Ashwath vs J. Balasubramanyam

Budihal R.B., J.—This revision petition is preferred by the petitioner/accused, challenging the judgment and order passed by the courts below, convicting him for the offence punishable under section 138 of the N.I. Act.

The revision petitioner challenged the judgment and order of the courts below on the grounds as mentioned at ground Nos. 6 to 12 in the revision petition.

Heard the argument of the learned counsel appearing for the revision petitioner/accused and also the respondent and the learned counsel appearing for the respondent/complainant. The learned counsel for the revision petitioner during the course of his arguments made the submission that the cheques Ex.P.1 and P.2 were not at all issued to the respondent/complainant in discharge of the legally enforceable debt. It is also his contention that there was no sort of any transaction between the revision petitioner/respondent. Counsel submitted that the accused summoned the bank manager and he has produced the documents, which goes to show that the documents Ex.D1 to D3 are not at all pertaining to the cheques-Ex. P. 1 and P.2 and the said account is not pertaining to the revision petitioner/accused, but it is THE account of one Raghavendra. Hence, the learned counsel made the submission that when the cheques are not at all drawn on the accounts maintained by the revision petitioner/accused, question of committing the offence under section 138 of the N.I. Act does not arise at all. Hence, the learned counsel made the submission that these important aspects of the matter were completely ignored by the courts below and both the courts have wrongly proceeded to convict the revision petitioner/accused. Hence, he submitted that the judgment and order of the courts below are illegal and not sustainable in law.

Per contra, the learned counsel appearing for the respondent/complainant during the course of his arguments made the submission that though, the revision petitioner/accused denied the issuance of the cheque in favour of the complainant, but the reply notice produced in the case as per Ex.P.10 is a very important document in this case. Learned counsel draw the attention of this court to para 3 and 4 of the reply notice-Ex.P.10 issued by the revision petitioner to the legal notice issued by the complainant. Learned counsel made the submission that he has clearly mentioned in Ex.P.10 that his car was stolen and he kept signed blank cheque leaves in the said car. Hence, by the said reply, he requested the cheques are to be returned either to the bank or to the accused himself. Hence, counsel made the submission that now the defence that has taken before the court during the course of the trial proceedings are totally against the contents of Ex.P.10-reply.

Counsel also made the submission that when he has mentioned signed cheque leaves were left in the car, it also supports the case of the complainant that the signatures on Ex.P.1 and P.2-cheques are that of revision petitioner/accused. It is also his submission that when the signature on the cheques is admitted even by the revision petitioner/accused, then initial presumption in favour of the complainant has to be raised under section 118 Cl. (a) and also under section 139 of the N.I. Act.

Regarding passing of consideration and also the cheques issued in discharge of the legally enforceable debt, counsel made the submission that this initial presumption which is a statutory presumption raised in favour of the complainant has to be rebutted by the accused with cogent and satisfactory material. Hence, counsel submitted that as the said presumption is not at all rebutted, the trial court as well as the first Appellate Court were considered all these aspects extensively and rightly comes to be conclusion in convicting the revision petitioner/accused. Hence, he made the submission to reject the revision petition.

I have perused the grounds urged in the revision petition, so also perused the judgment and order passed by the courts below. As it is rightly submitted that even though the revision petitioner/accused denied the issuance of cheque-Ex.P.1 and P.2 to the respondent/complainant, but looking to the reply to the legal notice-Ex.P.10, it is mentioned that he left the signed cheque leaves in his car, which car was stolen. In view of this contention of the revision petitioner/accused, one thing is sure that he has admitted his signatures on the cheque leaves, though, according to him they are blank cheque leaves. But once he has admitted his signature on the cheques-Ex.P.1 and P.2, then as submitted by the learned counsel appearing for the respondent that presumption will be in favour of the respondent/complainant for passing of consideration and also that the cheques issued in discharge of the legally enforceable debt. This presumption is to be rebutted by the accused.

Regarding this rebuttal, mere taking some explanation by way of defence is not sufficient, but he has to prove the defence by cogent and satisfactory material. Though, the standard of proof may not be the absolute proof as required in other criminal cases, but at least, he has to show preponderances of probabilities with the satisfactory material. Here the conduct of the revision petitioner is also important. When he came to know that his signed cheque leaves were came into the possession of the respondent/complainant, he could have taken some action as against the respondent/complainant by legal means, which has not been done in this case. It is no doubt true, DW1 has been examined on the side of the accused in this case, who has been summoned to produce the documents. But perusing the documents-Ex. D1 to D.3, both the courts have concurrently held that these documents produced were not pertaining to the account number of the revision petitioner/accused. But the manager has produced the documents pertaining to the account of one Raghavendra.

Considering these materials placed on record, it cannot be said that the revision petitioner has rebutted the legal presumption in favour of the respondent/complainant. Both the courts have considered each and every material produced before the courts below and even the first Appellate court reappreciated the oral as well as documentary evidence in its judgment and ultimately, it has concurred with the findings of the trial court. Therefore, no illegality has been found with the reasoning adopted by the courts below. No merits in the revision petition. Hence, the revision is rejected.