Dismissed

K M Prabu v. B L Puttaswamy

Karnataka HC25 Sept 2024CRL.RP/119/2017

Case brief

AI extract

What is this about?

Justice Pradeep Singh Yerur, in this criminal revision under Sections 397 and 401 CrPC, rejected the accused's challenge to a conviction for cheque dishonour under Section 138 N.I. Act, holding that the statutory presumption of consideration was not rebutted by mere denial.

What did the court decide?

Criminal Revision Petition dismissed; impugned judgment of conviction and sentence dated 22nd December 2014 upheld and affirmed.

K M Prabu Vs B L Puttaswamy — Cheque Dishonour | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF SEPTEMBER, 2024 BEFORE

¶4

THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR CRIMINAL REVISION PETITION NO. 119 OF 2017

¶5

BETWEEN:

¶6

K M.PRABU S/O MAHADEVA SHASTRI AGED ABOUT 56 YEARS, NO.135, 8^TH CROSS 4^TH MAIN CHANDANA EXTENSION SREEGANDHA KAVALU SUNKADAKATTE BENGALURU - 560 091

¶7

…PETITIONER

¶8

(BY SRI. CHANDRASHEKAR P PATIL.,ADVOCATE) AND:

¶9

Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH

¶10

Location: HIGH COURT OF KARNATAKA

¶11

B L PUTTASWAMY S/O LATE S.M.LINGAPPA AGED ABOUT 34 YEARS NO.5, 3^RD D MAIN ROAD 13^TH CROSS, CHOLURUPALYA VIJAYANAGAR BENGALURU - 560 023

¶12

…RESPONDENT (BY SRI.PARAMESHWARAPPA.C., ADVOCATE)

¶13

THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 21.12.2016 PASSED BY THE IN-CHARGE LVIII ADDL. C.C. AND S.J., BANGALORE IN CRL.A.NO.29/2015, CONFIRMING THE ORDER OF CONVICTION DATED 22.12.2014 PASSED BY THE XIX A.C.M.M., BANGALORE IN C.C.NO.28551/2009.

¶14

¶15

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶16

THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶17

CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR

¶18

ORAL ORDER

¶19

This revision petition is preferred by the

¶20

petitioner/accused challenging the judgment of conviction and order of sentence dated 21^st December 2016 passed in Criminal Appeal No.29/2015 by the in-charge 58^th Addl. City Civil & Sessions Judge, Bengaluru, confirming the judgment of conviction and order of sentence dated 22^nd December 2014 passed in C.C. No.28551/2009 by the XIX Additional Chief Metropolitan Magistrate, Bangalore, whereby the trial Court convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act (‘ N.I. Act ’ for short) and sentenced him to pay a fine of Rs.4,75,000/-, in default to undergo Simple Imprisonment for six months and further, out of the fine amount realized, a sum of Rs.4,70,000/- was ordered to be paid to the complainant as compensation and remaining amount of Rs.5,000/- was ordered to be

¶21

¶22

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶23

forfeited to the State. Petitioner is seeking to set aside the impugned judgments rendered by the trial Court as well as the appellate Court and consequently acquit the accused for the offence punishable under section 138 of the N.I. Act.

¶24

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

¶25

Brief facts leading to filing of this petition are as follows:

¶26

It is the case of the complainant that the accused is well acquainted with him and in view of the same, accused sought hand loan of Rs.4,00,000/- for his legal necessity and agreed to repay the same within a period of six months. When the complainant demanded repayment of the loan, the accused failed to pay the same and ultimately issued the cheque bearing No.026113 dated 31.07.2009 for a sum of Rs.4,00,000/- towards repayment of the loan assuring that the same would be honoured on presentation.

¶27

¶28

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶29

3.1 Complainant presented the said cheque to the

¶30

bank for encashment. To his shock and surprise, the said cheque was dishonoured with an endorsement "funds insufficient" Complainant intimated this fact to the accused, who did not respond to the same and has not paid the amount. Hence, left with no other alternative, the complainant got issued a legal notice through his advocate on 27.08.2009 by way of RPAD and also Certificate of Posting calling upon the accused to repay the dishonoured cheque amount within 15 days from the date

¶31

of receipt of the said notice. The legal notice issued under RPAD retuned with an endorsement 'not claimed by the addressee'. However, the notice issued under certificate of posting was duly served on the accused, but he did not give any reply. Since the dishonoured cheque amount was not paid pursuant to the legal notice, complainant filed the complaint against the accused under

¶32

Section 200 of the Code of Criminal Procedure for the offence punishable under Section 138 of the N.I. Act.

¶33

¶34

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶35

3.2 Upon presentation of the complaint, the trial

¶36

Court took cognizance for the offence under Section 138 of

¶37

the N.I. Act and issued summons to the accused. In response to the same, the accused appeared before the trial Court through his counsel and was enlarged on bail. The accused pleaded not guilty and claimed to be tried.

¶38

3.3 In order to substantiate his case, the

¶39

complainant got examined himself as PW.1 and got marked Ex.P1 to Ex.P7. After conclusion of evidence of the complainant, the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, wherein he denied the incriminating evidence

¶40

against him and pleaded not guilty. The accused got examined himself as DW.1, but no documents were marked on his behalf.

¶41

3.4 On the basis of evidence adduced by the complainant and the accused and the documents produced in the form of Ex.P1 series and Ex.D1 series and upon hearing arguments of learned counsels for both the

¶42

¶43

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶44

parties, the trial Court being satisfied that all the ingredients for the offence under Section 138 of the N.I. Act have been fulfilled, convicted the accused for the said offence and sentenced him to pay a fine of Rs.4,75,000/-, in default to undergo Simple Imprisonment for six months year and further, out of the fine amount realized, a sum of Rs.4,70,000/- was ordered to be paid to the complainant as compensation and remaining amount of Rs.5,000/- was ordered to be forfeited to the State.

¶45

3.5 Being aggrieved by the said judgment of

¶46

conviction and order of sentence, the accused preferred an appeal before the appellate Court. On re-appreciation and re-analysation of the oral and documentary on record and the arguments advanced by learned counsels for both the parties, the appellate Court did not find favour with the accused and accordingly dismissed the appeal confirming the judgment of conviction and order of sentence passed by the trial Court.

¶47

¶48

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶49

3.6 Aggrieved by the same, the petitioner/accused is before this Court challenging the legality, correctness and propriety of judgments passed by both the Courts.

¶50

I have heard learned counsels for petitioner as well as respondent.

¶51

4.1 It is the vehement contention of learned counsel for petitioner that the judgments rendered by both the Courts are illegal, arbitrary and vitiated and there are patent irregularities and errors committed by both the Courts.

¶52

4.2 It is further contention of learned counsel for petitioner/accused that there was no legal debt or liability as against the respondent/complainant and there was no reason for the petitioner to secure any loan from the complainant and so also the complainant did not have necessary financial capacity to give loan to the petitioner. No document is placed before the Court to establish and prove the fact that the respondent has necessary source of income and financial capacity to give an amount of

¶53

¶54

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶55

Rs.4,00,000/- to the petitioner as loan. It is the duty of the respondent/complainant to prove his case beyond reasonable doubt and if the respondent has not placed any material to show source of income and capability to pay such huge amount to the accused, both the Courts ought to have dismissed the complaint on this ground itself.

¶56

4.3 Further, learned counsel contends that the duly signed blank cheque was given to one Mr. Rudresh for security purpose towards the chit fund transaction and the petitioner is not aware as to how the said cheque has come to the hands of the respondent/complainant. He contends that the cheque which has been given to Mr. Rudresh has been misused by the respondent/complainant to make unlawful gain.

¶57

4.4 It is also contended by the learned counsel for

¶58

petitioner that legal notice issued by way of RPAD not served on the accused and hence there is no proper

¶59

service of the legal notice and the mandatory requirement as contemplated under Section 138(b) of the N.I. Act has

¶60

¶61

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶62

not been complied and therefore, the complaint ought to

¶63

have been dismissed for non-service of the legal notice.

¶64

4.5 On these grounds, learned counsel for petitioner seeks to set aside the impugned judgments rendered by both the courts and to acquit the petitioner for the offence punishable under Section 138 of the N.I. Act.

¶65

Per contra, learned counsel representing the respondent/complainant vehemently contends that there is no illegality, perversity, arbitrariness or patent error in the judgments rendered by the trial Court as well as the appellate Court.

¶66

5.1 Learned counsel further contends that the complainant has given loan to the petitioner/accused, for which petitioner has given the cheque/Ex.P1 to the complainant. He contends that the accused has admitted issuance of the cheque and so also signature on the cheque and subsequently has come with the theory that the cheque was issued to one Sri Rudresh for the security

¶67

10 -

¶68

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶69

purpose towards the chit transaction without producing supportive evidence.

¶70

5.2 It is further contention of learned counsel for the complainant that the legal notice issued to the accused by way of certificate of posting is served. Therefore, the legal notice is deemed to have been served as per law. He further contends that summons issued to the very same address to which the legal notice was issued and in pursuance of the summons, the accused appeared before the Court and participated in the proceedings and therefore, it cannot be said by the petitioner that the notice was not duly served.

¶71

5.3 Learned counsel further contends that Ex.P1 to Ex.P7 clearly establish that there were some financial transactions between the petitioner and the respondent, for which the cheque/Ex.P1 came to be issued to the respondent. In the present case, the issuance of the

¶72

cheque and signature on the cheque are not disputed. However, it is the case of the petitioner that he has issued

¶73

11 -

¶74

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶75

his duly signed blank cheque in favour of one Rudresh for

¶76

the purpose of security towards the chit transaction. Therefore, there is a dispute as to whether cheque is given to the respondent/complainant or Mr. Rudresh. Since it is the case of the petitioner that it was given to Mr. Rudresh, the petitioner ought to have examined the said Mr. Rudresh to prove that the cheque was misused by the respondent. The same has not been done in the present case. He contended that no case is made out by the petitioner to entertain the matter and no material is elicited in the cross-examination of PW.1 and so also no cogent evidence placed through the evidence of DW.1 to disprove/controvert the case of the complainant.

¶77

5.4 On these grounds, learned counsel seeks to

¶78

dismiss the petition and affirm the judgments rendered by both the Courts.

¶79

Having heard learned counsels for parties, the

¶80

points that would arise for consideration in this revision petition are:

¶81

12 -

¶82

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶83

i) Whether the petitioner/accused has made out any valid ground to show any illegality, perversity or patent error in the impugned judgments rendered by the trial Court and the appellate Court ?

¶84

ii) Whether the impugned judgments rendered by both the Courts are liable to be set aside ?

¶85

On careful perusal and examination of the

¶86

materials placed on record, both oral and documentary and on hearing the submissions of learned counsels for

¶87

petitioner as well as respondent, it is seen that Ex.P1/cheque dated 31.07.2009 was issued in the name of the respondent/complainant for a sum of Rs.4,00,000/-. The complainant presented the said cheque for encashment and the same was returned with an endorsement, 'funds insufficient' on 4.8.2009.

¶88

Therefore, it is the requirement of the complainant to make a demand for payment of the dishonoured cheque amount by giving a notice in writing to the drawer of the cheque, within 30 days of the receipt of information by

¶89

13 -

¶90

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶91

him from the bank regarding dishonour of cheque. The same has been done in the present case by issuing the legal notice dated 27.08.2009 by way of RPAD and Certificate of Posting calling upon the accused to repay the dishonoured cheque amount within 15 days from the date of receipt of the said notice.

¶92

It is also relevant to see that summons issued to

¶93

the accused to the very same address to which the legal notice was issued and in pursuance of the summons, the accused appeared before the Court and secured the order of bail and participated in the proceedings. The legal

¶94

notice issued by way of RPAD was retuned with an endorsement "not claimed by the addressee" and notice issued under certificate of post was duly served. Hence, the legal notice is deemed to have been served on the accused. Therefore, the necessary ingredient of Section 138(b) of the N.I. Act has been complied. The petitioner

¶95

has not repaid the dishonoured cheque amount within 15 days of receipt of notice. Hence, the complainant

¶96

14 -

¶97

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶98

registered a complaint against the accused under Section 200 of the Code of Criminal Procedure for the offence under Section 138 of the N.I. Act.

¶99

On perusal of the material on record, it is also seen that the petitioner/accused has admitted issuance of the cheque, holding of the account and also the signature on the cheque/Ex.P1. Therefore, the necessary ingredients of Section 138 of the N.I. Act are fulfilled.

¶100

On fulfillment of necessary ingredients required under the provisions of Section 138 of the N.I. Act, the cause of action for filing complaint under Section 200 of the Code of Criminal Procedure is technically made out. On filing complaint, Section 139 of the N.I. Act comes into play, which would show a presumption in favour of the complainant. Section 139 of the N.I. Act reads as under:

¶101

"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

¶102

15 -

¶103

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶104

nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."

¶105

It is also necessary to see that under Section

¶106

118 of the N.I. Act, once a cheque has been drawn, indorsed, accepted by the accused, there is a presumption that it is drawn for a consideration. Section 118(a) of the N.I. Act contemplates the presumption of consideration and Section 118(g) of the N.I. Act contemplates that the holder of a negotiable instrument is a holder in due course. These two provisions alongwith Section 139 of the N.I. Act clearly go in favour of the complainant where there is a presumption in favour of the complainant with regard to consideration and also instrument/cheque having been given to the person who has filed the complaint. No doubt, it is true that such presumption is rebuttable presumption. It is for the petitioner/accused to rebut the said presumption and establish that there was no such transaction or that it is a frivolous concocted story by way of cogent material evidence before the

¶107

16 -

¶108

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶109

Court. The rebuttal cannot be by way of a mere statement of denial, but it should be something more than the mere statement to disprove the presumption in favour of the complainant under Sections 139 and 118 of the N.I. Act. It is only when the petitioner/accused rebuts the presumption by means of cogent evidence either oral or documentary, the onus would shift on the complainant to satisfy the rebuttal of the accused.

¶110

In the present case on hand, the issuance of the cheque and signature on the cheque are not disputed. However, it is the case of the petitioner that he has issued his duly signed blank cheque in favour of one Mr. Rudresh for the purpose of security towards the chit transaction. If that being the case, nothing prevented the petitioner/accused from producing cogent material before the Court to show that such a cheque was not issued to the complainant, but was given to Mr. Rudresh for some other transaction. No such material is placed on record. I am afraid the theory putforth by the petitioner cannot be

¶111

17 -

¶112

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶113

accepted by merely making such a statement, but the same has to be corroborated by oral and documentary evidence. Nothing worthwhile is placed on record to believe the version of the petitioner.

¶114

The other contention taken by the

¶115

petitioner/accused is that the complainant does not have the capability and financial capacity to first of all lend the loan amount of Rs.4,00,000/-. This question has been answered by both the Courts by holding that once the cheque has been drawn, indorsed, accepted by accused, there is a presumption that it is drawn for a consideration. It was for the accused to disprove such presumption by way of proper material and the cogent evidence. The mere statement that the cheque was not issued for a legal debt and the complainant did not have the necessary financial capacity and capability to lend loan to the accused, by itself does not prove rebuttal of the presumption. The petitioner/accused should have produced something more than mere statement.

¶116

18 -

¶117

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶118

Therefore, there is no proper material evidence in favour of the accused to show that he has disproved and rebutted

¶119

the presumption cast in favour of the complainant.

¶120

The scope of revision under Sections 397 and 401 of Cr.PC is very limited to the extent of examining the legality, correctness or propriety of any finding, sentence or order and also to see whether there is any patent error committed by both the Courts. 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 matter afresh.

¶121

However, having perused the materials placed

¶122

before the Court and the reasoning and finding of both the Courts and submissions of learned counsel for parties, I do not find any material irregularity or perversity or patent error in the judgments of conviction and orders of sentence passed by both the Courts. The reasons assigned and the conclusion arrived at by both the Courts are just and proper. The petitioner/accused has not made

¶123

NC: 2024:KHC:40329 CRL.RP No. 119 of 2017

¶124

19 -

¶125

out any ground to interfere with the well reasoned concurrent judgments rendered by both the Courts. Therefore, I answer the points (i) and (ii) raised in this revision petition in the negative.

¶126

In view of the discussion made hereinabove, I

¶127

pass the following:

¶128

O R D E R

¶129

i) Criminal Revision Petition is dismissed .

¶130

ii) The impugned judgment of conviction and order of sentence dated 22^nd December 2014 rendered by the trial Court in C.C. No.28551/2009 confirmed by the appellate Court in Criminal Appeal No.29/2015 dated 21^st December 2016, is hereby upheld and affirmed.

¶131

Sd/(PRADEEP SINGH YERUR) JUDGE

¶132

GSS List No.: 1 Sl No.: 84

K M Prabu v. B L Puttaswamy

Case brief

What is this about?

What did the court decide?

K M Prabu v. B L Puttaswamy

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mrs Rubina Zahid Hussain Vs Zahid Hussain Gulam Hussain

Syed Rehaman Nubain Vs State of Karnataka

Sri. H N Jayanna Vs State by Hassan Extension Police

G Krishnappa Vs Kumar

Mr.Fatha Ahammed Vs Sri.Balakrishna G.S.

Srinivasa Poojary Vs Smt. Sumathi S Amin