Allowed

Mr Suraj B a v. Mr T Ram Bhat

Karnataka HC29 Nov 2023CRL.A/121/2018

Case brief

AI extract

What is this about?

High Court allowed an appeal against acquittal under Section 138 NI Act. The court held that the lower court erred by shifting the burden of proof to the complainant instead of allowing the accused to rebut the statutory presumption under Section 139. The appellant was convicted.

What did the court decide?

The appeal allowed; acquittal set aside; respondent convicted and sentenced to fine of Rs. 1,00,000 with three months imprisonment in default.

Mr Suraj B a Vs Mr T Ram Bhat — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:43333 CRL.A No. 121 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL APPEAL NO.121 OF 2018 (A)

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BETWEEN:

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MR. SURAJ B.A, AGED 27 YEARS, SON OF K.G. ANIL KUMAR, NO.12, SECOND MAIN, LAKSHMINARAYANA PURAM, BANGALORE - 560 021.

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…APPELLANT

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(BY SRI. VENKATRAMANA M.K, ADVOCATE)

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AND:

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Digitally signed by SOWMYA D Location: High Court of Karnataka

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MR. T. RAM BHAT, AGED ABOUT 62 YEARS, NO.56, EKADANTA NAGAR EXTENTION, SECOND CROSS, HEROHALLI, MAGADI ROAD, BANGALORE - 560 091.

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…RESPONDENT (BY SRI. H.A. CHITHRASHEKHARAIAH, ADVOCATE) THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 09.11.2017 PASSED BY THE XIII ADDITIONAL CHIEF METROPOLIAN MAGISTRATE, BANGALORE IN C.C.NO.3753/2016 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT AND ETC.,

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NC: 2023:KHC:43333 CRL.A No. 121 of 2018

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal filed under Section 378(4) of Cr.P.C. by the appellant/complainant, challenging the judgment of acquittal passed by the XIII Additional Chief Metropolitan Magistrate, Bengaluru, in C.C. No.3753/2016, dated 09.11.2017.

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The brief factual matrix leading to the case are that, the accused is the Proprietor of M/s. Mylaarr Property and he had approached the complainant for casting RCC Columns on 4th floor at Tejashri Educational Trust School situated at Kanakapura. After completion of work by the complainant, the accused had issued a cheque bearing No.077328, dated 11.12.2015 drawn on the State Bank of India, West of Chord Road Extension, Bangalore for a sum of Rs.50,000/- in favour of the complainant towards part payment of the work done and when the said cheque came to be presented for encashment through his banker Development Credit Bank on 20.11.2015, it was bounced

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with an endorsement that 'payment stopped by the drawer'. Hence, a legal notice came to be issued and notice was duly served, but accused has not replied the same and hence, a complaint came to be lodged.

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On the basis of the complaint, after recording sworn statement and appreciating the documentary evidence, the learned Magistrate has taken cognizance and issued process against the accused. Accused has appeared through his counsel and was enlarged on bail. The plea under Section 138 of N.I. Act is recorded and accused denied the same.

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The complainant was got examined himself as P.W.1 and he placed reliance on six documents marked at Exs.P.1 to P.6. After conclusion of evidence of the complainant, the statement of accused under Section 313 of Cr.P.C. is recorded to enable the accused to explain the incriminating evidence of hearing against him in the case of the complainant. The case of the accused is of total denial. Further, he himself got examined as D.W.1 and

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placed reliance at Exs.D.1 to D3. The learned Magistrate after appreciating oral and documentary evidence has acquitted the accused for the offence punishable under Section 138 of N.I. Act.

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Being aggrieved by this judgment of acquittal, the complainant is before this Court by way of this appeal.

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Heard the arguments advanced by the learned counsel for the appellant/complainant. Though the respondent is represented by the counsel, he did not appear before the Court, so as to defend the respondent/accused.

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Since, this is a private commercial transaction between the parties, question of appointing the amicuscurie also does not arise at all.

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The learned counsel for the

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appellant/complainant would contend that the signature on the cheque and that the cheque belongs to the accused are undisputed fact. He would also assert that the cheque

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was issued towards part payment pertaining to the services rendered by the complainant. He would also contend that the initial presumption under Section 139 of N.I. Act is in favour of the complainant and the accused is required to rebut the said presumption on the basis of preponderance of probability. Further, he would assert that the defence of the accused is regarding missing of the cheque- book, but to substantiate the said contention no piece of evidence is placed and accused has failed to prove that he has lost the cheque book and the same has been misused. Hence, according to the learned counsel for appellant/complainant, the Tribunal has committed an error in casting the reverse onus of the complainant to establish the transaction ignoring the statutory presumption under Section 139 of N.I. Act. Hence, he would seek for allowing the appeal by setting aside the impugned judgment of acquittal by convicting the accused/respondent.

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9. Having heard the arguments and perusing the

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records, now the following points would arise for my consideration:

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"Whether the judgment of acquittal passed by the learned Magistrate is perverse, arbitrary and erroneous so as to call for any interference by this Court"?

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It is the specific assertion on the part of the complainant that, accused is the Proprietor of M/s. Mylaarr Property and he had approached the complainant for casting RCC Columns on 4th floor, at Tejashri Educational Trust School, situated at Kanakapura, and it is further asserted that, the complainant attended the said work and in discharge of part payment, cheque of Rs.50,000/- was issued under Ex.P.1. It is important to note here that, the cheque belongs to the account of the accused and it bears the signature of the accused are admitted. When the cheque belongs to the accused and the signature has been admitted, it is mandatory for the Court to draw a presumption under Section 139 of N.I. Act that the cheque

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was issued towards legally enforceable debt, unless contrary is proved. Hence, it is evident that the drawing of presumption is mandatory but, it is a rebuttable of the presumption.

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The complainant is examined as P.W.1 and in his examination in chief he has reiterated the complaint allegations. Though he was cross-examined at length, nothing worthy was elicited in his cross-examination so as to consider rebuttable of the presumption. The accused himself has got examined as D.W.1. In his crossexamination he admitted that, Ex.P.1 cheque belongs to his Bank Account and it bears his signature. He further admitted that, Rs.50,000/- written on the cheque is in his handwriting, but he claims that the cheque was lost in the hospital, when he went for treatment. But, there is no evidence placed by the accused as to when he went to the hospital for treatment. He placed reliance as per Exs.D.1 and D.2 which disclose that he has taken treatment for his Kidney problem and he was under treatment at Ratkal

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Specialty Hospital (P) Ltd. This Ex.D.1 is of the year 2013. However, a cheque dated 11.12.2015 i.e., two years after this Ex.D.1. The accused no where specifically asserted when exactly he has lost the cheque. The accused is relying on Ex.D.3 i.e., issuance of stop payment on 18.11.2015. But, Ex.D.3 does not establish this aspect and author of Ex.D.3 was not examined.

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The learned Magistrate while giving reasoning in para No.21 has specifically observed that the accused has not proved his defence of missing the cheque at the hospital, when he had been to hospital to pay the amount towards medical expenses.

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When the learned Magistrate has held that accused has failed to prove his defence, then question of rebuttle of the presumption available in favour of complainant under Section 138 of N.I. Act, does not arise at all. Inspite of observing the same, the learned Magistrate went on discussing that complainant has not proved that he has attended the work of accused in

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Tejashri Educational Trust School. This observation is erroneous. Further, when the complainant alleges that this amount of Rs.50,000/- was to be paid towards medical expenses and treatment expenses, he should be possessing relevant bills in this regard for a particular date but, that he has also not produced. Hence, it is evident that accused has not rebutted the presumption available in favour of the complainant.

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The drawing presumption under Section 139 of N.I. Act is mandatory. In this context, the learned counsel for appellant has placed reliance on following citations:

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1. The decision of Calcutta High Court reported in I (2023) BC 17 (Cal.) in the case of Subrata Bos V/s Mithu Ghosh .

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The decision of Supreme Court of India reported in 2019 (2) Kar. L.R. 717 (SC) in the case of Uttam Ram V/s Devinder Singh Hudan and Another .

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The decision of Karnataka High Court reported in II (2023) BC 72 (Kar.) in the case of Devaraj V/s Balappa .

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1. The decision of Supreme Court of India reported in Criminal Appeal Nos.61-62 of 2011 in the case of M/s Shree Daneshwari Traders V/s Sanjay Jain and Another .

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The decision of Supreme Court of India reported in 2022 (1) KCCR 1 (SC) in the case of K.S. Ranganatha V/s Vittal Shetty .

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1. The decision of Karnataka High Court reported in 2017 (4) KCCR 2933 in the case of N. Manjegowda V/s N.V. Prakash .

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The principles enunciated in the above cited

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decisions mandates that the onus is on the accused to rebut the presumption based on preponderance of probability and by not raising a simple defence. In the instant case, though accused has raised a defence, it is

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evident that he has not lodged any complaint against the complainant for misusing of the cheque and his defence is not a probable one.

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Apart from that, though he asserts that he has not received any legal notice, he admits his signature on

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Ex.P.5 and further admits that he has endorsed his mobile

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number on Ex.P.5 in his cross-examination. This clearly establish that he has received a legal notice also. However, he did not respond to legal notice by replying to the same but, later on he has raised an untenable defence without proving the same. In view of the decisions cited (supra), the drawing of presumption is mandatory and the learned Magistrate has committed a serious error in casting negative burden on complainant ignoring the statutory presumption under Section 139 of N.I. Act. The entire approach of the learned Magistrate is perverse, arbitrary and illegal, which has resulted in miscarriage of justice. As such, the appeal needs to be allowed.

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The cheque amount of Rs.50,000/- and for the

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offence under Section 138 of N.I. Act, the Court is empowered to impose sentence of imprisonment for a term, which may extent to two years or with fine which may be extended twice the amount of the cheque or both. The conduct of the accused discloses that he has utilized

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the services of the complainant but, having given a cheque towards payment of the service rendered by the complainant, issued stop payment instructions and now taking untenable defence. Even he has not produced any documents to show that as on the date of presentation of the cheque, he had sufficient amount at in his Bank Account so as to honour the cheque. Considering the conduct of the accused in drawing the complainant to the Appellate Court, he is required to be imposed with fine double the cheque amount. Accordingly, the point for consideration is answered in the Affirmative. Hence, I proceed to pass the following:

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O R D E R

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(i) The appeal is hereby allowed .

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(ii) The impugned judgment of acquittal passed by the XIII Additional Chief Metropolitan Magistrate, Bengaluru, in C.C. No.3753/2016, dated 09.11.2017, is set aside.

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(iii) The accused/respondent herein is convicted for the offence punishable under Section

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138 of N.I. Act and he is sentenced to pay a fine of Rs.1,00,000/- (Rupees One Lakh only) , and in default he is required to undergo simple imprisonment for a period of three months.

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(iv) Out of the fine amount of Rs.75,000/shall be paid to the complainant by way of compensation under Section 357 of Cr.P.C. and balance of Rs.25,000/- shall be appropriated to the State.

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(v) Send back the records to the Trial Court along with a copy of this order with a direction to secure the presence of the accused/respondent herein for collection of the fine.

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Sd/- JUDGE

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MS*

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List No.: 1 Sl No.: 16 CT: BHK

Mr Suraj B a v. Mr T Ram Bhat

Case brief

What is this about?

What did the court decide?

Mr Suraj B a v. Mr T Ram Bhat

Case brief

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