Mr. Ganesh Kumar vs Mr. Harishchandra

Pradeep D. Waingankar, J.—This revision petition is against the order dated 11.9.2007 in C.C. No. 204/2006 on the file of V JMFC, Mangalore convicting the accused/petitioner for the offence punishable u/s 138 of N.I. Act and sentencing him to pay fine of Rs. 50,000/-, which has been confirmed in Crl. A. No. 240/2007 on the file of Fast Track Court, Mangalore by order dated 22.2.2011. The revision petitioner was the accused before the Magistrate and the respondent was the complainant. The case of the complainant before the Magistrate was that in the month of August 2005, accused approached the complainant and borrowed a hand loan of Rs. 50,000/-. For repayment of the loan amount of Rs. 50,000/-, the accused on demand issued a cheque for Rs. 50,000/- dated 8.12.2005 drawn on Canara Bank, Mangalore. On presentation of the cheque for collection, it came to be dishonoured with an endorsement ''insufficient funds''. A notice came to be issued by the complainant to the accused informing the factum of dishonour of the cheque and calling upon him to pay the cheque amount within a period of 15 days from the date of the receipt of notice. Since the accused failed to pay the cheque amount, he committed an offence and thereby a complaint came to be filed for the offence punishable u/s 138 of N.I. Act before the Magistrate. In response to the summons, the accused appeared and pleaded not guilty.

The complainant in order to prove the offence committed by the accused, examined himself as PW-1 and got marked Ex-P1 to P4. The accused on the other hand in defence examined the manager of Canara Bank as DW-1 and he got himself examined as DW-2 apart from marking Ex-D1-D4. The learned Magistrate upon hearing both the learned counsel appearing for the complainant and the accused and on consideration of the evidence placed on record both oral and documentary by his order dated 11.9.2007 found the accused guilty and thereby convicted him for the offence punishable u/s 138 of N.I. Act. Crl. A. No. 240/2007 filed by the accused before the Fast Track Court, Mangalore, Dakshina Kannada, questioning the legality and correctness of the order passed by the Magistrate, came to be dismissed. Aggrieved by the orders passed by the Magistrate and the Sessions Judge, this revision petition is preferred.

I have heard learned counsel appearing for the parties. Perused the records.

Learned counsel appearing for the revision petitioner-accused would submit that though there is no sufficient evidence to constitute an offence u/s 138 of N.I. Act, the Magistrate has convicted the accused petitioner for the offence punishable u/s 138 of N.I. Act and the learned Sessions Judge without application of mind confirmed the judgment of conviction and sentence passed by the Magistrate. It is also submitted that the learned Magistrate has not taken into consideration the defence put forth by the accused that he issued the cheque towards security and not towards discharge of the liability. Hence, he sought to set-aside the judgment of conviction and sentence.

Learned counsel for the complainant-respondent on the other hand has submitted that the cheque in question was issued by the accused towards discharge of his debt, which he had taken in order to fulfill his financial requirement. Even after issuance of notice, he failed to pay the cheque amount within stipulated time and thereby he has committed an offence punishable u/s 138 of N.I. Act. Though the petitioner examined DW-1 and DW-2 and marked Exs-D1 to D4, the learned Magistrate has appreciated the evidence of DW-1 and DW-2 and Ex-D1 to D4 and found that the accused committed an offence u/s 138 of N.I. Act. The learned Sessions Judge also confirmed the finding of the Magistrate. There is no merit in this revision petition and hence learned counsel sought for dismissal of the revision petition.

In view of the rival contentions taken by the parties and the rival submissions made by both the learned counsel for the parties, it has to be stated that the averments made by the complainant in his complaint has been reiterated by him in his evidence as PW-1. His case is that the accused approached for hand loan of Rs. 50,000/- and accordingly, the complainant paid an amount of Rs. 50,000/-. The accused issued a cheque dated 8.12.2005 for Rs. 50,000/- for repayment of the loan amount marked as Ex-P1. On presentation, the cheque came to be dishonoured as could be seen from the memo issued by the bank marked as Ex-P2. On receipt of the memo, a legal notice came to be issued to the accused by the counsel for the complainant dated 12.12.2005 informing him the factum of dishonour of the cheque and calling upon him to pay the cheque amount. Ex-P3 is the office copy of the notice. Notice was served to the accused as could be seen from Ex-P4 postal acknowledgment due signed by the accused. Since there was no reply to the legal notice and that the cheque amount was not paid by the accused, in response to the notice, a complaint came to be filed against him for the offence punishable u/s 138 of N.I. Act. Thus from the oral evidence of PW-1 coupled with documentary evidence marked as Ex-P1 to P-4, it can be said that all the mandatory requirements to file a complaint for the offence punishable u/s 138 of N.I. Act have been duly complied with. At this stage, it is to be stated that whenever a cheque is issued, a presumption has to be drawn u/s 139 of N.I. Act that the same is issued towards discharge of debt or liability. It is held by the Supreme Court in the case of C. Keshavamurthy Vs. H.K. Abdul Zabbar, that presumption u/s 139 of N.I. Act also includes existence of debt or liability. Of-course, it is a rebuttal presumption and therefore it is for, the accused to rebut the presumption either by placing on record cogent evidence or pointing out the defence from the evidence already placed on record by the prosecution. It is true that the burden to be discharged by the accused is not that of the prosecution to prove the case beyond reasonable doubt. The burden of the accused is that of a plaintiff or defendant in a Civil suit i.e., preponderance of probability. With this background, let me examine whether the accused has discharged his burden and rebutted the presumption u/s 139 of the N.I. Act. In order to discharge the burden, the accused examined the bank manager of the Canara bank as DW-1 apart from examining himself as DW-2 and relied upon four documents marked as Ex-D1 to D4. The defence of the accused as could be seen from the tenor of the cross-examination of DW-2 that he issued the cheque towards security. His case is that he purchased the car from the complainant for a total consideration of Rs. 2,10,000/-. He had paid advance amount of Rs. 60,000/- and at that time, he had given the cheque in question as security. Further case of the accused is that very next day, he obtained loan from the Canara Bank amounting to Rs. 1,50,000/- and paid to the complainant. In order to establish the same, the accused has produced the loan application submitted to the Canara Bank, copy of which is marked as Ex-D1 dated 10.1.2005, Ex-D2 is the receipt for having paid advance amount of Rs. 60,000/- to the complainant towards purchase of the car bearing No. KA-19-N-9804 belonging to the complainant. Ex-D3 is the receipt for having handed over Demand draft for Rs. 1,50,000/- to the complainant by the accused. Ex-D4 is valuation report of the car. From these documents, one thing is evident that accused purchased the car from the complainant for a total consideration of Rs. 2,10,000/- of which Rs. 60,000/- was paid as advance and the remaining amount of Rs. 1,50,000/- was paid subsequently by way of demand draft. If the amount is paid in that manner, what was the necessity for the accused to give the cheque in question is the moot question to be gone into. It has come in the evidence that the accused was residing as tenant in the rented house belonging to the sister-in-law of the complainant, which is also born out from the copy of the notice issued to the accused by the complainant. The case of the accused is that while vacating the house, she insisted to pay damages for damage caused to the premises, amounting to Rs. 50,000/-, though no actual damage was caused to the house. In that connection, he had given a cheque for Rs. 50,000/- to the sister-in-law and not the complainant. In other words, the complainant has mis-used the said cheque. All these defences put forth by the accused have been duly considered by the Magistrate in it proper perspective and he has been convicted for the offence punishable u/s 138 of N.I. Act. Whatever material produced by the accused is not sufficient to come to the conclusion that the cheque in question was given by the accused towards security. So far as purchase of car is concerned, definitely the said cheque was not at all issued by the accused in favour of the complainant. Therefore, the burden is on the accused under what circumstances, he issued the cheque in question. Explanation given by him does not inspire the confidence of the Court. The defence put forth by him is also not probable and acceptable. The accused failed to rebut the presumption u/s 138 of N.I. Act. Both the learned Magistrate and the Sessions Judge upon proper appreciation of the evidence found him guilty. I do not find any infirmity in the impugned judgment of conviction and sentence passed by the Magistrate and confirmed by the Sessions Judge. There is no merit in this revision petition. Hence, I pass the following order:-

Criminal revision petition is dismissed.