2012 Supreme(Kar) 440

High Court of Karnataka
A.N. VENUGOPALA GOWDA, J.
V. Thimmegowda
Versus
Shashi Bhushan Agarwal
Criminal Revision Petition No. 485 of 2009
Decided on : 16-08-2012

Headnote:INDIAN PENAL CODE, 1860 - Section 420: [A.N. Venugopala Gowda, J] Complaint filed under - Dishonour of three cheques - ’B’ Report filed by the Police - Subsequent initiation of proceedings under Section 138 of the Negotiable Instruments Act - Maintainability of private complaint under Section 200 Criminal Procedure Code for the initiation of proceedings under Section 138 of the Negotiable Instruments Act - Held, Ingredients of the offences under Section 420 IPC and Section138 of the N.I. Act are distinct and separate. There is no prior trial, conviction and sentence for an offence under Section 420 IPC, even assuming that two proceedings are substantially for the ’the same offence’. Further, After the three cheques were returned by the petitioner’s Bank on 27.12.2004, the respondent filed a complaint in the Police Station, against the accused for the offence under Section 420 IPC. The Police registered a case in Crime No. 348/2004 and after investigation filed ’B’ report in June 2005. The three cheques were re-presented on 27.12.2004 for encashment and were returned. A complaint under Section 200 Cr. P.C., was filed on 02.03.2005, alleging the commission of an offence under Section 138 of the Act. Hence, initiation of the proceedings under Section 138 of the Act against the accused is legal.

       NEGOTIABLE INSTRUMENTS ACT, 1881 - Section 138: [ A.N. Venugopala Gowda, J] Offence under - Cheques issued towards the payment for the goods supplied under delivery note - Dishonour of cheques -Failure of the petitioner to prove that the goods were either refused or returned by him to the respondent - No contest by the petitioner with regard to existence of legally enforceable debt - Held, The Accused has not rebutted the statutory presumption contemplated by Section 139 of the Act. In view of the testimony of PW-1 and exhibited documents, it is clear that the three cheques were issued by the petitioner towards the payment of the goods purchased by him from the respondent. The petitioner has failed to prove that the goods were either refused or returned by him to the respondent. Evidence of PW-1 has remained unchallenged. Further, It is for the petitioner to show that, in his account, there was sufficient fund to clear the amount of the cheques at the time of presentation of the cheques for encashment at his Bank and that the ’stop payment’ instruction was issued because of other valid cause. The burden of proof in this regard is on the drawer of the cheque/accused. The petitioner has not produced his account extract, to show that there was sufficient fund in this account, when the three cheques were presented for payment by the payee/respondent. The petitioner apart from not raising a probable defence, has not contested the existence of legally enforceable debt or liability. On facts held, The complaint and the evidence of PW 1 discloses existence of legally enforceable debt or liability, since, the complainant has maintained that, after receiving the order from the accused, the goods were supplied and the bills were raised and the three cheques in question were issued towards the payment of the three bills. Since, the issuance of three cheques is not in dispute, the statutory presumption under Section 139 of the Act has come into play and the Courts below are justified in applying the same.

       NEGOTIABLE INSTRUMENTS ACT, 1881 - Section 138: [A.N. Venugopala Gowda, J] Dishonour of cheque - A Prosecution under Section 138 - Validity A - Petitioner accused purchasing goods from complainant and obtained delivery- Bills were raised - Three cheques issued by accused towards payment of bills -Cheques presented to banker - Returned 0027-12-2004 with endorsements ’stopped payment’ - Again presented to banker and returned on 26-11-2004 - Accused served with notice for demand of payment on 13-1-2005 - Reply stated that quality and quantity of goods was not as per agreed terms and conditions hence ’payment stopped’ - Payment not made within 15 days of demand - Complaint filed on 2-3-2005 - Ingredients of offence under Section 138 met - Conviction under S. 138 - Proper.