Pundalik Subhanna More vs Shivaji Moning Sangaonkar

P.D. Waingankar, J.—By common judgment dated 08.07.2015 in C.C. Nos. 1024/2004, 1371/2004 and 1372/2004 on the file of the JMFC-III, Belagavi, the petitioner/accused has been convicted for the offence punishable under Section 138 of N.I. Act and has been sentenced undergo Simple Imprisonment for a period of one year and to pay fine of Rs. 1,95,000/- and in default to pay fine, to undergo Simple Imprisonment for a period of three months. Further it is also ordered that if the fine amount is recovered from the accused, out of the fine amount, Rs. 1,90,000/- shall be paid to the complainant as compensation under Section 357 of Cr.P.C. and the remaining amount of Rs. 5,000/- shall be credited to the State Account.

Aggrieved by the common judgment of conviction and the order of sentence, the accused preferred Crl. A. Nos. 90/2014, 92/2014 and 93/2014 before the 9th Additional District and Sessions Judge, Belagavi. Upon merits, by common judgment dated 17.04.2015, the appeals were dismissed by confirming the judgment of conviction and order of sentence passed by the learned Magistrate.

Aggrieved by the dismissal of three criminal appeals, the accused preferred these three revision petitions under Section 397 read with Section 401 of Cr.P.C.

I have heard the learned counsel for the petitioner/accused and the learned counsel for the respondent/complainant. Perused the records, more particularly the judgment passed by the learned Magistrate and the learned Sessions Judge.

The case of the complainant before the learned Magistrate was that the accused borrowed a hand loan of Rs. 1,85,000/- from the complainant for the purpose of construction of house from time to time. In order to repay the said amount he issued three cheques dated 07.05.2003 for Rs. 1,25,000/-, dated 29.04.2003 for Rs. 30,000/- and dated 23.04.2003 for Rs. 30,000/-. On presentation of the cheques, they were dishonoured for the reason "insufficient funds". The factum of dishonor of the cheques was brought to the notice of the accused by issuance of notice demanding payment of cheque amounts. The accused neither paid the cheque amount nor gave reply to the notice, which resulted in initiation of the proceedings for the offence punishable under Section 138 of N.I. Act.

The accused having denied the accusation, the complainant in order establish his case examined himself as P.W. 1 and relied upon as many as 27 documents marked as Exs. P1 to P278. The accused stepped into the witness box as D.W. 1 apart from examining D.W. 2 and D.W. 3, Exs. D1 to D12 were marked. The learned Magistrate on appreciation of the evidence convicted the accused for the offence punishable under Section 138 of N.I. Act in all the three cases. On re-appreciation of the evidence, the learned Sessions Judge confirmed the conviction and sentence. Hence, these revision petitions.

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

The learned counsel for the petitioner would submit that the date of advancement of the loan finds no place either in the demand notice or in the complaint, no documents are produced to show that the complainant had capacity to advance loan amount of Rs. 1,85,000/-, no documents are forthcoming for having paid the loan amount of Rs. 1,85,000/-, the cheques were issued as security in favour of the complainant so as to enable the complainant to raise loan for the purpose of his business and the blank cheques that were given by the accused to the complainant for the above purpose have been misutilised and the complaints came to be filed. Hence, the learned counsel for the petitioner sought to set-aside the judgment of conviction and sentence.

The learned counsel for the respondent-complainant on the other hand would submit that the complainant has produced the necessary documents as per Ex-P12 to P26 and Ex-P27 to show his financial capacity to advance the loan. Thus the presumption is in favour of the complainant and that the accused failed to probablise his defence so as to rebut the presumption that there is no merit in the revision petition filed by the accused and hence, the respondent sought for dismissal of the revision petition.

The complainant, who has examined as P.W. -1 went on record to depose that the accused is his friend, they were known to each other, that the accused was constructing his house and for the purpose of construction of his house, he demanded loan from the complainant and accordingly, the complainant paid a total loan amount of Rs. 1,85,000/- in three instalments and when he demanded repayment, the accused issued three different cheques which on presentation, came to be dishonoured, the accused having failed to pay the cheque amount in response to demand notice, the complainant filed a complaint against him for the offence punishable under Sections 138 of N.I. Act.

To substantiate the case, the complainant has produced all necessary documents, such as cheques, the bank memo informing the dishonour of the cheque, the demand notice issued to the accused, the postal acknowledgment by the accused for having received the demand notice. Thus the complainant by his oral evidence coupled with the documentary evidence has discharged the initial burden caste upon him in order to file a complaint for the offence punishable under Sections 138 of N.I. Act. The accused has admitted for having issued the cheques. But according to him, the blank cheques were issued by him to the complainant so as to enable him to raise loan from the third person by showing those cheques. The said defence is impossible to accept. If the complainant was really in need of money, he would approach the person who is capable of advancing the loan. Definitely, he would not have asked the accused to issue blank cheques instead of advancing the loan as to unable to complainant to raise loan from third person by showing those cheques. Be that as it may, the accused having admitted his signature and issuance of a cheque, a presumption has to be drawn under Section 139 of the N.I. Act that the cheques were issued towards legally recoverable debt and the said presumption extends to existence of debt also. Of-course the presumption under Section 139 of N.I. Act is a rebuttal presumption. It is for the accused to rebut the presumption by probablising his defence so as to rebut the presumption. It is true that the burden on the accused is not that of the prosecution burden where the prosecution has to prove the case beyond reasonable doubt. The accused can rebut the presumption by probablising his defence. The accused need not lead his evidence. He can carve out his defence from the evidence placed on record by the prosecution.

In an attempt to probablise his defence, the accused has produced documents to show that he had completed construction of the house of 28.12.2011 much earlier to the issuance of cheque and therefore question of obtaining loan from the complainant was not at all needed for him. He has also examined D.W. s-2 and 3 the bank officials to show that he had raised the loan from the banks and therefore he had no occasion to approach the complainant for loan. But, how much loan the accused had obtained from the banks is not known. The complainant has produced Ex-P10 Estimation of the cost and Ex-P11 the blue print. Ex-P12 to P26 are the share certificates and bank pass books to show the capacity of the complainant to advance loan. Ex-P27 shows that the complainant was an architect. Thus the complainant has produced sufficient documents to show his financial capacity and therefore there is no substance in the defence of the accused that the complainant was poor and he had no capacity to advance the loan. The accused though got examined himself as D.W. -1 and the bank managers as D.W. -2 and 3 apart from production of certain documents, he has not been able to probablise his defence so as to rebut the presumption under Section 139 of the N.I. Act. Under such circumstances, both the Magistrate and the Sessions Judge are right in convicting the accused for the offence punishable under Sections 138 of N.I. Act. I do not find merit in all these revision petitions filed by the petitioner.

Hence, I pass the following:--

"Crl. R.P. No. 100133/2015 c/w Crl. R.P. Nos. 100134/2015 and 100135/2015 are hereby rejected."