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SUPREME COURT OF INDIA
(From the High Court of Karnataka at Bengaluru)
N.V. Ramana, CJI., A.S. Bopanna, Hima Kohli, JJ.
K.S. Ranganatha - Appellant
Versus
Vittal Shetty - Respondent
Criminal Appeal No. 1860 of 2011
Decided On : 08-12-2021
Negotiable Instruments Act, 1881 – Section 138 read with Sections 118 and 139 – Dishonour of cheque – Conviction and sentence – When a cheque is drawn out and is relied upon by drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount – Onus is on accused to raise a probable defence and standard of proof for rebutting presumption is on preponderance of probabilities – Defence sought to be put forth and witnesses examined in instant proceedings are only by way of improvement in respect of same cause of action – Defence sought to be put forth relating to cheque and other documents having been obtained by force, cannot be accepted as a probable defence when respondent successfully discharged initial burden cast on him – Appeal dismissed. (Paras 11, 17 and 19)
Facts of the case:
Appellant is assailing the judgment dated 18.08.2010 passed by the High Court of Karnataka in Criminal Appeal No. 485 of 2008. By the said judgment, Single Judge has allowed the appeal filed by the respondent herein and set aside the judgment of acquittal passed by the III Additional Civil Judge (Junior Division) and JMFC, Udupi in favour of the appellant herein in Criminal Case No. 3207 of 2004. Consequently, appellant herein was convicted and sentenced to pay compensation of Rs.4,00,000/- (Rupees four lakhs) within four months. In default thereto, the appellant was sentenced to simple imprisonment for a period of six months. The appellant was further ordered to pay a fine of Rs.5,000/- to the State, in default, to undergo simple imprisonment for a period of 15 days. The appellant therefore is claiming to be aggrieved by the judgment impugned herein.
Findings of Court:
Conclusion reached by Magistrate in C.C. No.3207/2004 to acquit the appellant herein, was not justified. Single Judge of the High Court was justified in his conclusion though detailed reasons have not been assigned.
Result : Appeal dismissed.
JUDGMENT :
A.S. Bopanna, J.
1. The appellant is before this Court assailing the judgment dated 18.08.2010 passed by the High Court of Karnataka in Criminal Appeal No. 485 of 2008. By the said judgment, the Learned Single Judge has allowed the appeal filed by the respondent herein and set aside the judgment of acquittal passed by the IIIrd Additional Civil Judge (Junior Division) and JMFC, Udupi in favour of the appellant herein in Criminal Case No. 3207 of 2004. Consequently, the appellant herein was convicted and sentenced to pay compensation of Rs.4,00,000/- (Rupees four lakhs) within four months. In default thereto, the appellant was sentenced to simple imprisonment for a period of six months. The appellant was further ordered to pay a fine of Rs.5,000/- to the State, in default, to undergo simple imprisonment for a period of 15 days. The appellant therefore is claiming to be aggrieved by the judgment impugned herein.
2. The factual matrix, in brief, is that the appellant and the respondent are known to each other. Both of them hail from Udupi in Karnataka. The respondent filed a private complaint under Section 2(d) read with Section 200 of the Code of Criminal Procedure (‘Cr.PC’ for short) against the appellant seeking that he be punished for committing the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’ for short). The complaint was filed on 17.03.2004 before the II Additional Civil Judge (Junior Division) and JMFC, Udupi in P.C. No. 213 of 2004 which was thereafter registered as CC No. 3207 of 2004. It was the case of the respondent that the appellant carried on the business of money lending and land brokerage for which he used to take loan from the respondent as and when required. In one such transaction, as per the case put forth by the respondent is that the appellant borrowed a sum of Rs. 3,75,000/- (Rupees three lakh seventy-five thousand) from the respondent on 12.06.2003 and executed an ‘on demand promissory note’ and a receipt in acknowledgment. The appellant also issued a postdated cheque bearing No. 062589 for Rs. 4,00,000/- (Rupees four lakhs) dated 12.12.2003, which included interest for six months. The said cheque was drawn on Corporation Bank, Ambalpady Branch, Udupi.
3. As per the case of the respondent, when the cheque was presented for realisation on 17.02.2004, the same was dishonoured by the bank for “insufficient funds” in the account of the appellant. Having got issued a legal notice dated 18.02.2004 and on the demand for payment of Rs.4,00,000/- (Rupees four lakhs) not being complied, the respondent filed the complaint in the jurisdictional court, the details of which is referred to supra. The appellant however came out with the defence that though he had borrowed an amount of Rs.80,000/- from the respondent in the year 1995, the same was repaid with interest, amounting to Rs.3,20,000/- (Rupees three lakh twenty thousand) through various cheques and there was no further amount due and payable. The appellant therefore denied that he had taken any loan on 12.06.2003, as alleged. It was the further case of the appellant that the respondent had assaulted and threatened him on 20.01.2004 and by force had obtained his signatures on blank papers as also on some cheque leaves which were being misused. The appellant had in that regard lodged a complaint on 02.02.2004, the trial of which was held in the Court of Additional Civil Judge (Junior Division) and JMFC, Udupi in CC No. 6318/2004. However, admittedly the respondent herein was acquitted in the said proceedings, through the judgment dated 06.12.2006 which has attained finality.
4. In order to contend that the complaint filed by the respondent alleging dishonour of cheque was motivated, the appellant alleged that as he had incurred debts, he decided to sell one of the properties belonging to him, which was purchased in the year 1994, so as to clear the said debts. The respondent evinced interest to purchase the same for
Dishonour of cheque – When a cheque is drawn out and is relied upon by drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount.
The presumption under Section 139 of the NI Act mandates that a cheque is presumed to be issued for discharge of a debt unless the accused proves otherwise.
The issuance of a cheque carries a presumption of consideration, which is rebuttable by the accused. Failure to prove the non-existence of a debt results in liability under Section 138 of the NI Act.
The presumption under Section 139 of N.I. Act is a presumption of law, as distinguished from the presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of i....
The presumption in favor of the complainant under the N.I. Act is rebuttable, and the standard of proof required to prove a defense in a criminal case is preponderance of probabilities.
Once there is no denial of issuance of cheque and signatures thereupon, presumption as available under Ss.118 and 139 comes into play.
The presumption under Section 139 of the Negotiable Instruments Act regarding the issuance of a cheque for a legally enforceable debt is significant; an accused must substantiate any rebuttal with cr....
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