Sri M.P.Subbarayagowda v. B.P.Damodarachar
Case at a glance
Outcome
Dismissed
Accordingly, the petition stands dismissed
Provisions considered
- Code of Criminal Procedure, 1973 ss. 357, 397, 401
- Negotiable Instruments Act, 1881 ss. 138, 139
Key paragraphs
- Para 33. The facts are as follows: It was alleged by the complainant that the accused – petitioner had issued a cheque in consideration for a sum of Rs.1,40,000/-, 3 which was borrowed from the complainant and when the cheque was presented for encashment, it was…
- Para 44. The learned counsel for the petitioner would submit that the courts below have proceeded to deal with the complaint in a summary fashion and have completely overlooked the defence of the petitioner. The glaring circumstance that there was no consideration for the cheque that…
- Para 66. On a consideration of the rival contentions and the material on record, the first contention that there was burden on the complainant to establish that he was possessed of sufficient means to lend monies is not a precondition. The petitioner was not seeking to…
Judgment
This Criminal Revision Petition filed under Section 397 read with 401 Criminal Procedure Code, 1973 by the advocate for the petitioner praying that this Hon'ble Court may be pleased to set aside the judgment of conviction and sentence dated 20.11.2007 passed by the Additional Civil Judge (Jr.Dn.) and Judicial Magistrate First Class at Mudigere in C.C.No.210/2005 convicting the petitioner herein under Section 138 of N.I.Act and thereby orders of appellate court dated 2.9.2009 affirming the convicting and sentence by the Principal Sessions Judge at Chikkamagalore in Criminal Appeal No.97/2007 and allow the revision petition and acquit the petitioner herein in the above case. This Criminal Revision Petitioin is comingn on for Hearing, this day, the court made the following: ORDER Heard the learned Counsel for the petitioner and the respondent.
The petitioner was the accused before the trial court for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (hereinafter referred to as ' the NI Act' for brevity).
The facts are as follows: It was alleged by the complainant that the accused – petitioner had issued a cheque in consideration for a sum of Rs.1,40,000/-, 3 which was borrowed from the complainant and when the cheque was presented for encashment, it was returned with an endorsement that there were insufficient funds. Consequently, the complainant had issued a statutory notice and on failure of compliance with the demand, had filed a complaint. On issuance of summons, the accused had entered appearance and contested the proceedings. The accused pleaded not guilty and claimed to be tried. The complainant tendered evidence and marked Exhibits P.1 to P.7. On the other hand, the petitioner had fielded two witnesses and marked Exhibits D.1 and D.2. The court below held that the complaint stood established and that the petitioner was guilty of the offence punishable under Section 138 of the NI Act and directed payment of compensation, which apparently was intended to be the fine amount payable as compensation to the complainant and also directed simple imprisonment for a period of two months. The same having been challenged in appeal, the appeal stood dismissed. It is that which is under challenge in the present petition. 4
The learned counsel for the petitioner would submit that the courts below have proceeded to deal with the complaint in a summary fashion and have completely overlooked the defence of the petitioner. The glaring circumstance that there was no consideration for the cheque that was issued has been completely overlooked. The further defence of the complainant that the cheque in question along with 14 other cheque leaves was lost in the year 2001 and there was no legal liability outstanding at that point of time against any third- party and therefore, if the cheques were to be presented, the petitioner had requested his banker not to honour the same and this was duly acknowledged by the banker and since the cheque in question is one of those lost cheques, it was apparent that there was no legal liability, in respect of which the cheque was issued. Though there were alleged transactions between the complainant and the petitioner, the same were concluded transactions and there was no other outstanding legal liability.
First and the foremost, the plaintiff had not even averred 5 in the complaint that he had the means to have with him substantial amounts of money, which were claimed to have been lent to the petitioner. In the absence of which and since the burden is clearly on the complainant in that regard, in the absence of any evidence to indicate that he was possessed of funds, the very fact that the complainant having lent any such sum is doubtful. Secondly, coupled with the circumstance that the complainant was seeking to base the complaint on the cheque, which was one of the lost cheque leaves, the question of the court below having held that the burden was on the petitioner insofar as his defence is concerned and that the same has not been discharged is an unfair and unjust finding. He would submit that not only was there no material, there is no substance in the complaint. The petitioner had examined the Bank Manager as DW.1 and he had categorically admitted the receipt of the notice, whereby the petitioner had instructed the banker not to honour any such cheque, including the one in question, since there was no outstanding legal liability.
He had also endorsed the fact that the 6 procedure followed by the Bank is that on being instructed not to honour the cheques, any such cheque presented would be dishonoured as having been instructed to stop payment by the account holder and inspite of it, the banker having endorsed that there were insufficient funds was without reference to the notice at the earliest point of time and therefore, the learned counsel for the petitioner would submit that the rebuttal evidence tendered by the petitioner has been completely overlooked. Whereas the settled legal position is that though the presumption under Section 139 is in favour of the holder of a cheque, such presumption could be rebutted not only by the accused tendering independent evidence, but it is also possible for the accused to establish his defence, with reference to the evidence brought on record by the complainant himself. This is as laid down in a decision of a three-judge bench of the apex court, in the case of Rangappa vs.
Mohan, AIR 2010 SC 1898. Whereas in the case on hand, the petitioner had tendered evidence through his witnesses DWs.1 and 2 to establish that there was instruction to his banker to 7 stop payment at the earliest point of time and the cheques having been presented years later, was certainly a mischievous act on the part of the complainant to misuse the cheques, which may have come into his possession, without the knowledge of the petitioner. In the absence of any transaction, that was capable of being supported by positive evidence, it cannot be said that the complainant was possessed of the means to have lent any such monies, in discharge of which, the cheque was issued and therefore, would seek that the petition be allowed and the judgments of the courts below be set aside.
On the other hand, the learned counsel for the respondent would submit that insofar as the defence of the petitioner that he had issued notice to his banker at the earliest point of time to stop payment, since he had misused the cheques, is an incorrect interpretation that is sought to be placed before the court. From the notice issued to the bank, it is clear that what is stated therein by the petitioner is that the legal liability for which the cheques may have 8 been issued numbering 1 to 15, has been duly discharged and that there is no outstanding legal liability. The petitioner had not stated that he had lost the cheques and therefore, payments would be stopped if any such cheques are presented. The fact that the cheques are issued on the account of the petitioner and that the same were duly signed, would foreclose the petitioner from raising any such defence. The contention that there was burden on the complainant to establish that he had sufficient amounts to lend monies and that he had so lent money and it was in discharge of the loan that the cheque had been issued etc., is a gloss that is sought to be placed on the provisions of law. And on the other hand, Section 139 of the NI Act clearly raises a presumption in favour of the holder of a cheque and any contention to the contrary would be a burden placed on the accused to discharge. In the face of the circumstance that the petitioner did not choose to enter the witness box, the evidence of DW.1, who was the Bank Manager and whose evidence is of general nature as to the procedure followed by the bank, does not indicate that there was actual stoppage 9 of payment of the cheque in question. The endorsement issued by the banker was to the effect that there were insufficient funds and therefore there is no consistency in the defence of the petitioner in the petitioner seeking to contend that the cheques may have been issued, but there was no legal liability for the amounts indicated in the cheques, while ambiguously stating that the cheques were misplaced and the complainant was seeking to misuse the same after having come into possession of the same. This is an untenable contention and a defence that cannot be considered and therefore, would submit that since there are concurrent findings by both the courts below, there is no warrant for interference in revision and that the petition be dismissed.
Operative part
On a consideration of the rival contentions and the material on record, the first contention that there was burden on the complainant to establish that he was possessed of sufficient means to lend monies is not a precondition. The petitioner was not seeking to enforce the civil liability, but a criminal liability as contemplated 10 under Section 139 of the NI Act, which clearly raises a presumption in favour of the holder of a cheque. In the instant case, the defence set up by the petitioner to the effect that he had intimated his banker at the earliest point of time, was in the ambiguous manner, as pointed out by the learned counsel for the respondent. It is not the case of the petitioner that he had lost the cheques and therefore had stopped payment. On the other hand, it is sought to be suggested that though cheques had been issued, the legal liability for which the same had been issued, had been duly discharged and therefore, there was no outstanding liability. It was not for the banker to stop payment and therefore, the banker had accordingly endorsed that the cheque was dishonoured for insufficient funds. This would be consistent with the contention of the learned counsel for the respondent. The banker having explained the procedure that is generally followed, cannot be misconstrued as being suggestions in favour of the petitioner. Therefore, having regard to the circumstance that the courts below have thought it fit to direct payment of fine, though incorrectly 11 indicated as compensation, it would be fine that can be imposed on the accused, which in turn, can be paid as compensation under Section 357 of the Criminal Procedure Code, 1973 (hereinafter referred to as ' the Cr.PC' for brevity), which is an infirmity that can be overlooked and though not raised as a ground by the petitioner. There is no warrant for interference by this court. Accordingly, the petition stands dismissed. Sd/- JUDGE
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Accordingly, the petition stands dismissed
Which statutory provisions did this judgment involve?
Code of Criminal Procedure, 1973 — ss. 357, 397, 401; Negotiable Instruments Act, 1881 — ss. 138, 139.
Which court decided this case, and when?
Karnataka High Court, on 02 Sep 2009. The bench was ANAND BYRAREDDY.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.