P.Venugopal Vs. Madan
P.Sarathi  INSC 1768 (17 October 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1699 OF 2008
[Arising out of SLP(Crl.) No. 6189/2006] P. VENUGOPAL ... APPELLANT(S) :VERSUS:
Appellant is before
us aggrieved by and dissatisfied with the judgment and order dated 21.8.2006
passed by the learned Single Judge of the High Court of Karnataka at Bangalore
in Criminal Revision No.1020/2006, whereby and whereunder the revision
application filed by him from the judgment dated 14.10.2006 passed by the VIth
Fast Track Court at Bangalore in Criminal Appeal No. 4050/2005 affirming the
judgment and order dated 22.10.2005 passed by the XVIth Additional Chief
Metropolitan Magistrate, Bangalore in CC NO. 3400/2002, was dismissed.
gave a hand loan of Rs. 1,20,000/- to the appellant on 2 4.10.2000. In
discharge of the said debt the appellant is said to have issued two cheques for
Rs. 60,000/- each on 26.4.2001 and 5.4.2001. The said cheques were presented
before the bank on July 10, 2001 and were returned dishonoured on the ground
that sufficient fund therefor was not available.
Upon service of
notice upon the respondent, a criminal complaint was filed.
By an order dated
20th November, 2002, cognizance of the offence under Section 138 of the
Negotiable Instruments Act, 1881, was taken by the learned Magistrate.
Before the learned
Trial Judge, the parties examined themselves. One of the contentions raised by
the appellant was that there did not exist any relationship of creditor and
debtor between the parties. It was furthermore urged that notice in terms of
the proviso appended to Section 138 of the Negotiable Instruments Act was not
served upon the appellant.
Metropolitan Magistrate upon considering the materials brought on record by the
parties, including the report of a hand writing expert, opined that the
signatures appearing on Exhibit P-11 (Postal Acknowledgment) was not that of the
appellant. The signatures of the appellant on the said Postal Acknowledgment
was compared with his signatures on the cheque. Respondent, however, examined
the postal peon - BA Subramanium as PW-2.
He stated that he
knew the appellant very well.
3 The learned
Metropolitan Magistrate did not place any reliance upon the said report of the
hand writing expert and held that the notice was in fact served upon the
appellant. It was also not disputed that the address of the appellant stated by
the complainant was the correct address.
So far as the
contention raised by the learned counsel that the appellant had failed to prove
the relationship of creditor and debtor is concerned, yet again on appreciation
of the evidence brought on record, the learned Trial Judge opined that the said
relationship had been established.
which was raised by the appellant before the learned Trial Jude was that the
cheque had in fact been issued to one Satya Murthy who was a property dealer,
in respect whereof the learned Trial Judge held:
"In the present
case, the accused, to prove the arguments, has not produced any documentary
evidence supports before the Court.
On the contrary, the
Accused has admitted his Signature on the document Ex.P.12 produced by the Complainant.
It is marked as Ex.P12-A. In the Ex.P12, there is writing to the effect of
having given the disputed cheques to the Complainant. As stated in this, these
cheques are produced on 2.7.01. Therefore, in the absence of arguments of this
Accused, having not produced in support, cannot be accepted. In case, if this
Accused had really having given the Cheques to Sathyamurthy, if he, having
mingled with this Complainant, had filed this Complaint, the Accused should
have taken legal action against this Sathysmurthy and the Complainant, for
having mis-used the alleged Cheques, but, there are no 4 evidences before the
Court, for having taken such any legal proceedings. Therefore, the defence
evidence, raised by this Accused, having been rejected, the evidence produced
by the Complainant, and the Rulings reported hereinabove, coupled with the and
keeping in mind the rulings reported by the Learned Counsel for the
Complainant, in AIR 2005 Karnataka Page 4486;
ILR 1998 Page 1825;
ILR 2001 Karnataka Page 4027; by coming to the conclusion that, the Accused has
committed the offence punishable under Section 138 of N.I. Act, I answer the
Point No. One in the 'Affirmative'. "
On the aforementioned
finding that the respondent had proved its case against the appellant beyond
any shadow of doubt, a sentence of three months' simple imprisonment as also a
fine of Rs. 1,55,000/- was imposed upon the appellant. Out of the said amount
of fine, Rs. 1,50,000/- was, however, directed to be paid to the complainant
and the remaining amount of Rs. 5,000/- was directed to be credited to the
An appeal was
preferred thereagainst wherein the appellant inter alia raised a contention
that he had filed an application for adduction of additional evidence to prove
that he, in fact, had filed a complaint petition against the respondent -
complainant for misuse of cheque. Opining that no sufficient reason has been
assigned for allowing the said application for adduction of additional
evidence, it was held that the burden was on the appellant - accused to rebut
the case of the complainant. It was held that no material has been brought on
record by the appellant to show that the cheques had been issued in favour of
Satyamurthy, particularly, when he had not 5 been examined.
Before the Appellate
Court, a further contention was raised that the complainant had not been
residing at the address given by him, in support whereof a purported report of
a police constable was produced.
The learned Appellate
"All the said
contentions are of no use as it is not his concern to see if complainant is
residing at the said address or not. Even if it is presumed for a while that
complainant has no residence, it does not mean that he cannot transact with any
other person. In the light of the same, what is required is had there been any
transaction between complainant and the accused, had the accused in order to
discharge the legally enforceable debt, issued the cheque, had the cheque
issued was dishonoured when presented for realization and had inspite of
statutory notice being issued and served, the accused did not discharge the
legally enforceable debt."
On the aforementioned
finding, the appeal was dismissed. The revision application filed by the
appellant was also dismissed by reason of the impugned judgment.
Mr. Hegde, learned
counsel appearing on behalf of the appellant reiterated the aforementioned
contentions raised by the appellant before the Courts below. In support of the
said contentions, the learned counsel strongly relied upon a decision of 6
this Court in Krishna Janardhan Bhat vs. Dattatraya G. Hegde, [2008 (4) SCC
Section 138 of the
Negotiable Instruments Act reads as under:
cheque for insufficiency, etc., of funds in the account.- Where any cheque
drawn by a person on an account maintained by him with a banker for payment of
any amount of money to another person from out of that account for the
discharge, in whole or in part, of any debt or other liability, is returned by
the bank unpaid, either because of the amount of money standing to the credit
of that account is insufficient to honour the cheque or that it exceeds the
amount arranged to be paid from that account by an agreement made with that
bank, such person shall be deemed to have committed an ofence and shall,
without prejudice to any other provision of this Act, be punished with
imprisonment for a term which may be extended to two years, or with fine which
may extend to twice the amount of the cheque, or with both:
Provided that nothing
contained in this section shall apply unless- (a) the cheque has been presented
to the bank within a period of six months from the date on which it is drawn or
within the period of its validity, whichever is earlier;
(b) the payee or the
holder in due course of the cheque, as the case may be, makes a demand for the
payment of the said amount of money by giving a notice in writing, to the
drawer of the cheque, within thirty days of the receipt of information by him
from the bank regarding the return of the cheque as unpaid; and 7 (c) the
drawer of such cheque fails to make the payment of the said amount of money to
the payee or as the case may be, to the holder in due course of the cheque
within fifteen days of the receipt of the said notice."
The Act raised two
presumptions; one contained in Section 118 of the Act and other in Section 139
thereof. Section 118(a) reads as under:
Presumption as to negotiable instruments.- Until the contrary is proved, the
following presumptions shall be made:- (a) of consideration.- that every
negotiable instrument was made or drawn for consideration, and that every such
instrument, when it has been accepted, indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or transferred for cosideration;
Provided that, where
the instrument has been obtained from its lawful owner, or from any person in
lawful custody thereof, by means of an offence or fraud, or has been obtained
from the maker or acceptor thereof by means of an offence or fraud, or for
unlawful consideration, the burden of proving that the holder is a holder in
due course lies upon him."
Section 139 of the
Presumption in favour of holder.- It shall be presumed, unless the contrary is
proved, that the holder of a cheque received the cheque, of the nature referred
to in Section 138, for the discharge, in whole or in part, of any debt or other
8 Indisputably, in
view of the decisions of this Court in Krishna Janardhan Bhat (supra), the
initial burden was on the complainant. The presumption raised in favour of the
holder of the cheque must be kept confined to the matters covered thereby. The
presumption raised does not extend to the extent that the cheque was issued for
the discharge of any debt or liability which is required to be proved by the
complainant. In a case of this nature, however, it is essentially a question of
contended that he gave a loan of Rs. 1,20,000/- to the appellant. He denied and
disputed the said fact. Both parties adduced their respective evidences.
All the three Courts
below have arrived at a concurrent finding that the complainant has been able
to prove his case of grant of a loan. Admittedly the burden of proof shifted to
the appellant. Again a finding of fact was arrived at that the appellant had
failed to discharge his burden.
In the aforementioned
situation, we are of the opinion that the finding of fact arrived at by the
Courts below cannot be said to be such which warrants interference by us. So
far as the question of service of notice in terms of the proviso appended to
Section 138 of the Act is concerned, again the same is essentially a question
of fact. If the evidence of PW-2 has been believed by the learned Trial Judge
as also by the Appellate Court and the revisional Court, we in exercise of our
jurisdiction under 9 Article 136 of the Constitution of India should not
So far as the address
of the complainant is concerned, it appears, he is a resident of Marenahalli,
J.P. Nagar, Bangalore, as it appears from the affidavit affirmed in support of
the counter affidavit. From a perusal of the memo of appeal filed by the
appellant himself before the Appellate Court, it would appear that therein also
the same address was given, namely, Marenahalli, J.P. Nagar, Bangalore.
was aware that the respondent had been residing at Marenahalli, J.P. Nagar,
Bangalore as also the fact that he had shifted from his earlier residence,
namely, No. 326, 41st Cross Road, 8th Block, Jayanagar, Bangalore.
For the reasons
aforementioned, we are of the opinion that no case has been made out for our
interference with the impugned judgment. The appeal is dismissed.
As the amount of fine
has already been deposited, the Trial Court shall release the amount of Rs.
1,55,000/- in favour of the respondent, if it has not already been withdrawn.
DELHI, OCTOBER 17, 2008.