Shakuntala Devappa vs B.R. Ravishankar

N. Ananda, J.—The petitioner (hereinafter referred as ''accused'') is before this Court against the concurrent findings of Courts below that he has committed an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short ''the Act''). The law is fairly well-settled that this Court while exercising revisional jurisdiction u/s 401 of the Criminal Procedure Code, 1973, does not sit as a Court of second appeal. This Court can interfere with the impugned judgment if the Courts below have committed glaring errors in appreciation of evidence or errors of law resulting manifest injustice to petitioner.

I have heard Sri B.A. Raviraj, learned Counsel for accused and Sri G. Chandrashekaraiah, learned Counsel for complainant.

The Trial Court accepting the evidence of complainant has held that accused had borrowed a sum of Rs. 50,000/- and she had issued two dishonoured cheques, one for a sum of Rs. 20,000/- and the other for a sum of Rs. 30,000/- to discharge aforestated liability. The Trial Court rejected the defence version that complainant had stolen cheques from the house of accused and misused the same to initiate the instant complaint. The learned Judge of First Appellate Court on re-appreciation of evidence has confirmed the aforestated findings.

On hearing learned Counsel for parties and after going through the impugned judgments with reference to evidence on record, I find that accused has not disputed that dishonoured cheques were drawn by her on the account held by her. On the other hand, accused has sought to establish that she had not filled in columns meant for name of payee and date of cheque. The accused had written the amount both in numericals and figures and signed cheques. The accused had left half-filled cheques to enable her husband to fill in the name of payee and date of cheques, to repay housing loan. These cheques were stolen by complainant to file the instant complaint. The accused had also initiated a complaint against complainant for stealing cheques, which was referred to jurisdictional police. The jurisdictional police on investigation submitted ''B'' report. Thereafter, accused did not pursue the matter for the reasons best known to her. These contentions have been dealt by Courts below. The same contentions are reiterated before this Court.

The accused has stated that complainant was a total stranger to her. There was no necessity for accused to borrow money from complainant. The accused has also contended that complainant is a coffee powder vendor, in that connection, he might have visited her house. In the next breath, accused has deposed that she had lodged a complaint against complainant after receipt of notice u/s 138(c) of the Act. During evidence, accused has come out with a new theory that one of her colleague namely Sunandamma, who had become hostile towards her had stolen cheques from house of accused and had given the same to complainant to initiate the instant complaint.

It is interesting to notice that accused without knowing complainant and without knowing the whereabouts of complainant had lodged a complaint alleging that complainant had stolen cheques from her house. During evidence, accused had come out with altogether a different version, stating that her colleague namely Sunandamma had stolen cheques, which were partially filled by accused and said Sunandamma had given to complainant to initiate the instant complaint. The versions put forth by accused are irreconcilable.

The learned Counsel for accused would submit that there has been discrepancy in the evidence adduced by complainant regarding place where money was lent to accused and also the date on which cheques were issued by accused.

u/s 118 of the Act, there is a presumption regarding holder of cheque. It is to be presumed that a person, who holds cheque holds the cheque for consideration unless contrary is proved.

The accused was working as a School Teacher. She has failed to explain the circumstances under which cheques partially drawn by her had reached the hands of complainant. It is true that initial burden of proof rests upon complainant to prove legally recoverable debt. It is true that Court can raise presumption that cheque was issued to discharge legally recoverable debt and such presumption is rebuttable. The accused can rebut such presumption, depending upon evidence adduced by complainant or by adducing evidence.

In the case on hand, the Courts below on appreciation of evidence adduced by complainant has held that complainant has proved existence of legally recoverable debt and cheques were issued to discharge legally recoverable debt.

The accused has put forth aforestated defence irreconcilable versions and has failed to rebut presumption available u/s 139 of the Act.

On reconsideration of the matter, I find that accused has failed to rebut presumption either by depending upon evidence adduced by complainant or on the basis of evidence adduced on behalf of accused. In the circumstances, Courts below were justified in holding accused guilty of an offence punishable u/s 138 of the Act.

The learned Counsel for accused has relied on the following decisions:

I. Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Payrelal, ;

II. M/s. Balaji Seafoods Exports (India) Ltd. and another Vs. Mac Industries Ltd., ;

III. K.N. Beena Vs. Muniyappan and Another, ;

IV. Sam Daniel Vs. John, ;

V. Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, ;

VI. M.S. Narayana Menon @ Mani Vs. State of Kerala and Another, ;

VII. Shreyas Agro Services Pvt. Ltd. Vs. Chandrakumar S.B., ;

VIII. Uppinangady Grama Panchayath Vs. P. Narayana Prabhu, ;

IX. S.A. Sabastian v. G. Thipperangaiah 2012(4) KCCR 3569;

X. Binod Kumar Lall Vs. State of Jharkhand and Another, ;

XI. Mr. P.S. Aithala Vs. Mr. Ganapathy N. Hegde, ;

XII. Nandkishore Mehra Vs. Sudhir Transport Ltd. and Another ;

XIII. Veerayya v. G.K. Madivalar 2012(3) KCCR 2057;

XIV. Jitendra Singh Flora Vs. Ravikant Talwar, ;

XV. Bhageerathy Vs. V. Beena and Another, ;

XVI. Anirudhan Vs. Philip Jacob, .

After going through the decisions cited above, I find the principles of law reiterated by me supra are not in any way divergent with the aforestated decisions.

The learned Counsel for petitioner submits that fine imposed by Trial Court is exorbitant and several efforts were made to settle the matter.

The learned Counsel for complainant would submit that accused has deliberately protracted the proceedings before Courts below and also before this Court and has derived benefit by retaining the amount payable to complainant. Therefore, reduction of fine will not call for interference.

Having regard to the facts and circumstances of the case and also submissions made by learned Counsel for parties, I deem it proper to reduce the fine from a sum of Rs. 1,00,000/- to Rs. 90,000/-. In the result, I pass the following:

ORDER

The revision petition is accepted in part. The conviction of petitioner-accused for an offence punishable u/s 138 of the Act is confirmed, however, payment of fine is reduced from Rs. 1,00,000/- to Rs. 90,000/-. The rest of the impugned judgment is confirmed.