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2023 DIGILAW 251 (KAR)

Vittal Kumar v. N. P. Chandran

2023-02-10

RAMACHANDRA D.HUDDAR

body2023
ORDER 1. Appellant being accused before the Trial Court in C.C.No.551/2008 on the file of JMFC V Court, Mangalore, being aggrieved by the Judgment of his conviction and sentence in the said case as per the Judgment dated 10.10.2011 and the said Judgment of conviction and sentence being affirmed by the I Addl. Dist. and Sessions Judge, D.K. Mangalore, in Crl. A. No.194/2011 dated 01.01.2014, has preferred this revision under Section 397 read with section 401 of Cr.P.C. 2. For the purpose of convenience, I refer the parties as per their rank before the Trial Court. 3. Brief relevant facts up to this revision are as under: That complainant being respondent in this revision, filed a private complaint in P.C. No.2922/2007 before the JMFC, V Court, Mangaluru for the offence punishable under Section 138 of the N.I. Act, against the revision petitioner. It is alleged in the complaint that accused issued a cheque bearing No.464596 dated 29.10.2007 drawn on Oriental Bank of Commerce, Balmatta Road, Mangalore for Rs.85,000/- in favour of the complainant. Towards repayment of the amount due to the complainant. The said cheque was presented by the complainant for encashment through his banker, but it was dishonoured for want of sufficient funds in the account of the accused. Thereafter, on receipt of the memo from the bank, complainant issued the statutory notice and called upon the accused to pay the cheque amount. On his failure, complainant filed the aforesaid complaint against the accused. 4. The learned Trial Court on filing the private complaint, took cognizance of the offence, recorded the sworn statement of the complainant. Issued process against the accused by registering CC No.551/2008 against the accused. Pursuant to the summons, accused appeared before the Trial Court. He was enlarged on bail. 5. Substance of accusation framed, read out, explained against the accused for the offence punishable under Section 138 of the N.I. Act. He pleaded not guilty and claimed to be tried. 6. To prove the offence against the accused, complainant himself entered the witness box as P.W.1 He got marked Exs.P1 to P5 and closed his evidence. Thereafter, accused was questioned under section 313 of Cr.P.C. so as to enable him to answer the incriminating circumstances appearing in the evidence of the complainant. He denied his complicity in the crime. Submits before the Trial Court to lead defence evidence. Thereafter, accused was questioned under section 313 of Cr.P.C. so as to enable him to answer the incriminating circumstances appearing in the evidence of the complainant. He denied his complicity in the crime. Submits before the Trial Court to lead defence evidence. Accordingly, he entered the witness box as D.W.1 and got marked Exs.D1 to D4 in support of his defence. 7. The learned Trial Court, after hearing the arguments of both the sides and on perusal of the documentary and oral evidence, by exercising its power under Section 255 (2) of Cr.P.C. convicted the accused for the offence under Section 138 of the N.I. Act and sentenced him to pay a fine of Rs.1,00,000/-with default sentence to undergo simple imprisonment for six months. It is further ordered to pay the compensation to the complainant to the extent of Rs.1,00,000/- by exercising powers under Section 357(3) of Cr.P.C. 8. This Judgment of conviction and sentence so passed by the Trial Court was challenged by the accused before the I Addl. Dist. and Sessions Judge, D.K., Mangaluru, by filing Crl.A. No.194/2011. The learned I Addl. Dist. and Sessions Judge, D.K., Mangaluru, being the appellate court, after hearing the arguments of both the sides, passed the Judgment on 01.10.2014 confirming the Judgment passed in C.C. No. by the JMFC, V Court, Mangalore. 9. Being aggrieved by the said concurrent finding of the Trial Court as well as First Appellate Court, accused has preferred this revision before this Court on the following grounds: 10. That the Judgment of conviction and sentence passed by the Trial Court and First Appellate Court are contrary to law and evidence so also probability of the defence of the accused. Thereby, both the Courts erred in holding that the accused failed to discharge his burden of rebuttal proof. 11. It is further stated that as per contents of Ex.P4 the notice and the averments made in the complaint and as deposed to by the complainant, with regard to issuance of the cheque without specifying the details of the alleged due is against the provisions of Section 139 of the N.I. Act. The notice so issued by the complainant was duly replied. The alleged loan transaction set up by the complainant and advanced by loan of Rs.85,000/- in cash to the accused on 1.11.2016 is false. The notice so issued by the complainant was duly replied. The alleged loan transaction set up by the complainant and advanced by loan of Rs.85,000/- in cash to the accused on 1.11.2016 is false. According to him, he has not availed any loan from him and there are no loan transactions earlier in between complainant and accused. Ex.D1 the bank pass book shows about the transaction which is not properly appreciated by both the courts. The cheque so alleged was not for discharge of alleged any liability but even then, the Trial Court without looking to the evidence has convicted the accused to sentence. Already there is a payment of Rs.62,600/- by the accused to the complainant. Therefore there could not have any occasion to the complainant to issue the cheque dated 29.10.2007 to the complainant. Amongst other grounds, it is prayed by the accused - Revision Petitioner to allow the Revision Petition and craved to acquit him. 12. After filing this revision, notice came to be issued to the respondent - complainant. He appeared through his counsel. The records of First Appellate Court and Trial Court are secured. 13. Heard arguments from both sides. Meticulously perused the records. 14. It is the case of the complainant that in discharge of the liability, accused issued a cheque on 29.10.2007 drawn on Oriental Bank of Commerce for Rs.85,000/- at Mangalore. The said cheque was presented by the complainant and it was dishonoured for want of sufficient funds on 30.10.2007. Thereafter, complainant got issued the statutory notice on 01.12.2007 which was served upon the accused. But accused did not pay the cheque amount. Thereafter, private complaint came to be filed before the JMFC V Court within the statutory period. The said private complaint was registered in C.C. No.551/2008. These are all admitted facts. 15. Consequent upon the conviction and sentence passed by the Trial Court as well as the First Appellate Court, now the accused - revision petitioner contends in this revision petition that there are no transactions as alleged by the complainant. Therefore, the Judgments of conviction and sentence are liable to be set aside and it is prayed to acquit him. 16. The learned Advocate for the revision petitioner took this court through various oral and documentary evidence and submits that sufficient grounds have been made out by the revision petitioner to acquit him. Therefore, the Judgments of conviction and sentence are liable to be set aside and it is prayed to acquit him. 16. The learned Advocate for the revision petitioner took this court through various oral and documentary evidence and submits that sufficient grounds have been made out by the revision petitioner to acquit him. On the other hand, the learned Advocate for respondent - complainant supported the reasons being assigned by the Trial Court and First Appellate Court and prays to dismiss the revision. 17. On perusal of the evidence of complainant, he has spoken on par with the complaint and also speaks about the transaction entered into prior to issuance of cheque Ex.P1. That means, accused is a person who had previous loan transactions with the complainant. The cross-examination of P.W.1 shows that, there were transactions in between them and accused has issued the so called cheque Ex.P1 in discharge of the liability. According to the complainant, with regard to previous transactions, he had lent the loan to the accused and accused has repaid the loan amount. He says that he lent loan of Rs.85,000/- which he was possessing and it was a loan transaction between himself and accused. There was no further denial of this fact by the accused. A suggestion is directed to P.W.1 in page No.5 of the cross-examination that, except signature of P.W.1, the others are filled by the complainant. This suggestion goes to establish that, accused fairly admits his signature on Ex.P1. This evidence is further supported by another suggestion that complainant has misused the blank cheque. But this suggestion is denied. When suggestions are denied, they have no evidentiary value. 18. D.W.1 being the accused in this case, in examination-in chief itself admits about the loan transaction of taking loan of Rs.60,000/-. He states that, it was agreed to repay the same within hundred days. According to him, with regard to such a payment, he has maintained a note book marked as Ex.D2. Relying upon this document, it is stated that, at various dates commencing from 26.04.2006 certain amounts have been mentioned in front of each date and even it is stated that there was a balance of Rs.72,000/- in the said note book. But this note book as rightly appreciated by the both the Courts, do not bear signature of the complainant for having received money at various dates. But this note book as rightly appreciated by the both the Courts, do not bear signature of the complainant for having received money at various dates. It may be a self-serving document produced by the accused so as to prove his defence of re-payment. No doubt, while marking this document, no objections are raised but that does not mean that mere marking a document would dispense its proof. It is stated by the complainant that, there is a wilful default of the accused in repayment. In the reply notice, Ex.D1, it is stated at page No.3 that "there is no wilful default on the part of my client towards your client. Due to unforeseen and unavoidable circumstances, venture of my client entered in failure which fact is within the knowledge of your client." This recital of Ex.D1 goes against the defence of the accused. Ex.D3 is the bank pass book, D4 is a bank statement. These documents would not support the defence of the defendant in any manner. 19. So also signature of accused on Ex.P1 is concerned, it is admitted. So far as dishonour of cheque is also not denied. Receipt of Ex.P4 is also not denied. 20. Law regard to provisions of Section 138 of the N.I. Act are now well-settled. In BIR SINGH VS. MUKESH KUMAR reported in (2019) 4 SCC 197 , it is held by the Hon'ble Supreme Court of India as under: "33. A Meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. xxx 36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt." 21. A drawer who signs a cheque and hands it over to the payee, is presumed to be liable unless the drawer adduces his evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in discharge of a liability. That means, the presumption arises under Section 139 of the N.I. Act. 22. No doubt, Section 139 of the N.I. Act mandates that, it shall be presumed, unless the contrary is proved, that the holder of a cheque received it, in discharge, in whole or in part, of a debt, or liability. This expression "unless the contrary is proved" indicates that the presumption under Section 139 of the N.I. Act is rebuttable. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden. 23. In this case, accused has not rebutted the presumption under Section 139 of the N.I. Act with legal evidence. So therefore, if all these factual features coupled with the oral and documentary evidence are put together, the accused - revision petitioner has utterly failed to prove his defence. Even it is stated that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment would attract presumption under Section 139 of the N.I. Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. Both the Trial Court and Appellate Court have given findings based upon facts so brought on record by applying the provision of law. The said findings are the sound findings. Both the Trial Court and Appellate Court have given findings based upon facts so brought on record by applying the provision of law. The said findings are the sound findings. I do not find any factual or legal error being committed by both the Courts in arriving at such a conclusion of finding accused guilty. More so, the powers of Revisional Court is limited. The Revisional Court cannot sit as an Appellate Court and interfere with such fact findings of both the Courts. Therefore, the Judgment of conviction passed by JMFC V Court, Mangalore, and affirmed by the First Appellate Court are to be confirmed. 24. Resultantly, I pass the following: ORDER The Revision Petition filed by the petitioner - accused is dismissed. The Judgment of conviction and sentence passed by the Trial Court in C.C. No. 551/2008 dated 10.10.2011, and affirmed by the Appellate Court Judgment, in Crl. A. No.194/2011 dated 01.01.2013, are hereby confirmed. Revision Petitioner is directed to deposit the fine amount before the Trial Court within four weeks from today. On such deposit, Trial Court is directed to release the compensation amount so awarded to the complainant. Send back the Trial Court and Appellate Court records along with a copy of this order, forthwith.