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2020 DIGILAW 136 (KAR)

S. P. Mani v. M. V. Raghu

2020-01-16

H.B.PRABHAKARA SASTRY

body2020
JUDGMENT 1. The present Revision Petitioner was an accused in the Court of learned XXII Addl.Chief Metropolitan Magistrate and XXIV Addl.Small Causes Judge, Bengaluru, (hereinafter for brevity referred to as trial Court), in C.C.No.19269/2007, filed by the present respondent as a complainant. The said complainant had filed a complaint under Section 200 of Code of Criminal Procedure (hereinafter for brevity referred to as Cr.P.C.), against the present petitioner/accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as N.I.Act). 2. The summary of the case of the complainant in the trial Court was that the accused had entered into an Agreement of Sale dated 5.9.2006 with the complainant agreeing to sell his immovable property, however, upon the failure by the accused to perform his part of the contract, the said Agreement to Sell could not be culminated in the execution of the registered Sale Deed. As such, the accused agreeing to return the advance amount as dischargal of part of the said liability, issued a cheque bearing No.077608, dated 24.12.2006, for a sum of Rs.9,25,000/-, drawn on Bank of India, Whitefiled Branch, Bengaluru-560066, in favour of the complainant, with an assurance that the said cheque would be honoured on its presentation. However, on presentation, the said cheque came to be dishonoured on 20.1.2007 with the Bankers endorsement funds insufficient. Thereafter, the complainant brought the said fact to the notice of the accused by issuing a legal notice dated 2.2.2007 as required under Section 138 of N.I.Act and demanded the payment of the cheque amount within fifteen days from the date of receipt of the said notice. The accused though received the said legal notice, but, did not pay the amount demanded thereunder, rather, sent an untenable reply, which constrained the complainant to file the complaint. 3. In response to the notice, the accused appeared in the trial Court and contested the matter. 4. In order to prove his case, the complainant got himself examined as PW-1 and got marked the documents from Exs.P-1 to P-6. The accused/petitioner neither examined any witness from his side, including himself nor produced any documents from his side and marked it exhibits. 4. In order to prove his case, the complainant got himself examined as PW-1 and got marked the documents from Exs.P-1 to P-6. The accused/petitioner neither examined any witness from his side, including himself nor produced any documents from his side and marked it exhibits. After hearing both side, the trial Court by its impugned judgment dated 4.11.2009, convicted the accused for the offence punishable under Section 138 of N.I.Act and sentenced him to pay a fine of Rs.9,35,000/-, in default, to undergo simple imprisonment for a period of one year. 5. Challenging the judgment of conviction passed by the trial Court, the present petitioner preferred an appeal before the Fast Track Sessions Court XVI, Bengaluru City, (hereinafter for brevity referred to as lower Appellate Court), in Criminal Appeal No.913/2009, which by its judgment dated 11.10.2010, dismissed the appeal and confirmed the judgment of conviction and order on sentence passed by the trial Court. It is seeking revision of those two judgments, the accused has preferred this petition. 6. The lower Court records were called and the same are placed before this Court. 7. The learned counsel for the respondent/ complainant has remained absent, as such, he has not addressed his arguments. 8. Heard the arguments of learned counsel for the Revision Petitioner and perused the materials placed before this Court. 9. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. 10. The learned counsel for the petitioner in his argument vehemently submitted that the complainant ought to have produced the alleged original Agreement of Sale in the trial Court, which he did not produce. Further when he has not denied about receiving a SMS sent by the accused informing him about clearance of the entire alleged due towards him, the Court ought to have considered that the presumption existing in favour of the complainant was successfully rebutted by the accused. It also did not notice the fact that, even according to the complainant, had he received only a sum of Rs.8 lakhs from the accused, there was still a due of Rs.11.5 lakhs from him, why he should accept the cheque only for a sum of Rs.9.25 lakhs. The said aspect was also not considered by the Court below. Thus, in all preponderance of probabilities, the accused has successfully rebutted the presumption existing in favor of the complainant. The said aspect was also not considered by the Court below. Thus, in all preponderance of probabilities, the accused has successfully rebutted the presumption existing in favor of the complainant. On the contrary, both the Courts below have only observed that non-examining any witnesses by the accused, including himself, is fatal to his case. Learned counsel submitted that the said finding of the Courts below is erroneous. In his support, he relied upon the judgment of Honble Apex Court in M.S.Narayana Menon alias Mani v. State of Kerala and another, reported in [ (2006) 6 SCC 39 ] . 11. The complaint of the complainant, as well his evidence as PW-1 is that due to the failure of performance of his promise under the Agreement of Sale dated 5.9.2006, the accused who had to return a sum of Rs.19.5 lakhs, as a partial discharge of his liability, had issued a cheque in question amounting to Rs.9.25 lakhs. The said cheque when presented for clearance came to be dishonoured with a Bankers endorsement funds insufficient, which made the complainant to issue a legal notice demanding the cheque amount payable by the accused to him. However, the accused sent an untenable reply and did not meet the demand. In support of his contention, the complainant got marked the complaint filed by him under Section 200 of Cr.P.C. at Ex.P-1, the alleged returned cheque at Ex.P-2, the alleged signatures of the accused in the said cheque at Exs.P-2(a) and P-2(b), Bankers endorsement while returning the cheque at Ex.P-3, the copy of the legal notice sent to the accused at Ex.P-4, the postal acknowledgment to show the receipt of the said notice by the accused at Ex.P-5 and reply to the notice sent by the accused to the complainant at Ex.P-6. 12. The contents of the notice at Ex.P-4 and the contents of the complaint are same. The averment made in the complaint as at the first instance found its place in the legal notice at Ex.P-4. The accused has admitted the receipt of the said legal notice and also has sent his reply as per Ex.P-6. 12. The contents of the notice at Ex.P-4 and the contents of the complaint are same. The averment made in the complaint as at the first instance found its place in the legal notice at Ex.P-4. The accused has admitted the receipt of the said legal notice and also has sent his reply as per Ex.P-6. In the said reply notice at Ex.P-6, at the first instance, the accused has taken a contention that though there existed an Agreement dated 5.9.2006, but, the breach of the same was not by the accused since the agreement was a conditional one subject to redemption of mortgage after the loaner, which is said to be Karnataka State Small Scale Industries Development Corporation (KSSIDC), accepting one time settlement from the accused/loanee. The accused has further taken a contention in his said reply notice that he has returned the entire amount of Rs.19.5 lakhs on two days i.e., 16.12.2006 and 31.12.2006, through cash, cheque and Demand Draft. However, what is to be noticed is that the said contention taken up by the accused was only his contention as reply to the legal notice sent by the complainant under Section 138 of N.I.Act demanding the cheque amount. 13. A perusal of the cross-examination of PW-1 would go to show that the accused has not denied or disputed the alleged Agreement dated 5.9.2006, as well the fact that the cheque at Ex.P-2 is issued by him and it bears his signature. He has also not denied or disputed about dishonour of the said cheque for the reason of funds insufficient as per the Bankers endorsement at Ex.P-3. Thus, in the cross-examination of PW-1, the accused has not denied the agreement, as well the issuance of cheque at Ex.P-2. However, he contends that he is not due by any sum as payable to the complainant. In that regard, he has suggested to PW-1 in his cross-examination that by cash, cheque and Demand Draft, he had returned the entire amount of Rs.19.5 lakhs, however, PW-1 denied that he has received a sum of Rs.5 lakhs, Rs.5 lakhs and Rs.1.5 lakhs, but, admitted that he has received a sum of Rs.8 lakhs only through Demand Draft. Thus, out of Rs.19.5 lakhs, the receipt of which the accused has not denied, the complainant has admitted of repayment to him only a sum of Rs.8 lakhs. 14. Thus, out of Rs.19.5 lakhs, the receipt of which the accused has not denied, the complainant has admitted of repayment to him only a sum of Rs.8 lakhs. 14. The accused in his reply notice at Ex.P-6 has stated that on 16.12.2006, he has repaid a sum of Rs.5 lakhs by way of cash and another sum of Rs.5 lakhs by way of cheque, drawn on Bank of India. He has also stated that on 31.12.2006, he has paid a sum of Rs.8 lakhs by way of Demand Draft, drawn on Bank of India and another sum of Rs.1.5 lakhs by way of cash. Thus, according to the accused, out of Rs.19.5 lakhs said to have been paid by him to the complainant, only a sum of Rs.6.5 lakhs was in the form of cash and remaining amount of Rs.13.5 lakhs was in the form of cheque and Demand Draft. Had that been the fact according to the accused, then, he should have necessarily in possession of the relevant documents, including his Banks statement and counter-foils of the cheque and Demand Draft receipts, which, he could have confronted to PW-1 in his cross-examination to corroborate his suggestion that he has paid the entire amount of Rs.19.5 lakhs. The same was not done by the accused, rather, he is expecting the complainant to produce the original Sale Agreement. Though the learned counsel for the petitioner repeatedly and vehemently submitted that non-production of the said Agreement of Sale dated 5.9.2006 is fatal to the case of the complainant, but, I am not convinced with the said argument, for the simple reason that, at the first instance in his reply notice at Ex.P-6 itself, the accused has admitted the existence of such an agreement. Admittedly, the case is not the one for the specific performance of a contract, but, it is for the alleged committing of offence punishable under Section 138 of N.I.Act, that too, in the light of an existing presumption in favour of the complainant under Section 139 of N.I.Act. Admittedly, the case is not the one for the specific performance of a contract, but, it is for the alleged committing of offence punishable under Section 138 of N.I.Act, that too, in the light of an existing presumption in favour of the complainant under Section 139 of N.I.Act. Thus, when the issuance of cheque at Ex.P-2 by the accused in favour of the complainant is not in dispute, rather, it is admitted by the accused himself and when accused himself in Ex.P-6 has clearly admitted about the existence of Agreement dated 5.9.2006 and further claims that he has returned the entire amount of Rs.19.5 lakhs to the complainant, it was for the accused to show that he had paid the said amount, as such, there was no legally enforceable debt in favour of the complainant. In that regard, at least the accused should have raised a serious doubt in the case of the complainant to make it not safe to believe. 15. Learned counsel for the petitioner in his argument on the said point submitted that the trial Court in its judgment has observed that the accused should have entered the witness box and in the said process, he has relied upon the judgment of Honble Apex Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde, reported in 2008 AIR SCW 738 . He further submitted that though the lower Appellate Court has relied upon the subsequent judgment of the Honble Apex Court in Rangappa v. Sri Mohan, reported in { 2010 (11) SCC 441 } , but, both the Courts below have magnified the fact that the accused has not entered the witness box and on the said sole reason, have convicted the accused for the alleged offence. 16. A perusal of the impugned judgment passed by the trial Court in C.C.No.19269/2007, would go to show that the trial Court in Paragraph-16 of its judgment has referred to Krishna Janardhan Bhats case (supra), and has observed that the accused has failed to step into the witness box to discharge the burden laid upon him, as such, he has failed to rebut the presumption. However, the lower Appellate Court has relied upon the subsequent judgment of Honble Apex Court in Rangappas case (supra) and has observed that the presumption has already been formed in favour of the complainant which the accused could not able to rebut. However, the lower Appellate Court has relied upon the subsequent judgment of Honble Apex Court in Rangappas case (supra) and has observed that the presumption has already been formed in favour of the complainant which the accused could not able to rebut. However, in its reasoning, it also noticed the fact that the accused did not enter the witness box. 17. Learned counsel for the petitioner while relying upon the judgment in M.S.Narayana Menons case (supra), and drawing the attention of this Court to few paragraphs of the said judgment submitted that the standard of proof evidently is preponderance of probabilities and inference of preponderance of probabilities can be drawn not only from the materials on record, but, also by reference to the circumstances upon which he relies. Quoting the said portion of the judgment, learned counsel further submitted that, when the complainant has not denied that the accused had sent him a SMS to his Cell phone in December 2006, the same amounts to an admission that the accused at the very first instance in December 2006 has shown that he has repaid the entire amount and had demanded for return of the cheque. Therefore, the presumption in favour of the complainant is to be taken as successfully rebutted by the accused. 18. In M.S.Narayana Menons case (supra), the Honble Apex Court in Paragraph-32 of its judgment has observed as below : '32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.' In the subsequent Paragraph at No.34, it has also observed that the Courts of law may also take judicial notice of the practice prevailing in such business (done by the parties) (added by me). However, in the case on hand, what is to be noticed is the accused though claims to have sent a SMS in December 2006 to the complainant, informing him that he has repaid the entire amount and demanded for return of the cheque, but, the complainant has stated that he does not know how to see the SMS message. By the said answer, it cannot be inferred that the contents of the said SMS was to the knowledge of the complainant. By the said answer, it cannot be inferred that the contents of the said SMS was to the knowledge of the complainant. Assuming for a moment that such a SMS was sent by the accused to the complainant, still by mere sending of SMS cannot be considered as a rebuttal of presumption formed in favour of the complainant, that too, in the particular and specific circumstances of the present case where even according to the accused, he had various other evidences in his hand and at his disposal since he claims that the alleged repayment of a sum of Rs.13 lakhs was in the form of cheque and Demand Draft. Thus, when the accused himself was in custody/possession of certain important and vital documents favouring him to rebut the presumption formed in favour of the complainant, for the reasons best known to him, he did not confront the same to the complainant in his cross-examination. As such, a mere suggestion to the witness (PW-1) that he (accused) had sent a SMS few years back about the alleged repayment of the amount would not by itself be taken under any stretch of imagination that it is a successful rebuttal of the presumption that has been formed in favour of the complainant. 19. Apart from the above, it also cannot be ignored of the fact that the accused in his reply notice at Ex.P-6 has taken a specific defence about the non-performance of the contract as the one of, non-occurrence of a condition which according to him, was redemption of mortgage by accepting one time settlement by KSSIDC. Interestingly, no where the said suggestion was made in any manner to PW-1 in his cross-examination. As such, the very basis of the accused defence as to what made him to return the amount and his contention that he has paid the entire amount back to the complainant does not find a base in the cross-examination of PW-1. Further, as already observed above, the accused even after being in possession of vital documents about his alleged payment of Rs.13 lakhs said to have been paid to the complainant through cheque and Demand Draft, has not confronted those documents to him. As such, withholding the documents by the accused from producing when they are expected to be in his custody, also favours the complainant. As such, withholding the documents by the accused from producing when they are expected to be in his custody, also favours the complainant. As such, taking into consideration the entire circumstances of the case, it is clear that the accused even without entering into the witness box could have rebutted the case of the complainant had he really repaid the amount in its entirety as alleged by him. Since, as observed above, the accused even after claiming that he is in possession of vital documents, has failed to produce them before the Court, now cannot say that he has successfully rebutted the presumption which has already been formed in favour of the complainant. On the other hand, the reply notice at Ex.P-6 itself go to show that accused has admitted his liability to pay Rs.19.5 lakhs to the complainant though he claims to have returned the same. As such, the presumption about the existence of legally enforceable debt is further strengthened by the said reply notice at Ex.P-6. 20. The second argument of the learned counsel for the petitioner was that, had really the outstanding amount by the accused towards the complainant been Rs.11.5 lakhs after receipt of Rs.8 lakhs in the form of Demand Draft, there is no reason given by the complainant as to why he accepted a cheque of Rs.9.25 lakhs only. The answer to the same can be found at the very first instance in the reply notice at Ex.P-6, as well in the evidence of PW-1. At both the places, the complainant has clearly and specifically stated that the said cheque of Rs.9.25 lakhs was given to him by the accused towards discharge of part of the said liability. Therefore, no where the complainant has said that the said cheque was towards the discharge of the liability in its entirety, but specifically stated that it was towards dischargal of part of the liability. The said aspect has not been denied by the accused in any form, including in the cross-examination of PW-1. The complainant apart from producing the cheque at Ex.P-2, which admittedly has been dishonoured for the reason of funds insufficient, has also complied the requirement of issuing a notice to the accused/drawer of the instrument as required under Section 138 of N.I.Act. The complainant apart from producing the cheque at Ex.P-2, which admittedly has been dishonoured for the reason of funds insufficient, has also complied the requirement of issuing a notice to the accused/drawer of the instrument as required under Section 138 of N.I.Act. The accused even after receipt of the said notice has not met the demand made therein, but, has sent a reply as per Ex.P-6, which reply is now by virtue of the above analysis proves to be untenable. The evidence of complainant as PW-1 also could not be able to be shaken by the accused in the cross-examination of PW-1. As such, the presumption which has already been formed in favour of the complainant has further been crystalised and could not be diluted in any manner in the cross-examination of PW-1. 21. As such, even though the trial Court has observed that the accused has not entered the witness box, but the material placed before the Court, more particularly, the evidence of PW-1, clearly has proven that the accused has committed the alleged offence. The accused has failed to rebut the presumption that was formed in favour of the complainant and further crystalised in his evidence as PW-1. The lower Appellate Court has rightly noticing the same, confirmed the judgment of conviction passed by the trial Court. In the said finding, I do not find any reason to interfere. 22. With respect to order on sentence also, considering the circumstances of the case, since the trial Court has only imposed a fine of Rs.5,000/- more on what the cheque amount is and the amount of Rs.5,000/- is also ordered to be credited to the State as a part of fine as per Section 357(1)(a) of Cr.P.C., I am of the view that, in the circumstances of the case, the sentence ordered is proportionate to the gravity of the offence committed. As such, the sentence portion also does not warrant any interference at the hands of this Court. 23. Accordingly, I proceed to pass the following order: ORDER The Criminal Revision Petition is dismissed. The judgment of conviction and order on sentence dated 4.11.2009, passed by the learned XXII Addl.Chief Metropolitan Magistrate and XXIV Addl.Small Causes Judge, Bengaluru, in C.C.No.19269/2007, which is confirmed by the Fast Track Sessions Court XVI, Bengaluru City, in Criminal Appeal No.913/2009, dated 11.10.2010, is confirmed.