Dismissed

Mr Prabhakar Murthy v. Mr M S Shivakumar

Karnataka HC25 Sept 2021CRL.RP/197/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a criminal revision petition challenging a conviction under Section 138 of the Negotiable Instruments Act. The court held that the accused failed to provide cogent evidence to rebut the presumption of debt under Section 139 NI Act.

What did the court decide?

The criminal revision petition was dismissed; the conviction and sentence in CC.No.20899/2007 and appellate judgment in Crl.A.No.621/2010 were upheld.

Mr Prabhakar Murthy Vs Mr M S Shivakumar — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF SEPTEMBER, 2021 BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

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CRIMINAL REVISION PETITION NO.197 OF 2012

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BETWEEN :

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MR.PRABHAKAR MURTHY C/O.ANNAPURNA ENTERPRISES SAI NALAYANI, NO.475 5^TH MAIN, RMV II STAGE DOLLARS COLONY BENGALURU – 560 094 ... PETITIONER

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(BY SRI JAVEED S., AMICUS CURIAE )

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AND :

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M/S.M.S.SHIVAKUMAR S/O.E.SHIVANNA AGED ABOUT 42 YEARS R/AT NO.528, 1^ST FLOOR 53^RD CROSS, 3^RD BLOCK RAJAJINAGAR BENGALURU – 560 010 ... RESPONDENT (BY SRI YOGANANDA P., ADVOCATE (ABSENT)) ***

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THIS CRL.R.P IS FILED UNDER SECTIONS 397 AND 401 OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN CRIMINAL APPEAL NO.621/2010 DATED 21.01.2012 ON THE FILE OF THE COURT OF THE FAST TRACK NO.VIII, BENGALURU CITY AND CONSEQUENLTLY SET ASIDE THE JUDGMENT DATED 31.07.2010 ON THE FILE OF XIX ADDITIONAL CHIEF METROPOLITAN MAGISTRATE IN CC.NO.20899/2007 AND ETC.

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THIS CRIMINAL REVISION PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This revision petition is preferred by the accused aggrieved by the judgment of conviction and order of sentence passed by XIX Additional Chief Metropolitan Magistrate, Bengaluru in CC.No.20899/2007 dated 31.07.2010 convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’) and sentencing the accused to a pay fine of Rs.1,21,000/and out of the said fine amount, a sum of Rs.1,11,000/to be paid to the complainant as compensation and balance amount of Rs.10,000/- to be remitted as fine to the State. In default of the above payment, the accused to undergo simple imprisonment for a period of four months, which has been confirmed by the Fast Track Court-VIII, Bengaluru City in Crl.A.No.621/2010 vide order dated 21.01.2012.

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For the sake convenience, the parties shall be referred to as per their ranking before the trial Court.

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BRIEF FACTS LEADING TO FILING OF THIS PETITION ARE AS UNDER:

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It is the case of complainant that the accused had issued cheque towards discharge of loan amount obtained from the complainant which on presentation came to be dishonoured with an endorsement stating “funds insufficient”. In view of dishonour of cheque, complainant got issued legal notice to the accused. Despite service of notice, accused neither paid the cheque amount nor replied to the said notice issued by the complainant. Hence, the complaint came to be filed by the complainant.

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On cognizance being taken, the accused was summoned and enlarged on bail. Plea was recorded, wherein the accused pleaded not guilty and claimed to be tried. Accordingly, he was tried.

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In order to prove the guilt of the accused, the complainant adduced evidence and examined himself as PW.1 and got marked Exs.P1 to P3, P3a to P3c. On the other hand, the accused examined himself as DW.1 and got marked Exs.D1 to D3. Thereafter, the statement of accused was recorded under Section 313 of Cr.P.C., who

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denied the alleged loan transaction as well as the issuance of cheque to the complainant.

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After going through the material evidence both oral and documentary, the trial Court held that the complainant proved his case by establishing necessary ingredients of Section 138 of N.I. Act and accordingly, convicted the accused for the offence punishable under Section 138 of N.I.Act.

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Aggrieved by the judgment of conviction, the accused preferred an appeal in Crl.A.No.621/2010 before the Fast Track Court at Bengaluru. On re-appreciation of evidence and re-evaluation of materials on record, the Appellate Court held that the complainant proved the guilt of the accused and the accused has failed to rebut the presumption cast in favour of complainant and accordingly, dismissed the appeal and confirmed the judgment of conviction and order of sentence passed by the trial Court. Aggrieved by the same, the accused is before this Court challenging the correctness, legality and propriety of the judgments of both the Courts.

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I have heard Sri Javeed S., learned amicus

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curiae appearing for the accused.

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CONTENTIONS OF LEARNED AMICUS CURIAE FOR ACCUSED:

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It is contended by the learned amicus curiae for accused that the judgment of conviction and order of sentence of the trial Court and confirmation of the same by the Appellate Court is erroneous in law as the same is contrary to the material evidence and the documents produced by the parties.

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9.1 Learned amicus curiae further contends that the complainant has not proved the existence of legally recoverable debt and in the absence of any proof of existing legally recoverable debt, the complaint is not maintainable and the order of conviction deserves to be set aside. He further contends that the Courts below have erred in not considering the financial capacity and status of the complainant to pay a sum of Rs.1,21,000/to the accused.

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9.2 Learned amicus curiae further contends that there is no relationship between the accused and the complainant. In fact, it is his contention that the

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accused does not even know the complainant. He further contends that no loan amount was ever taken from the complainant and that some of the exemployees of the accused may have played mischief and handed over the cheque to the complainant. It is further contended that the cheque in question was drawn during the last week of March, 2004 with an intention that the same would be given to the Commercial Tax Officer, by duly putting his signature and leaving the date blank. He further contends that the said cheque leaf of March, 2004 was misplaced and thereafter, several cheque leaves issued to different persons and this disputed cheque has been misused by the complainant.

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9.3 He further contends that it is the case of the complainant that a sum of Rs.75,000/- was obtained from one Ninganna and with his own personal funds of Rs.25,000/-, the loan amount was paid to the accused, whereas complainant has not examined the said Ninganna from whom allegedly an amount of Rs.75,000/- was borrowed by the complainant. He

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further contends that the complainant is a total stranger to the accused and there was no need for him to issue any cheque to the complainant. He further contends that it is the onus on the complainant to prove that firstly, he had sufficient source of income to make the payment of alleged loan amount to the accused, secondly, complainant has failed to examine so-called Ninganna from whom he said to have borrowed Rs.75,000/-. Therefore, non-examination of Ninganna is fatal to the case of complainant, thereby the presumption cast against the accused has been rebutted, shifting the burden of proof on the complainant to establish the source of payment of alleged loan.

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9.4 He further contends that the complainant has no locus to file this case against the accused as there is no liability of the accused to pay any amount much less the cheque amount mentioned herein. He further contends that there is no privity of contract between the accused and the complainant.

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9.5 He further contends that the above stated material facts which are placed before the Court have been ignored by both the Courts thereby causing miscarriage of justice to the accused. Accordingly, for these reasons the orders of both the Courts deserve to be set aside and the petition requires to be allowed. On the basis of these submissions, learned amicus curiae for the accused seeks to allow the petition.

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Having heard learned amicus curiae for the accused, points that would arise for consideration before this Court are:

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“i) Whether accused has made out any ground to show that there is illegality or perversity in the orders passed by both the Courts?

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ii) What order?”

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On a careful examination of materials placed on record, it is seen that the accused has admitted signature on the cheque and the contents therein. However, the accused has denied the issuance of cheque for a legally recoverable debt, much less the

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alleged loan transaction. It is not in dispute that cheque belongs to the accused. Nevertheless, when the accused has admitted his signature on the cheque, merely by stating that cheque has not been issued for any legal debt and that it was not given to the complainant would not benefit the accused to prove the case to the contrary as established by complainant. More so, when the accused has not placed any material and though he has stepped into the witness box has not produced any cogent evidence to substantiate his case to rebut the presumption in favour of the complainant. It is also necessary to note that the accused has produced three documents as Exs.D1 to D3 which are the Bank Passbook and the proceedings of the Sales Tax complaint before the Special JMFC, Bengaluru which by itself do not depict that this cheque in question was not issued to the complainant. It is essential to Section 138 of N.I. Act:

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“138. Dishonour of cheque for insufficiency, etc., of funds in the accounts.− Where any cheque drawn by a person on an account maintained by

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him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

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PROVIDED that nothing contained in this section shall apply unless—

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(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

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(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

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(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

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Explanation: For the purposes of this section, “debt of other liability” means a legally enforceable debt or other liability.”

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On fulfillment of necessary ingredients required under the proviso to Section 138 of N.I. Act, the cause of action for filing complaint and offence is technically made out. On filing complaint, Section 139 of

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N.I. Act comes into play which would show a presumption in favour of complainant. Section 139 of N.I. Act reads as under:

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“139. Presumption in favour of holder.− It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.”

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It is also necessary to see that under

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Section 118 of N.I. Act, once a cheque has been drawn, indorsed, accepted by accused, there is a presumption that it is drawn for a consideration. Therefore, when these presumptions are ingrained in the statute, it is for accused to prove and rebut to the contrary and establish that there was no such transaction. Though Section 139 of N.I. Act is a presumption in law, it is a rebuttable presumption.

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It is only when accused rebuts presumption by means of cogent evidence either oral or documentary, onus would shift on complainant to satisfy

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such rebuttal of accused. In the present case on hand though valiant effort has been made by accused to say that complainant did not have necessary source of income and capacity to pay loan amount and that there is no relationship between each other and that complainant is a stranger, nothing worthwhile has been elicited in cross-examination of PW.1 or by leading any evidence or placing any material before Court to prove to the contrary the case made out by complainant. Merely by making statement that cheque was not at all issued to the complainant and that non-examination of Ninganna from whom the complainant is said to have borrowed an amount of Rs.75,000/- would not prove as rebuttal to the case established by the complainant. To prove such rebuttal, the accused will have to do something more than mere denial and mere suggestions. There has to be cogent material evidence to disprove case of complainant to shift burden of proof to complainant.

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On examination of materials placed before this Court, it is seen that the accused has not been able

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to rebut presumption as contemplated under Section 139 of N.I. Act. Nothing has been shown or produced by the accused to disbelieve statement of complainant and documents-Exs.P1 to P3, P3(a) to P3(c). Therefore, these facts have been carefully examined by the trial Court and after affording a fair and sufficient opportunity to the accused, the trial Court has found the accused guilty of aforesaid offence. The same has been re-evaluated and re-examined by the Appellate Court and has upheld judgment of conviction and order of sentence passed by the trial Court.

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The scope of revision under Sections 397 and 401 of Cr.PC is limited to the extent of examining the correctness, legality or propriety of any finding, sentence or order. It is not for this Court to re-evaluate and re-analyse the entire evidence on record as this Court is not sitting in the arm chair of an Appellate Court to consider the entire matter afresh. However, having perused the materials placed before the Court and the reasoning and finding of the Courts below, I do

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not find any material irregularity or perversity in the orders passed by both the Courts.

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There is no ground made out by the accused to interfere with very well reasoned, considered judgment of conviction and order of sentence passed by the trial Court and confirmation of the same by the Appellate Court. The accused has not made out any ground before this Court to show perversity or illegality having been committed by both Court. Therefore, point No.1 is answered in negative.

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Having considered the materials and submissions placed on record, I pass the following order:

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ORDER

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dismissed;

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(ii) Judgment of conviction and order of sentence dated 31.07.2010 passed

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in CC.No.20899/2007 by the trial Court and judgment dated 21.01.2012 passed in

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Crl.A.No.621/2010 by the Appellate

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Court are upheld;

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Sd/JUDGE

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Mr Prabhakar Murthy v. Mr M S Shivakumar

Case brief

What is this about?

What did the court decide?

Mr Prabhakar Murthy v. Mr M S Shivakumar

Case brief

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What did the court decide?

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