Dismissed

Khaleel Ahmed S/O. Allah Bakash v. M Nagarathna W/O. Late M Sanjappa

Karnataka HC18 Jan 2023CRL.RP/100070/2018

Case brief

AI extract

What is this about?

In a criminal revision petition challenging conviction and sentence under Section 138 of the N.I. Act, the High Court upheld the concurrent findings of the Trial and Appellate Courts. The Court held that the presumption under Section 139 was rightly raised and not rebutted by the petitioner's evidence, dismissing the revision petition.

What did the court decide?

Criminal Revision Petition dismissed; conviction and sentence upheld.

Khaleel Ahmed S/O. Allah Bakash Vs M Nagarathna W/O. Late… — Cheque Dishonour | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.RACHAIAH

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CRIMINAL REVISION PETITION NO. 100070 OF 2018

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BETWEEN:

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KHALEEL AHMED S/O. ALLAH BAKASH AGE:51 YEARS, OCC:BUSINESSMAN, R/O. ADARSHA COLONY, CANTONMENT, BALLARI.

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(BY SRI. H.R.DESHPANDE, ADVOCATE)

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AND

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M.NAGARATHNA W/O. LATE M.SANJAPPA AGE:40 YEARS, OCC:HOUSEHOLD WORK, SURYA COLONY,

...PETITIONER

CANTONMENT, BALLARI.

…RESPONDENT

(BY SRI. NARAYAN V.YAJI, ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED U/SEC.397 R/W 401 OF CR.P.C, PRAYING TO CALL FOR RECORDS OF THE COURTS BELOW AND SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 31.12.2015 PASSED BY THE LEARNED II ADDL. CIVIL JUDGE & JMFC BALLARI IN CC NO.1118/2008 AND THE JUDGMENT AND ORDER PASSED BY THE LEARNED II ADDL. DISTRICT & SESSIONS JUDGE, BALLARI IN CRL.A. NO.5/2016 DATED 28.02.2018 AND TO ACQUIT THE PETITIONER FOR THE OFFENCE U/SEC.138 OF THE N.I. ACT.

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THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD THROUGH PHYSICAL HEARING / VIDEO CONFERENCING HEARING AND RESERVED ON 17.11.2022 AT DHARWAD BENCH, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, BEFORE THE PRINCIPAL BENCH AT BENGALURU, THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This Criminal Revision Petition is filed by the petitioner seeking to set aside the concurrent findings of conviction recorded by both the subordinate Courts. Learned II Additional Civil Judge and JMFC, Ballari by its judgment of conviction and order of sentence dated 31.12.2015 in C.C No.1118/2008 has convicted the accused/petitioner. Being aggrieved by the order of conviction, the petitioner preferred an appeal before the Appellate Court. The Appellate Court i.e., learned II Additional District and Sessions Judge, Ballari, confirmed the judgment of conviction by its order dated 28.02.2018 in Criminal Appeal No.5/2016 for the offence under Section 138 of the Negotiable Instruments Act (for short ‘N.I. Act’).

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For the sake of convenience, the ranks of the parties would be referred to as per their rankings before the trial court.

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The complainant alleged that her husband and the accused were doing real estate business. The husband of the complainant had invested huge amount. As per the oral agreement, the accused had to pay a sum of Rs.26,00,000/- to the husband of the complainant. After the death of the

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husband of the complainant, the complainant requested the accused to pay the amount. However, the accused, on one or the other pretext, dodging the matter and ultimately, has issued two cheques bearing its No.293792 for a sum of Rs.11,00,000/- and another cheque bearing its No.293800 for a sum of Rs.15,00,000/-. Both the cheques were drawn on State Bank of India, Ballari dated 08.05.2008. When the cheques were presented for encashment, an endorsement was received by the complainant dated 10.05.2008 as ‘funds insufficient’. A notice was issued regarding dishonour of cheques on 23.05.2008 and the accused replied to the said notice. After the accused having failed to pay the amount, the complainant lodged the complaint before the Magistrate.

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To prove the case of the complainant, the complainant examined herself as PW.1 and got marked Exs.P1 to P13. On the other hand, accused examined 5 witnesses i.e., DW.1 to DW.5 and got marked Exs.D1 to D63.

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The Trial Court after appreciating the oral and

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documentary evidence on record, convicted the accused for the offence under Section 138 of N.I. Act and sentenced him to pay

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a sum of Rs.28,10,000/-. In default, the accused shall undergo simple imprisonment for 6 months. The Appellate Court upheld the judgment of conviction passed by the Trial Court.

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Heard Sri.H.R.Deshpande, learned counsel for the petitioner and Sri.Narayan V.Yaji, learned counsel for the respondent.

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Sri.H.R.Deshpande, learned counsel for the

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petitioner submits that the Trial Court and the Appellate Court failed to appreciate the evidence on record and passed the impugned judgment which is liable to be set aside.

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It is further submitted that the complainant failed to prove the real estate business which was being carried out between the accused and the husband of the complainant. When the financial capacity of the husband of the complainant was raised, no satisfactory answer was given by the complainant. Mere possession of the cheques would not be sufficient to show the liability, unless the complainant establishes the financial capacity to lend such huge amount.

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It is further submitted that the petitioner/accused

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examined five witnesses in support of his contention that the husband of the complainant had no capacity to lend such huge amount. The financial capacity of the husband of the complainant and the alleged loan transaction have not been proved by the complainant. Therefore, the findings of conviction recorded by the sub-ordinate Courts without appreciating the evidence on record, appears to be unsustainable and the error committed by the Trial Court and the Appellate Court require to be set aside. As such, the learned counsel for the petitioner prays to allow the petition.

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Per contra , Sri.Narayan V.Yaji, learned counsel for the respondent, while justifying the concurrent findings for conviction recorded by the sub-ordinate Courts, submits that, the complainant in addition to the cheques, has produced several documents in support of his contention. It is further submitted that the written statement of the petitioner / accused in O.S No.150/2008, which is marked as Ex.P13, clearly indicates the admission made by the accused regarding the transaction between the husband of the complainant and the accused. It is further submitted that the presumption which is

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available to the complainant under the Act has been rightly raised by both the Courts as the complainant discharged the initial burden by producing Exs.P1 and P2. The Trial Court rightly raised the presumption and convicted the accused. Therefore interference with the said findings may not be warranted.

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After having heard the learned counsel for the parties, it is necessary at this stage to refer the evidence and also the documents for arriving at a conclusion as to whether any illegality or perversity crept into the findings of conviction recorded by both the Courts.

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Before adverting to the other facts of the case, it is relevant to refer to the judgment of the Hon’ble Supreme Court in the case of RANGAPPA v MOHAN¹ has held that,

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“Where the fact of signature on the cheque is acknowledged, a presumption has to be raised that the cheque pertained to a legally enforceable debt or liability, however, this presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. (sic)

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1 2010 (2) SCC 441

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Thus it is also relevant to refer Section 139 of the N.I Act. It says, “it shall be presumed, unless the contrary is proved, that the holder of the cheque received the cheque of the nature referred to in Section 138 of the N.I. Act for the discharge, in whole or in part of any debt or other liability”.

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On careful reading of the provision of the N.I. Act and also the dictum of the Hon’ble Supreme Court, now it is relevant to refer the evidence of all the witnesses and their documents. The complainant has proved and discharged initial burden that there is existence of legally recoverable debt or liability. Obviously the onus would be shifted to the accused to rebut the presumption.

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The concurrent findings of facts recorded by the Trial Court and the Appellate Court in respect of the transaction between the accused and the husband of the complainant is concerned, the complainant has produced Ex.P13 – the written statement filed by the accused in O.S.No.150/2008 wherein the accused has admitted that, the husband of complainant Sri M.Sanjappa was the Managing Partner of the Firm namely M/s.Sri Sai Enterprises. On careful reading of the written

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statement which is marked as Ex.P13 which indicates that there were some monetary transactions have taken place between the husband of the complainant and the accused. The defence of the accused that he was not doing any real estate business and he was not aware of M.Sanjappa appeared as incorrect and the said defence has not been accepted by the sub-ordinate Courts and affirmed by this Court.

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Though the accused raised ground that the husband of the complainant having no financial capacity to pay such huge amount is concerned, the accused got examined four witnesses to disprove the claim of the complainant. However, nothing has been elicited to disprove the claim of the complainant. The accused has produced Exs.D18 to D60 which are cheques pertaining to the SBI Bank. The said cheques said to have been issued in favour of the accused, wherein cheque No.293790, which is marked as Ex.D17, appeared to have been encashed in favour of the husband of the complainant. The amount mentioned in the said cheque was of Rs.14,00,000/-. The said cheque was issued by Shah Traders. It is also relevant to refer the cross-examination of DW.1. It is admitted that, DW.1 studied upto B.Com and was doing cement business in the name and style as Shah Traders. The Shah Traders was

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running by DW.1 who is the proprietor of said shop. When DW.1 has paid such huge amount to the husband of the complainant, the financial capacity of the husband of the complainant cannot be doubted. More over, the cheques which are the subject matter of this case were handed over during the lifetime of the husband of the complainant. It is also to be noted here that the accused raised the defence that the handwriting and the writings found on Exs.P1 and P2 are entirely different, the Trial Court by appreciating the said points, by analyzing with the provision of section 73 of the Indian Evidence Act and substantiated it that the writings found on the cheques cannot be found fault with. More over, section 18 of the N.I. Act authorizes the drawer of the cheque to fill the cheque or any negotiable instrument for the realization of the due from the drawee. To attract the provision of section 138 of N.I. Act, the complainant has to prove the signature of the accused and the cheque. If the signature and issuance of the cheque have not been disputed, the initial burden stands discharged by the complainant that the said cheque has been issued in discharge of legally enforceable debt or liability.

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On careful reading of entire evidence of DW.1, except d Menial of transaction, nothing documentary proof was

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produced to rebut the presumption. Therefore, I am of the considered opinion that the findings of conviction recorded by the sub-ordinate Courts with respect to transaction and issuance of the cheque are appropriate and no illegality or perversity crept into the said findings.

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Accordingly, the revision petition filed by the petitioner deserves to be dismissed. Ordered accordingly.

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Sd/JUDGE

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UN. Bss.

Khaleel Ahmed S/O. Allah Bakash v. M Nagarathna W/O. Late M Sanjappa

Case brief

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Khaleel Ahmed S/O. Allah Bakash v. M Nagarathna W/O. Late M Sanjappa

Case brief

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