Sri S.T. Krishnappa vs Mis. Canara Nidhi Ltd.

A.N. Venugopala Gowda

Challenging the Judgments and Orders of conviction and sentence passed for the offence under S. 138 of the Negotiable Instruments Act, 1881 (for short, ''the Act''), accused has Ned this criminal revision petition. Heard Sri S. Mahesh, learned advocate for the petitioner and perused the record.

Respondent filed a complaint alleging commission of an offence under S.138 of the Act, by the petitioner. Cheque/Ex.P2 issued by the petitioner for Rs. 5,00,000/-, in complainant''s favour was dishonoured with endorsement ''insufficient funds''. Respondent issued a demand notice and since the cheque amount was not paid, filed complaint under S.200 Cr.P.C., for the offence punishable under S.138 of the Act.

After trial, learned Magistrate convicted the petitioner for the offence under S.138 of the Act and sentenced to pay fine of Rs. 328,50,000/-, in default, to undergo S.I. for a period of six months. Rs. 727,50,000/-, out of the fine amount, when realised, was ordered to be paid to the complainant as compensation and the balance amount to go to State. Petitioner challenged the said conviction and sentence by filing CrI.A. No. 1766/2006 in the Sessions Court, Bangalore City. The appeal was dismissed on 18.08.2008. This revision petition is directed agaiost the said judgments and orders.

In this case, admittedly, petitioner issued cheque Ex.P2 and the same was returned by the bank as per Ex.P3, on the ground of ''insufficiency of funds''. Demand notice to pay the cheque amount is at Ex.P4. The same was served and reply is at Ex.P6. Complainant has also produced the ''on demand promissory note'', a ''take delivery letter'' and the undertaking to pay the loan amount. in instalments and other loan records.

Petitioner while deposing as DW-1 has testified that, he had borrowed loan of Rs. 215,00,00/- from the complainant and executed a promissory note. His contention was that, at the time of obtaining the loan, complainant insisted and obtained 16 blank cheques for security purpose, without mentioning the amount and the date. According to him, after receiving the said cheques, complainant misusing the same has filled the amount and the date and has foisted a false case. According to him, he had made substantial payment and was due only Rs. 250,000/- and that the documents showing payments to the complainant which were delivered to his advocate were lost. He has stated that, he lodged a complaint in Crime No. 230/2003 in the jurisdictional police station. That apart, he has stated that the complainant filed an arbitration application in A.P. No. 9/2000 in respect of the very same loan transaction and an Award has been passed and that he has preferred an appeal in A.S. No. 52/2003. He has stated that the complainant has filed Execution Case No. 2392/2001 to recover the Award amount passed in A.P. No. 9/2000.

Finding the defence to be not probable, complainant having made out the ingredients of S.138 of the Act and statutory presumption under S.139 having been not rebutted, learned Magistrate found the accused guilty and convicted him for the offence under S.138 and imposed sentence, as above The appeal having been found to be devoid of merit, was dismissed.

Under S.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 discharge of a debt or liability as has been held !n the case of Rangappa Vs. Sri Mohan, The presumption under 5.139;s reputable The burden of proving that the cheque had not been issued for discharge of 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,

In this case; though the petitioner deposed, in view of the admi5sion with regard to availment of loan and issuance of the cheque in question, the petitioner''s bank having not honoured the same on account of ''insufficient funds'', demand notice having been issued and cheque amount having not been paid, offence under S.138 having been made out, the burden of proof shifted to the petitioner/accused. In the circumstances of the case, keeping in view the defence taken in the affidavit filed by DW-1 / accused, he had to prove in trial, by leading cogent evidence, that there was no debt or liability. His case being one of discharge, petitioner - accused has failed to establish the same. By formally adducing evidence by way of deposing as DW-1, he has not discharged the burden cast on him.

Respondent - complainant having adduced evidence through PW-1 and marking relevant documents, the initial burden of adducing evidence having been discharged by it and the burden of proof having been shifted to the accused - petitioner, he having not discharged that burden by adducing cogent evidence by showing that cheque was not issued for discharge of a debt or Pability, learned Magistrate is justified in finding the petitioner guilty of the offence under S.138 of the Act and convicting and sentencing him as above. Appellate Court, on re-appreciation of evidence has concurred with the view taken by the learned Trial Judge and has rightly dsmissed the appeal. The concurrent finding recorded by the Courts below, keeping in view the evidence on record cannot be found fault with. There is neither any perversity nor illegality committed by the Courts below in the matter of appreciation of evidence placed on record by the parties. The record of the case has been correctly considered by the Courts below and the finding and conclusion are sound.

In the result, the petition is dismissed.

Petitioner is granted one month''s time to pay the fine amount. Part of the fine amount deposited, if any, be released in favour of the complainant. If the balance fine amount is not deposited within the time allowed, the bail bonds shall stand cancelled and petitioner shall surrender and undergo imprisonment.