Allowed

R P Ravishankar v. M v Shankar

Karnataka HC19 Sept 2024CRL.A/1196/2013

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court of Karnataka set aside the trial court's acquittal of the respondent accused for cheque dishonour under Section 138 of the NI Act, holding the trial court erred in not appreciating the evidence and presumptions favoring the complainant.

What did the court decide?

The Criminal Appeal is allowed, the acquittal judgment is set aside, the accused is convicted, sentenced to a fine of Rs.7,50,000/- or one year simple imprisonment, and Rs.7,00,000/- is ordered as com

R P Ravishankar Vs M v Shankar — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC:38605 CRL.A No. 1196 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 1196 OF 2013 (A)

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BETWEEN:

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R P RAVISHANKAR, S/O R.K.P. GUPTA, AGED ABOUT 50 YEARS, NO.135, SRI CHAKRA, 11^TH CROSS, MALLESWARAM, BANGALORE-560 003.

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…APPELLANT

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(BY SRI NARENDRA BABU B K, ADVOCATE)

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AND:

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M V SHANKAR, S/O LATE M.VENKATAMUNIYAPPA, NO 111/6, NATAKARATNA GUBBI VEERANA ROAD, BANGALORE-560 020.

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Digitally signed by NANDINI R Location: High Court of Karnataka

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…RESPONDENT

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(BY SRI B PRAMOD, ADVOCATE)

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THIS CRL.A. IS FILED U/S.378(4) CR.P.C TO SET ASIDE THE ORDER OF ACQUITTAL DATED 15.10.2013 PASSED BY THE XXI ADDL. SMALL CAUSES JUDGE AND XIX A.C.M.M., BANGALORE CITY IN C.C.NO.10850/2007 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE M G UMA

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NC: 2024:KHC:38605 CRL.A No. 1196 of 2013

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ORAL JUDGMENT

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The complainant in CC No.10850 of 2007 on the file of the learned XXI Additional Small Causes Judge and XIX Additional Chief Metropolitan Magistrate, Bengaluru city, is impugning the judgment dated 15.10.2013 acquitting the respondent-accused for the offence punishable under Section 138 of Negotiable Instruments Act (for short 'the NI Act').

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For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.

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Brief facts of the case are that, the complainant filed the private complaint in PCR No.22023/2006 against the accused alleging that he was well acquainted with the accused and the accused had approached him for financial assistance and accordingly, he lent an amount of Rs.5,50,000/- during first week of June 2006. When the complainant demanded back the amount, the accused issued two cheques bearing No.102447 for Rs.3,00,000/- and No.102446 for Rs.2,50,000/both dated 13.10.2006 and when the cheques were presented for encashment, they were dis-honoured as there were insufficient funds in the account of the accused. Legal notice

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NC: 2024:KHC:38605 CRL.A No. 1196 of 2013

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was issued to the accused both under 'Registered Post Acknowledgement due' (for short RPAD) and also under the 'Certificate of Posting'. The notice sent through Certificate of Posting is served on the accused while the notice sent through RPAD was returned as address is incomplete. Inspite of that, the accused has not repaid the amount and thereby he has committed the offence punishable under Section 138 of NI Act. Hence, the complainant requested the trial Court to take cognizance of the offence and to initiate legal action.

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The trial Court took cognizance of the offence, registered CC No.10850/2007 and summoned the accused. The accused appeared before the trial Court, pleaded not guilty and claimed to be tried. The complainant examined himself as PW1 and got marked exhibits P1 to P10 in support of his contentions. The accused has denied all the incriminating materials available on record, but has not lead any oral evidence. He got marked exhibits D1 to D15 during the crossexamination of PW1. The trial Court after taking into consideration all these materials on record came to the conclusion that the complainant is not successful in proving the guilt of the accused beyond reasonable doubt. Accordingly, the

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NC: 2024:KHC:38605 CRL.A No. 1196 of 2013

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accused was acquitted by passing the impugned judgment. Being aggrieved by the same, the complainant is before this Court.

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Heard Sri Narendra Babu B.K., learned counsel for the appellant and Sri B Pramod, learned counsel for respondent. Perused the materials including the trial Court records.

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Learned counsel for the appellant-complainant contended that the complainant has specifically stated that he has lent Rs.5,50,000/- to the accused during the first week of

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June 2006. Towards repayment of the said amount, the cheques marked as Exs.P1 and P2 were issued by the accused.

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The accused has not disputed the issuance of cheques Exs.P1 and P2 with his signatures. Under such circumstances, the legal presumption under Section 139 of NI Act, would arise and the burden is on the accused to rebut the same. Nothing has been elicited from PW1 during cross-examination to disbelieve his version and to rebut the legal presumption. Exhibits D1 to D15 even though marked by the accused, the same would not rebut the presumption. Under such circumstances, the accused is

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NC: 2024:KHC:38605 CRL.A No. 1196 of 2013

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liable for conviction. The trial Court without appreciating the oral and documentary evidence placed on record proceeded to acquit the accused on flimsy grounds. The trial Court held that the legal notice sent to accused was not served on the accused and therefore, the complaint is not maintainable. It is the specific contention of the complainant that the notice sent under Certificate of Posting is served on the accused, even though notice sent through RPAD was returned as the address was incomplete. The learned counsel submitted that the very same address was furnished by the complainant in the private complaint and the summons sent to the very same address was served on the accused and he appeared before the trial Court. Under such circumstances, the opinion formed by the trial Court is perverse and illegal.

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Learned counsel further submitted that the accused after admitting issuance of cheques with his signature contended that those cheques were issued in favour of the wife of the complainant who was running money lending business under the name 'Shubhashree Enterprises (R)' and the said cheques were misused by the complainant. But the said defence was not probablised by the accused and under such

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circumstance, the impugned judgment of acquittal passed by the trial Court is liable to be set aside. Accordingly, he prays for allowing the appeal.

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Per contra, learned counsel for respondent opposing the appeal submitted that the complainant has not proved lending of the amount of Rs.5,50,000/- in favour of the accused. During cross-examination of PW1 i.e., the complainant, he admitted that his wife is running a money lending business under the name and style as 'Shubhashree Enterprises (R)'. PW1 also admits that it is he who is looking after the court cases pertaining to the said Shubhashree Enterprises. Ex.D2 is the copy of the cheque issued by the wife of the complainant in favour of the accused for Rs.1,00,000/which also proves the contention of the accused regarding the borrowal of the amount from Shubhashree Enterprises. Under such circumstances, the accused is successful in rebutting the presumption and the trial Court has rightly acquitted the accused.

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Learned counsel further submitted that, admittedly, the legal notice sent through RPAD was never served on the

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NC: 2024:KHC:38605 CRL.A No. 1196 of 2013

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accused, on the other hand, it was returned unserved as the address was incomplete. Under such circumstances, the complainant do not get the cause of action to file the complaint seeking conviction of the accused. Thus, it is his contention that the trial Court was right in accepting the defence taken by the accused for acquitting him and there are no reasons to interfere in the impugned judgment of acquittal passed by the trial Court.

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In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:

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"Whether the impugned judgment of acquittal passed by the Trial Court suffers from perversity or illegality and calls for interference by this Court?"

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My answer to the above point is in the 'Affirmative' for the following:

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REASONS

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It is the specific contention of the complainant that accused borrowed an amount of Rs.5,50,000/- during the first week of June 2006 and towards repayment of the same, he had issued two cheques as per Exs.P1 and P2. It is his further

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contention that both the cheques were dishonoured as there were insufficient funds in the account of the accused and the legal notice was issued. Notice sent through RPAD was returned unserved as the address was incomplete, but the notice sent under the Certificate of Posting was served on the accused. Thus, it is his contention that the accused had committed the offence punishable under Section 138 of NI Act, and he is liable for conviction. The accused has appeared before the trial Court and has taken a specific defence admitting the issuance of the cheques as per Exs.P1 and P2 including his signatures. The defence taken by the accused appears to be that the legal notice sent through RPAD was returned unserved as address is incomplete. There is no service of notice and secondly, the cheques Exs.P1 and P2 were issued by the accused in favour of the wife of the complainant towards repayment of the loan that was obtained from Shubhashree Enterprises run by her and those blank cheques were misused by the complainant to file the present complaint.

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Once the accused admits issuance of cheques with his signatures, the initial burden on the complainant gets discharged and the legal presumption under Sections 118 and

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139 of NI Act, would arise in his favour. The burden shifts on the accused to rebut the presumption. The accused in order to rebut the presumption, cross-examined PW1 at length. During cross-examination, it is elicited from him that his wife was running money lending business under the name and style as 'Shubhashree Enterprises (R)' and further that he was looking after the court matters pertaining to the said business. The accused got marked Ex.D2, copy of the cheque issued by the wife of the complainant on behalf of Shubhashree Enterprises for Rs.1,00,000/- which is dated 01.03.2002 to contend that the accused had borrowed the said amount from Shubhashree Enterprises. Therefore, it is the contention of the accused that while borrowing the amount under Ex.D2, the accused had issued two blank cheques in favour of the wife of the complainant with his signatures and those cheques were misused by the complainant for filing the present complaint.

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The accused had also produced Exs.D4 to D12 to show that the complainant is in the habit of filing similar complaint. Ex.D13 is the evidence of the complainant in a similar complaint filed against another accused under Section 138 of NI Act. Ex.D14 and Ex.D15 are the cheques presented

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by the complainant in different cases said to have been issued by the accused in those cases to contend that in those cheques, the handwriting and the ink differs from the signature of the

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drawer. Merely because the complainant has filed several complaints under Section 138 of NI Act, it will not automatically rebut the legal presumption in favour of the complainant. Mere production of Ex.D2, copy of the cheque issued by the wife of the complainant on behalf of Shubhashree Enterprises where accused contends that he borrowed an amount of Rs.1,00,000/- from the wife of the complainant will not automatically lead to the presumption that the accused had issued blank cheques at the time of borrowing the said amount. Only fact that could be proved by producing Ex.D2 is borrowal

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of Rs.1,00,000/- by the accused from the wife of the complainant. By that, the presumption arose in the present case will not be rebutted. It is pertinent to note that the accused has not stepped into the witness box to depose about his defence. Nothing prevented the accused from stepping into

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the witness box and deposing about the defence taken. Under such circumstances, it cannot be said that the accused is

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NC: 2024:KHC:38605 CRL.A No. 1196 of 2013

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successful in rebutting the presumption under Sections 118 and 139 of NI Act.

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The next contention taken by the accused is that, the legal notice required to be issued under Section 138 of NI Act was never served on the accused. The complainant has produced the copy of the legal notice as per Ex.P5, RPAD receipts as per Exs.P6 and P7, Certificate of Posting as Ex.P8. Thereby, the complainant has proved sending of the legal notice both through RPAD and also under Certificate of Posting. It is pertinent to note that the notice sent through RPAD was returned un-served as address is incomplete. It is relevant to refer to the private complaint filed by the accused, where, the address of the accused is the very same address as shown in the legal notice sent through the RPAD. Admittedly, the accused is served through the court summons in the very same address. Therefore, it cannot be said that the address mentioned in the notice sent under RPAD is incomplete. It is the presumption of law that when a notice is sent to the correct address, it is served on the addressee. The records disclose

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that the notice was also sent through certificate or posting to the very same address. There is absolutely no explanation as to

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how the summons issued by the trial Court to the very same address was served on the accused if the same is incomplete. Here, again, it is to be noticed that the accused has never stepped into the witness box to depose about his defence. Mere marking of Ex.D1 to D15 will not probabilise the defence taken by the accused. Non-examination of the accused to speak about his defence is fatal to his case. Under such circumstances, I am of the opinion that the accused is not successful in rebutting the presumption and therefore, he is liable for conviction.

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To high light the settled proposition of law that even issuance of a blank cheque with the signature of the accused attracts the presumption under Section 139 of NI, Act and the burden is on the accused to raise a defence and probabilise the same, the reliance is placed on the decision of the Hon'ble Apex Court in Bir Singh Vs Mukesh Kumar¹ and in para 34 and 36 of the judgment, the Hon'ble Apex Court held as under:

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"34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars.

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1 (2019) 4 SCC 197

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This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.

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35. xxx xxx xxx

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36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.

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This decision in Bir Singh (supra) is again re-iterated by the Hon'ble Apex Court in its recent decision in M/s Kalamani Tex and another Vs P Balasubramanian² .

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Thus, the position of law is very well settled and under such circumstances, the contention taken by the respondent cannot be accepted.

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Thus, I hold that the complainant was successful in discharging his initial burden to prove issuance of the cheques Exs.P1 and P2 towards discharge of legally enforceable debt and therefore, the legal presumption under Sections 118 and 139 arise in favour of the complainant. The burden shifts on the

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2 (2021) 5 SCC 283

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NC: 2024:KHC:38605 CRL.A No. 1196 of 2013

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accused to rebut the presumption. The accused is not successful in rebutting the presumption and therefore, he is liable for conviction.

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I have gone through the impugned judgment of acquittal passed by the trial Court. The trial Court has misdirected itself in presuming that production of Exs. D1 to D15 automatically rebut the legal presumption under Sections 139 and 118 of NI Act. Moreover, the trial Court lost sight of the fact that the summons issued by it to the accused to the very same address mentioned in the legal notice was served on the accused and the notice sent under the Certificate of Posting was deemed to have been served on the accused. Under such circumstances, it is to be held that the impugned judgment of acquittal passed by the trial Court is perverse, illegal and the same is against the settled proposition of law. Hence, the same calls for interference by this Court. Accordingly, I answer the above point in the affirmative.

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REGARDING SENTENCE

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Heard learned counsel for the appellant and learned counsel for respondent on imposition of sentence.

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NC: 2024:KHC:38605 CRL.A No. 1196 of 2013

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Learned counsel for accused submitted that maximum leniency may be shown in favour of the accused while sentencing him, since he was acquitted by the trial Court.

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Per contra, learned counsel for complainant submitted that the cheques were issued during 2006 and the complaint came to be filed in 2007. 17 long years have been elapsed and under such circumstances, maximum sentence could be imposed.

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Even though the cheques are of the year 2006 and the complaint was filed in the year 2007, the impugned judgment of acquittal came to be passed during 2013 and thereafter, the present appeal came to be filed challenging the impugned judgment of acquittal. Under such circumstances, I do not find any reason to impose maximum sentence as prescribed under law. Some amount of leniency is required to be shown in favour of the accused and the sentence to be imposed should be proportionate to the offence in question. Hence, I proceed to pass the following:

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ORDER

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(i) The Criminal Appeal is allowed.

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NC: 2024:KHC:38605 CRL.A No. 1196 of 2013

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(ii) The impugned judgment of acquittal dated 15.10.2013 passed in CC No.10850 of 2007 on the file of the learned XXI Additional Small Causes Judge and XIX ACMM Bangalore City, is hereby set aside.

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(iii) Consequently, the accused is convicted for the offence punishable under Section 138 of NI Act and he is sentenced to pay a fine of Rs.7,50,000/- within four months from today, failing which, he should undergo Simple Imprisonment for a period of one year.

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(iv) Out of fine amount of Rs.7,50,000/-, a sum of Rs.7,00,000/- is ordered to be paid to the complainant as compensation.

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Registry is directed to send back the Trial Court records along with copy of this judgment for information and needful action.

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Sd/(M G UMA) JUDGE

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tsn*

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List No.: 2 Sl No.: 20

R P Ravishankar v. M v Shankar

Case brief

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R P Ravishankar v. M v Shankar

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