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2020 Supreme(Kar) 1961
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
K.S. MUDAGAL, J.
Smt M.V.Nagarathna w/o Vishwanatha A.K. – Appellant
Versus
Sri Basavaraj A.R. s/o Rangappa – Respondent
Criminal Revision Petition No.753 of 2016
Decided On : 14-10-2020
Advocate Appeared:
For the Appellant : Sri.R.V.Shivananda Reddy, Adv. For Sri Nanjunda Gowda M.R., Adv.
For the Respondent: Sri. Jagadish Goud Patil, Adv.
Headnote:
Negotiable Instruments Act - Section 138 - Allegation of borrowing loan - Cheque was misused to - Complainant presented cheque drawn on Syndicate Bank, Branch for through his account in Bank of Baroda Branch - Said cheque was dishonoured as per memo with endorsement funds insufficient – Held, These records show that accused was involved in similar case on allegation of borrowing loan from one issuing cheque and cheque was dishonoured - Joint memo shows that accused settled said matter for ultimately - Certified copy of application filed by for recovery of compensation in pursuance of the order passed in convicting the accused for offence punishable Section of NI Act - Supreme Court in APS Services - International Fashion Linkers and Others1 has held that moment accused admits cheque and his signature on cheque presumption arises that the cheque in question was issued towards discharge of legally enforceable debt or liability and it was for accused to rebut such presumption - In this case also the presumption Section Negotiable Instruments Act was not rebutted by adducing acceptable evidence - Petition dismissed
ORDER :
1. This revision petition is preferred against the order of conviction and sentence passed by the J.M.F.C-III Court, Davanagere in C.C.No.967/2014 against the petitioner and confirmed by the Additional District and Sessions Judge, Davanagere in Crl.A.No.35/2015.
2. By the impugned order, the trial Court convicted the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced her to pay fine of Rs.2,50,000/-, in default to pay the fine amount, to serve the sentence of simple imprisonment of one year. Out of the fine amount, Rs.2,45,000/-was ordered to be paid to the complainant as compensation and Rs.5,000/-was ordered to be remitted to the State.
3. Petitioner was the accused and the respondent was the complainant before the trial Court. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the trial Court.
4. Complainant presented the cheque -Ex.P1 dated 15.05.2006 drawn on Syndicate Bank, Chickmagaluru Branch for Rs.2,25,000/-through his account in Bank of Baroda, Davanagere Branch. The said cheque was dishonoured as per the memo-Ex.P2 dated 03.08.2006 with the endorsement “funds insufficient”.
5. The complainant got issued notice -Ex.P7 dated 19.08.2006 to the accused alleging that she has borrowed Rs.2,25,000/-in December 2005 for her personal use agreeing to repay the same with interest at the rate of 2% per month and failed to repay the same. In the notice, the complainant further alleged that towards discharge of the said loan, accused issued the cheque -Ex.P1 without arranging the funds for honouring the said cheque, therefore, that was dishonoured. Therefore, he called upon the accused to pay the cheque amount.
6. According to the complainant, the notice was served on the accused under acknowledgment -Ex.P6 and she failed to pay the cheque amount. Therefore, the complainant filed complaint against the accused before the trial Court to prosecute her for the offence punishable under Section 138 of the Negotiable Instruments Act.
7. The trial Court, on taking cognizance, tried the accused. The trial Court, initially by the order dated 18.08.2010, convicted the accused and sentenced her.
8. The accused challenged the said order of conviction and sentence in Crl.A.No.117/2010 before the I Additional District and Sessions Judge, Davanagere which came to be dismissed on 02.11.2010. The accused challenged the said order before this Court in Crl.R.P.No.1561/2010. This Court, vide order dated 18.02.2014, set aside the aforesaid order of conviction and sentence passed by the trial Court and confirmed by the First Appellate Court on the ground that the trial Court declined to accept the evidence adduced by the accused by way of affidavit.
9. Further this court in Criminal Revision Petition No.1561/2010 remanded the matter to the trial Court with a direction to record the defence evidence and dispose of the matter afresh. Accordingly, the trial Court recorded the further evidence of DW.1/accused. Again after hearing both the parties, the trial Court by the impugned order, convicted and sentenced the accused as aforesaid and the First Appellate Court confirmed the same.
10. The records show that the accused contested the case on the following grounds:
(i). The loan transaction was denied.
(ii) Cheque -Ex.P1 was issued to one Shamala Godi, the sister-in-law of the complainant towards chit fund subscription transaction and that was misused by the complainant to file the case.
(iii). The notice -Ex.P7 was not served on the ] accused.
(iv). The cheque was issued not for discharging any liability payable to the complainant.
11. Both the trial Court and the First Appellate Court held that since the accused admitted her signature on the cheque and that the cheque pertain to her account, the presumption under Section 139 of the Negotiable Instruments Act that the cheque was issued towards discharge of liability arises and the accused has failed to rebut the
