS SAB AGE: 41 YEARS, OCC: SELF EMPLOYED, R/O. W.NO.14, T.S.NO.596, 1^ST CROSS, 4^{T H} BLOCK, NEAR YELLAMMA TEMPLE, MILLERPET, BALLARI. ….PETITIONER. (BY SHRI B.S.SANGATI, ADVOCATE.)

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AND:

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R.K.KHALANDER BASHA S/O.ABDUL RAZAK SAB AGE: 45 YEARS, R/O.W.NO.19, 11^{T H} CROSS, SKLS MANZIL, HUSSAIN NAGAR, BALLARI. (NOTICE SERVED.)

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….RESPONDENT.

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED 30.1.2019, PASSED BY II ADDL. DISTRICT AND SESSIONS JUDGE, BALLARI, IN CRL.A.NO.30/2018 AND THE JUDGMENT DATED 2.6.2018, PASSED BY V ADDL. CIVIL JUDGE AND JMFC, BALLARI, IN

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C.C.NO.1232/2017, AND TO ACQUIT ACCUSED OF THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT, ETC.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision petition is preferred by accused being aggrieved by judgment of conviction dated 2.6.2018 passed by V Addl. Civil Judge and JMFC, Ballari, in C.C.No.1232/2017, convicting accused for the offence punishable under section 138 of Negotiable Instruments Act (‘the Act’ for short) and sentencing him to pay a fine of Rs.2,70,000/and in default to undergo simple imprisonment for a period of six months. Out of the fine amount, to pay Rs.2,65,000/to complainant as compensation and Rs.5,000/- to be paid to the account of State, which is confirmed by II Addl. District and Sessions Judge, Ballari, in Crl.A.No.30/2018, by judgment dated 30.1.2019.

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Though this matter is listed for admission, since service is complete, it is taken

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up for final disposal. It is seen from the records that respondent was served on 13.8.2019 and once again on 23.10.2020, despite which there is no representation on behalf of respondent.

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Parties shall be referred to as per their

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status before trial Court.

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Brief facts leading to filing of this case are as under:

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It is the case of complainant that he knew accused very well and they were friends. Accused is a tailor by profession. Since he was in need of some financial assistance, he approached complainant for a hand loan of Rs.2,50,000/- on the premise that he would repay the amount within a short period. Even after lapse of one year, accused failed to repay the borrowed amount. On consistent demand made by complainant for return of borrowed amount, accused got issued a cheque bearing No.135125 dated 10.10.2015 drawn on IDBI Bank, Ballari, in

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favour of complainant. On presentation of said cheque for encashment, the same came to be dishonoured for the reason of ‘funds insufficient’. Thereafter complainant got issued legal notice on 21.10.2015. Despite service of notice on accused, he did not repay the amount sought for in the legal notice and neither has he replied to the said notice.

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Left with no other alternative,

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complainant filed a complaint for the offence punishable under section 138 of the Act. On cognizance being taken, accused was summoned and was enlarged on bail. Accused pleaded not guilty and claimed to be tried. Accordingly he was tried. In order to prove the guilt of accused, complainant examined himself as PW.1 and got marked Exs.P.1 to P.5 and closed his side. Thereafter statement of accused was recorded as required under section 313 of Cr.P.C., wherein accused denied all incriminating evidence and circumstances against him. However he did not

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choose to lead any evidence nor did he produce any documents in support of his case.

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After appreciation of entire evidence and materials on record, trial Court came to a conclusion that except stating that cheque was issued for security purposes towards chit fund transaction. No material is produced by accused to rebut the presumption in favour of complainant and no material was produced on behalf of accused to show that there never existed any legally recoverable debt and hence held that complainant proved his case beyond all reasonable doubt and accused was found guilty of the offence punishable under section 138 of the Act and accordingly he was convicted.

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Being aggrieved by said judgment of conviction and order of sentence, accused preferred an appeal before II Addl. District and Sessions Judge, Ballari, in Crl.A.No.30/2018.

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After re-appreciating and re-evaluating entire material evidence on record, appellate Court held that the sole defence of accused was that he had given blank signed cheque to complainant in connection with chit fund transaction between him and complainant and the same has been misused by complainant and therefore there was no legally recoverable debt or liability. The other defence taken by accused was that there was no financial capacity of complainant to lend money as alleged in complaint and that cheque in dispute has been misused and

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a false case has been filed against accused. Appellate Court has re-appreciated the evidence and has held that no evidence either oral or documentary is produced by accused to rebut the presumption in favour of complainant and having admitted issuance of cheque, his signature on cheque, the presumption in favour of complainant has not been rebutted and hence came to a conclusion that accused is guilty of offence

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punishable under section 138 of the Act and there was no illegality or irregularities committed by trial Court in convicting accused for aforesaid offence. Accordingly appellate Court dismissed the appeal and confirmed judgment of conviction passed by trial Court.

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It is contended by learned counsel for petitioner that judgment of conviction and order of sentence passed by trial Court is contrary to material available on record and evidence adduced by parties and hence the same deserves to be set aside and reversed. He further contends that both Courts have not applied its mind in appreciating evidence of PW.1. He further contends that essential ingredients of section 138 of Negotiable Instruments Act have not been complied by complainant and there is no proper issuance of legal notice as contemplated under section 138(b) of the Act. On these grounds complaint is liable to be rejected and judgments of both Courts deserve to be set aside.

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Learned counsel further contends that both Courts have failed to appreciate that cheque was issued only as security towards chit fund transaction. It is not admitted by accused that cheque is issued towards recovery of any existing legal debt. Hence non consideration of this issue is arbitrary and illegal and hence the orders of both Courts deserve to be set aside. On these submissions learned counsel seeks to allow the petition and set aside the orders passed by both Courts.

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Despite service of notice to respondent on two occasions, there is no representation. As there is no adverse orders passed by this Court against respondent, there is no further requirement of notice to be sent to respondent.

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Having heard learned counsel for petitioner/accused, a short point that would arise for consideration before this Court is, whether any illegality has been committed in the impugned orders passed by both Courts.

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To answer the above point, it is

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necessary to have a cursory look at facts of case. It is not in dispute that complainant and accused were well known to each other and were good friends. As accused wanted some financial help, complainant paid a sum of Rs.2,50,000/- as loan to help him ward of financial difficulties. Towards repayment of said loan, accused got issued a cheque bearing No.135125 dated 10.10.2015 for a sum of Rs.2,50,000/-, drawn on IDBI bank, Ballari, in favour of complainant. There is no dispute with regard to presentation of cheque and legal notice being issued, but it is the claim of accused that he did not receive legal notice. On a careful perusal of trial Court records it is seen that legal notice came to be issued to accused on 21.10.2015 as per Ex.P.3 and the same has been served and acknowledgment is produced as Ex.P.5. Ex.P.4 is the postal receipt for having sent legal notice to the address of accused. On perusal of complaint it is seen that address mentioned in

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legal notice and that mentioned in complaint are one and the same. Accused has appeared before Court and contested the matter, but has not produced any material or elicited any information in evidence with regard to him not residing in the said address. Therefore contention of accused that legal notice was not served to him is only mere statement without any substance and the same does not hold any water.

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The other defence taken by accused is that cheque is issued towards security and not towards discharge of any legally recoverable debt. In order to prove this fact, accused has not elicited any information from PW.1 in crossexamination and neither has produced any document to substantiate his case that cheque was issued towards security of chit fund transaction. Same was negatived by trial Court so also by appellate Court on re-appreciation of evidence. Therefore on going through provisions (a) to (c) of section 138 of the Act, it is seen that

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complainant has fulfilled mandatory requirement of provisions (a) to (c) of section 138 of the Act.

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On fulfillment of requirement of proviso (a) to (c) of section 138 of the Act, cause of action arises and technically offence punishable under section 138 of the Act is made out.

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On presentation of complaint and cognizance being taken, presumption under section 139 of the Act comes into play in favour of complainant. Though said presumption is a presumption of law, the same is a rebuttable presumption and it is for accused to rebut the presumption and prove to the contrary that there never existed any legally recoverable debt. In the present case on hand, it is seen that accused though has made several suggestions and denials, with regard to there being no legally recoverable debt, the same are in the form of mere denials and mere suggestions without any substance. There is no worthwhile evidence elicited in crossexamination of PW.1 to disprove case of

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complainant. Accused has also not entered witness box to substantiate his case by cogent evidence with regard to cheque having been issued for security purposes towards chit fund transaction.

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Hence, on careful analysis it is seen that accused has admitted issuance of cheque, his signature has not been disputed and since there is no material produced to show that cheque was issued as security towards chit fund transaction, it cannot be said that accused has rebutted the presumption cast in favour of complainant as per section 139 of the Act. There is no cogent convincing evidence or material to disprove the case of complainant. Therefore I do not find any material irregularity or illegality or perversity in the impugned order passed by both Courts. Hence I answer the above point in the negative. I do not find any reason to interfere with well reasoned judgment of conviction of both the Courts and order of sentence passed therein. Accordingly I pass the following order.

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ORDER

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Petition is dismissed.

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Judgment of conviction and order of sentence

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passed by both Courts are affirmed.

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Sd/JUDGE

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Mrk/VK

Mehaboob Basha S/O S. Sarmas Sab v. R.K.Khalander Basha S/O Abdul Razak Sab

Case brief

What is this about?

What did the court decide?

Mehaboob Basha S/O S. Sarmas Sab v. R.K.Khalander Basha S/O Abdul Razak Sab

Case brief

What is this about?

What did the court decide?

What the court decided

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