Tharanath Karkera vs John Mary Mendonca

K.N. Phaneendra, J.—1. Respondent served but remained absent.

The revision petitioner is the accused before the JMFC, (IV court), Mangaluru, in CC. No. 2593/2008, who was convicted for the offence under Section 138 of the Negotiable Instruments Act and sentenced to pay a fine of Rs. 66,000/- with a default clause to under go S.I. for a period of six months. The trial court also ordered Rs. 65,000/- to be paid as compensation out of the fine amount to the complainant. Being aggrieved by the said judgment of conviction and sentence, the accused(petitioner herein) preferred an appeal before the VI Addl. District & Sessions Judge, D.K. Mangaluru, in Crl. A. No. 62/2014. After re-evaluation and appreciation of the facts, the first Appellate court has confirmed the judgment of conviction and sentence passed by the trial court by dismissing the appeal filed by the accused. Being aggrieved by the same, the petitioner-accused is before this court.

On careful evaluation of the materials on record, both the courts below have recorded their findings on the facts of the case. There is a very remote power vested with the revisional court to re-appreciate the evidence on record. The case of the complainant is that the accused has borrowed a sum of Rs. 60,000/- on 4.3.2005 and for repayment of the same, he has issued a cheque dated 8.9.2005. On presentation, it came to be dishonoured. After issuing legal notice in accordance with law, as the accused has not complied with the notice nor replied the said notice, a private complaint came to be lodged. In pursuance of the summons issued by the court, the accused appeared before the court and contested the proceedings. He never denied the signature on the cheque nor the dishonour of the said cheque by the bankers and he has also never denied that the said cheque does not pertain to his account etc., He has taken up a specific defence that he has borrowed a sum of Rs. 10,000/- from one Sumith Raj and issued the said cheque in favour of Sumit Raj as a security for the repayment of the said amount of Rs. 10,000/-. He has denied any transaction between himself and the complainant.

The complainant was examined before the court as P.W. 1 and reiterated the complaint averments. Subsequently, due to the death of the deceased, his mother Smt. Dulcine D''souza came on record and continued the prosecution. She was also examined before the court and the necessary documents-Ex. P.1 to P.9 were marked. The accused also examined himself as D.W. 1. In the course of the cross-examination also some suggestions have been made to the prosecution witnesses that he issued the said cheque in favour of one Sumit Raj as security for repayment of Rs. 10,000/-. But the accused has not suggested as to how the complainant came into possession of the said cheque nor the said Sumit Raj was examined before the court to establish the said defence taken by the accused. As rightly held by the trial court and the first appellate court, it is the burden on the accused to establish his case by preponderance of probabilities. But except the defence taken by the accused, no evidence has been lead in order to substantiate the said defence taken by the accused. Said Sumit Raj, is the proper person to support the case of the accused by telling whether the said cheque was issued in his favour for repayment of any debt of Rs. 10,000/-. It goes without saying that the accused has also admitted that the said cheque was issued for repayment of some loan amount taken by him. But according to him, it is from Sumit Raj he has taken such loan. When the said defence taken by the accused has not established by the preponderance of probabilities, the presumption raised in favour of the complainant under Section 139 of the N.I., Act cannot be said to have been rebutted by the accused.

In this regard, it is worthy to refer to the decision of the Apex Court as to how the accused can discharge his Onus:-- reported in Rangappa v. Sri. Mohan, , (2010) 11 Supreme Court Cases 441. The Apex court has observed that "Section 139 is an example of reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act, specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof."

It is also observed that reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence.

In view of the above said decision, initial presumption has to be raised in favour of the complainant and the accused is entitled to rebut the said presumption by means of preponderance of probabilities. The preponderance of probabilities should be based on the evidence adduced by the parties before the court. It is not a defence taken for the sake of defence by the accused is sufficient to rebut the presumption. Defence has to be satisfactorily shown to the court that such thing is also probable to hear in this case. The accused has not taken any such pains to show to the court that he has issued a cheque in favour of Sumit Raj. Therefore, how that cheque came to the hands of the complainant is not explained. In the absence of such materials in the evidence on record, the court cannot be just imagine anything and draw any inference of its own. Formal defence or grounds will not be substitute to the probabilities that ought to have been placed before the court by the accused. Under the above such circumstances, when both the trial court and the first Appellate court, bestowed their attention to the evidence on record and gave a finding with regard to the facts of the case, by exercising power under Section 397 of Cr.P.C., the court should not normally interfere with the finding of fact arrived at by the trial court and the first appellate court, when there is no legal grounds urged before the court.

Hence, I am of the opinion, the petitioner has not made out any grounds to interfere with the judgment of conviction and sentence passed by the trial court and confirmed by the first appellate court. Hence, the revision fails. Accordingly the revision petition is dismissed.