Research › Search › Judgment

Karnataka High Court · body

2008 DIGILAW 531 (KAR)

A. Viswanatha Pai v. Vivekananda S. Bhat

2008-09-20

ARALI NAGARAJ

body2008
Judgment :- Arali Nagaraj, J. The petitioner herein who is accused in C.C.No.11091/2004 before the learned XVI ACMM, Bangalore (herein referred to as "Trial Court" for short) has challenged the legality and correctness of the judgment and order of conviction and sentence dated 3-5-2006 passed in the said case convicting him for the offence punishable under Section 138 of the Negotiable Instruments Act (herein after referred to as "N.I.Act" for short) and also the judgment dated 11-12-2007 passed in CrI.A.No.944/2006 by the learned XXXVI Addl.City Civil & Sessions Judge (CCH37), Bangalore (hereinafter referred to as "Appellate Court" for short) confirming the judgment and order of conviction and sentence passed by the Trial Court. 2. Though this case was listed on 9-9-2008 for admission, it was taken up for final disposal by consent of the learned counsel for both sides and their arguments on merits were heard. I have perused both the impugned judgments and also the entire material on record. 3. Theonly point that arises for my determination in this revision petition is: "Whether the judgment and order of conviction and sentence passed by the trial Court and the judgment passed by the appellate Court confirming the said judgment and order of conviction and sentence deserve to be set aside as being unsustainable in law? My finding to this point is in the ‘affirmative for the following: Reasons 4. Stated in brief the case of the complainant (herein after the parties are referred to as per their rank in the Trial Court), as averred in his complaint under Section 200 Cr.P.C. before the Trial court, is as under: (a) The accused took hand loan of Rs.45,000/- from the complainant agreeing to repay the same in 40 days. Towards the repayment of the said hand loan, he issued in favour of the complainant the cheque bearing No_973199 dated 19-4-2004. On being presented to the Bank on 21-4-2004 for encashment, the said cheque came to be bounced on the ground of insufficiency of funds. Thereafter the complainant got issued the statutory notice Dated 30-4-2004 demanding from the accused payment of the said amount. Despite the receipt of the said notice the accused did not choose to pay the said amount. Therefore, the complainant filed the said case against the accused. 5. In order to substantiate his case, the complainant got examined himself as P.W.1 and got marked Exs.P.1 to P.7. Despite the receipt of the said notice the accused did not choose to pay the said amount. Therefore, the complainant filed the said case against the accused. 5. In order to substantiate his case, the complainant got examined himself as P.W.1 and got marked Exs.P.1 to P.7. In support of his defence, the accused got himself examined as D.W. 1 and two other witnesses namely his wife Sint. Prema as D. W.2 and one Bharath Kumar as D.W.3 and got marked Ex.D.1 Extract of his Bank Account. On appreciation of the evidence adduced by the respective parties, both oral and documentary, the Trial Court held the accused guilty of the said offence and passed the impugned Judgment and order of conviction and sentence, which came to be confirmed in Crl.A.No.944/ 2006 by the appellate Court. Therefore, the present revision. 6. Sri. Shankaranarayana Bhat, the learned Counsel for the petitioner-accused strongly contended that the Trial Court as well as the Appellate Court both committed serious error in disbelieving the defence of the accused, as stated by him at the earliest point of time in his reply notice Ex.P.7 and as deposed by him as D. W.1, that he did not avail any loan from the complainant but he was due to the complainant the said sum of Rs.45,000/- towards the construction of his house by the complainant and therefore during April 2003 itself he issued cheque bearing No.973199 by inadvertently putting on it the date 19-4-2004 instead of 19.4.2003, the complainant misused the same against the accused after encashing another cheque bearing No.973200 dated 19-4-2003 which the accused had issued in favour of the complainant as substitute for the said earlier cheque No.973199. 7. As against the above contention of the learned Counsel for the petitioner, Sri. K. Chandrasekhara Achar, learned Counsel for the respondent-complainant contended that since the issuance of the cheque for the said amount has been clearly admitted by the petitioner-accused, both the Courts below were justified in drawing presumption under Section 139 of the N.I.Act in favour of the complaint which remained unrebutted by the accused. 8. K. Chandrasekhara Achar, learned Counsel for the respondent-complainant contended that since the issuance of the cheque for the said amount has been clearly admitted by the petitioner-accused, both the Courts below were justified in drawing presumption under Section 139 of the N.I.Act in favour of the complaint which remained unrebutted by the accused. 8. On careful reading of the findings recorded by the Trial Court, and also the Appellate Court it is seen that both the Courts have observed in their respective judgments that since the accused admitted issuance of the cheque in question for Rs.45,000/- in favour of the complainant, the presumption has to be drawn in favour of the complainant that the said cheque was issued by the accused towards discharge of existing legally recoverable debt and therefore, the burden was heavy on the accused to establish that the said cheque was not issued by him towards discharge of legally recoverable debt that existed as on the date of its issue. Therefore, it is clear that both the Courts proceeded to examine the defence version of the accused assuming that their existed legally recoverable debt, due by the accused to the complainant, and the burden of proving non-existence of the said debt, as on the date of the said cheque, was heavy on the accused. Further, it is also apparent from the observations made in the impugned judgments that both the Courts examined the defence of the accused, assuming that the degree of proof as to his defence version on the part of the accused, is as high as the degree of proof as to establishing the guilt of the accused by the complainant. 9. As to the presumption to be raised under Section 139 of N.I. Act in favour of the complainant and also as to the standard of proof required for proving the guilt of the accused by the prosecution and for establishment of defence version by the accused, Honble Apex Court, after referring to its various earlier decisions, and also the decisions of various other High Courts, has observed at para Nos. 21, 23, 25, 26 and 34 of its judgment in the case of Krishna Janardhanbhat Vs Dattatrya G. Hegde ( Air 2008 Sc 1325 = 2008 (4) SCC 54 ) As under: Para 20: "Section 138 of the Act has three ingredients, viz,: .(i) that there is a legally enforceable debt; .(ii) that the cheque was drawn from the account of Bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (iii) that the cheque so issued had been returned due to insufficiency of funds." Para.21: "The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.” (Emphasis supplied by me) Para.22.. The courts below, as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct". Para 23: "An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different." Para 25: "Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". Standard of proof on the part of an accused and that of the prosecution in a criminal case is different." Para 25: "Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies." Para 26: "A statutory presumption has an evidentiary value. The question as to whether the presumption stood rebutted or not, must, therefore he determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant is not imperative. In a case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration." Para 34: "It is further argued that statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same.” 10. Thus it is clear from the above observations of Honble Supreme Court in the said case that the complainant has to prove the existence of legally recoverable debt payable to him by the accused as on the date of issuing of the cheque by the accused and that in order to rebut the presumption to be drawn in favour of the complainant, the accused need not prove his defence version beyond reasonable doubt and it is sufficient, if he brings on record, by adducing his own evidence or by eliciting from the complainant and his witness that his defence is plausible and probable without getting himself examined as a witness. Further, existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act; as, S.139 merely raises a presumption in favour of the complainant that the cheque was issued for discharge of any debt and other liablity. Therefore, I have to examine, in the light of the said observations of the Honble Supreme Court, whether the complainant has proved that there existed debt payable to him by the accused as on the date of issuing of the cheque in question and whether the evidence placed on record by the accused is sufficient to hold that the presumption that has to be drawn in favour of the complainant has been rebutted by the accused. 11. It is the case of the complainant as could be seen from his complaint averments and also as stated in his affidavit sworn to as his evidence in examination-in-chief, that the accused borrowed from him a sum of Rs.45,000/- and therefore, the accused issued the cheque in question in the year 2004 towards discharge of the said loan. It is pertinent to note that the complainant has not stated either in his complaint or in Ex.P.4 the statutory notice, issued to the accused as to on what date he lent the said amount of money to the accused. What all the complainant has stated in his complaint and also in the said notice, is only that the accused availed loan of Rs.45,000/-agreeing to repay the same within 30 days. Further, though the complainant has stated in his evidence that the accused availed loan from him during December 2003, he has not given the exact date, on which the accused borrowed the said amount from him. Besides this, the complainant has not produced any document or oral evidence of any witnesses to substantiate his case that the accused borrowed the said amount during December 2003 as deposed by him in his examination in chief. 12. Besides this, the complainant has not produced any document or oral evidence of any witnesses to substantiate his case that the accused borrowed the said amount during December 2003 as deposed by him in his examination in chief. 12. On perusal of the evidence of the revision petitioner-accused as DW.1, it is seen that he has specifically stated therein that he did not avail any loan from the complainant and that the complainant constructed a house from him and therefore he was due to the complainant during the year 2003 a sum of Rs.45,000/- and therefore, he issued cheque bearing No.973199 for the said amount of Rs.45,000/- during April 2003, but at the time of issuing the said cheque he inadvertently put the date on the said cheque as 19.4.2004 instead of 19.4.2003. He has further stated in the said affidavit that the complainant informed him about the putting of the incorrect date on the said cheque and then at the request of the complainant he issued another cheque bearing No.973200 in lieu of the earlier cheque No.973199 and complainant encashed the latter cheque during the year 2003 itself and thereafter, instead of returning the earlier cheque No.973199 to the accused, he misused the same by presenting it in the year 2004. 13. On careful reading of the evidence in cross examination of this DW.1, it could be seen that the complainant has not denied the evidence of DW. 1 in his examination-in-chief that the accused issued cheque bearing No.973200 in favour of the complainant for Rs.45,000/- in lieu of cheque bearing No.973199 and the complainant got the latter cheque encashed during the year 2003 and thereafter did not return to him (accused) the cheque bearing No.973199. Thus it is clear, the fact that the accused issued to the complainant two cheques one hearing No.973199 dt.19.4.2003 and another bearing No.97199 dt. 19.4.2004 for the same sum of Rs.45,000/-during the year 2003 only and the cheque No.973200 was encashed by the complainant during 2003 itself has not been challenged by the complainant by making any suggestions to DW. 1. 14. On theother hand, PW.1 has stated in his cross-examination that he might have got the cheque bearing No.973200 for Rs.45,000/-encashed and the accused might have delivered the said cheque to one Bharath, his (Pw 1s) employee. 1. 14. On theother hand, PW.1 has stated in his cross-examination that he might have got the cheque bearing No.973200 for Rs.45,000/-encashed and the accused might have delivered the said cheque to one Bharath, his (Pw 1s) employee. This PW.1 has further admitted in his cross examination that he constructed a house for the accused on contract basis during the year 2003. Besides this, Ex.D.1 the statement of account, of the accused with the same Canara Bank clearly establishes that cheque bearing No.973200 dt. 19.4.2003 for Rs.45,000/-was issued in favour of V.S. Bhat, who is none other than the complainant, and the same was encashed on 29.4.2003. It is pertinent to note the serial number of the cheque in question which came to be bounced during the year 2004 is `973199 and the cheque which was encashed by the complainant in the year 2003 itself bears Sl.No.973200 and, though the encashment of the latter cheque(No.973200) in the year 2003 by the complainant is proved, there is no explanation by the complainant in respect of which other debt he received the said cheque from the accused and got the same encashed. 15. All the above facts and circumstances, taken together, probabalise the defence version of the accused that he was due to the complainant a sum of Rs.45,000/-during April 2003 towards cost of construction of his house by the complainant and therefore, he issued the cheque No.973200 dt. 19.4.2003 in lieu of the cheque bearing No.973199 on the ground that the date on the former cheque No.973199 was inadvertently put as 19.4.2004 instead of 19.4.2003 and that the complainant, after getting the said latter cheque No.973200 encashed during April 2003 itself, misused the said other cheque No.973199 without returning the same to the accused. Having admitted that the said cheque bearing No.973200 was issued in his favour only, and the same was encashed, it was for the complainant to explain in respect of which debt payable to him by the accused, he had received the said cheque from the accused during the year 2003. 16. It is clear from the above that the accused has successfully established his defence version by adducing his own evidence and also by eliciting, in the cross-examination of PW.1 and also by producing Ex.D1 the statement of his accounts with his Banker. 16. It is clear from the above that the accused has successfully established his defence version by adducing his own evidence and also by eliciting, in the cross-examination of PW.1 and also by producing Ex.D1 the statement of his accounts with his Banker. Therefore, it is quite cleat that as on the date of the cheque in question, bearing No.973199, which came to be presented during the year 2004, there did not exist any legally enforceable debt payable by the accused to the complainant. Both the Courts examined the case of the accused on the assumption that the presumption under Section 139 of Negotiable Instruments Act extends not only to the issuing of the said cheque towards existing legally recoverable debt, but also to the existence of legally enforceable debt as on the date of its issue. 17. Following the observations of Honble Supreme Court in the case of Krishna Janardhan Bhat ( AIR 2008 SC 1325 ) referred to supra. I am of the considered view, that the complainant has failed to establish that he lent the said amount of Rs.45,000/- to the accused at any point of time either during December 2003 or on any other date and as such there existed debt of Rs.45,000/- payable to him by the accused and therefore the accused issued the said cheque in discharge of the said debt. On the other hand, the accused has successfully established his defence version, as discussed by me supra. Therefore, I hold that both the Trial Court and the Appellate Court committed serious error in recording their findings that the complainant established his case against the accused beyond reasonable doubt and as such the accused committed the said offence. 18. In this view of the matter, the impugned judgment and order of conviction and sentence passed by the Trial Court and also the impugned judgment of the Appellate Court confirming the judgment of the Trial Court, both deserve to be set aside as being not sustainable. Hence while answering the point raised for determination in the `Affirmative this revision petition is allowed, both the said judgments of the Trial Court and the Appellate Court are hereby set aside and the accused is hereby acquitted of the offence under Section 138 of N.I. Act. Hence while answering the point raised for determination in the `Affirmative this revision petition is allowed, both the said judgments of the Trial Court and the Appellate Court are hereby set aside and the accused is hereby acquitted of the offence under Section 138 of N.I. Act. The amount of fine imposed on him or any part thereof, if has been paid by the accused, the same shall be refunded to him. If any part of the fine amount has been received by the complainant by virtue of the impugned judgments, the Trial Court shall recover the same from the complainant and refund it to the petitioner — accused. No order as to costs in this revision.