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2019 DIGILAW 1856 (KAR)

M. N. Krishnappa v. Hanumanthappa

2019-08-20

B.A.PATIL

body2019
ORDER : 1. This petition has been filed by the accused challenging the judgment and order passed by the P.O., & Additional Sessions Judge, F.T.C-III, Mayo Hall Unit, Bengaluru in Crl.A No. 25014/2014 dated 07.02.2015 where under the judgment and order of conviction and sentence passed by the XIV ACMM in C.C. No. 26398/2012 dated 13.12.2013 was confirmed. 2. The learned counsel for the petitioner-accused is absent. There is no representation. Since the matter is of the year 2015, this Criminal Revision Petition cannot be dismissed for default and as such, the matter is taken on merits. 3. I have heard the learned counsel for the respondent-complainant. 4. The case of the complainant before the Court below is that the complainant and accused were acquainted with each other. On 09.06.2011, the accused approached the complainant and borrowed a sum of Rs.2,50,000/- to improve the building work and he promised to repay the said amount along with interest within a period of three months. Towards discharging his liability, he issued a post-dated cheque bearing No. 914827 for a sum of Rs.2,50,000/-. As per the instructions of the accused, when the complainant presented the cheque for encashment, it was returned with an endorsement as "Refer to drawer". Thereafter, a legal notice came to be issued on 22.09.2011 and the said notice was served upon the accused, but he has failed to make payment within the stipulated time and as such, a private complaint was filed under Section 138 of Negotiable Instruments Act, 1881 ('the Act' for short). Thereafter, the accused was secured and plea was recorded. 5. In order to prove the case of the complainant, he got examined himself as PW. 1 and got marked Exhibits P. 1 to P.4. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C.. The accused examined himself as DW.1 and got marked the documents as Exhibits D1 and D2. After hearing the learned counsel for the parties, the accused was convicted under Section 138 of the Act. Being aggrieved by the same, the petitioner-accused preferred an appeal. Subsequently, the said appeal also came to be dismissed. The main grounds urged by the learned counsel for the petitioner is that the respondent-complainant except producing the cheque and legal notice, has not produced any piece of document to show that he was financially sound to lend the money. 6. Being aggrieved by the same, the petitioner-accused preferred an appeal. Subsequently, the said appeal also came to be dismissed. The main grounds urged by the learned counsel for the petitioner is that the respondent-complainant except producing the cheque and legal notice, has not produced any piece of document to show that he was financially sound to lend the money. 6. It is further contended that the evidence adduced seriously does not show anything about the financial capacity of the respondent-complainant. It is contended that the documents produced by the accused clearly goes to show that the said lorry was seized on 13.08.2009 itself and the complainant has deposed that on 09.06.2011, the petitioner-accused borrowed a loan for purchase of lorry, sand etc.,. It is further contended that the Court below ought to have considered the fact that the cheque has been issued towards security of the chit transaction. On these grounds, he prays to allow the petition and to set aside the impugned order. 7. Per contra, the learned counsel appearing on behalf of the respondent-complainant vehemently argued and submitted that the accused and complainant are close friends and the accused has taken a loan of Rs.2,50,000/-and in discharge of the said loan amount, he had issued a cheque as per Exhibit P.1 and when, the said cheque was presented to the bank for encashment, the same was dishonoured. Thereafter, a legal notice was also served on the accused. After the compliance of ingredients of Section 138 of the Act, no amount has been paid. Even the defence taken by the accused is that the two cheques have been taken as a security, but in order to substantiate the said fact, he has not produced any document. He further submits that the learned trial Court, after considering the material placed on record, has come to the right conclusion and the petitioner-accused has not made out any grounds so as to interfere with the judgment of the trial Court. On these grounds, he prays to dismiss the petition. 8. I have carefully and cautiously gone through the submissions made by the learned counsel for the respondent-complainant and perused the records. 9. On these grounds, he prays to dismiss the petition. 8. I have carefully and cautiously gone through the submissions made by the learned counsel for the respondent-complainant and perused the records. 9. On close reading of the evidence adduced by the parties, it discloses that the complainant and accused were close friends and the accused has availed a loan of Rs.2,50,000/- and in discharge of the same, he has given post-dated cheque as per Exhibit P.1. When DW.1 was examined, he has categorically deposed that he has availed an amount of Rs.60,000/- and Rs.75,000/- from the complainant in connection with the chit business in the year 2006-2007 and at that time, he has issued two cheques as a security. Even the records go to show that the accused has categorically admitted the fact that the Exhibit P.1/cheque was issued by him and the signature thereon belongs to him and it pertains to his account and he further admitted that due to non-payment of installment the offending company has seized the lorry. When once the complainant proves the ingredients as contemplated under the law and the accused admitted the signature on the cheque and issuance of cheque, then under such circumstances, the Court is duty bound to raise a presumption under Section 139 of the Act. It is the law laid down by the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan, (2010) 11 SCC 441 , that when a cheque has been issued and accused admitted the signature thereon then, the presumption mandated under Section 139 of the Act including the presumption that there exists a legally enforceable debt or liability can be drawn, then the accused has to rebut the said presumption in his defence to show that there exists no legally enforceable debt or liability. In that light, when the accused admitted the fact that of signature and issuance of a cheque, the Court has to raise a presumption as contemplated under Section 139 of the Act. For the purpose of brevity, I quote paragraph No. 16 in the case of Rangappa quoted supra, wherein it is held that: 16. All of these circumstances led the High Court to conclude that the accused had not raised a probable defence to rebut the statutory presumption. It was held that: "6. For the purpose of brevity, I quote paragraph No. 16 in the case of Rangappa quoted supra, wherein it is held that: 16. All of these circumstances led the High Court to conclude that the accused had not raised a probable defence to rebut the statutory presumption. It was held that: "6. Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered...." Hence, the High Court concluded that the alleged discrepancies on part of the complainant which had been noted by the trial court were not material since the accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act. Accordingly, the High Court recorded a finding of conviction. 10. Keeping in view of the aforesaid paragraph and close perusal of the records, it is evident that though DW. Accordingly, the High Court recorded a finding of conviction. 10. Keeping in view of the aforesaid paragraph and close perusal of the records, it is evident that though DW. 1 was examined before the Court and has produced Exhibits D1 and D2 to show that the said lorry has been seized on the date when the loan has been taken, but as could be seen from the defence of the accused, he has taken inconsistent stand that at one stretch he has availed a loan of Rs.60,000/- and Rs.75,000/- from the complainant in connection with the chit business, he has issued two cheques as a security but when he received the legal notice, no reply has been given in this behalf and even nothing has been produced to substantiate his contention. If really, he has taken the loan amount of Rs.60,000/- and Rs.75,000/-as contended by him, immediately after receipt of the legal notice, he could have given reply stating that he has not availed the loan of Rs.2,50,000/-, but he has kept mum. 11. Be that as it may, even he has taken a contention that he has given the said two cheques in connection with the chit business as a security, but no other person has been examined except his interested testimony. When a presumption has been drawn under Section 139 of the Act, the burden lies upon the accused to prove the same on preponderance of probabilities and if he fail to establish the case, then under such circumstances, the case of the complainant stands proved and the accused is liable to be convicted. In that light, the contention which has been taken up by the learned counsel for the petitioner in this petition does not survive for consideration and there is no force in the contention and the same is liable to be dismissed. 12. I have gone through the judgment of the trial Court as well as the First Appellate Court. The Courts below, after considering the material placed on record have come to the right conclusion and rightly convicted the accused. There are no good grounds to entertain the petition. 13. As the petition is devoid of merits, the same is liable to be dismissed and accordingly, it is dismissed.