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2022 DIGILAW 575 (KAR)

M. S. Sathya Narayana v. Lingaraje Urs

2022-04-22

H.P.SANDESH

body2022
ORDER 1. This petition is filed praying this Court to set aside the order of conviction and sentence dated 03.03.2012 passed in C.C.No.1123/2009 on the file of the I Additional Civil Judge and JMFC, Mysuru and also to set aside the order of confirmation of the conviction and sentence dated 25.08.2012 passed in Crl.A.No.62/2012 on the file of the I Additional Sessions Judge at Mysuru and acquit the petitioner. 2. The factual matrix of the case of the complainant/respondent before the Trial Court is that this petitioner/accused had approached the complainant in the month of June, July and August 2008 in order to fulfill his family commitments and to clear hand loans and for such other legal necessities. The complainant has paid Rs.8,00,000/- on different dates. The accused agreed to repay the said amount with 1% interest per month. When the complainant demanded to pay the money, the accused issued the subject matter of the cheque and the same was dishonoured and notice was issued and no reply was given and hence the complaint was filed and the Trial Court took the cognizance and thereafter the complainant examined himself as P.W.l and got marked the documents at Exs.P.l to 8(a). On the other hand, the accused also examined himself as D.W.l and examined another witness as D.W.2 and got marked the documents at Exs.D.l to 3. The Trial Court after considering both oral and documentary evidence placed on record, convicted the petitioner and directed to pay an amount of Rs.8,25,000/- as fine. In default of payment of fine to undergo simple imprisonment for a period of six months. Being aggrieved by the judgment of conviction and sentence, the petitioner filed Crl.A.No.62/2012. The Appellate Court on re-appreciation of both oral and documentary evidence placed on record, dismissed the appeal. Hence, the present revision petition is filed before this Court. 3. The main contention of the learned counsel for the petitioner before this Court is that both the Courts have committed an error in not appreciating the defence set out by the petitioner herein and specific date is not mentioned when the respondent has paid the amount to the petitioner and in whose presence the same has been paid and whether the amount was paid in cash or in different mode. The learned counsel would contend that the petitioner effectively cross-examined the witness with regard to source of income is concerned to advance the amount of Rs.8,00,000/- and the same is not substantiated and even the payment of amount of Rs.8,00,000/- was not declared in the income declaration. The learned counsel submits that there was no any relationship between the parties and categorically admitted that one Devraj Urs is the relative of the complainant. It is the specific case that the said Devraj Urs had taken the cheques and the same was misused and he had also filed one more case against the petitioner herein and the cheque which had been taken by Devraj Urs was misused. The learned counsel submits that the complaint was given by the wife of the petitioner stating that cheque was stolen in terms of Ex.D.3 in the year 2007 itself and this aspect has not been considered by both the Courts. 4. The learned counsel for the petitioner in support of his arguments relied upon the judgment of the Apex Court in the case of KRISHNA JANARDHAN BHAT v. DATTATRAYA G. HEGDE reported in AIR 2008 SC 1325 , wherein an observation is made that the accused for discharging the burden of proof placed upon him under a statute need not examine himself. 5. The learned counsel also relied upon the judgment of the Apex Court in the case of KUMAR EXPORTS v. SHARMA CARPETS reported in (2009) 2 SCC 513 . The learned counsel referring this judgment would contend that presumption meaning and purpose is explained in the said judgment. 6. The learned counsel also relied upon the judgment of the Apex Court in the case of M.S. NARAYANA MENON ALIAS MANI v. STATE OF KERALA AND ANOTHER reported in (2006) 6 SCC 39 , wherein regarding onus of proof on accused, held, that it is not as heavy as that of the prosecution. Such onus compared with that of a defendant in civil proceedings. 7. The learned counsel also relied upon the judgment of the Apex Court in the case of BASALINGAPPA v. MUDIBASAPPA reported in (2019) 5 SCC 418 , wherein it is held that the prosecution must establish its case beyond reasonable doubt, accused to prove a defence must only meet standard of preponderance of probabilities. 7. The learned counsel also relied upon the judgment of the Apex Court in the case of BASALINGAPPA v. MUDIBASAPPA reported in (2019) 5 SCC 418 , wherein it is held that the prosecution must establish its case beyond reasonable doubt, accused to prove a defence must only meet standard of preponderance of probabilities. The learned counsel also brought to the notice of this Court paragraph No. 12 regarding presumption and the same is rebuttable presumption. The learned counsel also brought to the notice of this Court paragraph No. 19 of the judgment. 8. The learned counsel also relied upon the judgment of this Court in the case of S. TIMMAPPA v. L.S. PRAKASH reported in 2015 (5) KCCR 3397, wherein discussed with regard to the presumption has been rebutted. The learned counsel also relied upon the judgment of this Court in the case of SMT. THREJA v. SMT. J AYA LAX MI reported in 2016 (5) KCCR 1341, wherein discussed with regard to Sections 138, 139 and 118 of the Negotiable Instruments Act. The Courts below attaching much importance to presumption under Sections 118 and 139 without looking into categorical admission elicited from the complainant. 9. Per contra, the learned counsel for the respondent in his argument would vehemently contend that the Trial Court in paragraph Nos.12 to 15 discussed in detail and given the reasoning with regard to the contentions raised by the petitioner herein and detailed order has been passed. The learned counsel would contend that the Appellate Court, on re-appreciation of the material available on record, taken note of each and every contentions raised by the petitioner herein and defence of the petitioner also discussed in paragraph No.15, 16, 17, 18 and 25 and taken note of the inconsistent defence taken in the cross- examination and also taken note of the answers elicited from the mouth of P.W.l and P.W.2, which are contradictory to each other and hence there are no grounds to interfere with the findings of the Trial Court and the Appellate Court. 10. 10. Having heard the learned counsel for the petitioner and the learned counsel for the respondent and also on perusal of the material available on record, the points that arise for the consideration of this Court are: (i) Whether the Trial Court has committed an error in convicting and sentencing the petitioner for the offence punishable under Section 138 of the N.I. Act and whether the Appellate Court has committed an error in confirming the same and whether it requires interference of this Court by invoking the revisional jurisdiction? (ii) What order? Point No.(i): 11. Having heard the respective learned counsel, this Court has to consider the material available on record and examine whether any perverse order has been passed by the Trial Court in order to exercise the revisional jurisdiction and orders passed by the Trial Court as well as the Appellate Court suffers from any legality and its correctness. Keeping in view the contentions, this Court has to examine the material and first and foremost contention of the learned counsel for the petitioner is that in the complaint not stated the specific date of payment. But on perusal of the complaint, in paragraph No.2, it is specific that the accused had approached the complainant in the intermittent intervals i.e., during the months of June, July and August 2008 by putting forth his financial constraints in order to fulfill his family commitments, for clearing some of his hand loans and for such other legal necessities and agreed to repay the same within 3-4 months with 1% interest per month. No doubt, specific date is not mentioned with regard to the advancing of the amount. In the cross-examination of P.W.l, he categorically stated that he made the payment of Rs.3,00,0007- in the month of June, Rs.2,00,000/- in the month of July and Rs.3,00,000/- in the month of August. In the cross- examination, it is elicited that there were 10 to 12 transactions between them. With regard to obtaining of the document is concerned, he categorically says that prior to this transaction also, he had paid 2-3 lakhs and by that time also he has not collected any documents. It is also elicited that he gave the money in his house and when the question was put to him whether there was any difficulty to get any document from him, the witness categorically says that there was no such necessity. It is also elicited that he gave the money in his house and when the question was put to him whether there was any difficulty to get any document from him, the witness categorically says that there was no such necessity. It is suggested that the accused was getting salary and there was no need to get the loan and the witness categorically says that he was doing other transactions in the name of his wife and hence he was in need of money. No doubt, in the cross- examination, it is elicited that Devraj Urs is his relative, but suggestion was made that the cheque which was given to Devraj Urs was misused by filing the present case and the same was denied. It is also suggested that Devraj Urs owed money to him and hence he had collected cheque from him and filed the case and the same was denied. 12. On the contrary, the petitioner was also examined before the Trial Court as D.W.l and in his chief evidence, he has stated that Devraj Urs had taken several cheques belonging to him and the said cheque was misused. In the cross- examination, he admits that he has not given any cheques in favour of Devraj Urs, but he lost the cheques. He also admits that he gave the complaint to the police for having lost the cheque and he can produce the documents for having given the complaint. He cannot tell the numbers of the cheque and he has got the documents to show that he has given intimation to the bank not to honour the cheques and he is not having any difficulty to produce the same. He also admits that several cases are filed against him for dishonour of the cheques and he denied the signature on the cheque and vakalath signature was also confronted to him and he admits the same. He admits that incharge officer of his office had obtained the notice and given the same to him and also admits the signature of the incharge officer. 13. The other witness D.W.2 is examined regarding loss of cheques. He admits that the accused has not given any complaint regarding loss of cheque, but his wife has given the complaint and there was no difficulty to the accused to give the complaint. 14. 13. The other witness D.W.2 is examined regarding loss of cheques. He admits that the accused has not given any complaint regarding loss of cheque, but his wife has given the complaint and there was no difficulty to the accused to give the complaint. 14. Having considered the material available on record, it is clear that though the accused disputed the signature in the cross-examination that signature not belongs to him, the signature available in the vakalath was confronted and he admits the same. It is important to note that though he contends that the notice was not served on him personally, but he categorically admits that notice was taken by his office incharge officer and handed over the notice to him and the same also bears the signature of incharge officer. When such being the case, the petitioner ought to have given the reply to the notice and no such reply was given. In the cross-examination of P.W.l, specific defence was taken that one Devraj Urs, who is the relative of P.W.l had given the cheque in favour of the complainant and the same has been misused since Devraj Urs handed over the said cheque and got filed this case and the same has been denied. But in the chief evidence also, the petitioner has stated that Devraj Urs had taken the cheques belonging to him. Why he took the cheque is not stated and how the cheque had gone to the hands of Devraj Urs is not stated by the petitioner. In paragraph No.4 he says that Devraj Urs had taken away several cheques belonging to him and not stated anything about he lost the cheque. But in the cross- examination he claims that the cheques have been lost and contra question put in the cross-examination and admittedly he has not given any complaint and also not produced any documents for having given the complaint, but relies upon the documents Exs.D.l to 3. Ex.D.l is the provident fund statement and Ex.D.2 is the endorsement issued by the police for having given the complaint by the wife of the accused on 07.07.2007 and Ex.D.3 is the affidavit of the wife and what made to sworn to an affidavit in terms of Ex.D.3, nothing is explained. Ex.D.l is the provident fund statement and Ex.D.2 is the endorsement issued by the police for having given the complaint by the wife of the accused on 07.07.2007 and Ex.D.3 is the affidavit of the wife and what made to sworn to an affidavit in terms of Ex.D.3, nothing is explained. When such being the material available on record, the very first contention that no payment dates are given, cannot be accepted and specific months are mentioned for having advanced the loan amount in the complaint as well as in his evidence. 15. No doubt, in the income tax declaration, P.W.l has not declared for having paid the money. But in the cross- examination, P.W.l admits that he has not produced any documents to show that he is paying income tax. But he admits that he is an income tax assessee. But non-filing of the document for having paid income tax will not take away the case of the complainant and the petitioner has to explain how the subject matter of cheque had gone to the hands of the said Devraj Urs and what made him to give the said cheque. Contra defence was taken in one breath that cheque was stolen and in another breath the said Devraj Urs had given the said cheque in favour of this petitioner. No reply was given when the notice was issued to the petitioner and he would have given the reply, if no such transaction was taken place between the petitioner and the complainant and afterthought only in the cross- examination inconsistent defence was taken and nothing is averred in the chief evidence regarding loss of cheque. It is only stated that Devraj Urs had taken away several cheques belonging to him and no doubt, the wife of the petitioner had given the complaint in terms of Ex.D.2, but she has not been examined before the Trial Court and both the Courts have taken note of that if she had been examined before the Trial Court, an opportunity was given to the complainant to testify the document of Ex.D.2. 16. The other contention of the petitioner is that P.W.l has admitted the relationship with Devraj Urs and mere admission that Devraj Urs is the relative of the complainant does not mean that Devraj Urs had given the cheque in favour of the complainant. 16. The other contention of the petitioner is that P.W.l has admitted the relationship with Devraj Urs and mere admission that Devraj Urs is the relative of the complainant does not mean that Devraj Urs had given the cheque in favour of the complainant. I have already pointed out that contra defence was taken in the chief examination and cross-examination and even the petitioner had gone to the extent of denying his signature available in Ex.P.l and it is not his case that the signature not belongs to him and nowhere in the affidavit he has stated that the said signature not belongs to him, but only in the cross-examination he says the same. All these materials falsify the very contention of the petitioner. No doubt, the principles laid down in the judgments referred supra by the learned counsel for the petitioner regarding the presumption as well as transaction is concerned, the accused has to probabalize his case. But in the case on hand, though the petitioner examined himself as D.W.l and got marked the documents at Exs.D.l to 3, those documents will not help the petitioner. Apart from that, the defence has not been probabalised and inconsistent defence was taken, in one breath says that said Devraj Urs had taken the cheque, but this petitioner has not given any complaint and relies upon the endorsement given by the police with regard to the complaint given by his wife. D.W.2 categorically admitted that the petitioner has not given any complaint and there was no any difficulty for him to give the complaint when the cheque belonging to the petitioner was lost. Hence, I do not find any force in the contention of the learned counsel for the petitioner to accept the argument that the petitioner has probabalised his case. 17. Regarding loss of cheque and also rebuttal of the presumption is concerned, the Apex Court in the judgment in the case UTTAM RAM v. DEVINDER SINGH HUDAN AND ANOTHER reported in (2019) 10 SCC 287 , held that inconsistencies regarding the amount due, not made out, as amount due stood crystallized in written document against which cheque in question was issued. The defence that the cheque book was lost/stolen or that cheque was misused was completely without basis. 18. The defence that the cheque book was lost/stolen or that cheque was misused was completely without basis. 18. The Apex Court in the judgment in the case of BIR SINGH v. MUKESH KUMAR reported in (2019) 4 SCC 197 held that presumption is rebuttable and onus lies on drawer to rebut it by adducing cogent evidence to the contrary. 19. The Apex Court in the case of APS FOREX SERVICES PVT. LTD. v. SHAKTI INTERNATIONAL FASHION LINKERS AND OTHERS reported in AIR 2020 SC 945 held regarding presumption is concerned that when the accused admits issuance of cheque, his signature on cheque and that cheque in question was issued for discharging the liability, there is always a presumption in favour of the complainant that there exists legally recoverable debt or liability. 20. The Apex Court in the judgment in the case of ROHITBHAI J IVANLAL PATEL v. STATE OF GUJARAT AND ANOTHER reported in AIR 2019 SC 1876 held that it is required to be presumed that cheques in question were drawn for consideration and the complainant received it in discharge of an existing debt and onus is shifted on the accused to rebut it. Unless onus is discharged by accused that preponderance of probabilities are tilting in his faovur, doubt on case of complainant cannot be raised for want of evidence regarding source of funds for advancing the loan to the accused. This judgment is delivered in 2019 subsequent to the judgment in the case of Basalingappa (supra) and further observed that failure of accused to show reasonable probability of existence of transaction with his friend. The evidence of friend not supporting his case. 21. Having considered the principles laid down in the judgments referred supra, the contention of the petitioner cannot be accepted regarding source of income and non- production of income tax declaration regarding payment and the very defence that cheque was stolen was not proved. Apart from that, when the notice was served, no reply was given and he kept quiet and during the course of trial afterthought inconsistent defence was taken and hence I do not find any merit in the petition. Both the Courts have given anxious consideration with regard to defence which have been taken. The Trial Court in paragraph Nos. Apart from that, when the notice was served, no reply was given and he kept quiet and during the course of trial afterthought inconsistent defence was taken and hence I do not find any merit in the petition. Both the Courts have given anxious consideration with regard to defence which have been taken. The Trial Court in paragraph Nos. 12 to 15 in detail discussed regarding the evidence of witnesses and particularly cross- examination was extracted and taken note of contradictions and also taken note of that the petitioner had gone to the extent of denying his signature on the cheque, but he admitted that he has received the notice sent by the complainant, but not given any reply. D.W.2 also categorically admitted the cheques were lost from the business concern being run by the wife of the accused and also elicited that accused did not choose to examine his wife. 22. The Appellate Court in paragraph No. 15 taken note of the defence taken by the petitioner and comes to the conclusion that there is no explanation from the accused for having lodged the complaint to the police and informing the bank about the loss of cheque though he claims that he gave complaint and information to the bank. Taking note of Exs.D.2 and 3, discussed in paragraph No. 16 and also taken note of the evidence of D.W.2 in paragraph No.18 and in paragraph No.23 taken note of the admission given by the P.W.l regarding income tax assessee is concerned. Merely because the complainant did not produce his income tax document, held that it cannot be said that the complainant did not lend an amount of Rs.8,00,000/-. Taking note of all the grounds, which have been urged in the appeal, definite finding was given in paragraph No.25 that there was a transaction between the complainant and the accused and earlier to this transaction, several transactions were taken place and the same has not been denied in the cross-examination of P.W.l. 23. Having considered the material available on record and findings of both the Courts, I do not find any error committed by both the Courts. Having considered the material available on record and findings of both the Courts, I do not find any error committed by both the Courts. In order to invoke the revisional jurisdiction, there must be an error in the finding of the Trial Court and the Appellate Court and if any perverse order is passed against the cogent evidence available on record, then this Court can exercise the revisional jurisdiction. I have already pointed out that though the petitioner examined himself as D.W.l and also examined D.W.2 and relied upon the documents at Exs.D.l to 3, his case has not been probabalised and preponderance of probabilities also not lies in favour of the petitioner herein and hence I do not find any force in the contention of the learned counsel for the petitioner that both the Courts have committed an error and findings of the Trial Court does not warrant interference of this Court. Hence, I answer point No.(i) as negative. Point No.(ii): 24. In view of the discussions made above, I pass the following: ORDER The petition is dismissed.