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2019 Supreme(Kar) 843
IN THE HIGH COURT OF KARNATAKA
B.A. PATIL, J.
Revanappa - Appellant
Versus
T. Rangappa - Respondent
Criminal Revision Petition No. 1270 of 2015
Decided On : 03-09-2019
Advocate Appeared:
N.G. Parameswarappa, Adv., H.K. Basavaraj, Adv.
The presumption under Section 139 of the Negotiable Instruments Act includes a presumption of the existence of a legally enforceable debt or liability, which can be rebutted by the accused on preponderance of probabilities.
Headnote:
Negotiable Instruments Act - Cheque bounce - Section 138 - Summary
Fact of the Case:
The petitioner/accused challenged the judgment of conviction and order of sentence passed by the trial court, which was confirmed by the appellate court. The complainant alleged that the accused borrowed a sum of Rs.1,00,000 and issued a cheque which was dishonored. The accused contended that the cheque was stolen and misused by the complainant.
Finding of the Court:
The court found that the complainant had satisfied the legal requirements under Section 138 of the Negotiable Instruments Act. The court also held that the accused failed to rebut the presumption under Section 139 of the Act, and his conduct indicated an attempt to avoid payment.
Issues: The main issues were whether the cheque was issued towards a legally recoverable debt or liability, and whether the accused's defense of the cheque being stolen was substantiated.
Ratio Decidendi: The court relied on the presumption under Section 139 of the Negotiable Instruments Act, which includes a presumption of the existence of a legally enforceable debt or liability. The court also considered the accused's conduct and failure to provide evidence to substantiate the defense.
Final Decision: The petition was dismissed as devoid of merits, and the judgment of the lower courts was confirmed.
JUDGMENT :
B. A. PATIL, J.
1. The present petition has been filed by the petitioner/accused challenging the judgment passed by III Additional District and Sessions Judge, Shivamogga, in Criminal Appeal No.909/2011 dated 3.10.2015 whereunder the judgment of conviction and order of sentence passed by Civil Judge and J.M.F.C., Shikaripura in C.C.No.38/2008 dated 18.11.2011 has been confirmed.
2. I have heard the learned counsel for the respondent. Though several adjournments have been made, there is no representation on behalf of the petitioner/accused. As the petition cannot be dismissed for default, it has to be heard and decided on merits and as such the case was taken on merits and disposed of by this order.
3. The case of the complainant in brief is that, for urgent need of the accused he has taken a loan of Rs.1,00,000/- on 1.9.2007 and accused in discharge of the said loan has issued a cheque bearing No.457546 dated 3.9.2007 and when it was presented to the bank, the same was returned with shara 'funds insufficient'. Thereafter he has got issued the legal notice. In spite of the legal notice, he did not turned up and has not paid the amount and as such a private complaint has been registered. Thereafter, the presence of the accused has been secured and plea was recorded and thereafter the trial was held.
4. In order to prove the case of the complainant, he himself got examined as PW1 and got marked Exs.P1 to P6. Thereafter, the accused was examined under Section 313 of Cr.P.C. and accused himself got examined as DW1 and two more witnesses as DWs.2 and 3 and got marked Exs.D1 to D13. After hearing the learned counsel for the parties, the impugned orders came to be passed. Being aggrieved by the same, the petitioner/accused is before this Court.
5. The main grounds urged by the learned counsel for the petitioner in this petition are that, the trial Court without considering the merits and evidence on record has come to a wrong conclusion and has passed an erroneous order. He further contended that the complainant has not satisfied the legal requirement as per Section 138 of the Negotiable Instruments Act. He further contended that the respondent/complainant is not having any capacity to pay the loan and the petitioner accused is not liable to pay any amount. This aspect has not been properly appreciated by the trial Court. It is his further contention that the said cheque has not been issued by the petitioner/accused. The said cheque has been stolen. There is no legally recoverable debt or liability. It is his further contention that the respondent/complainant with the help of his son Umesh Naik and Rangappa hatched a plan and sent Umesh Naik and Rangappa to the house of the petitioner/accused and they have stolen the cheque of the petitioner and the same has been misused by the complainant by filing the complaint. He further contended that the trial Court without considering the fact that a complaint has also been registered in this regard, has erroneously passed the order. On these grounds he has requested to set aside the impugned order.
6. Per contra, the learned counsel for the respondent vehemently argued and submitted that accused approached the complainant and has taken Rs.1,00,000/- as a hand loan and has issued a cheque as per Ex.P1 and even after service of notice, he neither repaid any amount nor given any reply. Though defence of the accused is that the cheque was stolen with the help of two other persons and same has been misused, thereby the accused has admitted the signature and the said cheque belongs to the accounts of the accused, a presumption has to be drawn under Section 139 of the Negotiable Instruments Act that the said cheque has been issued in discharge of the legally recoverable debt and liability. It is the specific contention of the defence that the said cheque has been stolen, but no substantial evidence has been produced to substantiate the said fact. The Courts below after considering the said facts
