S B Basavaraj Vs Narasimha Murthy

S B BASAVARAJ S/O LATE BASAVAIAH AGED ABOUT 54 YEARS R/AT No.250/1, 26^TH CROSS, 17^TH MAIN 2^ND BLOCK, NEAR KLE COLLEGE, RAJAJINAGAR, BENGALURU - 560010

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…PETITIONER

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(BY SMT. VIJETHA R NAIK, ADVOCATE)

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AND:

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Digitally signed by REKHA R Location: High Court of Karnataka

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NARASIMHA MURTHY S/O RAMEGOWDA AGED ABOUT 34 YEARS R/AT NO 3/5, 1^ST MAIN ROAD 5^TH CROSS, PATEL CHANNAPPA INDUSTRIAL ESTATE, KAMAKSHIPALYA BENGALURU - 560079

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…RESPONDENT

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(BY SRI. MALLIKARJUNA SWAMY S, ADVOCATE)

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED 20.04.2016 PASSED BY THE XVI ADDL.C.M.M., BENGALURU IN C.C.NO.1973/2011 AND THE JUDGMENT DATED 22.12.2020

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PASSED BY THE LXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN CRL.A.NO.631/2016 AND DISMISS THE COMPLAINT OF THE RESPONDENT HOLDING THAT THE PETITIONER IS NOT GUILTY FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS JUSTICE J.M.KHAZI

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ORAL ORDER

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This petition filed under section 397 r/w Section 401 of Cr.P.C, is by the accused, wherein, he has challenged his conviction and sentence for the offence punishable under Section 138 of Negotiable Instrument Act, (for short N.I.Act), by the trial Court which came to be confirmed by the Sessions Court by dismissing the appeal file by him.

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For the sake of convenience, parties are referred to by their ranks before the trial Court.

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Complainant filed the complaint alleging that

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accused issued cheque dated 30.12.2009, for a sum of ₹3,00,000/- towards repayment of dues from him in

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respect of sale agreement dated 01.10.2009. However, when he presented for encashment, the cheque was

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dishonoured for want of "sufficient funds". In this regard, complainant got issued legal notice dated 27.03.2010 and

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it is duly served on him. Instead of paying the amount due, the accused has sent an evasive reply. Therefore, complaint is filed.

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After due service of summons, accused appeared and resisted the case by pleading not guilty to the plea recorded by the trial Court.

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In order to prove the allegations against accused, complainant examined himself as PW-1 and got marked Exs.P1 to 10.

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During the course of his statement under Section 313 of Cr.P.C, the accused has denied incriminating evidence led by the complainant.

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Accused lead defence evidence by examining himself as DW-1 and 2 witnesses as DWs-2 and 3. He has relied upon Ex.D1 to 14.

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The trial Court convicted the accused and

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sentenced him to fine of ₹3,25,000/- with the default sentence of imprisonment.

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Aggrieved by the same, the accused

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approached Sessions Court in Crl.A.No.631/2016, which came to be dismissed, thereby confirming the j udgment and order of the trial Court.

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Aggrieved by the concurrent findings, the accused is before this Court contending that the impugned judgment and orders are opposed to law, facts, and circumstances of the case. It is the contention of complainant that towards purchase of site he had paid advance of ₹5,00,000/- and when the said transaction did not go through accused issued cheque for ₹3,00,000/towards repayment of the advance is not acceptable. Though the report of the handwriting expert is secured, the trial Court has not at all considered the same. Both

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Courts below have failed to appreciate the fact that accused had issued blank cheque and blank signed stamp

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papers by way of collateral security for the hand loan secured by him which are misused by the complainant. The rebuttal evidence led by the accused is not at all considered by the Courts below. Viewed from any angle, the impugned judgment and order are not sustainable and hence the petition.

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On the other hand, learned counsel

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representing the complainant submitted that having regard to the fact that cheque is drawn on the account of the accused and it bears his signature and on presentation, it was dishonoured for want of sufficient funds, presumption under Section 139 of the N.I. Act is attracted, placing the initial burden on the accused to rebut the same. However, despite leading defence evidence, accused failed to rebut the presumption and therefore, the burden has not shifted on the complainant. In fact, the complainant has led the evidence and established the preliminary facts raising the presumption. Appreciating the oral and documentary evidence led by

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both parties, the trial Court as well as the Sessions Court have rightly held that the allegations against accused are proved. In fact, the punishment imposed is on the lower side and there are no justifiable grounds to interfere in exercise of the revisionary jurisdiction and pray to dismiss the petition.

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Heard arguments and perused the record.

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In the light of the fact that cheque is drawn on the account of the accused and it bears his signature, presumption under Section 118 and 139 of N.I.Act, comes in to play, placing the initial burden on the accused to rebut that it was not issued towards repayment of any legally recoverable debt or liability. On the other hand, it is also for the accused to prove the circumstances in which the cheque has reached the hands of complainant. The analysis of evidence led by both parties indicate that accused offered to sell a site and entered into an agreement dated 01.10.2009 and complainant paid ₹5,00,000/- by way of advance. However, later he backed

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off and therefore, issued the subject cheque towards part payment of advance.

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But accused has taken a defence that he had borrowed hand loan of Rs.3,00,000/- and had issued a blank cheque and blank stamp papers by way of security. By utilizing the same, complainant has got created the sale agreement and when he requested the complainant to receive the amount and return the documents, he failed to do so and had filed a false complainant. Therefore, he has issued stop payment instructions to the bank. In fact, he also got the cheque and sale agreement examined by hand writing expert and report is filed.

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Having regard to the fact that the cheque is drawn on the account of the accused and it bears his signature and on presentation dishonored on account of stop payment instruction, presumption under Section 139 of N.I.Act comes into force, placing initial burden on the accused to prove his defence. Whether the accused has received Rs.5,00,000/- by way of advance in respect of

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sale agreement and issued the subject cheque for Rs.3,00,000/- towards repayment of the said amount as claimed by the complainant or accused had taken hand loan of Rs.3,00,000/- and towards repayment of the same he had issued the subject cheque blank with signature, he is liable to pay the amount due under the cheque.

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Though as per Ex.P7, the accused has issued reply to the legal notice stating that he agreed to settle Rs.3,00,000/- to the complainant, withdrew Rs.3,00,000/from his account and informed the complainant to return the documents and collect the amount, but he has not produced any evidence to show that he has withdrawn Rs.3,00,000/- from his account and the money was ready with him.

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The Hon'ble Supreme Court in case of C.C. Alavi Haji Vs. Palapetty Mohammad and another (Alavi Haji)¹ , held that the object and purpose of issue of legal notice is to enable a prompt drawer of the cheque to make

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1 (2007) 6 SCC 555

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payment within the specified time and thereby avoid the prosecution. It was further held that if accused claim that he has not received the legal notice, on receipt of summons, within 15 days if accused deposit the amount due under the cheque, it is due payment and his liability under cheque is absolved and request the Court to dismiss the complaint. In the present case, after receipt of legal notice the accused has failed to pay the amount due under cheque.

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According to the complainant as well as the accused the liability due under the cheque is Rs.3,00,000/-. In fact the complainant has not sought specific performance as per the sale agreement. Such being the case, the accused is not justified in insisting upon return of sale agreement.

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The accused has examined DW-2 Channappa and DW-3 Chandrayya to prove that it was a hand loan transaction and singed blank cheque and stamps papers were given by way of security. They have deposed that

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the loan was a sum of Rs.2,00,000/- whereas, in the reply notice at ExD-2 dated 06.01.2010 the accused claimed that the loan amount is Rs.3,00,000/-. Infact as observed by the trial Court, the FSL report state that the signature in the cheque and sale agreement are that of accused. As held by the Hon'ble Supreme Court, in Bir Singh Vs. Mukesh Kumar ( Bir Singh )² , presumption under Section 139 of N.I Act is available even to a blank cheque. Even a blank cheque issued attract criminal liability under Section 138 of N.I.Act. When the complainant is not enforcing the sale agreement, the accused is liable to repay the amount due for which he has issued the subject cheque.

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The trial Court as well as the Sessions Court on proper appreciation of oral and documentary evidence placed on record have rightly held that the complainant through oral and documentary evidence established the preliminary facts for rising the presumption. On the other hand the accused has failed to rebut the presumption by leading cogent and convincing evidence and convicted the

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2 (2019) 16 SCC 83

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accused and sentenced him. The conclusion arrived at by them is consistent with the evidence placed on record. This Court finds no perversity or illegality to call for interference in exercise of revisionary jurisdiction. In the result the petition fails and accordingly the following:

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ORDER

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(i) Petition filed by the accused under Section 397 r/w Section 401 of Cr.P.C is dismissed.

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(ii) The impugned judgment dated 20.04.2016 in C.C.No.1973/2011 on the file of XVI Addl.Chief Metropolitan Magistrate, Bengaluru City and judgment and order dated 22.12.2020 in Crl.A.No.631/2016 on the file of LXII Addl.City Civil and Sessions Judge, Bengaluru, are confirmed.

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(iii) The Registry is directed to send back the trial Court as well as Sessions Court records along with copy of this order forthwith.

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Sd/(J.M.KHAZI) JUDGE

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RR,ASN. List No.: 1 Sl No.: 50

S B Basavaraj v. Narasimha Murthy

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S B Basavaraj v. Narasimha Murthy

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