Dismissed

Smt. M.N.Sujatha v. Sri. G. Surendra Shetty

Karnataka HC12 Jan 2022CRL.RP/389/2016

Case brief

AI extract

What is this about?

In this criminal revision petition under Section 397/401 CrPC, the High Court of Karnataka dismissed the appeal filed by a petitioner convicted under Section 138 of the Negotiable Instruments Act. The court upheld the conviction and fine, holding that the complainant discharged the initial burden and the accused failed to rebut the statutory presumption of legally recoverable debt or valid conside

What did the court decide?

Revision petition dismissed; no order as to costs; trial court to be intimated.

Smt. M.N.Sujatha Vs Sri. G. Surendra Shetty — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF JANUARY, 2022

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BEFORE:

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THE HON’BLE MR. JUSTICE P.N.DESAI

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CRIMINAL REVISION PETITION No.389/2016

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BETWEEN:

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SMT. M.N.SUJATHA W/O. B.E.NAGESH AGED ABOUT 38 YEARS R/O. BYGOOR VILLAGE AVATHI POST CHIKKAMAGALUR TALUK & DISTRICT - 577101

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... PETITIONER

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(BY SRI MADHU M.T. FOR SRI GIRISH B.BALADARE, ADVs.)

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AND:

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SRI. G. SURENDRA SHETTY S/O. SEENA SHETTY AGED ABOUT 48 YEARS TIMBER MERCHANT R/AT. SOURABHA CHRISTIAN COLONY CHIKKAMAGALUR - 577 101

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…RESPONDENT

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(BY SRI ARAFAT, FOR SRI SACHIN B.S., ADVS.)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRYAING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT DATED 25.07.2013 PASSED BY THE II ADDL. CIVIL JUDGE AND JMFC AT CHIKKAMAGALUR IN C.C.NO.1287/2008 BY CONVICTING THE PETITIONER AND THE SAME ORDER WAS CONFIRMED BY THE APPELLATE COURT BY DISMISSING THE APPEAL FILED BY THE PETITIONER, THE JUDGMENT DATED 01.03.2016 PASSED BY THE II ADDL. S.J. AT CHIKKAMAGALUR IN

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CRL.A.NO.257/2013 AND THE PETITIONER TO BE ACQUITTED FOR THE OFFENCE ALLEGED AGAINST HIM.

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THIS CRIMINAL REVISION PETITION IS COMING ON FOR FINAL 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 filed assailing the dismissal of Crl.A.No.257/2013 dated 01.03.2016, wherein the learned II Additional Sessions judge, Chikmagaluru, dismissed the appeal by confirming the judgment of conviction and order of sentence passed in C.C.No.1287/2008 on the file of 2^nd Additional Civil Judge, JMFC, Chikmagaluru dated 25.07.2013, wherein the accused/revision petitioner is convicted for the offence punishable under Section 138 of Negotiable Instruments Act, 1881(for short hereinafter referred as ‘N.I. Act’) and sentenced him to pay a fine of Rs.2,05,000/- and out of the fine amount of Rs.2,05,000/-, the accused was ordered to pay a sum of Rs.2,00,000/- to the complainant as compensation and in default of payment of fine, the accused shall undergo Simple Imprisonment for a period of one year.

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The revision petitioner was the accused and respondent was the complainant before the trial court and they will be referred as complainant and accused as per their respective ranks before the trial court for the sake of convenience.

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The brief case of the complainant before the trial court is that the accused issued a cheque for Rs.1,86,000/- dated 20.03.2008 in order to discharge the consideration amount received by him from the complainant. The said cheque was drawn on Chikmagalur– Kodagu Grameena Bank. It is further contended that the accused had promised to the complainant that cheque will be honoured. When the complainant presented the cheque for encashment, it was dishonoured. The said cheque was returned with an endorsement “funds insufficient” in the account of accused. Therefore the complainant got issued a legal notice on 16.04.2008 and the said notice was duly served on the accused. But in spite of that either the accused paid the amount nor replied the said notice.

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Hence, the complainant lodged the complaint before the JMFC court.

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Accused appeared before the court, not

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pleaded guilty and claims to be tried.

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Thereafter, the complainant got himself examined as PW.1 and got marked seven documents as Exs.P1 to P7 and closed his side evidence. On behalf of accused, she got examined herself as DW.1, but no documents were marked on behalf of accused. After hearing the arguments, the learned JMFC convicted the accused for the offences punishable under Section 138 of N.I Act.

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Aggrieved by the judgment of conviction and order of sentence, the revision petitioner/accused preferred Crl.A.No.257/2013 before the II Additional Sessions Judge, Chikmagaluru. After hearing the arguments, learned Sessions Judge dismissed the appeal preferred by accused, thereby confirmed the judgment of

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conviction and order of sentence, passed by the trial court. Aggrieved by the same, the revision petition has preferred this revision petitioner.

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I have heard Sri. Madhu M.T., learned counsel appearing on behalf of Sri. Girish B.Baladare, learned counsel for the petitioner and Sri. Arfat, learned counsel who is representing learned counsel Sri. Sachin B.S., learned counsel for respondent.

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Perused the records and also the evidence of

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both oral and documentary produced by both the parties.

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From the above materials, the point that arise for my consideration is:

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"Whether the impugned order passed by both courts are correct, legal and in conformity with the settled principle regarding appreciation of evidence in cases under Section 138 of the Negotiable Instruments Act, 1881, which are popularly called as cheque bounce cases ?"

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Learned counsel for the revision

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petitioner/accused argued that the judgment passed by the learned JMFC and learned Sessions Judge are perverse and not based on merits. It is contended that both the courts have not properly appreciated the evidence of the accused. It is further contended that the said cheque was issued only for the purpose of security and the same was not returned to the accused in spite of paying principal amount to the complainant by accused. The said cheque was mis-utilised for unlawful gain. The said aspect was not properly appreciated by both the courts. The notice was not duly served on the accused. It is also further contended that there is no evidence to show that the complainant has financial capacity to advance such huge amount. The cheque in question was issued by the accused in connection with the timber transaction with the complainant. In the circumstances, it is evident that the said cheque was issued as a security only and this fact was

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not properly appreciated by both the courts. The complainant has failed to prove the burden casted upon

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him. Therefore, the question of raising presumption in favour of the complainant does not arise. Learned counsel argued that the complainant has failed to comply the ingredients of Section 138 of N.I. Act. Therefore, the said conviction is not sustainable. With these main arguments, learned counsel prayed to set aside the judgment passed by learned Sessions Judge in Crl.A.No.257/2013 whereby confirming the judgment of conviction passed by trial court in C.C.No.1287/2008 against the accused/Revision Petitioner.

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Against this learned counsel for the respondent/complainant supported the judgment of both the courts and argued that complainant has discharged his initial burden casted upon him by placing both oral and documentary evidence. Both the courts have rightly appreciated the evidence in a proper perspective and have rightly come to the conclusion and convicted the accused. He further contends that as there is no perversity or illegality in both the judgments, the revision petition needs

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to be dismissed. With these arguments, he prays to dismiss the revision petition.

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I have carefully considered the arguments advanced by the learned counsel for both the parties and perused the contents of the complaint and also evidence on record.

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The complainant/respondent has filed his examination-in-chief affidavit, as PW-1 wherein he has reiterated the contentions of his written complaint. He has also produced the cheque which is marked as Ex.P1 – Cheque which shows that the accused/revision petitioner has issued the cheque dated 20.03.2008 in favour of the complainant for a valuable consideration of Rs.1,86,000/-. Ex.P2 is the Bank intimation stating that the said cheque was returned dishonored for the reason that ‘in sufficient funds’. Ex.P4 is the legal notice calling upon the accused to repay the said amount. Ex.P5 is the postal acknowledgment. Ex.P6 is the postal receipt. Ex.P7 is the certificate of posting. All these documents clearly indicates

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that the accused/revision petitioner has issued a cheque and it was returned with an endorsement cheque dishonored due to ‘in sufficient funds’. In the crossexamination by the accused, it is suggested that accused and her husband - Nagesh were doing timber work and the accused has issued the cheque as security for giving the timber, they have gave timber and asked him to encash the cheque and hence, he presented the same. Simply, it is suggested that the accused has not issued any cheque and just to make unlawful gain, complainant has filed the complaint, such suggestion is denied. So crossexamination does not show that the evidence adduced by the complainant is not probable. On the other hand, the evidence placed by the complainant is in conformity with ingredients of Section 138 of N.I. Act.

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Against this the accused/respondent has gave her defence evidence as DW-1. In her evidence, she has stated that she is working as Attender in Assistant Commissioner’s office at Chickmagaluru. She admits that

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the cheque – Ex.P1 is her cheque and she also admits her signature on the said cheque. She states that she has lost one cheque and she has not lodged any complaint to the police in this regard. Therefore, she prayed to dismiss the complaint. This is only her evidence. In the crossexamination, she has admitted that she has not lodged any complaint before the police intimating them with regard to loss of cheque. She also admitted that since she is the government servant, she is having knowledge about transaction. She has stated that she has kept ready the signed cheque, in order to go to bank to draw the amount, but she has lost the said cheque. Such evidence does not inspire any confidence in her. On the other hand, she has stated that she does not know whether the Nagesh is having any timber business and she has stated that Nagesh is not her husband. Simply she stated that signature on Ex.P1 - cheque is her signature. But she has not taken any steps to produce any documents to prove that the amount given by the complainant are not legally recoverable debt. On the other hand, she admitted that

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address mentioned in the notice is her father in law’s address. Therefore, her contention that the notice was not duly served on her cannot be accepted. In spite of service of notice, she has not replied the said notice and kept quite. Therefore, on entire consideration of evidence of complainant and accused, it is evident that the complainant by adducing oral and documentary evidence as per Exs.P1 to P7, has discharged his initial burden casted on him to show that the accused has committed offence under Section 138 of N.I Act. Further the presumption under Sections 118 and 139 of N.I. Act is in favour of the complainant, which is not reubutted by the accused by placing legally reliable and admissible evidence.

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The accused has to rebut the presumption by producing documents to show that, either the evidence lead in by the complainant cannot be believed or he has to lead his defence evidence to show that the case of the complainant is not probable and there is no existence of

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legally recoverable debt or any liability by him in favor of complainant. If the evidence of the accused is taken, it is evident that she does not know where she has lost the cheque but she admits her signature on Ex.P1 – cheque and stated that she has misplaced or lost the same. Such vague statement cannot be accepted in the absence of any documents. She has not intimated the bank. If at all she has lost the cheque, she could immediately intimate to bank or taken action against complainant. She is working as Attender in Assistant Commissioner's office She is a Government Servant. Both the courts have raised the presumption under General Clause Act regarding service of notice and held that when once the notice is sent to the correct address, then the presumption is in favor of deemed services. Accused has to rebut it. But accused was miserably failed to rebut any such presumption in favor of complainantt.

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The trial court has relied on the decision of Hon’ble Apex Court in case of Mohan Vs. Rangappa

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reported in 2010 Crl.L.J. 2871 , wherein the Supreme Court held that unless the contrary is proved, it shall be presumed that the alleged cheque is issued for the repayment of debt or other liability and it shall also presume that such debt is legally recoverable debt under Section 139 of N.I.Act. The said presumption is not rebutted by the accused either by preponderance of probability or by placing any other cogent evidence. Therefore, it is evident from evidence that the complainant has discharged his initial burden casted on him to prove the legally recoverable debt but the accused has failed to rebut the presumption. Therefore, both the courts have rightly come to the conclusion that the complainant has proved the ingredients of Section 138 of N.I. Act, accordingly, convicted the accused and sentenced him.

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I find no perversity in the findings of the first appellate court or the trial court. The evidence on record clearly indicates that the defence which has taken by the accused is only for the sake of defence and there is no

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truth in it. Therefore, the judgment of the learned Sessions Judge, whereby confirming the judgment of conviction passed by the trial court is neither perverse nor illegal and calls for any interference by this court.

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On the other hand, both the courts have appreciated the evidence in a proper perspective also in the light of the presumption arising under N.I. Act and also principles stated by Hon’ble Supreme Court in appreciation of evidence in cheque bounce case which are filed under Section 138 of N.I. Act. I find no ground to allow the revision petition and revision petition is liable to be dismissed. Accordingly, I pass the following:

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ORDER

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(i) Revision petition is dismissed.

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(ii) No order as to costs.

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(iii) Intimate the trial court.

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Sd/JUDGE

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Smt. M.N.Sujatha v. Sri. G. Surendra Shetty

Case brief

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Smt. M.N.Sujatha v. Sri. G. Surendra Shetty

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