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2023 DIGILAW 1293 (KAR)

B. K. Krishnamurthy v. G. L. Rajashekar

2023-11-08

ANIL B.KATTI

body2023
JUDGMENT 1. Revision Petitioner/accused feeling aggrieved by the judgment of First Appellate Court on the file of III Fast Tract Court, Bengaluru Rural District in Criminal Appeal No.77/2012 dtd. 30/8/2014 confirming the judgment of Trial Court on the file of Chief Judicial Magistrate in Criminal Case No.548/2009 dtd. 25/8/2012 preferred this revision petition. 2. Parties to the Revision Petition are referred with their ranks as assigned in the Trial Court for the sake of convenience. 3. Heard the arguments of both sides. 4. After hearing the arguments of both sides and on perusal of the Trial Court records, including the judgment of both the courts below, the following point arise for consideration: "Whether the impugned judgment under Revision Petition is perverse, capricious and legally not sustainable and call for any interference by this Court?" 5. On careful perusal of oral and documentary evidence placed on record by complainant, it would go to show that accused being the friend of complainant approached for hand loan of Rs.1, 50, 000.00. Complainant has paid an amount of Rs.1, 50, 000.00 in cash in the month of June, 2008. Accused, in order to discharge the said legally enforceable debt, issued cheque bearing No.187751 dtd. 22/9/2008 drawn on ING Vysya Bank, Avenue Road branch, Bengaluru for Rs.1, 50, 000.00. Complainant presented the said cheque through his banker and the same was returned with bank endorsement as "account closed" vide endorsement dtd. 27/9/2008 Ex.P.2. Complainant issued demand notice dtd. 24/10/2008 Ex.P.3 through "RPAD". Notice is served to the accused vide acknowledgement Ex.P.4. Accused has replied to the said notice dtd. 21/11/2008 Ex.D1. 6. If the above referred documents are perused and appreciated with the oral testimony of the complainant, it would go to show that complainant has complied with all the legal requirements for the offence under Sec. 138 of the N.I. Act in terms of Sec. 138 (a) to (c) and the complaint is filed in time within a period of one month in terms of Sec. 142(b) of the N.I. Act. Therefore, statutory presumption in terms of Ss. 118 and 139 of the N.I. Act will be have to be drawn in favour of the complainant. 6. In this context of the matter, it is useful to refer the judgment of Hon'ble Apex Court in APS Forex Services Pvt. Ltd. Vs. Therefore, statutory presumption in terms of Ss. 118 and 139 of the N.I. Act will be have to be drawn in favour of the complainant. 6. In this context of the matter, it is useful to refer the judgment of Hon'ble Apex Court in APS Forex Services Pvt. Ltd. Vs. Shakti International Fashion Linkers and others reported in AIR 2020 SC 945 , wherein it has been observed and held that once the issuance and signature on cheque is admitted, there is always a presumption in favour of complainant that there exist legally enforceable debt or liability. Plea by accused that cheque was given by way of security and same has been misused by complainant is not tenable. It is also profitable to refer another judgment of Hon'ble Apex Court in P. Rasiya vs. Abdul Nazer and another reported in 2022 SCC OnLine SC 1131, wherein it has been observed and held that:- "Once the initial burden is discharged by the complainant that the cheque was issued by the accused and signature of accused on the cheque is not disputed, then in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for discharge of any debt or other liability. The presumption under Sec. 139 of N.I. Act is statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the complainant/holder of the cheque, in that case it is for the accused to prove the contrary." In view of the principles enunciated in the aforementioned two judgments of Hon'ble Apex Court, it is evident that when once issuance of cheque with signature of accused on the account maintained by him is admitted or proved then statutory presumption in terms of Sec. 118 and 139 of N.I. Act will have to be drawn. 7. It is now upto the accused to prove by way of rebuttal evidence to displace the statutory presumption available in favour of the complainant. In this context of the matter, it is useful to refer the judgment of Hon'ble Apex Court in Basalingappa Vs. Mudibasappa reported in 2019 Cr.R. page No. 639 (SC), wherein it has been observed and held that: "Presumption under Sec. 139 is rebuttable presumption and onus is on accused to raise probable defence. In this context of the matter, it is useful to refer the judgment of Hon'ble Apex Court in Basalingappa Vs. Mudibasappa reported in 2019 Cr.R. page No. 639 (SC), wherein it has been observed and held that: "Presumption under Sec. 139 is rebuttable presumption and onus is on accused to raise probable defence. Standard of proof for rebutting presumption is that of preponderance of probabilities. To rebut presumption, it is open for accused to rely on evidence laid by him or accused can also rely on materials submitted by complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from materials brought on record by parties, but also by reference to circumstances upon which they rely. It is not necessary for accused to come in witness box in support of his defence. Sec. 139 imposed an evidentiary burden and not a presumptive burden". Further, the Hon'ble Apex Court in its latest judgment in Rajesh Jain v/s Ajay Singh reported in 2023 SCC OnLine SC 1275, wherein it has been observed and held that, once issuance of cheque with signature of accused is either admitted or proved then, statutory presumption will have to be drawn in favour of the complainant. In view of the principles enunciated in both the aforementioned judgments of Hon'ble Apex Court, it is evident that the accused to probabilise his defence can rely on his own evidence or also can rely on material submitted by complainant. It is not necessary for the accused to step into witness box to probabilise his defence. 8. In the present case, accused has not chosen to lead any of his independent evidence, but has relied on the evidence placed on record by the complainant. However, accused got marked the reply issued to the demand notice Ex.D1 by confronting the same during the course of cross-examination of PW.1. 9. 8. In the present case, accused has not chosen to lead any of his independent evidence, but has relied on the evidence placed on record by the complainant. However, accused got marked the reply issued to the demand notice Ex.D1 by confronting the same during the course of cross-examination of PW.1. 9. On perusal of the reply issued by the accused to the demand notice of the complainant, it would go to show that it is the defence of the accused that his relative, one Sri K Dhanraj, has raised loan of Rs.1, 00, 000.00 from one Girish G H. At the time of paying the loan, the said Girish has taken two blank cheques bearing Nos.076119 and 076117 both drawn on Canara Bank from the aforesaid Dhanraj and as a guarantor to the said transaction, the said Girish had also taken signed blank cheque from the accused bearing No.187751 drawn on ING Vysya Bank, Bengaluru. The said Girish has handed over the blank cheque belongs to the accused to the complainant and by misusing the same, the complainant has filed this complaint. The said defence in the reply notice-Ex.D1 even has not been suggested to PW.1 during the course of cross-examination. It has also not been elicited in the cross-examination of PW.1 as to how Girish is concerned with the complainant and the occasion or circumstance under which Girish had given the cheque Ex.P.1 to complainant has not been brought on record. The accused has not examined the said Girish in support of his defence raised in Ex.D.1 so as to draw an interference regarding the manner in which complainant came in possession of the cheque Ex.P.1. Therefore, the mere contention taken in the reply given to the demand notice Ex.D1 itself cannot be said as sufficient rebuttal evidence to displace the statutory presumption available in favour of the complainant. It is the duty of the accused to probabalise such defence either by bringing required materials during the course of cross-examination of PW.1 or in the crossexamination of witnesses relied by the complainant. Otherwise, it was the duty of accused to step into the witness box and give evidence to substantiate the said defence taken in the demand notice Ex.D.1. It is the duty of the accused to probabalise such defence either by bringing required materials during the course of cross-examination of PW.1 or in the crossexamination of witnesses relied by the complainant. Otherwise, it was the duty of accused to step into the witness box and give evidence to substantiate the said defence taken in the demand notice Ex.D.1. In the absence of any rebuttal evidence of accused either by way of independent evidence or by bringing material evidence in the cross-examination of the complainant, the statutory presumption available in favour of the complainant would continue to operate. 10. Accused has not denied that he has maintained an account in ING Vysya Bank and signature appearing on Ex.P.1. Therefore, when the cheque Ex.P.1 is drawn on the account maintained by accused and admitting the signature on it then, the complainant enjoys the statutory presumption available in his favour in terms of Sec. 118 and 139 of the N.I.Act. In the present case, the accused has failed to probabalise his defence neither by bringing the material evidence during the course of cross- examination of complainant - PW.1 nor chosen to lead any of his evidence. Mere defence stated in the reply to the demand notice Ex.D1 cannot be accepted as sufficient rebuttal evidence. The Courts below have rightly appreciated the oral and documentary evidence placed on record and are justified in holding that complainant has proved that the accused has committed offence under Sec. 138 of the N.I. Act. 11. Now coming to the question of imposition of sentence. The Trial Court has sentenced the accused to undergo S.I. for 6 (six) months and pay fine of Rs.1, 00, 000.00; out of the fine amount, an amount of Rs.95, 000.00 is ordered to be paid to the complainant and remaining amount of Rs.5, 000.00 is ordered to be deposited to the State defraying the expenses of the prosecution. The question is as to whether imposition of sentence of 6 (six) months imprisonment is justified in the given set of facts and circumstances of the case has to be considered. In this context, it is profitable to refer the judgment of Hon'ble Apex Court in SOMNATH SARKAR VS. UTPAL BASU MALLICK AND ANOTHER reported in (2013) 16 SCC 465 , wherein the Hon'ble Apex Court by relying on its earlier judgment in DAMODAR S. PRABHU VS. In this context, it is profitable to refer the judgment of Hon'ble Apex Court in SOMNATH SARKAR VS. UTPAL BASU MALLICK AND ANOTHER reported in (2013) 16 SCC 465 , wherein the Hon'ble Apex Court by relying on its earlier judgment in DAMODAR S. PRABHU VS. SAYED BABALAL H. reported in (2010) 5 SCC 663 extracted paragraph 17, which reads as under : "17. Unlike that for other forms of crime, the punishment here (insofar as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque." The Hon'ble Apex Court having referred the said finding has observed and held that Statute provide for imposition of imprisonment was only intended to ensure quick recovery of the amount payable under the instrument. It has been further held that the legislative intent was to provide a strong criminal remedy in order to deter the worryingly high incidence of dishonour of cheques. While the possibility of imprisonment up to two years provides a remedy of a punitive nature, the provision for imposing a 'fine which may extend to twice the amount of the cheque' serves a compensatory purpose. What must be remembered is that the dishonour of a cheque can be best described as a regulatory offence that has been created to serve the public interest in ensuring the reliability of these instruments. The impact of this offence is usually confined to the private parties involved in commercial transactions. In view of the principles enunciated in this decision and the object of legislature in incorporating the provision for punishment for offence under Sec. 138 of N.I. Act is to ensure the credibility of the money involved covered under the cheque. 12. The impact of this offence is usually confined to the private parties involved in commercial transactions. In view of the principles enunciated in this decision and the object of legislature in incorporating the provision for punishment for offence under Sec. 138 of N.I. Act is to ensure the credibility of the money involved covered under the cheque. 12. In the present case, the accused has taken hand loan of Rs.1, 50, 000.00 and this Court while passing the interim order in suspending the sentence has ordered to deposit Rs.30, 000.00 before the Trial Court and ordered to release the Revision Petitioner/accused on bail on his executing a personal bond for a sum of Rs.50, 000.00 with one solvent surety to the satisfaction of the Trial Court. Under these circumstances and looking to the evidence placed on record, imposition of sentence of imprisonment for six months is too harsh and the same requires interference of this Court to modify the sentence awarded by the Trial Court which is confirmed by the First Appellate Court. Consequently, proceed to pass the following : ORDER The Revision Petition filed by Revision Petitioner/accused is hereby partly allowed; The judgment of First Appellate Court on the file of III Fast Tract Court, Bengaluru Rural District in Criminal Appeal No.77/2012 dtd. 30/8/2014 confirming the judgment of Trial Court on the file of Chief Judicial Magistrate in Criminal Case No.548/2009 dtd. 25/8/2012 is ordered to be modified as under : The imposition of S.I. for six months for the offence under Sec. 138 of the N.I. Act is hereby set aside. The fine amount with default sentence as ordered by the Trial Court which is confirmed by the First Appellate Court stands confirmed. Registry to send back the records to Trial Court with a copy of this order.