Sri D Vijay Vs Sri G Jayaprakash

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE CONFIRMATION OF JUDGMENT IN CRL.A.NO.1257/2014, DATED 01.01.2016 ON THE FILE OF THE LVIII ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGALURU AND DATED 07.10.2014 IN C.C.NO.10885/2012 ON THE FILE OF THE XXII ACMM, BENGALURU AND ETC.

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IN CRIMINAL APPEAL NO.323/2019:

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BETWEEN:

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SRI. G. JAYAPRAKASH S/O GODDATHIMMAIAH AGED ABOUT 45 YEARS R/AT NO.103, OPP. TO AMBHA MAHESHWARI TEMPLE NEAR SHUBODAYA KALYANA MANTAPA KAMAKSHIPALYA BENGALURU-560 079.

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… APPELLANT

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(BY SRI. RAVINDRA P., AND SMT. HIRANMAYI, ADVOCATES)

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AND:

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SRI. D. VIJAY S/O DORESWAMY AGED ABOUT 45 YEARS R/AT NO.117, 13^TH ‘A’ MAIN ROAD BINNY LAYOUT, 2^ND STAGE BENGALURU-560 040. … RESPONDENT

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(BY SRI. H. MAHESH KUMAR, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 14.01.2019 PASSED BY THE XXIII ACMM, BENGALURU IN C.C.NO.5845/2013 FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT AND ETC.

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IN CRIMINAL REVISION PETITION NO.401/2016:

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BETWEEN:

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SRI. D. VIJAY S/O LATE SRI DORESWAMY AGED ABOUT 45 YEARS R/AT NO.117, 13^TH ‘A’ MAIN ROAD BINNY LAYOUT, 2^ND STAGE BENGALURU-560 040.

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… PETITIONER

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(BY SRI. B.S.ANANTHA KRISHNA, ADVOCATE)

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AND:

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SRI. G. JAYAPRAKASH S/O SRI. GODDATHIMMAIAH AGED ABOUT 45 YEARS RESIDING AT NO.103 OPP. TO AMBA MAHESHWARI TEMPLE NEAR SHUBODAYA KALYANA MANTAPA KAMAKSHIPALYA BENGALURU-560 079.

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… RESPONDENT

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(BY SRI. RAVINDRA P., AND SMT. HIRANMAYI, ADVOCATES)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE CONFIRMATION OF JUDGMENT IN CRL.A.NO.1256/2014, DATED

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01.01.2016, ON THE FILE OF THE LVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-59) AND DATED 07.10.2014 IN C.C.NO.19940/2012, ON THE FILE OF THE XXII ACMM, BENGALURU AND ETC.

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THESE PETITIONS AND APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 11.03.2025. THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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CAV ORDER

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The Crl.R.P.Nos.400/2016 and 401/2016 are filed by the accused challenging the judgment of conviction dated 07.10.2014 in C.C.Nos.10885/2012 and 19940/2012 and confirmation of the judgment dated 01.01.2016 in Crl.A.Nos.1257/2014 and 1256/2014.

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The Crl.A.No.323/2019 is filed by the complainant challenging the judgment of acquittal dated 14.01.2019 passed in C.C.No.5845/2013 for the offence punishable under Section 138 of N.I.Act.

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The parties in all the matters are one and the same. Heard the learned counsel appearing for the respective parties in all the cases.

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The factual matrix of the case of the complainant in C.C.Nos.10885/2012 and 19940/2012 is that there was a memorandum of understanding dated 30.11.2011, thereby, both of them have entered into a settlement. In view of the said settlement, the accused has acknowledged and ratified his act of borrowing hand loan from the complainant of Rs.20 lakhs to over come the financial loss suffered by him in the industrial unit. The complainant approached the accused on several time for repayment of said loan amount and the accused issued three cheques bearing Nos.412501 dated 15.09.2011 for Rs.10,75,000/- drawn on Sham Rao Vital Co-operative Bank Limited, Basaveshwaranagar, Bengaluru. The said Cheque returned for insufficient funds in the bank account of the accused. Thereafter, the complainant persuaded the accused to pay the amount, but, the accused went to the police station and filed a false complaint before Vijayanagar police station and also Kamakshipalya police station and thereafter, conciliation done in the police station and thereby both of them agreed for settlement and accordingly, the accused agreed to pay a sum of Rs.15 lakhs and issued three cheques to the said amount such

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as two cheques for Rs.3 lakhs each dated 30.12.2011 and 27.02.2012 respectively and another Cheque for Rs.9 lakhs dated 30.04.2012.

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It is also the case of the complainant that apart from issuance of three cheques, the accused also executed an on demand promissory note and consideration receipt in three numbers. The complainant presented the Cheque bearing No.412506 dated 30.12.2011 and Cheque bearing No.412507 dated 27.02.2012 for Rs.3 lakhs each and the said Cheques were dishonoured for want of sufficient fund. Thus, the complainant issued a legal notice to the accused and even after service of notice, the accused failed to repay the amount in both the cases. InC.C.No.19940/2012, the accused sent an untenable reply to the said notice and in C.C.No.10885/2012, the accused did not reply to the notice. Therefore, the complainant filed the complaints.

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The Trial Court taken cognizance and secured the

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accused and the accused did not plead guilty and claimed to be tried. In order to prove the case of the complainant, he

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examined himself as PW1 and also examined one witness as PW2 in both the cases and got marked the documents at Ex.P1 to P12 in C.C.No.10885/2012 and Ex.P1 to P9 in C.C.No.19940/2012. After completion of the evidence of the complainant, the statement of the accused under Section 313 of Cr.P.C was recorded. The accused denied the incriminating statement made against him and he called upon to lead defence evidence and the accused did not chosen to lead defence evidence. The Trial Court having considered both oral and documentary evidence placed on record convicted the accused for the offence punishable under Section 138 of N.I.Act and sentenced to pay a fine of Rs.3,05,000/- in both the cases.

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Being aggrieved by the said judgments of conviction

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and sentence, two appeals were filed in Crl.A.Nos.1257/2014 and 1256/2014 and common grounds are urged in both the appeals contending that the Trial Court failed to consider that the presumption is a rebuttable presumption and in the instant case, though an application was filed under Section 311 of Cr.P.C, the same was rejected by the Trial Court and on the very

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same day, the judgment was pronounced in order to defeat the legitimate right. It is also contend that the complainant made an illegal claim from the accused hand in glove with the Kamakshiplaya police. The Trial Court ought to have looked into complaint averments which makes it clear that the earlier three cheques alleged to issued by the appellant was totally amounting to Rs.23 lakhs and earlier Cheque of Rs.10,75,000/- was presented by the complainant and it was dishonoured for lack of funds and if really, the accused having liability, then the complainant could have file the PCR against the dishonour of the said Cheque itself, but the complainant did not chosen to file the PCR and thereafter, collusion with the police, the complainant took the three alleged cheques from the accused. The Trial Court failed to consider that the alleged amount of loan lent by the complainant was Rs.20 lakhs. But the alleged memorandum of agreement shows that the amount alleged to have agreed between the parties is Rs.15 lakhs. Hence, what made the complainant to waive large amount of Rs.5 lakhs. Subsequently, it is stated that the alleged loan lent was Rs.20 lakhs and three cheques were issued totally amounting to Rs.23 lakhs and

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hence, why a sum of Rs.3 lakhs was agreed to be paid is not forthcoming. The explained discrepancies clearly shows that the appellant has not committed any offence as alleged and even the complainant also failed to prove the commission of offence by the accused.

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The First Appellate Court in both the appeals having considered the grounds urged which are common in nature, formulated the point that whether the appellant has made out grounds to show that the judgment of the Trial Court is illegal, erroneous, perverse and thereby calls for interference by this Court. The First Appellate Court considering the main contention of the accused that he was not given sufficient opportunity and particularly taking note of order sheet dated 01.09.2014 wherein it discloses that when the case was posted for judgment, on that day, the accused filed the application to recall PW1 and that application was allowed vide order dated 12.09.2014. Thereafter, the accused was given an opportunity to cross examine PW1 on three times. However, the accused did not chosen to cross examine. Again, that on 23.09.2014, the case

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was posted for judgment. On that day also, accused filed an application under Section 311 of Cr.P.C to recall PW1 and that application was rejected on the ground that the Trial Court has given opportunity to the accused to go on with the crossexamination of PW1 but the accused did not avail the said opportunity. Hence, the contention of the accused that opportunity was not given was not accepted. The same was discussed by the First Appellate Court in paragraph 15 of its judgment.

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The factual aspects of both the cases were discussed in paragraph 16 of the judgment by the First Appellate Court with regard to the acquaintance between the complainant and accused and also taken note of the fact that accused asked the complainant to pay a sum of Rs.20 lakhs and accordingly, the complainant along with one Janardhan had gone to the house of the accused and paid a sum of Rs.20 lakhs and on the same day, accused issued three cheques. The complainant also examined the said Janardhan as PW2 wherein he deposed that he had gone to the house of the accused along with the complainant

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and the complainant paid a sum of Rs.20 lakhs to the accused and the accused issued three cheques. Having taken note of the evidence of PW1 and PW2, the First Appellate Court, a suggestion was made to PW2 that accused was not a student of the complainant and the same was denied. The other defence that forcibly the complainant took the subject matter of Cheque. Butthe complainant in order to disprove the said contention, he relied upon the document of memorandum of understanding which is marked as Ex.P2, the legal notice at Ex.P5 and accused not given any reply to the legal notice in C.C.No.10885/2012 and in C.C.No.19940/2012, the accused replied to the notice in terms of Ex.P7. In the said reply also the accused admitted that he had borrowed a sum of Rs.10 lakhs from the complainant for his business development. Having considered the same, the First Appellate Court comes to the conclusion that there was a transaction between the complainant and the accused and hence, the accused cannot take the defence that he not at all borrowed the amount from the complainant. When the accused himself admitted for having received the amount of Rs.10 lakhs, he cannot raise the issue of source of income of the complainant

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and also a suggestion was made that the complainant and the accused were doing real estate business and it has to be considered that complainant had the amount to pay to the accused. The First Appellate Court comes to the conclusion that the Trial Court having considered the material on record drawn the presumption under Section 138 of N.I. Act since there is no rebuttal evidence and no plausible evidence is placed and confirmed the judgments of the Trial Court. Being aggrieved by the concurrent finding of both the Courts, the present two revision petitions are filed before this Court.

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The main contention of the counsel for the revision petitioner in both the revision petitions that the complainant has not conclusively proved beyond iota of doubt by producing cogent evidence by way of documentary proof and just because there is a memorandum of understanding between the parties, it cannot be believed that the complainant could have lent money during the relevant period. It is also contend that principle of natural justice was denied in not giving an opportunity to cross-

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examine the complainant and he was not having capacity to lend such huge amount.

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The main contention of the accused that he has

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issued the Cheque as security for money paid holding that complaint is not maintainable. The burden shifted on the complainant since the accused has rebutted the case that he has given back the said chit amount and there is no case for the respondent/complainant to initiate the proceedings under Section 138 of N.I. Act. The counsel also contend that the impugned order passed by both the Courts are perverse since the respondent admitted in the cross-examination that the cheques are issued as a security for repayment and on this ground alone, the impugned orders are liable to be set aside as illegal.

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The counsel also brought to notice of this Court the evidence of PW1 in C.C.No.10885/2012 wherein he categorically admitted that on the date of payment only he had obtained three cheques and he made the payment on 02.06.2008. In the cross-examination, PW2 says that at the time of lending the

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money, PW1 took him to the house of the accused and he does not know anything about the transaction except payment of the amount. Further he admits that he was taken to Kamakshiplaya police station by the complainant but he does not know to read and write English. The counsel referring the evidence of PW1 and PW2 contend that evidence of PW1 and PW2 does not inspire the confidence of the Court with regard to the transaction and payment of Rs.3 lakhs is concerned.

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The counsel also brought to notice of this Court the evidence of PW1 in C.C.No.19940/2012. PW1 was subjected to cross-examination wherein also he admits that amount was paid on 02.06.2008 and subject matter of cheques were given on the every same day. In the said case also one witness is examined as PW2 and similar answer elicited from the mouth of PW2 that he does not speak anything about the document at Ex.P2 and he only speaks about payment of money. He is also one of the witness of the document at Ex.P2.

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The counsel in support of his arguments, relied upon the judgment of this Court passed in Crl.A.No.200057/2016

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delivered in Kalaburagi Bench on 17.12.2020 . The counsel referring this judgment would vehemently contend that this Court relied upon the Full Bench judgment of Kerala High Court in CHACKO VARKEY vs THOMMEN THOMAS reported in AIR 1958 KER 31 and contend that explanation must be in respect of Section 138 of N.I. Act, such as a legally enforceable debt or other liability and a Cheque given in discharge of a time barred debt will not constitute an unconditional undertaking and promise in writing either expressly or impliedly so as to attract a criminal liability under Section 138 of N.I. Act and the said judgment was elaborated in Sasseriyil Josesph’s case which was affirmed by the Apex Court.

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The counsel also relied upon the judgment of Sasseriyil Josesph’s case reported in LAWS (KER)-2000-921 in the case of SESSERIYIL JOSEPH vs DEVASSIA and the counsel referring this judgment also would vehemently contend that the alleged two time barred pronotes, the accused has paid interest on various dates and thereby, the pronotes have not become time barred and the Kerala High Court also held that

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time barred debt is not a legally enforceable debt and confirmed the judgment of the Sessions Court in coming to the conclusion that there is no infirmity. The confirmation order is also produced before the Court passed by the Apex Court in SPECIAL LEAVE TO APPEAL (CRL.) No.1785/2001 vide order dated 10.09.2001 .

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The counsel also relied upon the judgment reported in (2009) 2 SCC 513 in the case of KUMAR EXPORTS vs SHARMA CARPETS regarding presumption and discussion was made that presumption how to be displaced and declaration was made by the complainant himself to the Sales Tax Department that no sale had taken place and accepted as a valid proof that cheques were not issued by accused in discharge of any debt or liability to complainant. Further held that Section 118 and 139 of N.I. Act will come into existence as soon as complainant proves that the negotiable instruments was executed by the accused. The counsel referring this judgment would vehemently contend that unless the cheques are proved which were issued towards the debt, question of presumption does not arise.

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The counsel also relied upon the judgment reported in (2008) 4 SCC 54 in the case of KRISHNA JANARDHAN BHAT vs DATTATRAYA G HEGDE with regard to the presumption is concerned wherein it is held that presumption of innocence of accused is a human right.

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The counsel also relied upon the judgment reported in 2007 SCC ONLINE AP 975 in the case of G VEERESHAM vs S SHIVA SHANKAR AND ANOTHER and in that judgment it is held that the very fact that complainant has not placed on record any material to speak about lending of Rs.40,000/- as hand loan to the first respondent/accused and the same is sufficient to infer that the first respondent/accused is able to rebut the presumptions available in favour of the appellant/complainant under Sections 118 and 139 of the N.I. Act.

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The counsel also relied upon the judgment reported in SLP(Crl) 8641/2018 dated 09.04.2019 in the case of BASALINGAPPA vs MUDIBASAPPA. The counsel referring this judgment brought to notice of this Court the discussion

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made in paragraph 17 in respect of KUMAR EXPORTS ’s case referred supra and in paragraphs 18 to 20, it is held that Section 139 of the Act is an example of a reverse onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the defendant-accused and the defendant-accused cannot be expected to discharge on unduly high standard of proof.

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The counsel referring these judgments would vehemently contend that there cannot be an order of conviction and confirmation as against the time barred debt since, it was the transaction of the year 2008 and earlier cheques are also given of the year 2011 and subsequent document of Ex.P2 is also of the year 2011 i.e., after three years of the earlier advancement of loan. The counsel would vehemently contend that there is no dispute with regard to the issuance of Cheque is concerned but memorandum of understanding came into existence in the presence of the police and reference in Ex.P2 also clear that on the intervention of police only this document came into existence and even no defence evidence was adduced,

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thus, it is clear that alleged loan is time barred debt and hence, same cannot be recovered.

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The other appeal filed by the appellant/complainant in Crl.A.No.323/2019 is against the order of acquittal in respect of the Cheque for an amount of Rs.9 lakhs. The case of the complainant before the Trial Court that in view of memorandum of understanding dated 30.11.2011, both the complainant and the accused were party in the said agreement. In view of the said settlement, the accused duly acknowledged and ratified his act of borrowing of hand loan of Rs.20 lakhs from the complainant to over come the financial loss suffered by him in the industrial unit. It is also contend that the accused had availed loan earlier and issued cheques and consequent upon dishonour of Cheque issued by the accused, among three cheques, only one Cheque was presented for Rs.10,75,000/- and same was dishonoured and when the complainant made an effort to persuade to get back his money, accused himself approached the police and lodged a false complaint before the Vijayanagar police station and Kamakshipalya police station and

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conciliation was made and consequently, issued three cheques admitting the liability of Rs.15 lakhs and the present Cheque is for Rs.9 lakhs dated 30.04.2012 and when the same was presented, the same was dishonoured with an endorsement ‘funds insufficient’ and hence, issued the legal notice and the accused gave reply denying the contents of the notice and failed to pay the money and hence, filed the private complaint before the Court.

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After filing of private complaint, the Trial Court took the cognizance and accused was secured and he did not plead guilty and hence, the complainant examined himself as PW1 and got marked the documents at Ex.P1 to P9 and subjected for cross-examination. After recording the statement of the accused under Section 313 of Cr.P.C, accused himself examined as DW1 and got marked the documents at Ex.D1 to D7 and also subjected for cross-examination.

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The Trial Court having considered both oral and documentary evidence placed on record acquitted the accused considering the evidence of PW1 wherein it is observed that why

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he denied when Kamakshipalya police have called him to the station on 13.11.2011. He also denied the settlement entered before the police, but he deposed that inspite of payment of Rs.23 lakhs, settled the matter for Rs.15 lakhs saying that the elder persons were met him to agree for the same, who is none other than one Anilkumar. But in order to show that the said Anilkumar was intervened in the matter for conciliation and settled the dispute for Rs.15 lakhs and Ex.P2-Cheque was given for Rs.9 lakhs, the complainant not chosen to examine the said Anilkumar. Though PW1 deposed as such, it is him to produce the necessary documents with regard to the loan transaction of Rs.20 lakhs is concerned. Having taken note of transaction, the Trial Court comes to the conclusion that it was time barred transaction since transaction took place on 02.06.2008 and there was effort made by the complainant to prepare Ex.P1 in the name of conciliation before the police since accused has denied Ex.P1 and it has to be considered that Ex.P1 was not prepared or entered into between the complainant and accused, not accepted the document of Memorandum of Understanding and the Trial Court held that the complainant separately obtained the cheques

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apart from memorandum, pronote and other documents, but the same have been misused one after another and made the parties to suffer by filing continuous litigation one after another. Hence, the Trial Court not accepted the case of the complainant and acquitted the accused for the offence punishable under Section 138 of N.I.Act. Hence, the present appeal is filed by the complainant challenging the said judgment before this Court.

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The learned counsel for the appellant/complainant in his arguments would vehemently contend that the very approach of the Trial Court in acquitting the accused is erroneous. The Trial Court also erred in giving more importance to the memorandum of understanding which came into picture from the intervention of the police. When the police have settled the matter, the issuance of cheques and other documents creates doubt regarding the free will of the parties who entered into the settlement. Moreover, the accused has denied its existence, preparation and execution including the signature. The Trial Court on its own absorbed that the settlement between the complainant and the accused as per Ex.P1 is not satisfactorily,

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therefore, it made it clear that under the coercion, Ex.P1 came into force. Therefore, complainant cannot take the benefit of the same. This approach of the Trial Court is erroneous. The Trial Court drawn the presumption relying upon the judgment reported in AIR 2007 NOC 2612 A.P. (G. VEERESHAM vs SHIVASHANKAR AND ANOTHER) about the presumption available to the complainant under Section 118 and 139 of N.I.Act. The counsel also would vehemently contend that Section 139 of the N.I. Act provides that it shall be presumed, unless the contrary is proved. The counsel also would vehemently contend that as soon as the complainant discharges the burden to prove that the instruments as executed by the accused, the burden shifts on the accused and the accused did not choose to rebut the evidence of the complainant.

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The counsel also would vehemently contend that the

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Trial Court erroneously considered the material on record when the document of agreement was in existence. But the fact that he had issued the fresh cheques in terms of the settlements arrived between the parties. The very approach of the Trial

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Court that the accused himself entered into the witness box and placed the documents at Ex.D1 to D7 which probabilize the case of the accused is erroneous. The Court below without applying its mind, comes to an erroneous conclusion and the Trial Court not appreciated the complainant’s evidence as per Ex.P4 and P6 and Ex.P6 is totally different and the same was narrated in the affidavit evidence and no document is produced in support of his defence. The counsel also would vehemently contend that the Trial Court in other two cases in respect of the very same agreement and issuance of cheques, already convicted the accused and confirmed the same in the appeal and revision is filed before this Court and the said revisions also connected to this appeal. The document at Ex.D2 to D4 which are crated documents and those are purchased by the accused himself and those documents are relied upon by the Trial Court. The counsel also would vehemently contend that the Trial Court committed an error in relying upon the Krishna Janardhan Bhat ’s case and very approach of the Trial Court is erroneous and it requires interference of this Court.

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The counsel for the appellant and respondent would vehemently contend that in both the revision petitions, the citations relied upon by the petitioners are not applicable to the facts of the case on hand.

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The counsel relies upon the judgment reported in (2002) 1 SCR 906 in the case of A.V. MURTHY vs B.S. NAGABASAVANNA and referring this judgment the counsel would vehemently contend that at the stage of issuance of summons, it was clearly illegal and erroneous to say that cheques drawn by the respondent in respect of debt or liability was not legally enforceable.

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The counsel also relied upon the judgment reported in (2023) 14 SCR 412 in the case of K HYMAVATHI vs THE STATE OF ANDHRA PRADESH AND ANOTHER and contend that if the cheque is issued in respect of debt and defence of barred by limitation will be decided on evidence.

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The counsel also relied upon the document of the

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complaint given by the respondent/accused himself to the Joint

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Commissioner of Police, Bengaluru on 10.11.2011 wherein he categorically admits that he made the payment of Rs.7 lakhs on 15.09.2011 and hence, the transaction is admitted and only complaint of harassment was given and when the accused himself approached the police, matter was negotiated with the police and the document of memorandum of agreement came into existence and in the said document itself he has admitted that he has to give only Rs.7 lakhs but the complainant demanded or Rs.23 lakhs and same is unimagined and the said document is also marked in C.C.No.5845/2013 as Ex.D7. Hence, it is clear that the accused himself gave the complaint with the Joint Commissioner of Police as well as Vijayanagar police station and Kamakshipalya police station and document came into existence. Unde such circumstances, the Trial Court ought not to have disbelieved the document.

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The counsel also relied upon the judgment of this Court passed in CRL.R.P.NO.244/2011 dated 25.03.2022 wherein this Court discussed in detail regarding enhancement of compensation is concerned and the amount was Rs.65,12,000/-

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based on the document at Ex.P2 to P5 and other documents and the Trial Court sentenced to pay an amount of Rs.97,68,000/.But in the case on hand, not passed any order for doubling the amount, which is a substantive amount. The counsel would vehemently contend that in two cases, only an amount of Rs.3,05,000/- each was awarded as against Cheque of Rs.3 lakhs each and this judgment is applicable to the facts of the case on hand for enhancement.

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The counsel also relied upon the judgment of the Apex Court reported in CRL.A.NO.1020/2010 in the case of RANGAPPA vs SRI MOHAN and brought to notice of this Court discussion was made particularly in respect of Krishna Janardhan Bhat ’s case referred supra which has been relied upon by the respondent’s counsel wherein it is held that the said judgment in conflict with the statutory provisions as well as an established line of precedents of this Court and same was overruled and also Apex Court in the said judgment regarding presumption is concerned, when the accused admits the signature on the Cheque though contend that cheques are taken

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forcible but the same has not been explained. The counsel also would vehemently contend that no complaint was given though he alleged that cheques are taken forcibly.

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The counsel also relied upon the judgment of the Apex Court reported in (2019) 2 SCR 24 in the case of BIR SINGH vs MUKESH KUMAR wherein also discussion was made in respect of Section 139 of N.I. Act as held that Section 139 of N.I. Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumption of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.

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The counsel also relied upon the judgment reported in (2021) 11 SCR 432 in the case of M/S GIMPEX PRIVATE LIMITED vs MANOJ GOEL and the counsel referring this

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judgment also would vehemently contend that in this judgment it is categorically held that once a settlement agreement has been entered into between the parties, the parties are bound by the terms of the agreement and any violation of the same may result in consequential action in civil and criminal law. It is also held that in the present case, the first set of cheques which were issued allegedly towards discharge of the liability under the HSSA were dishonoured. The deed of compromise was entered into thereafter on 12.03.2013. The deed of compromise was partially implemented by the payment of an amount of Rs.3 crores by demand draft to the complainant. Upon the receipt of an amount of Rs.3 crores, Gimpex Private Limited was to grant its no objection to the plea of bail of ‘MG’. ‘MG’ undertook to pay the balance of Rs.7 crores within three months in installments. The second set of Cheques which were issued pursuant to the deed of compromise were also dishonoured. The breach of the deed of compromise has arisen due to the dishonoure of the cheques which are issued by the accused towards discharge of the remaining balance and Section 139 of the N.I. Act raises the presumption unless the contrary is proved that the holder of a

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cheque receives the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or liability, unless the contrary is proved, the Court cannot comes to other conclusion.

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The counsel also relied upon the judgment of the Apex Court reported in CRL.A.1902/2011 in the case of R VIJAYAN vs BABY AND ANOTHER and referring his judgment also would vehemently contend that when there is a conviction there should be a consequential levy of fine of an amount sufficient to cover the Cheque amount and interest thereof at a fixed rate of 9% per annum interest, followed by award of such sum as compensation from the fine amount. This would lead to uniformity in decisions, avoid multiplicity of proceedings (one for enforcing civil liability and another for enforcing criminal liability) and achieve the object of Chapter XVII of the Act, which is to increase the credibility of the instrument.

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The counsel referring these judgments would vehemently contend that the Trial Court committed an error in comes to the conclusion that there was a agreement consequent

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upon the statement between the parties and those cheques are issued in respect of the liability, now cannot contend that same is barred by limitation and referring these judgments would vehemently contend that when presumption to be drawn in favour of the complainant and liability is accepted and fresh agreement was entered between the parties in view of the judgment of A.V. MUTHRY ’s case as well as other judgments referred supra, the appeal requires to be allowed and the judgment of the Trial Court is required to be set aside by allowing the complaint.

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Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record,

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the points that would arise for the consideration of this Court

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are:

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Whether the Trial Court committed an error in convicting and sentencing the revision petitioner for the offence punishable under Section 138 of

¶142

N.I. Act in C.C.Nos.10885/2012 and 19940/2012?

¶143

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¶144

Whether the First Appellate Court committed an

¶145

error in confirming the order of conviction and sentence dated 01.01.2016 and whether it requires interference of this Court by exercising

¶146

the revisional jurisdiction in Crl.R.P.Nos.400/2016 and 401/2016?

¶147

Whether the Trial Court committed an error in dismissing the complaint in acquitting the accused in C.C.No.5845/2013 and whether this Court can exercise the appellate jurisdiction in coming to the conclusion that the finding of the Trial Court is perverse and it requires to be set aside?

¶148

What order?

¶149

Point Nos.1 to 3:

¶150

The issue of time barred debt is raised in all the three cases. Hence, point Nos.1 to 3 are considered together for consideration regarding the contention of liability is concerned as well as all the cheques are issued connection with earlier transaction as well as memorandum of agreement.

¶151

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¶152

Having considered the grounds urged in the revision petitions, the main contention of learned counsel for the revision petitioner is that Courts below committed error in relying upon the evidence of P.W.1 and failed to take note of the fact that memorandum of understanding came into existence at the intervention of Police. Learned counsel would also vehemently contend that material disclose that according to the complainant, transaction took place on 02.06.2008 and subsequently, fresh cheques are issued on 30.12.2011 and also not disputes issuances of Cheques, but only contention is that document of memorandum of understanding cannot be relied upon and the Trial Court in connected case not accepted the same and comes to the conclusion that cheques have been issued in respect of time barred debt and there cannot be any recovery and the same is not legally enforceable debt.

¶153

Per contra, learned counsel for the respondent would vehemently contend that very accused gave the complaint with the Joint Commissioner of Police on 10.11.2011, wherein he made an allegation that he made the payment of Rs.7,00,000/-

¶154

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¶155

and complainant is harassing. In the very document, he has admitted he has to pay the balance amount of Rs.6,00,000/-. Hence, it is clear that there was transaction and admitting the liability, fresh cheques are given which renews the liability and now cannot contend that pro-note ought to have been on the date of Cheque. Having considered these contentions and also the judgments which have been relied upon, this Court has to analyze the material on record.

¶156

The main contention of learned counsel for the revision petitioner is that in the judgment of Basalingappa’s case referred supra, in detail discussion was made and contend that when cheques are issued in respect of time barred debt, there cannot be any legally recoverable debt. Learned counsel also relied upon the judgment of this Court i.e., Kalaburagi Bench in THE BIDAR URBAN CO-OPERATIVE BANK LTD. VS. MR. GIRISH and referring this judgment would contend that 138 of the N.I. Act is attracted only if there is legally recoverable debt and it cannot be said that time barred debt is legally recoverable debt. The counsel also relied upon the judgment of

¶157

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¶158

Kerala High Court in Sasseriyil Joseph’s case and confirmation made by the Apex Court and Kumar Exports’s case regarding presumption is concerned and so also the judgment of Krishna Janardhan Bhat’s case referred supra.

¶159

Having taken note of said contention also, the judgment relied upon by learned counsel for the respondentcomplainant in A.V. Murthy’s case, it is not in dispute that issue of legally recoverable debt could be considered at the time of considering the evidence on record. In the other judgment of the Apex Court in K. Hymavathi’s case, the Apex Court held that said issue cannot be decided on merits and no dispute with regard to this principle is concerned. Learned counsel also relied

¶160

upon the judgment of the Apex Court in Rangappa’s case, wherein at paragraph No.11, the Apex Court observed that Para No.30 in Krishna Janardhan Bhat’s case are in conflict with the statutory provisions as well as an established line of precedents of this Court. Hence, Krishna Janardhan Bhat’s case cannot be relied upon. The counsel also relied upon Bir Singh’s case with regard to presumption is concerned and it is

¶161

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also settled law that unless the presumption is rebutted by raising probable case, the case of the accused cannot be accepted.

¶163

Learned counsel for the respondent relied upon the judgment of M/s. Gimpex Private Limited ’s case, wherein discussion was made by the Apex Court regarding levy arising from the settlement agreement and in the facts of the case on hand, the very contention is that settlement was arrived between the parties, wherein the Apex Court held that parties are bound by the terms of the agreement and any violation of the same may result in consequential action in civil and criminal law and also taken note of the fact that cheques were issued towards discharge of liability were dishonoured and a deed of compromise was entered into thereafter and part payment was also made and held that second set of cheques issued towards deed of compromise was also dishonoured and subsequent settlement between the parties is also recognized.

¶164

This Court would like to rely upon the judgment of this Court reported in ILR 2006 KAR 4242 reported in

¶165

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¶166

H. NARASIMHA RAO VS. R. VENKATARAM, wherein this

¶167

Court held with regard to offence under Section 138 of N.I. Act, repayment of time barred debt, issue of Cheque, whether constitute an offence, held that since no fresh consideration is required to pay the time barred debt, and there is no legal bar for the debtor agreeing to pay the time barred debt, the dishonoured cheques issued towards repayment of time barred debt does constitute an offence under Section 138 of the Act, order of acquittal is set aside. In this judgment, the judgment which has been relied upon by the learned counsel for the respondent in A.V. Murthy’s case is relied upon in paragraph No.11 and given finding based on the judgment of the Apex Court, wherein discussion was made with regard to sub-section (3) of Section 25 of the Indian Contract Act, 1872, a promise made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits, is a valid contract. This issue was also raised before Division Bench of the Kerala High Court in Ramakrishnan’s

¶168

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case following the ratio laid down in A.V.Murthy’s case, referred supra considering Section 25 of the Indian Contract Act, 1872.

¶170

This Court also would like to rely upon the judgment of Kerala High Court reported in 2003 SCC ONLINE KER 420 in the case of DR. K.K. RAMAKRISHNAN VS. DR. K.K. PARTHASARADHY & ANOTHER, wherein at paragraph No.14, discussed with regard to Section 25(3) and also in paragraph No.24 held that when person issues a cheque, he acknowledges his liability to pay. In the event of the cheque being dishonoured on account of insufficiency of funds he will not be entitled to claim that the debt had become barred by limitation and that the liability was not thus legally enforceable, he would be liable for penalty in case the charge is proved against him.

¶171

This Court also relies upon the judgment of Delhi High Court reported in 2024 SCC ONLINE DEL 6421 in the case of RAJEEV KUMAR VS. STATE NCT OF DELHI AND ANOTHER , also taken note of the judgment of the Apex Court in

¶172

S. NATARAJAN VS. SAMA DHARMAN reported in (2021) 6

¶173

SCC 413 which is discussed in paragraph No.24 and also

¶174

39

¶175

discussed the judgment of RANGAPPA VS. SRI MOHAN and both A.V. Murthy’s case as well as S. Natarajan’s case so also the judgment of Madras High Court in M. BALAJI VS. PERIM JANARDHANA RAO reported in 2020 SCC ONLINE MAD 28058, wherein at paragraph No.60 of the said judgment discussed with regard to Sub-section (3) of Section 25 of Indian Contract Act deals with acknowledgement time barred debt. Having considered the material in detail, in paragraph No.37, the Apex Court held that furnishing of a Cheque of a time-barred debt effectively resurrects the debt itself by a fresh agreement through the deeming provision under Section 25(3) of ICA. The original debt therefore, through Section 25(3) of the ICA, becomes legally recoverable enforceable to the extent of the amount the Cheque has been given. It is further held that by the act of drawing a Cheque, the promisor i.e., the drawer, is effectively stating that he has a liability to pay the drawee. Drawing of the Cheque in itself, is acknowledgement of which would trigger the provisions under Section 138 of NI Act. To deny a complainant/drawee of invoking the penal provisions of

¶176

40

¶177

Section 25(3) of the ICA recognizing a fresh agreement to pay, would be an unfortunate disentitlement.

¶178

This Court also relies upon the judgment of Apex

¶179

Court reported in (2021) 6 SCC 413 in the case of

¶180

S. NATARAJAN VS. SAMA DHARMAN AND ANOTHER,

¶181

wherein it is held that whether the debt was time-barred or not can be decided only after the evidence is adduced, it being a mixed question of law and fact. Further, in Cheque bouncing cases, the initial presumption incorporated in Section 139 NI Act favours the complainant and the accused can rebut the said presumption and discharge the reverse onus by adducing evidence.

¶182

This Court also relies upon the judgment of Punjab and Haryana High Court reported in 2021 (2) ILR PUNJAB AND HARYANA 671 in the case of SULTAN SINGH VS. TEJ

¶183

PARTAP , wherein it is held that a debt which has become time barred can be enforced in case ingredients of Section 25(3) of Contract Act are fulfilled. A Cheque in writing signed by the persons issuing it would come squarely within the ambit of

¶184

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¶185

Section 25(3) of the Contract Act as to make the debt legally enforceable on the date on which Cheque is drawn. In paragraph No.31, it is held that the issuance of a Cheque in repayment of a time barred debt amounts to a written promise to pay the said debt within the meaning of Section 25(3) of the Contract Act and the said promise by itself would create a legally enforceable debt or liability as contemplated by Section 138 of the Negotiable Instruments Act.

¶186

This Court also relies upon the judgment of the Delhi High Court reported in 2019 SCC ONLINE DEL 6711 in the case of TARUN SAMDARSHI VS. STATE (NCT OF DELHI) AND ANOTHER, wherein also in paragraph No.3, it is held that the issuance of Cheque give rise to a presumption of the amount being due and consequently an acknowledgement rendering the plea of debt being time barred inconsequential.

¶187

Having considered the judgments of different High Courts, the Apex Court as well as the judgments which have been relied upon by learned counsel for the petitioner, the judgment of this Court as well as Sasseriyil Joseph’s case and

¶188

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¶189

Kumar Exports’s case will not come to the aid of the complainant. Now, coming to the aspect of liability in all the cases and presumptive value in respect of two revision petitions is concerned, it is the main contention of learned counsel for the revision petitioner that no opportunity is given and the same ground was urged before the appellate Court and appellate Court also turned down the said contention, since opportunity was given and further opportunity given by the Trial Court was not utilized by the revision petitioner, though cross-examined P.W.1 earlier and also subsequently, on account of no crossexamination, it was taken as no further cross. No doubt, when the case was set down second time for judgment, an application was filed, the same was rejected and the fact that P.W.1 was cross-examined earlier is not dispute.

¶190

It is also important to note that no defence evidence was led before the Trial Court by the revision petitioner even inspite of opportunity was given and no probable defence was raised in both the cases regarding issuance of Cheque and not disputed the signature on the document. But the only contention

¶191

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¶192

is that subsequent Cheques are issued at the intervention of the Police and document Ex.P9 is marked before the Trial Court in C.C.No.5845/2013 and the very accused had approached the Joint Commissioner of Police and when he had approached the Police, Police have intervened between them. Hence, document of memorandum of agreement came into existence, wherein the accused categorically admitted the liability and issued fresh Cheques i.e., subject matter of Cheques in all the three cases. The document of Ex.P8 is also marked before the Trial Court for having executed on demand promissory note, consideration receipt in respect of Cheque for Rs.9,00,000/-. No doubt, exhibits are interchanged while marking those documents before the Trial Court, the same has been set right. When once the Police intervened regarding dispute between the complainant and the accused and document came into existence i.e., memorandum of agreement which is marked in all the cases, now the accused cannot contend that the liability is time barred liability and this Court in detail discussed the same and in view of Section 25(3) of the Indian Contract Act, when the accused has acknowledged the debt in writing, he cannot contend that

¶193

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¶194

the liability is a time bared liability. Section 25(3) of the Indian

¶195

Contract Act, 1872 reads as hereunder:

¶196

25. Agreement without consideration, void, unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law.-

¶197

(1). xxxx xxxx xxxx

¶198

(2). xxxx xxxx xxxx

¶199

(3). It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits.

¶200

In the case on hand, it has to be noted that memorandum of agreement which is marked before the Trial Court in all the cases is very clear that earlier there was transaction in the year 2008 and earlier when the accused had issued Cheques, the first Cheque was dishonoured, immediately on persuasion, he made demand to pay the amount in respect of dishonoured Cheque. Thereafter, memorandum of agreement came into existence and the accused also acknowledged issuance of three Cheques earlier for an amount of

¶201

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¶202

Rs.10,75,000/-, Rs.6,00,000/- and 6,25,000/-, in all to the tune of Rs.23,00,000/-. It is also evident from the document of memorandum of agreement that subsequently, three Cheques are issued i.e., Cheque bearing No.412506 dated 30.12.2011 for Rs.3,00,000/-, Cheque bearing No.412507 dated 27.02.2012 for Rs.3,00,000/- and Cheque bearing No.412508 dated 30.04.2012 for Rs.9,00,000/- and the same is subject matter in the criminal appeal filed by the complainant in view of the acquittal of the accused. Hence, this document is very clear that fresh Cheques are issued on account of recognizing earlier liability. In view of the principles laid down in the judgment of the Apex Court, judgment of the different High Courts, including this Court, this Court comes to a conclusion that Court can invoke Section 138 of N.I. Act in respect of the liability, even if it is a time barred debt subsequently through a document recognizing the liability and also promised to pay the same. Hence, the very contention raised by the learned counsel for the revision petitioner in all the cases regarding no liability cannot be accepted.

¶203

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¶204

It is also brought to notice of this Court that the very

¶205

first witness to this document is none other than the wife of the accused in the memorandum of agreement. Though the accused contend that said document is obtained at the instance of the Police, but the fact that the very accused himself approached the Police is not in dispute. Hence, he cannot blow hot and cold and at one breath says that document cannot be relied upon and in another breath says tha the said document came into existence at the intervention of the Police. In the very document itself it is very clearly mentioned that First Party due to his financial crisis could not mobilize required money to meet the dishonoured Cheque. But, the Second Party finds suspected the reasons so explained by the First Party, First Party approached the Higher/Superior Police Officer and also Vijayanagar Police, Bangalore and Kamakshipalya Police, Bangalore. It is out of the successful negotiation and conciliation effectively done by the said Police, the parties to this indenture have mutually agreed to get an end to the litigation. When such averments are found in the document itself and document came into existence after

¶206

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negotiation, now the accused cannot contend that the document cannot be considered.

¶208

The Trial Court in the complaint filed by the complainant in other case for Rs.9,00,000/- comes to such a conclusion dismissing the complaint and Trial Court lost sight that the very document of memorandum of agreement came into existence at the intervention of the Police on behalf of the accused and issued fresh Cheques and the very reasoning given by the Trial Court while acquitting the accused is nothing but perverse finding and failed to take note under what circumstance the document of memorandum of agreement came into existence. The reason given by the Trial Court in C.C.No.5845/2013 is that to rely at Ex.P1 memorandum of understanding entered into at the intervention of Police, extracted the evidence of P.W.1 in paragraph No.56 and in paragraph No.57 comes to the conclusion that taken into transaction dated 02.06.2008, as on the date of filing complaint it was time barred. Therefore, there was effort made by the complainant to make prepare the Ex.P1 memorandum of

¶209

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understanding in the name of conciliation before the Police Station. Since, the accused has denied the Ex.P1, it has to be considered that, Ex.P1 was not prepared or entered into between the complainant and accused and the said reasoning is against the very averment made in the document Ex.P1. Apart from that, document Ex.P9 which was marked by the accused himself clearly disclose that he only approached the Joint Commissioner of Police, Vijayanagar Police Station and Kamakshipalya Police Station.

¶211

The other observation is that accused himself prepared the document and signed and one Anil Kumar was present and conciliated the matter and to believe the same, he has not examined those witnesses. When the document came into existence, issued fresh Cheques promising to pay the amount and also observation that if at all he prove that he paid Rs.20,00,000/- as he contended, he has to establish that he possessed the requisite money as on the alleged date and handed over the same to the accused when the document itself was executed earlier i.e., Cheques, promissory note and

¶212

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¶213

consideration receipt. Apart from that, when fresh agreement was entered regarding liability at the intervention of Police with the accused, the very approach of the Trial Court is erroneous, in coming to the conclusion that agreement cannot be relied upon. The Apex Court in detail discussed in M/s. Gimpex Private Limited ’s case with regard to the liability and hence, the judgments which have been relied upon by this Court are consequent upon fresh agreement entered into between the parties and there is a memorandum of agreement and Trial Court committed an error in dismissing the complaint when Cheques are issued admitting the liability and signature is also admitted and the only contention is that at the intervention of Police, the Cheques are issued. But, the fact is that accused himself approached the Police and at the intervention of Police only, settlement was arrived and apart from that the accused categorically admitted that earlier he made payment of Rs.7,00,000/- and he is liable to pay Rs.6,00,000/-. But the fact is that accused entered into fresh memorandum of agreement acknowledging levy of Rs.15,00,000/- and wife is witness to the said document. Apart from that, the person, who witnessed the

¶214

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lending of money to the accused and went along with the complainant is also signatory i.e., P.W.2-Janardhan and he has been examined before the Trial Court with regard to the transaction. When such being the material on record, though the accused examined himself as witness in other connected acquittal case, the same not substantiates that he had raised the probable defence and the Trial Court committed an error in relying upon exhibit ‘D’ series relied upon by the accused and instead of considering the material, particularly document of memorandum of agreement, since the accused also admitted issuance of Cheques and never disputed issuance of Cheques. But, only contention is that the same are obtained at the intervention of the Police and the same cannot be relied upon and the said contention cannot be accepted. The Trial Court committed an error in accepting the defence theory of the accused and committed an error in acquitting the accused.

¶216

Now the issue is with regard to payment of compensation is concerned. This Court, no doubt in the judgment in CRL.R.P.NO.244/2011 dated 25.03.2022 when

¶217

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higher amount was sought, having taken note of the fact that amount was already awarded, did not interfere with the finding of the Trial Court. However, counsel relied upon the judgment in CRL.A.1902/2011 in the case of R VIJAYAN vs BABY AND ANOTHER relied upon by learned counsel for the complainant, wherein the Apex Court at paragraph No.16 observed that when there is a conviction there should be a consequential levy of fine of an amount sufficient to cover the Cheque amount and interest thereof at a fixed rate of 9% per annum interest, followed by award of such sum as compensation from the fine amount. This would lead to uniformity in decisions, avoid multiplicity of proceedings (one for enforcing civil liability and another for enforcing criminal liability) and achieve the object of Chapter XVII of the Act, which is to increase the credibility of the instrument. Having considered the principle in the judgment and considering the material on record and having taken note of the fact that transaction is of the year 2008 and when the Trial Court awarded amount of Rs.3,05,000/- as against Rs.3,00,000/-, no appeal or revision is filed by the complainant for enhancement challenging insufficient compensation. Hence, in the revision

¶219

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petition filed by the accused, this Court cannot enhance the compensation. However, taking note of the fact that Cheque was bounced for an amount of Rs.9,00,000/- and Cheques are issued in 2011, Court has to take note of principles laid down in the judgment of the Apex Court while awarding the compensation. Having considered the principles laid down in R Vijayan ’s case, in paragraph No.18 of the judgment and this Court also reanalyzed the material on record, matter requires to be interfered with regard to the finding of the Trial Court in C.C.No.5845/2013 by answering point No.3 as ‘affirmative’, since there is a perversity in the finding of the Trial Court and not properly analyzed the material on record, particularly both oral and documentary evidence placed on record, since no material is placed to prove that accused had repaid the amount, subsequent to memorandum of agreement. In the absence of cogent evidence for having paid the amount, this Court can exercise the revisional jurisdiction. Accordingly, I answer point Nos.1 and 2 in the ‘negative’.

¶221

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Point No.4:

¶223

In view of the discussion made above, I pass the

¶224

following:

¶225

ORDER

¶226

(i) The revision petitions filed by the revision petitioner in Crl.R.P.Nos.400/2016 and 401/2016 are dismissed.

¶227

(ii) The appeal filed by the appellant in Crl.A.No.323/2019 is allowed. The judgment of acquittal passed by the Trial Court is set aside. Consequently, the complaint filed by the appellant is allowed and the respondentaccused is convicted for the offence punishable under Section 138 of N.I. Act and ordered to pay the compensation of Rs.15,00,000/- as against the Cheque amount of Rs.9,00,000/- to the appellant considering the transaction of the year 2008.

¶228

(iv) The respondent-accused is directed to pay the compensation of Rs.15,00,000/within a period of three months from today. In default of payment of said compensation, the respondent-accused to undergo simple imprisonment for a period of one year. If the

¶229

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compensation amount is paid, an amount of Rs.14,75,000/- is payable to the complainant and remaining amount of Rs.25,000/- shall vest with the State.

¶231

Sd/- (H.P. SANDESH) JUDGE

¶232

SN/ST

Sri D Vijay v. Sri G Jayaprakash

Case brief

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Sri D Vijay v. Sri G Jayaprakash

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