Keshar vs Rohidas

P.D. Waingankar, J.—This revision petition under Section 397(1) read with Section 401 of Cr.P.C. is filed by the petitioner/accused questioning the legality and correctness of the order dated 11.10.2012 in CC. No. 804/2010 on the file of the Civil Judge and JMFC, Hukkeri and the order dated 06.05.2014 in Criminal Appeal No. 203/2012, on the file of the VII-Additional District and Sessions Judge, Belagavi sitting at Chikodi.

The brief facts, which gave rise to this revision petition, are as under:

"The respondent/complainant is running a jewelry shop under the name and style of Kamakshi Jewelers in Hukkeri. The petitioner/accused is well acquainted with the complainant since long. The accused with an intention to purchase the gold ornaments from the complainant approached the complainant on 26.06.2010 and purchased the gold ornaments weighing 35.637 grams. The accused paid the part of the amount. He was due to pay Rs. 80,001/- to the complainant. He issued a cheque for Rs. 80,000/- dated 11.08.2010 towards the discharge of amount due. On presentation of the cheque for collection, it came to be dishonored. The factum of dishonor of cheque was informed to the accused by the complainant by issuance of a notice and was called upon to pay the cheque amount. The accused gave untenable reply instead of making payments. Therefore, the complaint came to be filed for the offence punishable under Section 138 of N.I. Act. The accused having denied the accusation, the complainant got himself examined as PW1 in order to establish the charge. He also examined one Raghavendra M. as PW2, Harishwar Veerabhadrappa Mallabadi as PW3 and Umarkhan S/o. Nabisab Mokashi as PW4 and Exs. P1 to P78 were marked. The accused stepped into the witness box as DW1 and Exs. D1 to D4 were marked. The learned Magistrate on appreciation of the evidence and upon hearing the submissions made by both the learned counsel for the appellant and the respondent recorded a finding that the complainant has been able to establish the charge under Section 138 of N.I. Act leveled against the accused, which resulted in conviction of the accused for the offence punishable under Section 138 of N.I. Act has been sentenced to pay fine of Rs. 80,000/- and in default to undergo Simple Imprisonment."

Aggrieved by the judgment and sentence passed by the Magistrate, the accused preferred a Criminal Appeal No. 203/2013 on the ground that the learned Magistrate has committed an error in coming to the conclusion that the complainant has been able to establish the transaction.

I have heard the learned counsel appearing for the petitioner/accused and the learned counsel appearing for the respondent/complainant. Perused the records.

In support of his oral evidence, the complainant has produced the necessary documents such as Ex. P1 - Cheque, Ex. P2 - memo issued by the Karnataka Grameena Vikas Bank, Ex. P5 - office copy of legal notice demanding the payment of the cheque amount, Exs. P3 and P4 - postal receipt for having sent notice by RPAD, Ex. P6 - postal receipt having received the notice sent by RPAD and Ex. P7 - his reply dated 18.09.2010 given by the accused. Thus the oral evidence of PW1 - complainant coupled with the documents Ex. P1 to P7, it is clear that all the necessary formalities to file the complaint under Section 138 of N.I. Act have been duly complied with.

It is the case of the accused that he was not due to pay a sum of Rs. 80,000/- to the complainant and that there was no gold transaction between the accused and the complainant and that he had taken a loan amount of Rs. 20,000/- from the complainant and towards security for the repayment of loan amount, he issued blank cheque which has been misused by the complainant in order to initiate these proceedings. At this stage, it has to be stated that whenever the cheque is issued a presumption has to be drawn that it was issued towards discharge of legally recoverable debt and the said presumption extends to existence of debt also. Of course, it is a statutory presumption, which is rebuttable. It is for the accused to rebut the presumption by probabalising his defence. It is equally true that the accused need not step into the witness box or lead his evidence. The accused can cull out his defence, from the evidence placed on record by the complainant. The burden on the accused is that of plaintiff or the defendant in a civil case i.e., preponderance of probabilities. If the evidence placed on record by the accused is considered in the light of the above principles, it is rather difficult to hold that the accused has been able to probablise his defence so as to rebut the statutory presumption under Section 139 of N.I. Act in favour of the complainant. Except stating that he issued cheque as a security towards repayment of loan amount of Rs. 20,000/- taken by him, no other evidence is forthcoming so as to inspire the confidence of the Court. Thus, the learned Magistrate on proper appreciation of evidence and the learned Sessions Judge on re-appreciation of evidence have rightly come to the conclusion that the cheque was issued towards discharge of existing liability, on presentation of the same, it came to be dishonored and even after issuance of demand notice, the accused failed to pay the cheque amount and thereby he committed an offence under Section 138 of N.I. Act. Therefore, I do not find any illegality committed by both the Courts in convicting the petitioner/accused under Section 138 of N.I. Act. The punishment imposed also seems to be just and reasonable. Though, the learned Magistrate has imposed sentence of imprisonment apart from fine amount, the learned Sessions Judge has taken care of the same. He modified the sentence and directed the accused to pay fine amount of Rs. 85,000/-. Looking from any angle, I do not find any merit in this revision petition. Hence, I pass the following:

"ORDER

The criminal revision petition is dismissed."