_. 1 an
IN THE HEGH COURT op" KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF DEcEMB13:Ii2o'_1ek?:;~ ~
BEFORE A A" 2
THE HONBLE MR.JUs"fiCE ~N.ANz24z\itjA__
CRIMINAL NQ.9'Q1/2004 " . 2
BE'I'WEEN: A. ' " .
Smt.UInadevi Kurnar
W/o Sri.Keshava Kumar
Aged about 40 Years J
No.284, 3431 Cross, 93* Main _ ,
4th Block, Jayanagar, Barigaiore. E } A ...APPELLANT
[By Sri.K.Raghavendra, AdVovcat'Ve'fo'r Sri.Cv.V~..Nagesh, Sr.
Advocate} r 7 "
AND: H
Sri.Goverdhan«.Dass'_V__ '
S/0 ;£{.K.Dassg.. 4 _
Aged';91§c=ut 44'yea.rst _ -. ' '
No.124., 2021 Cross .:_K_.R;Layo:.;t
Bib Phase, J;~P.Na*gaf,.Ban'galore W 560 078.
Presently V' "
N(;j.78,_.19th Mainf 2011 Cross
S.fv'[.S,_La3(out, 5fi'rP1.1.as'e, J .P.Nagar
.Banga1ore?--.560 078. ...RESPONDENT
' {By E-3-1_I1t;Ncthravathi.K, Advocate for K. Giridhar 8: P.V.Vasudevan
Ass_oeta'Les'; .Ak.ivocates)
V'.I'}'1is:'.y.ai3peal is flied under section 378(4) Cr.P.C., to set
aside "---the' judgment dated 29.05.2004 passed by the XX
Additvionai City Civil} and Sessions Judge at Bangalore in
A. VC_r1.A.VNo.671/2003 and restore the judgment dated 04.11.2003
passed by the XV} Additional Chief Metropoiitan Magistrate,
A Bangalore City in C.C.No.3-4945/2001.
This appeal coming on for finai hearing this day, the Court
A delivered the following:
discharged, the
M2
JUDGMENT
The appellant was the
comp.lai11_”‘ .;.V in
C.C.No.34945/2001 initiated for an
undersecfion 138 oftheINegouabh:insUinnenE§AcLsL881
[for short, ‘the Act}, alleging-y_that Viieslponde1’1t,{accuse;d’had’;
drawn a cheque favouringui”eoinplainanti for 19321 sum of
Rs.70,000/– to discharge’_Vl legal–lylrecoverable debt; on
presentation, cheque statutory notice
caused by the ‘r’;VQmplé._inantxto'”acciis~e.d.Was refused.
2. Then not disputing signature on the
chequesyghad cor;-tended “that the complainant A frequently
visiting his ..house must have stolen blank signed cheque
‘i it – g V f’rom3–th.e “housed of “accused. The accused also contended that
he had borrowed a sum of Rs.70,000/– from
by pledging his L.i.C. Policy as a collateral
security; during the month of October 1999, he settled
it V._entire loan amount with interest. After entire loan was
complainant demanded a sum of
Rs.20,000/– as penal interest. When the accused refused to
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pay, complainant has used stolen cheque.«….to:i.’:
complaint before trial Court. The accusedi__ha.s.
receipt of statutory notice. The accuse’d
he had shifted his residence froIn__”house
20th Cross, K.R.Layout, J 6*}; to
“house bearing No.78; .l9ih Main,”‘S.M§.S.Layout,
5th Phase, J .P.Nagar,
3. The ;Ti11dgt€.:_4’oii’.j/’app;-eciation of evidence
has disbelieved that complainant had
stole::ii”the’_’ The learned trial Judge
has also of accused that he had paid
entire loan” which he had borrowed from the
co1npl:ai.nant. “”” ‘learned trial Judge has held that
caused statutory notice and accused
avoided of notice, therefore there is deemed service
of The learned trial Judge convicted accused. The
accused challenged the judgment of conviction in Criminal
‘Appea1No.671/2003. ,r\,_
-4 ‘-vrvw
4. The learned Judge of {appellate Court reversed the
judgment of conviction by holding that there was
of notice on accused; therefore, there was no cause.V’o–£_l:action
for the complainant to initiate complaint. ‘
of Lappellate Court has found
Judge, by holding that posta1_cover–~niarked ,
an endorsement “left the and iziraslnolldeemedl
service of notice. The ~-Ifappellate Court has
relied on the admission’ th.fe:vlbl__c.omplainant that
aCCU.S€d”‘h.7:.jl.li-ileffiihis p«revious”house about one year prior to
the date 4’ of ” ‘complainant before the trial
Court. of Lappellate Court has referred
to’-tthell’provisions______of General Clauses Act, which is not
» :relpevant.pte,_fac_ts and circumstance of the case. The learned
Court holding that there is no proper
selfzicelgprextersed the judgment of conviction and acquitted
C ‘aecpusveld. The learned Judge of {appellate “Court did not
C”-bother to answer other points, which were considered and
W ‘ f
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decided by the learned trial Judge. Ther’e1’o.r”e.,Vp'””..the
Complainant has filed this appeal.
5. I have heard Sri Raghavendra;K,, l’ea1fI1e0c:3I.f70r ‘ 1.
the complainant and Miss NethraVathi,’llearr1ed_couf1s.elV’lfor
accused and I have bee–na”‘1~.t_hr0ti’gh v:1;¢v~.ev:’¢1e11cLe
judgments of the Courts below…’
6. The statutory notice s’ent–»fpo__’.Vaccused under a
registered The same was
returned. postal envelope and
ackr1ow’ledgrner1t..§1vas’lVinarlged as EX.P.6.
7. As’=«coul.dlbeA’see13:~’b0’fr0rn the contents of Ex.P.6, notice
E ton ’tile-…respor1dent/accused namely Goverdhan
‘ .l’DapAs–,__res;id1f1g_at N0.124, K.R.Layout, 20*” Cross, 6th Phase,
” . l}§3angal0re–78.
8; V-._”Z\s ‘could be seen from postal endorsement, concerned
. Vpostfnan had visited address of respondent on 07.06.2001,
“f”»06″.06.2001, 09.06.2001, 11.06.2001 and 12.06.2001, on
which day he had made an endorsementmiVffiécfpithe
intimation”. If addressee had left addressp,””‘thev
postman would not have made a’riAAendorsem;eritV:’ b T
visited address of respondent 3,,
09.06.2001, 11.06.2001 it i’2.i0.0′.2o0f0ivsihéreforé; ‘
observation of learned Jizdgehii’oifiljappellateV-tlourt that
concerned postman as “left the
address” is erroneougsiidddd V V d d
9. It diiririgmcross–examination on
aaccused was not residing in the
preyious vacated previous house about
one yeadrvpanordpto The accused might have vacated
house on”O6_.__Q6..v2001. The learned Judge of Lappeiiate
‘ ‘reiying___on this admission has heid that complainant
H ‘– Addbeiné of shifting of residence by accused had
deiiberatedlvy sent notice to earlier address of accused. As
” already stated, complainant was examined on 14.11.2002.
complainant has deposed that accused had Vacated his
‘T house in occupation about one year prior to 14.11.2002,
!\?.=–~:+Q~’0’w~<L,
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which relates to 14.11.2001. Therefore, date
Vacating his earlier house relates to a
statutory notice was sent on O6..G6'.2.OO1.'_:a1r.eadyA_statedl 2 j 2'
the concerned postman had Visited
07.06.2001, 08.06.2001,"'._Vo*a..V_0s.l2'o<i_i,.
12.06.2001. The learned 1w«appe'll'ate_AAC"o:L1rt Without
properly reading postal endorsement
has recorded it
10. purporting to be
exe(:::uted2_’by*.fh1’s respect of house bearing No.78,
199* ‘Cross, Chengama Raja Garden,
J.P.Nagar”V.fPl1ase, .Bangalore«~56O 078. This lease deed Was
A (;”x.ect1’ted”l*on 20.20’4’.’2001. The lease deed is written on a half
The contents of lease deed do not inspire
‘c_onfid.e.nce..’2The person mentioned as landlord was not
examined before the trial Court. Even if contents of lease
3″ , ideed are accepted on their face value, we do not find date of
delivery of premises to accused either on 20.04.2001 or on a
subsequent date. f\; _ 0,_ L ‘
8 V
11. At this juncture, it is relevant to state thattoauccused
had relied on Ex.D.2. The accused has not
had taken delivery of possession of premises. hp
The accused was examined on T
contended that he vacated: his e;u1_i§r house. “afig1’ta:”it¢r_
execution of alleged lease Thettaccused
has not produced that he
had left his previous In the normal
course, if a were to shiftf’huismresidence, he has to
necessarily’ samewto domestic gas supplier,
telephone intimate postal department
rega.rdingfl°chVa11ge of postal address. The accused has not
p pro’dt1’eedi~a scrap”‘o”f paper to prove that he had shifted his
20.04.2001. The lease deed as per Ex.D.2 is a
T ‘ooncoctedidocument. The Courts below have disbelieved the
doctzment marked as E3x.D.2.
12;: Thus from the above, it is clear that statutory notice
as per E3x.P.7 was sent to correct address of affugsed. The
r’
I
3’\_?, (x ” C5″-“””£;\,
accused was not available at the time of of
registered post. The postman had Visitedfthe-A.hou’seV_$_”of”
respondent on 07.06.2001, ..0a..0e.2001i_,d7–02.’0e’.120o..1,V’
11.06.2001 and 12.00.2001, o£~.,w€1:ich
intimation, which is c1ear__.fr.om end0rse1nei1t””‘made in
Ex.P.6. As already stated, d.udge_of,ii~appeilate
Court has misread in the copy of
LIC policy heldhy aceushedr, 13.3.0.1, address of
accused is Cross, K.R.Layout, 6″‘
Phase, Therefore, finding of
learned of_ Court that there was no proper
servicedcféd accepted. The notice sent to
accused was returned, as it was not claimed by accused.
‘ 9′ _ in avvhclecisioriddredported in 1999 (8) Supreme 608 (in the
case’ ..of«…huK.i3h.a.skaran Vs. Sankaran Vaidhyan Balan &
aiaother}, tlfieA9SupreIr1e Court has he1d:~
“On the part of the payee he has to make a
it demand by “giving a notice” in writing. If that
A was the only requirement to complete the offence
on the failure of the drawer to pay the
(V.
c que
. /I A. fix ‘L~.£: ,1 1,
All! 10 _u
amount within 15 days from the date
“giVing”. the travails of the proseculéiicil .
have been very much lessened…-.V.Al_jBu?[~l,/Qthe b
legislature says that failure on.1;_he’_ of
drawer to pay the amount’ishr_)’u1d
days “Of the receipt’ of the’-said’ V
therefore, clear that notice”. the context
is not the sameyyas retceipt”of”notice.« is a
process of whichilllreceihpig,is accomplishment.
It is for the payeevihto. p’¢rn$_n~ii’tijefiprmer process
by the iiéiice. l:to:.”‘tl.1..¢:.fldrawer in the
co: __ t it
14. NpouiilaClVerting.to~.t_he defence of accused, I find that
accused has ta_1{enA’irico__n”sistent and contradictory stands.
15.~ . in éi’ decisionlreported in AIR 2010 so 1898 (in the
l V. = p V ciasvs:/jf Rangappd”u.lMohan). the Supreme Court has held:–
V ” fllie presumption mandated by 3139 of
does indeed include the existence of
“leg’ally enforceable debt or liability. This is of
“course in the nature of a rebuttable
presumption and it is open to the accused to
raise a defence wherein the existence of a
legally enforceable debt or liability can be
t
‘~._&\.k”C}.\_’
f\.7. CL’
W 11 –.
constested. However there can be no doubt;_
that there is an initial presumption…vv’h.ichf
favours the complainant. S. 139 of ”
example of a reverse onus clause that
included in furtherance
objective of improving credibility’.
negotiable instruments’ 2 While of
the Act specifies a strong criminall_reme};:1y in
relation to disshoQnotu_* for’. cheduesv, the
rebuttable presdumpptioniutndier-V:f_Section 139 is a
device prevent*undue._d_elayf the course of
litiga{tiorQ»’ ‘Elovvevgver, it .mU’s’i:—-~’.:>e remembered
punishable by S. 138 can
be ‘better’described–__as a regulatory offence since
the bouncing of’c’heques is largely in nature of
a c’ivilV’wrong’*wh~ose impact is usually confined
Vito the “private parties involved in commercial
.t1*ans.actions. In such a scenario, the test of
:::”»proportj.onality should guide the construction
arid interpretation of reverse onus clauses and
accused/ defendant cannot be expected to
. discharge an unduly high standard of proof. In
the absence of compelling justifications, reverse
onus clauses usually impose an evidentiary
burden and not a persuasive burden. Keeping
N’ \___£L<1
_12 ,
this in view, it is a settled position that when
accused has to rebut the presumption'.under: *'
Section 139, the standard of proof
is that of 'preponderancell of g_11srobabi'1it_ieg§fl
Therefore, if the accused"gis?'_A_Aablle
probable defence which creates
the existence of a enfor'ce_able-I debtmor
liability, the prosecution–.c_anl'fail. 'l'he=acc:used
can rely on the[materials""-svbrliaiitted by the
complainant in__order ipraiselvsiiiclii a defence
and it'i:s__i'_conceiv;ib1e cases the
accused adduce evidence of
his/11.1e'r . «.
the 1 accused has disputed that
cheque ‘r1O.t_iV-ssued’ discharge legally recoverable debt.
to ‘accused, he had borrowed a sum of
‘.V.”Rs.g7*’@,,oQo,/:41rrom the complainant on 06.11.1996 by
“11.1.C.Po1icy as a collateral security and he was
demanded to pay interest at 5% per month. In his evidence
it it ‘byway of affidavit, DWI has stated that he had settled
entire loan amount during the month of October 1999 and
9 obtained an acknowledgment dated 06. 11.1996, duly signed
!’\’?. L4’/\~ ’14- .
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by the complainant. This document was neither confronted
to complainant nor it bears date on which was
discharged. On the other hand, Ex.D.1 gives
that on 06.11.1996, accused had pledged_his_u_L..l.VC,:’Policy”tol
secure loan of Rs.70,000/–. soecalled at ‘
E3x.D.l. does not relate, to tranlsactionflbetwee}>l.,a¢hep
complainant and accused.l’V’T:he. endorsefneiit ‘reads “this
policy is with SLMCB_&_ Cooperative
Bank) from 27.10.1999;”-1Thlev’velndo:sefienti.made on EX.D.1,
does.»”n’ot any”- ‘meaning. Above all, L.I.C.Policy
0btE1Vi’K1€d:OI”1 cannot be secured to raise
loan. L.l’.C:bPolicy”.’obtained by a person is not a transferable
scizuritv. Therefore, accused has miserabl failed to rove
_ _ __3 pg .. ….. _. Y P
» ;’pl.ea o_f’d1scha_rge.
2 1v’:3,r ._second version of accused that complainant had
stcl.eri-Viacheque from the house of accused is ridiculous.
b ‘A The accused has not made it clear as to why he had left
signed blank cheque in his house. The accused does not
“give date on which he noticed theft of his slgned blank
A, 14 _
cheque. The accused has no case that contents of cheque
were filled up by the complainant. ‘Iherefore.vp.th:fleo.ry of
complainant stealing blank signed cheque of
accused and thereafter filling up conteiitslvjfqopfp
presentation and making use’ ‘
complaint is totally absurd. defence».
accused is hardly sufficient ayailable
to complainant under ~.s_ectionM1 ofthe Act’.H°
17′. From the above discu’ssion,__._it~.i’s_clear that accused
had Viu1’itvenablefdefenceto a\foid– consequences of dishonour
of Cfh.eq’~._1’e.’ accused had short–lived success
before Iuiap-pellate this juncture, it is necessary to
reiterate that””short¢.lived success of accused was due to
.A ymiscofncpepition of facts by the learned Judge of I–appe1late
2 I hold that complainant has proved that
accused “has drawn disputed cheque in favour of
hi ~ complainant to discharge legally recoverable debt. On
‘”._Vp’resentatior1, cheque was dishonoured. The complainant
“had caused statutory notice to the address in which
5
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