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Karnataka High Court · body

2019 DIGILAW 1962 (KAR)

Bhaktha Kumar v. Savi K. Jain

2019-09-05

B.A.PATIL

body2019
JUDGMENT : B. A. PATIL, J. 1. The present criminal revision petition has been preferred by the petitioner/accused being aggrieved by the Judgment passed by LIX Additional City Civil and Sessions Judge, Bengaluru City, in Criminal Appeal No.649/2015 dated 9.10.2015, whereunder the judgment of conviction and order of sentence passed by XVIII Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.No.10476/2013 dated 6.4.2015 was confirmed. 2. I have heard the learned counsel for the petitioner/accused and the learned counsel for the respondent/complainant. 3. The case of the complainant in brief is that the father of the petitioner/accused has borrowed a sum of Rs.25 Lakhs as a loan from the complainant and he was unable to repay the said loan amount to the complainant. A meeting was held on 28.8.2012 in the presence of accused and his father and at that time accused agreed to repay the said loan amount and accused issued the cheque for a sum of Rs.25 Lakhs dated 31.12.2012 towards discharge of the debt. When the said cheque was presented for encashment, the same was dishonoured with a shara 'account closed'. Thereafter, a legal notice was issued demanding the said amount on 16.4.2013, the same was served on the accused. Accused has neither paid the amount nor given any reply, as such a complaint was registered under Section 138 of the Negotiable Instruments Act, (hereinafter called as 'the Act' for short). The lower Court took cognizance, secured the presence of the accused, recorded his plea, he denied the charges. 4. Complainant in order to prove his case got himself examined as PW1 and got marked Exs.P1 to P8. Thereafter, accused was examined under Section 313 Cr.P.C.. Accused has neither led any evidence nor got marked any documents. The trial Court after hearing the learned counsel for the parties convicted the accused under Section 138 of the Act. Challenging the same accused preferred the appeal before the learned District Judge, same was also confirmed by dismissing the appeal. 5. The main grounds urged by the learned counsel for the petitioner is that the Court below has erroneously passed the impugned order without proper appreciation of the evidence and only relying upon the evidence of PW1. He further submitted that no proper opportunity has been given to substantiate the case of the petitioner/accused. In that light, the entire proceedings are vitiated. He further submitted that no proper opportunity has been given to substantiate the case of the petitioner/accused. In that light, the entire proceedings are vitiated. He further submitted that the legal notice was not at all served to the petitioner, the complainant in collusion with the postal authorities furnished Ex.P5. He further submitted that the complainant was not having any ability to pay such huge amount and has not produced any books of accounts. It is further contended that the complainant is a money lender and he was dealing with the said business without there being any licence. He has not paid the income tax. On these grounds he prayed to allow the petition and to set aside the impugned order. 6. It is the contention of the learned counsel for the respondent/complainant that the Court below after considering the evidence has come to a right conclusion. Accused has not led any evidence on his behalf and even he has not taken any specific defence. Under such circumstances, the Court below has rightly convicted the accused. He further submitted that an amount of Rs.25 Lakhs has been given to the father of the accused through cheque and father of the accused has encashed through cheque No.48477 as per Ex.P7. He further submitted that the petitioner/accused has not denied the financial transaction. There is endorsement in Ex.P5 to the effect that the notice has been delivered to the addressee on 17.4.2013. As per Section 27 of the General Clauses Act there is a legal presumption regarding the service of notice if it is sent to a correct address. He further submitted that in view of the presumption it can be inferred that there exists a legally recoverable debt and accused has not made out any grounds and has not rebutted the evidence. Under such circumstances the trial Court has rightly appreciated and has rightly convicted the accused. There are no good grounds to interfere with the judgment of the trial Court. On these grounds he prayed to dismiss the petition. 7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the lower court records. 8. There are no good grounds to interfere with the judgment of the trial Court. On these grounds he prayed to dismiss the petition. 7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the lower court records. 8. The first contention taken up by the learned counsel for the petitioner/accused is that the complainant was not having any ability or sources of income to lend the amount of Rs.25 Lakhs, but the evidence of the complainant clearly goes to show that the father of the accused has availed the loan of Rs.25 lakhs and the said amount has been paid through cheque and even the Senior Manager of the Canara Bank as per Ex.P7 has endorsed about the father of the accused encashing the amount of Rs.25 lakhs and the said amount has been debited from the account of the complainant and there is credit of the said amount to the Savings Bank Account of the father of the accused. 9. Be that as it may. The accused during the course of cross-examination of complainant has not specifically denied the financial transaction between his father and the complainant. When the meeting was held in the presence of the father of the accused on 28.8.2012, accused had agreed to repay the said loan amount incurred by his father and has issued the cheque. When he has not denied the cheque for having issued by him pertaining to his account including his signature, then under such circumstances, the Court is duty bound to draw a presumption under Section 139 of the Act. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Rangappa Vs. Sri.Mohan, (2010) 11 SCC 441 , wherein at paragraph 16 it has been observed as under:- 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. 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. On close reading of the said paragraph the presumption mandated under Section 139 of the Act includes a presumption that there exists a legally enforceable debt or a liability. However, the said presumption is rebuttable and it is open to the accused to raise a defence and he can prove that there exists no legally enforceable debt or liability by preponderance of probabilities. But in the instant case admittedly the accused has neither been examined nor he has brought anything on record to rebut the said presumption. Under such circumstances the contention of the petitioner/accused that the complainant was not having any financial capacity and ability to give a loan of Rs.25 lakhs is not acceptable, and it also proves there exists legally enforceable debt or a liability. Under such circumstances the contention of the petitioner/accused that the complainant was not having any financial capacity and ability to give a loan of Rs.25 lakhs is not acceptable, and it also proves there exists legally enforceable debt or a liability. 11. The second contention which was taken is that there was no service of notice as contemplated under the law. But as could be seen from Ex.P3 notice it has been sent to the address of the accused and endorsement has been issued by the postal authorities as per Ex.P5 that the said registered post has been delivered to the addressee on 17.4.2013. It is not the case of the petitioner/accused that he is not residing in the said address. In that light, the contention raised is not acceptable. 12. It is further contended that the petitioner has handed over signed blank cheque to the complainant and it has been filled up by the complainant. But in view of Section 20 of the Act, it gives authority to the holder of the cheque to fill and complete the said negotiable instruments when once it is signed and delivered by the person who holds the account. In that light also the contention is not acceptable. 13. The next contention is that he has not been given any full opportunity to substantiate his case. But in order to substantiate the said aspect he has not produced any material. On going through the records it indicates that sufficient opportunity has been given to the accused. 14. Even as could be seen from the order sheet of this Court it is submitted that matter is going to be amicably settled between the parties and petitioner/accused sought for time. But he went on taking the time, time and again this Court has adjourned the case for nearly more than one year and the accused has not made any arrangements of the said amount and has not settled the matter. That attitude itself clearly goes to show that the petitioner/accused is not diligent in conducting the case. It is his only intention to drag on the proceedings. If the case is going to be adjourned, then under such circumstances the very purpose of the order of the trial Court is going to be defeated. That attitude itself clearly goes to show that the petitioner/accused is not diligent in conducting the case. It is his only intention to drag on the proceedings. If the case is going to be adjourned, then under such circumstances the very purpose of the order of the trial Court is going to be defeated. This proposition of law has also been laid down by the Hon'ble Apex Court that unnecessary adjournment of the case has to be avoided. In that light, the said contention also does not survive for consideration. 15. I have carefully and cautiously gone through the judgment of the trial Court as well as the first appellate Court. Both the Courts below after considering the evidence and material placed on record have come to a right conclusion. The said judgments are neither perverse nor illegal, the same deserves to be confirmed. The petition is devoid of merits and as such the same is dismissed.