1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated this the 24"' Day of February 2010 BEFORE V. THE HON'BLE MRJUSTICE JAWAD RAHIM CRL.RP.NO. 771/2009 " I L' BETWEEN: G.S.MOHAMMED IMTIAZ, S/O LATE G.MOHAMMED SULAIMAN, A' AGED ABOUT 48 YEARS, NEW SHAKTI ELECTRICALS, DOOR NO.1923, POLICE BAR LINE ROAD, CHIKAMAGALORE. " " _ . ".I._PETITIONER [By Sri MqhanE~-Bhat, _Ad~vE;']. ' 2 AND: AJMULSHAREVEF', 15., 1, 5/0 GHOUSE A.SH,ERIFIF, _ AGED ABOUT 46-I'EARS,'«..,, . ' HAMDARD CLINIC, " AZAD ROAD,' HASSAN. _ . . I. ..RESPONDENT [Ey'*--Sri_ Vigneshwar S.Shastri, Adv.] T,HIS--4CR--L.RP IS FILED UNDER SECTION 397 R/W 401 _C'R._P'.'C _P43AYI'r~IG"_TO SET ASIDE THE JUDGMENT AND ORDER DATED '3«.1§§~0_8*~2'009 IN CRL.A.NO.167/2008 PASSED BY THE PRI,_I\?ICIPALI~S_E'SSIONS JUDGE, HASSAN AND THE JUDGMENT AND-OR._DEP,""OF CONVICTION AND SENTENCE DATED 22-10- 20D8 IN'j_C.C.NO.1208/2000 PASSED BY THE II ADDITIONAL '--VICIVIL BUDGE (JR. DN) AND JMFC, II COURT, HASSAN CONVICTING THE PETITIONER FOR THE OFFENCE PUNISHABLE A :U\lDE'R SECTION 138 OF N.I. ACT AND THEREBY ACQUIT THE PETITIONER FROM THE OFFENCE P/U/S 138 OF N.I ACT. THIS CRL.RP COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: W 2 ORDER
Convicted accused is in revision againvste’.._”the
judgment in Crl.A.No.167/2008 dated
file of the Principal Sessions Judge, Hassan,
judgment in cc No.12’O8/2000 daptedjxzi.ityéoos-on, ,tVne’:’
file of the II Additional Civil Judge;.,p,(3–r.on.)t’3g “I:
Court, 1-lassan, convicting the’Vl’l’p.e’titiVone’r~for”the; offence
punishable under Section ‘l\_ie,go.ti_able Instrument
Act, (for short ‘the N.I.Act7:)_.’~., A it
2. The”:na.tterIis.’Iis_ted’»fohladfflission.
isjvjpladrnitted and taken up for final
disposal as the du ly represented.
_; ‘4.,_Before..adverting to the contentions urged and the
v:’isls_’ue the learned counsel for the petitioner, a
“brifi-;_f irefe’reV_ncxetb the factual matrix is necessary, it is;
The-.A::”espondent initiated prosecution against the
iieitltionelr for the offence punishable under Section 138 of
A ‘~th’e Negotiable Instruments Act (for short ‘the Act’) on the
-»-premise that he owned three sites. He transacted with the
respondent to sell one of the sites for Rs.55,000/– and the
agreement Ex.P.9 came to be executed interalia between
6*”
3
the parties specifying the terms of the contract. In
relation to the said transaction, the petitioner was to pay
Rs.55,000/~. As part payment of the sale considerat~i.o:n.,’_lhe
paid Rs.15,000/- under Ex.P.9 and
Rs.40,000/- on completion of the tra.nsactio’n,”‘ of’ 9″
the said transaction, the petitio’n’er:’_’_’was ‘l.ia’ble to,”jpa*,r.:
Rs.40,000/~ on 1.8.1997. “i”_o’wards”paym_en.tef~th.e said
amount, the accused ,__lssued,_…th’e.,impugnedpgchveque for
Rs.40,000/-. l-ioweve”r,V:r},men_ was presented
to the Bank, it was disl1’o’noTured..fo_r l.iV’lS.l,.J..’Vl’:l’7’l”CZ!.l€l’lC\/ of funds.
It necessitated ,_of_,..sta«t:3ftory,’notice as envisaged
underzijhvtilalusefip) of the N.I.Act. Despite
service of,Vn’otice,.,_th1e*–res-pendent failed to comply.
thllis’-ba,S_i_s,. the learned jurisdictional Magistrate
‘t,o’o!<_co,g'niz«a,rl'ce_ and secured presence of the accused who
a~p«peared'h7and,:= after entering appearance, appears to have
defaulted appearance resulting in 9 years delay in
prosecution of the case. However, the complainant on his
palrtliilead evidence in trial PW.1 and placed reliance on 9
9' "documents, which comprised Ex.P.1–Cheque, Exs.P.2 to 5
endorsements issued by the Bank, Ex.P.6-Bank note,
Ex.P.7–copy of the legal notice, Ex.P.8*acknow|edgment
W'
4
signed by the accused and Ex.P.9–copy of the agreement
of sale.
6. In negation of the evidence so tend~e–red,’__’__’t’he”
petitioner-accused also tendered eviden.C.€,V_A’Banidf _has*
examined himself as DW.1. He filed _General:_’:Pow,e;r’VofVi’
Attorney executed in his favour by tii–e”r’espond’lerlt’ marked
as Ex.D.1. Considering the evid’e:n’ce so er; record,
the trial Eudge held théythe_’ev’i_dence.vvvi’ofthelycornplainant
outweighed the defence_of’thVe him.
Consequent s.g,vn’i:’§,i’1,,?ie vti_as:gpassed:;i”~1.”*Agigriieved by it, the
respondentivvas”inCr!./’i,l’iJ.’e.,V.i6§?/iQ08′ reiterating the plea
of innocence and ‘:de,nyinlg.__:t’he charge. On re–examination
of the evid’ence.,on the light of the grounds urged
by vth§evva’ccused”the____A,ppellate Judge found no merit and
re3’e»c_ted:_the.:ap_peal. Against the concurrent finding of
guii’t–.,recordgedg’,::.against him, the convicted accused is in
A revision,’ A if
if With vehemence, learned counsel would contend
Hthfiat there has been traversity of justice before the trial
Court as also Appellate Court, as there is the so–called
non~appreciation of the evidence in correct perspective.
£9″
5
He refers to the evidence on record, which comprised the
ocular testimony of the complainant and the docuVn’iehts.
He teased out the avermerit in the deposition
complainant has taken different stands from,’v_A4th.e’:t.irne
issuance of notice tiii the evidence’wa:sygle.d’;’.p_
him, the first stand of the co=’n.piain’a*nt”is thatiiv-irayeviihéas°so’i’d
the site to the accused on 20.’i’;vJ;_’996. l3ut:_th*at statement
remains only a staternent i:iecause.__ififiyfailediiitov produce
indenture of sate by wAhichi._such::a~”‘tra’ns;action is said to
have been co_%n’p:ijeted..:3-. the complainant
produced itheigia_gvreeinje’nit-‘preceding the alleged sale
marked asi’E§€s,..P,}§firVvvh:i:ch’_’__itse_ifV”shows that it relates to
different’ submits that payment of
Rs.1s,ioo0/Qayggtha accused was not disputed but what is
– -,.s.,diVs’putc§ld’iwas theiiabiiility to pay Rs.40,000/~ He submits
~..th.a.tV’iiss’u.aVrtce-of cheque was in anticipation of sale of
property ~ir’_1gjhis favour. Since the sale did not materialise,
the liabitity became enforceable. Thus, the cheque
” –..§iTi.p_l,i5gned was issued on promise and not in relation to any
_,s_s}ale transaction or for consideration. On this ground he
submits that the trial Court has erred in recording a finding
that the accused had on his own volition entered the
6
transaction between the complainant and himself and
based on such transaction the accused got admittedvthe
liability to pay Rs.40,000/-. He submits that t’h.e_”:!Ve”a–rne’d4 x
trial Judge has also totally given a go-bye to n’tod:e’ua:%n»df
manner in which the evidence ha;s”to”be_
the standard of proof expected ot<the_zcorriii?ieii'i»aritit
higher decree. He submits th.atithe xdictumepex it
Court found in the jud_gment"'irepofr"ted in"t'he"V:case of
Krishna Janardhan shat' 'if; (AIR
2003 sc 13i2s§liVgihas a go-by. The
principles judgment has been
brought t_h'eiVAppellate Court, but the
ignoring the said principles
and :. pixtting' .the~.7burden" on the accused to prove his
inn'oceh"ce.'"'..__He subrnits that the accused was expected
onlv'to::'ra%iseV"probable defence and when such defence was
taken V_up_b=yAithe accused, the case of the compiainant
should-,h'ave been held as demolished. Neither the trial
nor the Appellate Court has considered this aspect.
id __..':§'herefore, interference by this Court under the provisions
of Section 397 of Cr.P.C. is a must.
drfi’
7
8. Be that as it may, his core contention is that
justice has suffered by floating the functional procedure
reiating to law and ignoring the binding ciecisioni..’of_:t’i’ie”
Apex Court.
9. Per contra, the iearned co:un’sel«for”..the. respondent*;
in negation of what is urged by thea’iea’l~<netd counsel
petitioner supports the impugn-ed"judg.ment*and wwpointstttout it
to the fact that complainant had oniy discharged initiai
burden of Proof that the"ac_c'used" With him the
transaction of .of~.'.t"{ti-rev' properties and in
reiation to' _.entrusted with the
assignrhyen-tofVsaie-.of..p'ro:p'erty' to the compiainant. Three
sites owned by the.'4'com:'p.irainant were disposed of by the
accus:edi'*on Vhis~.Vo_wgn and to the detriment of the
»corhpla.ivnan*t..fHe accounted only for sale of two properties
".anVd-did.'nVo_t:..aocount for the 3"' property. Towards the 3*"
–V prop”erty_soid by the accused he is liable to pay
it ‘::~.,Rs’.4.Q,oVGO/–. That liability subsists and was existing as on
— date of filing of the complaint. He therefore seeks
“confirming of the impugned judgments and aiso request
the Court to take into consideration the limited scope of
revision under Section 396&,Qr.P.C.
9
for insufficiency of funds. Produced copy of the notice and
acknowledgement signed by the accused to show”‘—-that
statutory requirement as envisaged under clayyusje.VV(b..)»;..Vofu
Section 138 was complied with. Now remainsthie~re.bVu’ttai.f
In view of such evidence led bymntlhei ..ci3m.playi’r.}a_n:t;’*the’:
accused had the right to rebut. V4’V__PreVsump.ti_-on
available under Section 118-a”‘a.nd. 1343 ofVtla.ej”.NV.’T.v;AVct.it An A
attempt has been made.,~A_befoire”tlh’e Court’ perhaps
before the Appellate of the Apex
Court in the}. Bhat (supra)
compels lead’ evidence of higher
degree. jvbecomesllllnlecessary at this juncture
to of the decision cited by the
learnedggcourisegl;-.7′ A A A
13. The question that arose before the Apex court
wyas;wiiether:presumption under Sections 118 and 139 of
N.-Ia.Act.-~we’.reV’ automatic in its application requiring no
Afurtherkproof from the complainant. Is the presumption
‘u.ndfer Section 139 of the N.I Act, of such a nature as to
___dispense with any proof regarding existing debt and
liability? The Apex Court considered the fact situation in
that case. The case related to prosecution of a person on
M,
10
the basis that he had borrowed money and issued cheques
in a sum of Rs.1,50,000/- which was denied byfthe
accused. The accused had urged, issuance of cihe-aue_”__is’
goodfaith but had disputed having borrowecli’*~tnolnfely or
having issued the cheque for con.
were noticed from the evidence befoijethe
the comzillainant in that have
adva nced RS.1,50,000/tf’.fit0 . faailed ‘Atoll establish
his financial position. noticed that
the circumsta’n4c’es.1′”underiwhicéhiither-cheque came to be
issued was Eince the conviction of
the theuwbasis of the ifiresumption
avaiiable xundler’ the N.I Act, the Apex Court
reiiec! on its’ earlier decision reported in 1999 AIR scw
afr.Id’i’.2Q«OO.tVA1″IA’x’V-Kant HCR 2154 and similar other
de_cisio,n’s._’Mh’eld_as follows;
21,… proviso appended to the said section
..p’ro_vides for compliance of legal requirements
‘ before a complaint petition can be acted upon by a
court of law. Section 139 of the Act merely raises
a presumption in regard to the second aspect of
the matter. Existence of legally recoverable debt is
not a matter of presumption under Section 139 of
the Act. It merely rais resumption in favour
/
il
of a holder of the cheque that the same has been
issued for discharge of any debt or other liability.
22. The courts below, as noticed herein-befo’re,”..:”g:’-tr’~.
proceeded on the basis that Section 139 raises’ ‘V’
presumption in regard to existence of a_deb_t”-e.also:;’ ,
The courts below, in our oprn’ion,«.colmmitted._ a in
serious error in proceeding on. th:e”basis»._tha_t’ forf”—-.
proving the defence the accused is renuired”te.s:tep 3
into the witness box and-vtunlless “he.does_: it
would not be discharging…h:is..burden.’ “‘Such,,:§an
approach on the paffpf the ,coiurts’..r’i.’!/e feel, is not
correct.
23. An acc:’is_e_’d for discharging ‘[th.e_._b:u’rden of proof
placed”‘u’ponA3s.him “un_d_e”r»..a statue need not examine
;g’vi:vin1seAlif’.”ei,i”.V’#,le dischargehis burden on the basis
of the brought on records. An
accused has constitutional right to maintain
_.5ilence; Sta’ndard«vof proof on the part of an
accused aano’*th–at of the prosecution in a criminal
‘ 2 , _ case ‘different.
A 14.é7Con,cluding the discussion, the Apex Court held in
paras,-25 and 26 as ;
if “Vb Furthermore, whereas prosecution must
if prove the guilt of an accused beyond all
reasonable doubt, the standard of proof so as
to prove a defence on the part of an accused is
“preponderance of probabilities”. Inference of
preponderance of probabilities can be drawn
fixk
12
not only from the materials brought on records
by the parties but also by reference to the.’
circumstances upon which he relies. ” h
A statutory presumption has3V_:w’aiiV.’cj’g:’–:
evidentiary value. The question as , V
the presumption whether .<.."to'od"~.r_ebutted:"
not, must, therefore, be determinetiv keeping' in
view the other evidences 4-on record.' iV.i:=ioif.j.th.eVV
said purpose, stepping inte.._Vti7e witness boxiiby
the appellant is crie.§ fmpé'ratii(e.V""in a icase of
this nature, where of false
implication. ~. cannot… :1-.be~ out, the
backgrounLi;fact.é.na' the the parties
together:_'*–wii'h?._ th'eir {requirements are
requiredlto; ..tairen_:Vinto— consideration.
IS. *I'he'reforej,~.hsiunfiming up of the conclusion by the
Apex _Courxt"i'n% Para~._26–._ihs"the reminder that there is no easy
*'~..,_go the"'ac-eused or the complainant. What the
_ was with reference to presumption
ava'i'Iab|ehuhn_der Section 139 of the |\i.I Act. The words
''._used Apex Court are 'A statutory presumption has
("antievidentiary value'. Regarding the question as to
\hi§h@th€I' the presumption stood rebutted or not, what the
Apex Court has heid is, the presumption avaiiable does not
dispense with burden on the complainant. To what extent
N'/"
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it can be heid the presumption has been rebutted depends
on the facts and circumstances of the case. In other
words the presumption avaiiabie under Section 139 h,a’s,.to
be rebutted. The standard of proof requiring
not same as is required for establishing’,_A’_’~«aVvV:cha,rge;”l.,,l*
Therefore, it held that the accused
Court to rebut the presumption froérndthe eveijdé-:nce”of:’3tbh’e
complainant or other circumstances_without*step:ping into
the witness box. when_ .ac~c,used taxes upon
himself the task of establ_ivshir.lg__VVthe-‘fac1:\fjn._issue, then his
evidence has;_”to”,;:,.u:be tested’, lisvprovided under the
case, the accused has
shouldered ‘*heim’se.EfAI.the”*ta”sk=”of proving his case by direct
evidence aoainst-the.”-charge raised by the complainant.
-“~._.fie””hasi,exa’lmined«himself as DW.1 and also produced the
,di¢;,.imer.sis, was not required of him to have done.
But.,,__Vsin_ce done so, the trial Court was required to
7-‘~.__”–consid’er_A’the same and that evidence has to be examined
Section 3 of the Evidence Act, which comes into
uh”‘-‘.:’_,,_operation. The evidence by the complainant or
respondent has to be appreciated in terms of Section 3 and
/
while appreciating that evidence, has to examine its
14
evidentiary value. The trial Court has considered the fact
that the complainant had established three ingredients of
Section 138 of the N.I.Act and accused was required to
rebut the presumption that cheque was issued:.f”g:’fo’r,4
consideration and it was not in respect of exis–t,ir.igVdebt”o.r_”* ”
liability. To this extent, the a<v:cu'secly was_:reo;ii'5red'.i'itol'-.' 2
tender evidence.
16. it is material to no–t,e’thatc’crnplaAiln’ant;Vinitiajted ‘ A
prosecution against the pe-t–ition.era=acused’~..specifically
alleging that he was th”re_e.V:%sites. He had
authorised the Vpetil:_i_one_’rV¥accuseci-to’sell sites for value
and to V’acc-o’untV’i’o1f…the4’rngo”:”;.ey”received. The terms were
incorporated in ttie’4Va’gre:e’ment in the nature of banking
The Vaccuse_dg.sold all the three sites but paid him
con-side.tratiyonu'”in respect of only two sites. The accused
lwithhteldv’tVp’a._yrttent towards the 3*’ site soid by him.
-V Therefore, the dispute boils down to the claim of the
in’a».Corn–p’lain’ant regarding saie price of the 3″‘ site.
it 17. The accused has not disputed that he had
undertaken to sell the sites belonging to the complainant,
but has urged”, he did not pur e any site from the
15
complainant. The complainant has clarified it explaining
that he had placed all the three sites with the accusedfor
disposal in consideration of which the accused naa,aglre»e:ir
to pay him certain amounts. As desired by i*.e’5 l
(complainant) executed sale deeds
three sites in favour of prospective,_p’urcha,seirs’:’but’the
accused paid him value of onlyVl’i’two_siteVs;..’fi’E1eref’ore it is
clear that complainantiis not that he had
executed sale deed in respe_ctl.vof:’the~~.v3’d:’._’;.ite in favour of
the accused. the;i«.com’pllai’na:nt-V”ha.d.:alleged is that he
had authorised-:j_4e’;;evcu’tio,n’:ro’f deed in respect of all the
three s,itesi_n’ the accused, and the
accusedllhad collecteVd.llthe:”money. In his ocular testimony
the complainant has in unequivocal terms stated about the
. if””aut’h–oris.ation« issueclwby the complainant in the nature of
-.p:o.wer in favour of the accused and therefore,
the»..,accusecli’..wlas liable for all the money received. During
1″”‘~.__V”‘»cross-evxamination by the accused, the complainant has
V.”Vl.reve:é’|ed that the accused paid him value of two sites at
_yV_R,s.30,0OO/- each but failed to pay the amount towards the
value of the 3″‘ site. dk/Q1
/
16
18. Against such evidence, the only plea
putforward by the accused is that there is no sale deed
executed by the complainant in his favour and therefore,
he was not liable to pay Rs.40,000/- or any amoufn’t:f”,:«.VI:n.,,’
this context, the learned Counsel for
assertively contends that in thev.a*bs–ence’_’
evidencing transaction between th’e.Vco.Amplain–aV’ni:.
accused no iiability could be –fa’s~t_ened” on pet’lti~oner»
accused.
19. None of worthy of
acceptance and_:rightly_”the:Vtri_ai-fvcouyrtghas rejected the
same. of the evidence, I find that
complainaintohasx’r1o2’Aw’liVe_re pleaded that accused is the
.~v..,_vpurvcl’i.aselr of the.,3_r__’_’,,»site. What the complainant has
‘av’e’rrec:E~.__a’rici’..proved is that he had authorised the accused
to,s’el’l sites and by virtue of that authorisation
the éacycusehdx received the amodunt from the prospective
tpiurchasers but failed to pay him Rs.-40,000/-.
‘ C”omplainant’s evidence supports his accusation against the
“accused establishing that the accused was liable to pay to
the complainant Rs.40,000/- in terms of the agreement.
He has also established that the impugned cheque was
N;
.«_ cheque{~
17
issued by the accused towards discharge of such liability
and as the cheque was dishonored, necessarily the catnse
of action was generated since the accused failed:V~to.’co’_rnply”
with the demands made in the notice. The__,ac-cuse:dl’,_ha’s5
not disputed he had acted for
complainant by virtue of auth_orisat-io’n’- by t.h%:–:.’..po’weifoft’?
attorney issued in his favour iunzriespectwof. three sites and
therefore, the accused’ dealt propertives of the
complainant as he liked and liable to account
for the
2oy.%__V ,,sitl:.i’5.;m§’r%.i, will be improper to hold that
the co’mpiain,an’t’:f’h,ad.,iFailed’ to establish subsistence of
enforceable,legalii_abi’l_it;ri:on’ the date of presentation of the
T21}, ‘_’The._|ast contention of the petItioner~accused is
th.at~if complainant’s case he would be liable to
payiillonylly; lis.30,000/- and not Rs.40,000/- because two
V’ other sites were sold only for Rs.30,000/-. This is also not
acceptable as the accused has issued the cheque towards
the accepted liability which was determined on the basis of
sale transaction. In the circumstances, the use of words
N5
19
23. Based on the facts discussed above I am
satisfied that the trial Court has rightly accepted the
evidence of the complainant as establishing, accu.sedf«.ha–d
issued the impugned cheque towards subsistinigiv—leg’a~l.i’,jdei$i;._T’ _
or liability and hence it was enforceable, the_ C”
trial Court that failure on the paritcof’-gthe acc_used:Vto_i”–~pa*,k:
the amount as demanded ingthe notice to v C’
penal action is also wei.l.justifAi,ed,,'”All«conten*ti.oAnsA,,-urged by
the petitioner-accused to’tithe”«:olntvi’a’ry,farVe, therefore, liable
to be rejectedg” ._Theg’ap’peliate.,,,[C9uVrt{webs also right in
affirming the crime -i:ria..i’
1 constrained to hold that the
revision i”s.._devoid_ of.m.e:”r§t and in view of the agreement,
thefinding _recorcie_d_.by the trial Court should have been
‘ dismis.sed’«at’~,the stage of ad-mission itself. However,
H ‘despite limited scope under Section 397 Cr.P.C, I have
Q allo’w.ed.,Vth’e petitioner’s counsel to elaborate on issue to his
2 nsaitisfaction, despite which, I am not persuaded to accept
the impugned judgments need interference.
“‘Therefore, they are confirmed and since the order
regarding sentence is reasonable, it calls for no
interference. For the accused to deposit the amount so
N”