Dismissed

Sri v. Chandrashekar v Sri N Venkatachalapathi

Karnataka HC9 Nov 2020CRL.RP/327/2017

Case brief

AI extract

What is this about?

In this criminal revision petition, the High Court of Karnataka dismissed the appeal of an accused convicted of cheque bouncing. The Court held that despite inconsistent defenses raised by the accused, the statutory notice was duly served and the presumption under Section 139 of the N.I. Act was not rebutted.

What did the court decide?

The present criminal revision petition was dismissed; the order of conviction and sentence by the trial court and confirmation by the appellate court were upheld.

Sri v Chandrashekar Vs Sri N Venkatachalapathi — Cheque Dishonour | Karnataka HC (2020)

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Crl.R.P.No.327/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF NOVEMBER 2020

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL REVISION PETITION No.327/2017

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BETWEEN :

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SRI V.CHANDRASHEKAR S/O LATE VENKATARAMAIAH AGED ABOUT 56 YEARS TALUK PHYSICAL EDUCATION OFFICER B.E.O. OFFICE, KOTE CIRCLE SIDLAGHATTA TOWN- 562 102 & ALSO AT SRI LAKSHMINARASIMHA NILAYA RSS BUILDING ROAD, SONNASETTIHALLI CHINTHAMANI CITY – 563 125

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…PETITIONER

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(BY SRI SRINIVAS N. ADVOCATE)

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AND :

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SRI N.VENKATACHALAPATHI S/O P.L.NARAYANASWAMY AGED ABOUT 55 YEARS C/O. M/S.JAYAPRAKASH SILK HOUSE, M.G. ROAD CHINTHAMANI CITY – 563 125 …RESPONDENT

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(BY SRI P.S.BABU NARAYAN, ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 379 READ WITH SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND THE ORDER OF CONVICTION AND SENTENCE DATED 27.01.2017 PASSED BY II ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHICKBALLAPUR (SITTING AT CHINTAMANI) IN CRIMINAL APPEAL NO.64/2015 AND TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 06.08.2015 PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C., CHINTAMANI IN C.C. NO. 142/2013.

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Crl.R.P.No.327/2017

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THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 2^ND NOVEMBER 2020, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT THROUGH VIDEO CONFERENCE MADE THE FOLLOWING:

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O R D E R

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Aggrieved by the order of conviction and sentence passed by the trial Court against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the N.I. Act’ for short) and the confirmation of the same by the First Appellate Court, the accused has preferred the above revision petition.

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Petitioner was the accused and the respondent was the complainant in C.C.No.142/2013 on the file of the Principal Civil Judge & J.M.F.C., Chintamani. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the trial Court.

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The complainant presented the Cheque Ex.P1 dated 18.09.2012 drawn on Canara Bank, Sidlaghatta Branch for a sum of Rs.3,00,000/- for realization through his account in Pragathi Gramin Bank,

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Crl.R.P.No.327/2017

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Chintamani Branch. That was dishonoured vide banker’s memo Ex.P2 with an endorsement “funds insufficient”. Then the complainant issued notice to the accused as per Ex.P4 dated 13.10.2012 alleging that the cheque was issued by the accused for discharge of loan of Rs.3,00,000/- availed by him on 18.08.2012 and that was dishonoured for want of funds. Therefore, under Ex.P4 the complainant called upon the accused to pay the Cheque amount within 15 days or else face prosecution.

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The notice was served on the accused vide postal endorsement Ex.P7. The accused neither replied the notice and nor paid the Cheque amount. Therefore, the complainant filed the complaint against the accused in P.C.R.No.180/2012 before the Principal Civil Judge & J.M.F.C., Chintamani to prosecute the accused for the offence punishable under Section 138 of the N.I. Act.

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Learned Magistrate took cognizance of the offence and registered the case in C.C.No.142/2013 and summoned the accused. Since the accused denied

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Crl.R.P.No.327/2017

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accusation, the trial was conducted. The complainant was examined as PW.1, the Senior Manager of Canara Bank, Sidlaghatta Town was examined as PW.2 and the Branch Manager of Pragathi Grameena Bank was examined as PW.3. After examination of the accused under Section 313 of Cr.P.C., he did not lead any defence evidence.

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The trial Court after hearing the parties, by the judgment and order dated 06.08.2015 convicted the accused and sentenced to pay fine of Rs.3,20,000/-, in default to pay fine to undergo simple imprisonment for one year. Further, the trial Court awarded compensation of Rs.3,20,000/- to the complainant.

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The trial Court held that as the accused admitted his signature on Ex.P1 and that the Cheque pertains to his account, the complainant has the benefit of presumption under Section 139 of the N.I. Act and the accused failed to rebut the said presumption.

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Crl.R.P.No.327/2017

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Accused challenged the said order of conviction and sentence in Crl.A.No.64/2015 before the II Additional District and Sessions Judge, Chickballapura sitting at Chintamani. The learned Sessions Judge on hearing both parties, by the judgment dated 27.01.2017 dismissed the appeal concurring with the findings and reasonings of the trial Court. Therefore, the accused is before this Court in the above revision petition.

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This being revision petition against the concurrent findings of the Courts below on facts unless it is shown that the impugned judgments and orders suffer perversity, glaring illegality or impropriety, the scope of interference is very limited.

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Accused admitted his signature on Ex.P1 Cheque and that the said Cheque pertains to his account. He also admitted the service of statutory notice as per Ex.P4. To that he did not reply. But as could be made out from the cross-examination of PW.1, his defence was as follows:

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(i) Denial of availment of loan under the Cheque Ex.P1.

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(ii) That blank Cheque Ex.P1 was issued in 2006 as security towards chit fund transactions run by the complainant and by filling up the contents in the cheque the complainant has filed the false complaint.

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When the accused admitted that the Cheque

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pertains to his account and that bears his signature, the complainant has benefit of presumption under Section 139 of the N.I. Act to the effect that the Cheque was issued for discharge of debt or liability due to the holder of the Cheque. It was for the accused to rebut the said presumption.

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At the earliest point of time in the notice, Ex.P4 the complainant alleged that the accused issued the Cheque towards discharge of loan borrowed by him on 18.08.2012. If no loan was borrowed as contended in the notice and the Cheque was issued for discharge of debt, in the ordinary course, the accused should have countered the said assertion.

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Crl.R.P.No.327/2017

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13. Accused did not dispute the lending capacity

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of the complainant. Contrary to that he himself suggested to the complainant in his cross-examination that he has lent money to several persons and filed several similar cases. Under the circumstances, the burden heavily lies on the accused to rebut the presumption available to the complainant under Section 139 of the N.I.Act to the effect that the cheque was issued towards discharge of liability.

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14. Accused was not consistent in his defence.

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At one breath he suggests that the cheque in question was issued in 2006 as security in a chit fund subscription transaction. The complainant denied the said suggestion and asserted that he was not running the chit fund transactions at all. Therefore the burden was on the accused to prove that cheque Ex.P1 was issued in 2006. To discharge the said burden, the accused neither entered the witness box nor examined any bank authorities to show that the cheque book containing cheque Ex.P1 was issued in the year 2006.

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Therefore, the Courts below have rightly rejected the said contention.

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The other contention was that in Ex.P4 the notice, the complainant has stated that the loan was availed immediately after the death of father of the accused, but his father died two months prior to 18.08.2012. Therefore, the complainant’s case was doubtful. It was further contended that contrary to the recitals in Ex.P4, PW.1 in his cross-examination stated that the accused borrowed loan saying that the money is required for medical treatment of his father, such contradiction makes the case of the complainant doubtful.

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First of all, the term ‘ immediately’ is a relative/subjective term. Accused did not produce any proof regarding the date of death of his father. If it is contended that his father died two months prior to the transaction that cannot be called a period remote to the time of availment of the loan.

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The complainant does not state that he had personal knowledge about the medical condition of the father of the accused or the date of death of his father. His case is that accused requested him for loan representing that it was required for the medical treatment of his father and on another occasion for the marriage of his daughter. Therefore there is no merit in the contention that there were contradictions in the case of the complainant.

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The next contention was that the accused had borrowed loan for the purchase of Tata Sumo and for that purpose, the cheque was issued. But according to PW.1, that was a different transaction which took place about 4- 5 years back and accused had availed loan of Rs.1,00,000/- and he repaid it.

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Thus it is clear that the accused was not consistent in his defence. At one breath he states that the cheque was issued as security in chit subscription transactions. Second time he said that the cheque was

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issued for the loan availed by him for purchase of Tata Sumo.

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Considering the aforesaid evidence and circumstances, the trial Court held that the accused has not led any evidence to rebut the presumption under Sections 139 and 118 of the N.I. Act and that was accepted by the First Appellate Court.

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Learned Counsel for the petitioner claims that the complainant claimed to have lent the loan without interest that improbabilizes the theory of lending loan. According to him, the evidence of the complainant himself rebuts the presumption. In support of his contention regarding lending of the loan without interest he relied upon the judgment of the Supreme Court in John.K.John v. Tom Varghese and Anr.¹ In the said case, the complainant was a firm engaged in chit fund business, a commercial activity. Further when loan in question was allegedly lent, earlier loans were overdue and the parties were litigating for recovery of

1 AIR 2008 SC 278

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the said loan. Under such circumstances, it was held that lending third loan without interest does not inspire confidence.

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In this case, the complainant denied that he was engaged in any financial business or lending loan on commercial basis. The accused did not lead any evidence to show that the complainant was money lender or engaged in any commercial activity of money lending. Therefore, the judgment in John.K.John’s case referred to supra is not applicable to the facts of the case.

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Learned Counsel for the petitioner relying on the judgment of the Supreme Court in Basalingappa v. Mudibasappa² submits that the prosecution must prove the guilt of the accused beyond all reasonable doubt and only on such proof the burden shifts to the accused to rebut the presumption and burden on the accused was only preponderance of probabilities.

2 (2019) 5 SCC 418

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24. In Basalingappa’s case, the lending capacity

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of the complainant was disputed. The Hon’ble Supreme Court held that the accused demonstrated during the cross-examination of the complainant that the lending capacity of the complainant was doubtful, therefore, even without leading any defence evidence, the presumption under Section 139 of the N.I. Act stood rebutted.

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The Hon’ble Supreme Court in the subsequent judgment in APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers and Ors .³ distinguishing the judgment in Basalingappa’s case held that in Basalingappa’s case lending capacity of the complainant was disputed and the complainant failed to prove the same. Therefore, it was held that the accused not leading defence evidence was inconsequential.

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In para 7 of the judgment in Apex Forex

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Services Pvt. Ltd. referred to supra , it was held that Section 139 of the N.I Act is an example of reverse onus

3 AIR 2020 SC 945

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of proof. Therefore, once issue of the cheque has been admitted and even signature on the cheque is admitted, there is always presumption in favour of the complainant that there exists legally enforceable debt or liability and burden reverses to the complainant only on the accused rebutting the said presumption in evidence.

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In this case also, the accused did not rebut the evidence regarding presumption available to the complainant under Section 139 of the N.I. Act. Therefore, the burden did not reverse to the complainant to prove that the cheque was issued towards discharge of liability.

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As already pointed out, the accused did not reply to the statutory notice to deny the existence of the debt and set up several inconsistent defences in the cross-examination of PW.1 and he did not lead his evidence to rebut the presumption. Therefore, the judgment in APS Forex Services Pvt. Ltd referred to supra is applicable and not the case in Basalingappa’s case.

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The order of conviction and sentence passed

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by the trial Court and up held by the First Appellate Court are based on sound appreciation of the evidence and legal position. They do not warrant any interference of this Court in revisional jurisdiction. Therefore, the petition is dismissed.

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Sd/JUDGE

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KSR

Sri v. Chandrashekar v Sri N Venkatachalapathi

Case brief

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Sri v. Chandrashekar v Sri N Venkatachalapathi

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