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2020 Supreme(Kar) 1351
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
N.K. Sudhindrarao, J.
S.N. Rajesh - Appellant
Versus
S. Ananda Rao - Respondent
Criminal Revision Petition No. 717 of 2015
Decided On : 02-09-2020
Sachin B S, Advocate, S. Rajashekar, Advocate
The burden of proof in establishing the circumstances of losing a cheque and the presumptions under Section 118 and Section 139 of the Negotiable Instruments Act.
Headnote:
Negotiable Instruments Act - Cheque Bounce - Section 138 - Section 118, Section 139 - The court discussed the presumptions under Section 118 and Section 139 of the Negotiable Instruments Act, highlighting the presumption of consideration and in favor of the holder of a cheque. The court also considered the defense of losing the cheque and misuse by the complainant, emphasizing the need for the accused to establish the circumstances of losing the cheque and the burden of proof in such cases.
Fact of the Case:
The accused issued a post-dated cheque for a sum of Rs.4,00,000/- which was returned due to insufficient funds. The complainant filed a complaint under Section 138 of N.I. Act, and the trial court found the accused guilty, convicting him and ordering compensation to the complainant. The appellate judge confirmed the judgment, leading to the accused filing a revision petition.
Finding of the Court:
The court found that the accused's defenses of losing the cheque and misuse by the complainant were not adequately established. It upheld the judgments of the trial court and the appellate judge, concluding that there was no lapse or irregularity in their decisions.
Issues: The issues revolved around the dishonor of the cheque, the defenses raised by the accused, and the burden of proof in establishing the circumstances of losing the cheque.
Ratio Decidendi: The court emphasized the need for the accused to establish the circumstances of losing the cheque and the burden of proof in such cases. It also highlighted the presumptions under Section 118 and Section 139 of the Negotiable Instruments Act.
Final Decision: The revision petition was rejected at the stage of admission, and the judgments of the trial court and the appellate judge were upheld.
JUDGMENT
N.K. Sudhindrarao, J. - This matter is taken up through Video Conference. Heard learned counsel Sri. Sachin B.S. for petitioner who has appeared before the court and learned counsel Sri. S. Rajashekar, for respondent present through VC.
2. This Criminal Revision petition is directed against the judgment and order dated 23.6.2015 passed by the V Additional District and Sessions Judge, Dakshina Kannada, Mangalore sitting at Puttur, D.K in Crl.A.No.37/2014 and consequently allow the
3. Being aggrieved by the said judgment and order passed by the learned Appellate Judge, accused S.N.Rajesh has come in this revision petition.
4. In order to avoid confusion and overlapping, the parties herein are referred to in accordance with their status and rankings as held by them before the trial court.
5. In order to save the judicial time, the substance of the complaint as extracted from the certified copy of the judgment dated 23/6/2015 in Crl.A.No.37/2014 is as under:
In respect of money due to the complainant the accused had handed over a post dated cheque for a sum of Rs.4,00,000/- bearing No.793485 dated 20.4.2011 of State Bank of Mysore, Puttur Branch. Apart from that he has also executed a D.P.Note and affidavit before the notary public. The said cheque was issued by him to present the same on or after 20.4.2011. The complainant presented the said cheque for encashment, the same was returned with an endorsement 'funds insufficient'. Hence, complainant got issued legal notice to the accused on 13.10.2011 calling upon him to make payment of the money due under the cheque. Notice was duly serve don the accused on 13.10.2011. The accused instead of complying the legal notice, has issued a frivolous reply on 5.11.2011. Thereafter, complainant filed a complaint before the court on 23.11.2011.
6. The trial court took cognizance of the offence punishable under Section 138 of N.I, Act. After recording of sworn statement of the complainant, the trial judge directed the office to register a criminal case against the accused for the said offences and ordered to issue summons him. Accused entered appearance and resisted the claim of the complainant. Plea of the accused was recorded, he pleaded not guilty and came to be tried.
7. During the trial, complainant got himself examined as PW1 and got marked 8 documents as Exs.P1 to P8. In sofar as accused is concerned, he has not produced any oral and documentary evidence.
8. After hearing the parties, learned trial Judge found the accused guilty and convicted him of the offence punishable under Section 138 of N.I. Act and sentenced him to pay a fine of Rs.5,50,000/- and in default to undergo S.I. for three months. Out of which, Rs.5,45,000/- is ordered to be paid to the complainant by way of compensation.
9. Against which, accused-S.N.Rajesh preferred Crl.A.No.37/2014 and complainant preferred Crl.A.No.40/2014. After hearing the parties, the learned Appellate Judge dismissed both the appeals on 23/6/2015 and thereby confirmed the judgment and order passed by the learned trial Judge in C.C.No.115/2012 on 18-01-2014. The judgment and order passed by the appellate Judge in Crl.A.No.37/2014 is challenged by the accused S.N.Rajesh in this revision petition.
10. Learned counsel Sri. B.S. Sachin, for petitioner would submit that the extent of responsibility of the accused to discharge the burden cast on him need not be from the evidence or statement filed or relied upon by him. Per contra, he can very well demonstrate the caselessness for the complainant through the evidence of the complainant. The responsibility of the accused is not beyond reasonable doubt. On the other hand it is preponderance of probabilities. Bunch of cheques or cheque books of the accused are contended to have been lost when he was running business at Annapoorna Complex, Harady, Puttur D.K. and he was not knowing about the same till he receive the legal notice Ex.P3.
11. Learned counsel for petitioner Sri B.S.Sachin would also sub
