(Prayer: This Crl.RP filed u/S.397 r/w 401 Cr.P.C by the advocate for the petitioner praying that this Hon'ble Court May be pleased to set aside the judgment and order of conviction dated 06.01.2017 made in C.C.No.204/2014 by the Court of Senior Civil Judge and JMFC, Arsikere and the judgment and order dated 01.08.2017 made in Crl.A.No.26/2017 by the V Addl. Dist. and S.J., Hassan.)
Oral Order
1. Heard Sri. Nishit Kumar Shetty, learned counsel for the petitioner and Sri. P.B. Umesh for Sri. R.B. Deshpande, learned counsel for respondents No.2 to 5.
2. Accused who suffered an Order of conviction in CC No.204 of 2014 for the offence punishable under Section 138 of the Negotiable Instruments Act and directed to pay a sum of Rs.4,04,000/- as the fine amount of which, a sum of Rs.4,00,000 /- as compensation to the complainant and Rs.4,000/- towards the defraying expenses of the State confirmed in Criminal Appeal No.26 of 2017 is the revision petitioner.
3. Facts in the nutshell which are utmost necessary for disposal of the present revision petition as under:
3.1 A private complaint came to be lodged under Section 200 of the Code of Criminal Procedure, a private complainant, alleging the commission of the offence mentioned under Section 138 of the Negotiable Instruments Act contending that accused approached the complainant on 01.12.2013 and borrowed a sum of Rs.4,00,000/- as the hand loan to meet the domestic exigencies with a promise to repay the same within two months.
3.2 Towards the repayment of the hand loan amount, a Cheque bearing No.076849 dated 05.02.2014 drawn on State Bank of India, Arasikere Branch was issued which on presentation came to be dishonored with an endorsement 'insufficient funds'.
3.3 A statutory notice was issued on 03.05.2014. But the same is returned with an endorsement 'not claimed'. Since there was no compliance to the callings of notice, action was initiated.
3.4 Learned trial magistrate after completing the necessary formalities, recorded the plea and posted the matter for evidence of the parties.
3.5 In order to prove the case of the complainant, complainant got examined himself as PW1 and a witness by name Suresh as PW2. Besides placing twelve documentary evidence on record which are exhibited and marked as Exhibit P1 to Exhibit P12, comprising of dishonored cheque, bank endorsements, copy of the legal notice, returned postal cover, Portal acknowledgment, RTC extracts voters list.
3.6 As against the material evidence placed on record, accused got examined himself as DW1 and a witness by name Kumar as DW2 and placed on record 6 documentary evidence comprising of bank counter file, letter, residential certificate, Aadhar card, voters list.
3.7 Thereafter, learned trial magistrate heard the arguments of the parties and convicted the accused holding in paragraphs 16 to 20 are as under ;
16. Firstly, the accused has contended that the notice issued by the complainant was not duly served on him. In the evidence he admitted the address given by the complainant in the cause title of the complaint. As per cause title, the address of the accused was given as "Bittenahalli Village, Panchanahalli Hobli, Kadur taluk". The notice Ex.P.4 and postal cover Ex.P.5 also discloses the same address. According to DW.1 the said address is his permanent address. So, in view of decision reported in 2006(4) KCCR page 2375, the Hon'ble High Court has held that "once there is proof of posting of notice to correct address it is deemed to have been served". The notice. returned as not claimed but not for insufficient address. The accused has failed to examine the post office official to prove that the endorsement made is wring. accused has not summoned and examined the Post Master who made shara on Ex. P.6. The voters list [produced are of the year 2016 and 2017. The transaction is much earlier to it. The notice was issued by the complainant to the correct address of the accused. Thus, I do not find any force in the contention of the accused in this regard.
17. Secondly, the contention raised in regard to passing of consideration of Rs.4 lakhs by the complainant to the accused. DW. 1 in his cross-examination has stated that in the year 2008 he had borrowed Rs.3 lakhs from the complainant and towards the said transaction he pledged 80 grams gold ornaments and issued 6 blank cheques and one promissory note. According to him he repaid the said amount. In the chief-examination has stated in the year 2006 he borrowed Rs.1 lakhs from the complainant and issued pronote and 6 cheques to the complainant. He further stated in the year 2001 he credited the amount of Rs. 40,000/- to the complainant's account. Ex.D.1 Bank challen goes to show that on 26.2.2001 he credited Rs.40,000/- to the complainant's account. So, whatever the amount credited by the accused in the year 2001 is prior to this transaction.
18. The accused himself has given 2 different versions in regard to availment of loan from the complainant. At first instance, in the year 2006 he borrowed Rs. 1 lakh and another instance in the year 2008 he borrowed Rs.3 lakhs and issued 6 cheques. So, he himself has not definite about the transaction made by him with the complainant. Further, he stated that he borrowed the amount in the year 2008 for the purpose of purchase of lands. He also contended that he borrowed loans at several Banks and several independent persons. He stated Ex.D.1 is not connected to the present transaction. He further admitted Ex.D.1 and 2 are in his handwriting. So, the evidence of DW. 1 itself goes to show that he has several transactions with the complainant.
19. DW.2 in his cross-examination pleaded ignorance in regard to previous transactions between the complainant and accused and on the date of execution of Ex.D.2 the accused has paid Rs.50,000/- to the complainant. This fact was not forthcoming in Ex.D.2. So, the evidence of DW.2 is also no way helpful to the accused to prove his defence. More importantly, Ex.D.2 came into existence during the pendency of the trial. Admittedly, the said document was written in a half sheet. The other portion of the paper was torned and written in the half sheet. This fact was admitted by the accused and the witness. According to recitals of the document the transaction between the complainant and accused was settled and complainant agreed to return the document to the accused. The accused has filed application U/s 45 of the Evidence Act to send the said document to handwriting expert. The said application was dismissed on the ground that the dispute in question is not in respect of execution of Ex.D.2. The said orders remained unchallenged.
20. The testimony of DWs. 1 and 2 supports the case of complainant in regard to financial capacity of the complainant and the accused had several transactions with the complainant. The accused has not denied the issuance of cheque and signature on it. The accused has failed to rebut the presumption. Hence, there is no impediment on the part of Court to draw presumption U/s 139 of the N.I.Act in regard to passing of consideration and in issuance of cheque by the accused for discharge of legally recoverable debt. Therefore, I have reached to the conclusion that the complainant has successfully, proved the guilt of accused beyond reasonable doubt by placing cogent corroborative and convincing evidence. Hence, the accused is found guilty. Thus, I answer point No.1 in the affirmative. So, there is no impediment on the part of Court to draw presumption U/s 139 of the N.I.Act.
4. Being aggrieved by the same, accused filed an appeal before the First Appellate Court before District Court in Criminal Appeal No.26/2017.
5. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and by judgment dated 01.08.2017, dismissed the appeal.
6. Being further aggrieved by the same, accused is before this Court in this revision petition on following grounds.
* That the judgment and orders of conviction and sentence passed by the Courts below are highly illegal, perverse, arbitrary and unreasonable.
* That the Courts below have committed serious material irregularities and illegalities in appreciating the material evidence available on record and has mechanically proceeded to convict the petitioner without any basis.
* It is submitted that there is no transaction between complainant and accused. Petitioner never borrowed the money from complainant and no notice also issued to the petitioner with regard to bouncing of cheque and the petitioner was examined him as DW.1 and proved that the petitioner has not issued the cheque towards discharge of the legally enforceable debt and it was issued as security for long back and the same has been misutilised by the respondent and he clearly demonstrated his defence and had rebutted the presumption available to the complainant under section 139 of N.I.Act with regard to the issuance of cheque which is more probable but the courts below failed to prove this important aspect and passed impugned orders which is bad in law.
* It is submitted that the Courts below ought to have held that the complainant failed to establish that he is the holder of the cheque as defined under Section 8 of N.I.Act. In the absence of establishing the same, no presumption shall be drawn under Section 139 of N.I.Act and Indian Evidence Act.
* It is submitted that the courts below have not considered the cross examination of PWs 1 and 2 and so also the defence evidence of DWs 1 and 2 and the documentary evidence produced by the petitioner. The Courts below have not appreciated the defence evidence and documentary evidence produced by the petitioner.
* It is submitted that the complainant has not produced any documents to prove the lending of money to the petitioner. Therefore the main base of the case of the complainant was collapsed. This has not been considered by the courts below and it is also highly improbable that he has given such huge amount to the petitioner without any documents as well as without interest.
* It is submitted that the petitioner has clearly established that there is no legally enforceable debt based upon the materials submitted by the respondent/complainant and the Courts below have failed to apply the principles as laid down by the Hon'ble Supreme Court in CDJ 2010 SC Page 418. The Courts below ought to have applied the said principles and according to which the petitioner is liable for acquittal.
* It is submitted that the Courts below have not considered the admissions made by the complainant and her witnesses in their cross examination which is against the established principles of law. This clearly shows that the cheque amount has not issued towards the repayment of legally recoverable debt.
* It is submitted that the Courts below have not given importance to the evidence of petitioner and so also the averments admitted by the respondent and his witness in the cross examination.
* It is submitted that during the course of evidence it is established that no notice is served to the petitioner and complainant has not proved the service of notice under section 138 of NI. Act. On this ground alone petitioner is entitle for acquittal.
* It is submitted that, the complainant has failed to satisfy the ingredients of Section 138 of Negotiable Instrument Act and the complainant has also failed to prove 'debt' and the said debt is legally enforceable debt. Further, the complainant has not produced any materials before the Trial Court to prove the alleged debt. The both courts failed to appreciate this important facts, blindly passed the impugned judgments.
* Without prejudice to the contentions taken above, the conviction and imposing of sentence of fine and default imprisonment is on higher side.
7. Sri. Nishit Kumar Shetty, learned counsel for the revision petitioner reiterating the grounds urged in the petition, vehemently contended that both the Courts have not properly appreciated the material evidence placed on record in the form of oral testimony of DW1 and DW2 coupled with Exhibit D1 to Exhibit D6 which was sufficient enough to establish that the Cheque has been misused by the complainant and sought for allowing the revision petition.
8. Per contra, Sri. Umesh, learned counsel for the legal representatives of the original complainant, supports the impugned judgments.
9. Having heard the arguments of both sides, this Court perused the material on record meticulously.
10. On such perusal of the material on record, it is crystal clear that Exhibit P1 Cheque belongs to accused and signature found therein is that of the accused.
11. Case of the complainant is that accused borrowed a sum of Rs.4,00,000/- as hand loan on 01.12.2013 to meet domestic exigencies.
12. To establish the loan transaction, complainant also examined a witness by name Suresh as PW2.
13. Dishonored Cheque coupled with the documentary evidence placed on record was sufficient enough to raise the presumption in favour of the complainant as is contemplated under Section 139 of the Negotiable Instruments Act.
14. No doubt said presumption is a rebuttable presumption. To rebut the said presumption, accused got examined himself as DW1 and a witness in his favour as DW2.
15. In the Examination-in-Chief of accused, he has stated that accused/complainant is acquainted to him and he had a transaction in the year 2006.
16. At that juncture, he had issued six cheques as security but he is not due in a sum of Rs.4,00,000/-.
17. In his cross examination, he admits that complainant is acquainted with him for last 20 years and in the year 2008 he had borrowed some more Rs.3,00,000/- and towards the security, he had given 80 grams of gold and six blank cheques and a signed promissory note. He stated that he has repaid the said loan.
18. In other words, he has pleaded discharge of the loan amount. If it is so, it is for the accused to prove the said fact by placing necessary material evidence on record.
19. In order to establish the plea of discharge, he has examined a witness by name Kumar who has stated that on 13.02.2015, accused has paid a sum of Rs.50,000/-.
20. Exhibit D2 is the document which has been placed on record on behalf of the accused wherein signature of DW2 is also found.
21. In Cross-examination of DW-2, he admits that accused is acting as a pigmy collector. Except on the date of Exhibit D2, he has not participated in any other transactions between the complainant and accused. He admits that he is not aware of what is the transaction between the complainant and accused and how much amount accused is due to the complainant.
22. He admits that he has not seen the gold ornaments belonging to accused. He admits that the contents of Exhibit D2 is in the handwriting of the accused. He admits that payment of Rs.50,000/- as is deposed by him in examination-in-chief is not found in Exhibit D2.
23. Taking note of the oral testimony of DW1 and DW2 coupled with the documentary evidence that is placed on record, Exhibit D2 is not the receipt for having repaid the entire loan amount.
24. On the contrary the contents of Exhibit D2 would go to show that the complainant would return the six cheques, gold ornaments and also withdraw the criminal case in CC No.204 of 2014.
25. Admittedly, when a plea of discharge is taken by the accused, it is for him to establish with cogent evidence on record.
26. No such material evidence is forthcoming on record except D2. Further, in the examination chief, accused has stated that last transaction with the complainant is in the year 2006. But in cross-examination he admits that he had borrowed sum of Rs.3,00,000/- in the year 2008.
27. The transaction which has allegedly taken place in 2006 is in a sum of Rs.1,00,000/-. If it is so, why would the accused admit that he had borrowed sum of Rs.3,00,000/- in the year 2008 is a question that remains unanswered.
28. Be it what it may, when the plea of discharge has been pleaded and it is not established by placing cogent and convincing evidence on record. The presumption available to the complainant under Section 139 of the Negotiable Instruments Act stood unrebutted.
29. Admittedly, Cheque is belonging to the accused and signature found therein is that of the accused. Therefore, learned Trial Magistrate was justified in convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act.
30. Further, no action has been taken by the accused even after he received the summons and participated in the trial if the cheque has been misused as is contented by the accused.
31. Therefore, viewed from any angle this Court does not find any good grounds to interfere with the well reasoned judgment passed by both the Courts that too in the revisional jurisdiction.
32. Accordingly, following Order:
ORDER
(i) Revision Petition is dismissed.
(ii) Amount in deposit is ordered to be withdrawn by the legal representatives of complainant under due identification.
(iii) Balance amount shall be paid on or before 02.04.2026 failing which, accused shall undergo imprisonment as ordered by the Trial Magistrate confirmed by the First Appellate Court.
