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Karnataka High Court · body

2012 DIGILAW 178 (KAR)

S. A. Sabastian v. G. Thipperangaiah

2012-03-01

V.JAGANNATHAN

body2012
Judgment V. Jagannathan, J. 1. This Criminal Revision Petition is by the accused, who has been convicted under Section 138 of the Negotiable Instruments Act by the trial Court and sentenced to pay Rs. 65,000/-as fine and in default to undergo simple imprisonment for six months and the said judgment being affirmed by the lower appellate Court by dismissing the petitioner’s appeal. 2. The case of the complainant in short is that, he took the house of the accused on lease from 16.9.1999 and paid Rs. 2,50,000/-towards the lease amount and, after vacating the premises on 25.3.2002, the complainant sought for payment of the lease amount, but the accused paid only Rs. 2,05,000/-and the balance of Rs.45,000/-was not paid. In the first week of February, 2004, the accused gave a post dated cheque for Rs. 45,000/-dated 15.2.2004 and the said cheque, on presentation, was returned with the endorsement “insufficient funds”. After issuing a notice to the accused, a complaint was present before the trial Court under Section 200 of the Cr.P.C. 3. After appearance of the parties before him, the learned trial Judge recorded the evidence of the complainant P.W.1 Thipperangaiah and nine documents were marked as Exs.P-1 to P-9 and accused Sabastian was examined as D.W.1 and he produced the lease agreement Ex.D-1. The trial Court accepted the case of the complainant and convicted the petitioner herein solely on the basis of the document Ex.P-8. The lower appellate Court did not disturb the trial Court’s findings. 4. Learned Counsel Shri Ramesh Babu for the petitioner-accused, by referring to the documents produced and the evidence of P.W.1 in particular, submitted that the lease agreement was between the complainant and the mother of the accused. As per the lease agreement Ex.D-1, the entire amount was paid by the mother to the complainant and the balance of Rs. 4,000/-was adjusted towards the repair charges. Therefore, no amount was due by the accused as the accused had not taken any loan from the complainant. 5. As far as Ex.P-8 letter is concerned, it was submitted by the learned Counsel for the petitioner that it was taken forcibly at the police station when the accused was called at the instance of the complainant. Therefore, no amount was due by the accused as the accused had not taken any loan from the complainant. 5. As far as Ex.P-8 letter is concerned, it was submitted by the learned Counsel for the petitioner that it was taken forcibly at the police station when the accused was called at the instance of the complainant. Apart from this, even the date of issuance of the cheque is not satisfactorily established by the complainant because, he says in his evidence that the cheque was given on 15.2.2004, whereas in the cross-examination, P.W.1 has admitted that the cheque was issued during September, 2002. This itself goes to show that the complainant’s case is not based on firm foundation. 6. Yet another submission put forward is that, neither in the legal notice nor in the complaint is there any mention of the contents of Ex.P-8. For all these reasons, the accused has placed enough material to rebut the presumption in favour of the complainant. As such, the findings of the Courts below are liable to be set aside by allowing this petition. 7. Learned Counsel Shri H.T. Narayan for the respondent-complainant, on the other hand, supported the findings of the Courts below and argued that it was the accused who had receive the lease amount and made part payment, though the house actually belongs to the mother of the accused. Therefore, the view taken by the Courts below is consistent with the stand taken by the complainant in the evidence. Once the cheque is admitted as having been issued by the accused and the signature is not in dispute, the presumption has to be raised in favour of the complainant as per Section 139 of the N.J. Act. As such, the Courts below committed no error and no evidence by way of rebuttal is placed by the accused. Therefore, the petition be dismissed. 8. Having thus heard both sides and after going through the material on record, whether the findings recorded by the Courts can said to be based on evidence and secondly, whether the accused had rebutted the presumption, which was in favour of the complainant, are the points t be considered. 9. The specific case of the complainant as per the complaint averments is that, he took the house of the accused on lease and paid Rs.2,50,000/-towards the lease amount. 9. The specific case of the complainant as per the complaint averments is that, he took the house of the accused on lease and paid Rs.2,50,000/-towards the lease amount. The documents produced by both the parties reveal that the house belongs to the mother of the accused. Ex.D-1 is the lease agreement between the complainant and Rita Antony, mother of the accused. The said agreement also has got the endorsements on the last page in respect of the amounts received from time to time by the complainant. The endorsement of the complainant on 27.7.2002 is to the effect that he had received Rs.1,00,000/-as second payment from Rite Antony on the said date along with a post dated cheque dated 16.8.2002 and the balance of Rs. 4,000/-was deducted towards repairs of the house. Thus, this document Ex.D-1 establishes that the lease amount has been finally settled between the parties. 10. So far as the amount being received by the mother of the accused is concerned. Ex.P9, produced by the complainant himself, confirms that it is the mother of the accused, who had received Rs. 2,50,000/-in all from the complainant. The endorsement on Ex.P-9 confirms this fact. A combined reading of Ex.P-9 and Ex.D-1, therefore, goes to show that the lease amount was received by Smt. Rita Antony, mother of the accused, and she had cleared the entire amount as per the endorsement in Ex.D-1. 11. Now, coming to the other evidence on record and more particularly Ex.P-8 letter. The said letter is issued by the accused and it mentions that the accused was to pay balance of Rs. 85,000/-out of which Rs. 40,000/-was paid on 29.10.2003 and a cheque for Rs. 45,000/-was issued on 15.2.2004. The letter itself is dated 29.10.2003 and it also says that the earlier cheque was taken back by the accused and in its place a new cheque dated 15.2.2004 for Rs. 45,000/-is issued. Ex.P-1 is the said cheque in question. 12. It is the case of the accused that Ex.P8 was obtained by force in the police station. This possibility also cannot be ruled out in view of the complainant admitting in the course of his cross-examination that he went and told the police at Yelahanka that the accused had to pay some money and the Yelahanka police summoned the accused to the police station. This possibility also cannot be ruled out in view of the complainant admitting in the course of his cross-examination that he went and told the police at Yelahanka that the accused had to pay some money and the Yelahanka police summoned the accused to the police station. If at all Ex.P-8 was issued by the accused on his own volition towards any liability of the accused, the complainant would not have omitted to mention the same in the complaint itself or in the legal notice Ex.P-4. A close reading of the contents of these two documents, Ex.P-7 complaint and Ex.P-4 legal notice, reveals that no mention is made about the contents of Ex.P-8 in these two documents, which is of much significance. 13. Another aspect is that, the complainant’s specific case is that the accused issued a cheque dated 15.2.2004 for Rs. 45,000/-and this was during the first week of February, 2004. But, in the cross-examination, P.W.1 has admitted that he was due to be paid Rs. 2,50,000/-and towards the balance amount, the accused had issued a cheque for Rs. 45,000/-as per Ex.P-1 during September 2002. No person would give a posted dated cheque mentioning the date after two years from the actual date of transaction. Therefore, all these materials on record give rise to doubt the case of the complainant. He himself is not very sure as to when the cheque was given by the accused. 14. As the documents produced by the parties themselves confirm that the lease transaction was between the mother of the accused and the complainant and the endorsement in Ex.D-1 also confirms that all the balance amount was paid by the mother of the accused to the complainant, the question of the accused being due in any sum towards repayment of the lease amount, therefore, does not arise. Notwithstanding the fact that, the cheque Ex.P-1 is admitted to be in the hand writing of the accused, the presumption in favour of the complainant, therefore, has stood rebutted In this case from the very evidence, oral and documentary, placed by the complainant him self apart from the evidence of D.W.1, Ex.D-1 and other circumstances. 15. The decision referred to by the learned Counsel for the petitioner in the case of M.B. Rajasekhar Vs. 15. The decision referred to by the learned Counsel for the petitioner in the case of M.B. Rajasekhar Vs. Savithramma, reported in 2011 (6) Kar LJ476: (2011(5) KCCR 4223), also deals with a case of similar nature and the Court found that as on the date of the cheque 13.4.2004, no amount was due by the accused and, therefore, the defence of the accused was held to be probable and acceptable. The Court also observed in the course of the decision, that, though the cheque was issued towards the discharge of the debt or liability, the said presumption is rebuttable if the accused is able to raise a probable defence, the same would be sufficient to rebut the presumption under Section 139 of the N.I. Act. 16. In the instant case also, the accused has placed ample evidence apart from the very weak foundation of the case of the complainant to rebut the presumption in favour of the complainant. Both the Courts below, therefore, erred in recording a perverse finding on the evidence on record. As such, interference by this Court in revision becomes imperative in view of the perversity of the findings of the Courts below. 17. In the result, the revision petition is allowed and the judgments of the Courts below are set aside and the accused is acquitted of the offence under Section 138 of the N.I. Act and his bail bond shall stand cancelled. The amount, if any deposited, shall be refunded to the petitioner-accused.