Smt. Kanakarathna vs Smt. Stella Bharathi

A.N. Venugopala Gowda

This criminal revision petition has been filed by the accused who was found guilty of the offence under S.138 of the Negotiable Instruments Act, 1881 (for short, ''the Act'') and sentenced to pay fine of Rs. 7,60,000/-, in default, to undergo S.I. for a period of 6 months. Respondent flied a complaint against the petitioner for the offence under S.138 of the Act, as cheque -Ex.P2 issued for Rs. 7,50,000/-, drawn on Canara Bank, D.V.G. Road, Bangalore, in her favour was dishonoured with endorsement ''account closed''. Respondent issued a notice dated 21.03.2007 / Ex.P4, demanding the payment of the cheque amount. Postal acknowledgement is Ex.P5. Petitioner replied as per Ex.P7. No payment was made and hence, complaint as per Ex.P1 was filed.

In response to the summons, accused - petitioner appeared and pleaded not guilty. During trial, respondent deposed as PW-1 and examined one Smt. Vasanthi Rathnakar as PW-2 and marked Exs.P1 to P8. Accused was examined under 5.313 Cr.P.C. Later, she deposed as DW-1 and examined DOis 2 and 3 and marked Exs.D1 to D4. Learned Magistrate, after considering the rival contentions and the record, convicted the petitioner for the offence under S.138 of the Act and directed her to pay fine of - Rs. 7,60,000/-. Rs. 7,55,000/-, out of the fine amount, when realised, was ordered to be paid to the complainant by way of compensation. In default of payment of fine, accused was sentenced to undergo S.I. for a period of 6 months. Aggrieved, accused preferred CrI.A.865/2010 in the Sessions Court at Bangalore City. Upon consideration, the same was dismissed by a Judgment dated 23.04.2011. Seeking the setting aside of the said Judgments and Orders, accused has filed this petition.

Sri B.S. Hadimani, learned advocate, contended that the petitioner had given a Nank. cheque Ex.P2 for the purpose of security of the chit amount and subsequently discharged / paid the chit amount to the complainant and demanded the blank cheque Ex.P2, to which the complainant states that the cheque was misplaced and after tracing, the same would be returned. Learned counsel submitted that the blank cheque issued has been misused by the respondent - complainant and that the complaint flied, based on the misused cheque is false. Learned counsel submitted that, though the ingredients of offence under S.138 of the Act has not been made out by the complainant, the Courts below have committed error and illegality in finding the petitioner guilty of the offence under S.138 of the Act. He submitted that the findings recorded in impugned Judgments are perverse and hence, interference in the matter is warranted.

Sri M.S. Mandanna, learned advocate appearing for the respondent, on the other hand, supported the Judgments passed by the Courts helow and sought dismissal of the petition.

Complainant has deposed as PW-1. Cheque in question has been marked as Ex.P2. Issuance of cheque - Ex.P2 by the petitioner is not in dispute. Said cheque was returned by the petitioner''s bank vide endorsement Ex.P3 "account closed"_ Demand was made to pay the cheque amount by issue of legal notice Ex.P4. Postal acknowledgement is Ex PS. Reply sent to demand notice is at Ex.P7 Cheque amount having not been paid, complaint Ex P1 was flied,

Under 5.118 of the Act, unless the contrary is proved, it has to be presumed that the negotiable instrument had been made or drawn for consideration. Under S.139, Court has to presume, unless the contrary is proved, that the amount of the cheque was received for discharge, in whole or in part of a debt or liability. Thus, in a complaint for the offence under S.138 of the Act, Court has to presume that the cheque had been issued for a debt or liability as has been held in the case of Rangappa Vs. Sri Mohan, The presumption under S.139 is rebuttable_ The burden of proving that the cheque had not been issued for debt or liability is on the accused as has been held by the Apex Court in the case of Hiten P. Dalal Vs. Bratindranath Banerjee,

Petitioner examined herself as DW-1 and examined two witnesses ac DWs 2 and 3 and marked Exs.D1 to D4. She has not produced credible evidence in proof of the discharge of the liability / debt.

In Rangappa Vs. Sri Mohan, Apex Court has held that the presumption mandated by S.139 of the Act does indeed include the existence of a legally enforceable debt or liability and to that extent, the observations made in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, was held to be not correct. The evidence led by the petitioner through DWs 1 and 2 is formal in nature and the defence putforth being not probable, since credible evidence with regard to discharge was not produced and the burden of proof which was on the petitioner having not been discharged, the Trial Court was justified in applying the presumption under S.139 of the Act.

Since the accused did admit that the signature on the cheque lives hers, the statutory presumption having come into play and the same having not been rebutted, learned Magistrate is justified in finding the petitioner guilty of the offence under S.138 of the Act and in sentencing her. Learned Appellate Judge, taking into consideration the contentions raised and having perused the record, after re-appreciation of the evidence, has rightly dismissed the appeal. The concurrent findings recorded by the Courts below are neither perverse nor illegal warranting interference. The petitioner has not complied with the deposit 25% of the fine amount. Though opportunity was granted repeatedly, extending the period for deposit of the amount, till date, no deposit has been made. Be that as it may. In view of the evidence produced by the complainant, the ingredients of offence under S.138 of the Act having been made out and the statutory presumption under S.139 having not been rebutted, there is no case made out for interference in exercise of the revisional jurisdiction.

Consequently, the petition being devoid of merit, is dismissed.