C.R. Mahadevappa vs C. Lokesh

Budihal R.B., J.—This revision petition is by the accused being aggrieved by the judgment and sentence dated 05.10.2010 passed by the Additional District and Sessions Judge, FTC, Chitradurga, dismissing criminal appeal No. 94/2008 and confirming the judgment and sentence dated 9.9.2008 passed in C.C. No. 410/2006.

The revision petitioner is challenging the correctness and validity of the judgment and orders of the courts below on the grounds as mentioned at grounds No. 7 to 14 in the revision petition.

Heard the arguments of the learned counsel for petitioner and also the learned counsel for the respondent complainant.

Learned counsel for the revision petitioner, during the course of the arguments, submitted that the petitioner-accused has not borrowed the amount of Rs. 4,50,000/- as alleged by the complainant and he has not issued cheque in favour of the complainant. It is also the submission of the learned counsel that there was a transaction between one Mokshapathi and the revision petitioner-accused and in that connection, the petitioner accused issued a cheque in favour of Mokshapathi. But subsequently, taking undue advantage that the complainant was serving under him, Mokshapathi got filed a private complaint through the complainant of this case. The complainant was not having financial capacity to advance Rs. 4,50,000/- to the accused in this case. It is submitted that the some proceedings were taken place and the accused has produced those documents as per Exs. D. 1 to D. 5. After these documents were produced before the first appellate court, they were sent back to the trial court and after recording the evidence by the trial court, again the matter was sent to the first appellate court. Looking to the documents produced by the accused as per Exs. D. 1 to D. 5, they clearly go to show that the complainant has filed a false complaint though no such transaction has taken place between them. The learned counsel further submitted that even there was statutory initial presumption in favour of the complainant as per Sections 118 and 139 of the Negotiable Instruments Act, but the accused by placing materials by way of documents, rebutted the presumption. So far as the defence of accused is concerned, preponderance of probability is sufficient and he need not prove beyond reasonable doubt just like any other criminal cases. He submitted that in view of these materials, revision petition is to be allowed or it may be remanded back to trial court for fresh disposal.

On the other hand, learned counsel appearing for the respondent-complainant submitted that the contentions raised by the accused that he has not borrowed amount nor issued a cheque in favour of the complainant, and in fact, he issued a cheque to Mokshapathi and the said Mokshapathi through the complainant filed the present case against the accused, are not supported by any acceptable materials. The documents at Exs. D. 1 to D. 5 produced by the accused are subsequent to the judgment passed by the trial court. Hence, he submitted that when the signature on the cheque is admitted, then, the burden is on the accused person to rebut the said presumption and no such material is placed. The trial court has rightly acquitted the accused which was affirmed by the first appellate court in the appeal. No illegality has been committed by the courts below. Hence, the learned counsel submitted that the revision petition lacks merit and the same may be rejected.

I have perused the judgment and orders passed by the courts below, the grounds urged in the revision petition and also other materials produced in the case.

Looking to the case of the complainant in brief, the accused who was serving as physical education teacher in a school at Holalkere town, was known to the complainant and 1 1/2 years earlier to filing of the complaint, for the purpose of improvement of the land and for family expenses, the accused borrowed Rs. 4,50,000/- from the complainant and according to complainant, the accused had to return the said amount within six months with interest at 2% p.a. The accused has not rebutted the same. Ultimately, on 25.6.2006, the accused gave cheque to the complainant and when it was presented on 27.6.2006, it was dishonored for insufficiency of funds. Then the complainant issued statutory notice to the accused demanding payment of amount. Even then, he had not rebutted and he filed a complaint before the trial court. Perusing the materials placed on record, issuance of the cheque and signature on the said cheque by the accused is not in dispute. But his contention is that the cheque was not given to the complainant as there was no such transaction between himself and the complainant and that, it was given to Mokshapathi. Before filing of the complaint, statutory notice was issued. Looking to oral evidence of accused before the trial court, he has admitted service of such notice on him and in fact, that was an opportunity for the accused to take his defence that he had not issued the cheque to the complainant and how it has come into the possession of the complainant. In respect of that, the accused has not sent reply to the legal notice. Even after coming to know that the cheque has been produced by the complainant before court, he has not taken any legal steps by way of filing complaint or by way of filing civil proceedings against the complainant as to how the cheque was in the custody of the complainant. This conduct of the accused is material to appreciate the defence taken by him during the course of trial.

Looking to the order of the trial court, it is clearly observed by the trial court that the accused person has not placed any acceptable material. Therefore, it was only a bare contention taken for the purpose of defence. When the cheque was produced from the custody of the complainant before the court and signature of the accused has been admitted on the said instrument, then initial presumption will arise under Sections 118 and 139 of the Negotiable instruments Act that the instrument was for consideration and also it was issued in discharge of legally recoverable debt. So the burden is on the accused person to rebut the same. To rebut the said presumption, it is not only sufficient to take some plausible explanation, but the accused has to bring it with cogent and supporting material. As observed by the trial court, no such rebuttal evidence has been placed by the accused to rebut initial presumption in favour of the complainant. When that is so, the trial court is right in coming to the conclusion that the complainant has proved that the accused has borrowed the amount of Rs. 4,50,000/- from him and issued a cheque in his favour.

I have also perused statement under Section 313 of Cr.P.C. Looking to the answers given in the said statement, for the last two questions, when he was asked whether he wanted to lead his evidence, he has answered ''no'', and whether he wanted to produce any documents, even for the said question also, he said ''no''. This makes it clear that the documents at Exs. D. 1 to D. 5 are all subsequent to the order passed by the order of the trial court and complainant is not a party to those documents. When the judgment and order of conviction was challenged by the accused before the first appellate court, the first appellate court also, after re-appreciating the oral and documentary evidence on record, came to the conclusion that the trial court has rightly convicted the accused and recorded its concurrent findings. With regard to the material aspects, when there are concurrent findings and when no illegality has been committed by the courts below, there are no grounds for this Court to interfere with the judgment and orders passed by the Courts below. Therefore, the revision petition is rejected.