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Smt. Sahira Banu W/O Nazeer Khan Vs. Lynal Pinto S/O P.J. Pinto, Prop.
Souza Electronics and

LegalCrystal Citation : legalcrystal.com/386668

Court : Karnataka

Decided On : Sep-25-2008

Reported in :
2009(6)KarLJ153:2009(3)AIRKarR406:AIR2009NOC1818:2009Cri.LJ(NOC)832.

Judge : Arali Nagaraj, J.

Acts : Negotiable Instruments Act - Sections 138 and 139; Code of Criminal
Procedure (CrPC) - Sections 200

Appeal No. : Criminal Revision Petition No. 982/2007

Appellant : Smt. Sahira Banu W/O Nazeer Khan

Respondent : Lynal Pinto S/O P.J. Pinto, Prop. Souza Electronics And; State of
Karnataka Rep. by State Public Pro

Advocate for Pet/Ap. : Nishith Kumar Shetty and; Vishwajithshetty, Advs.

Disposition : Petition allowed

Judgement :

ORDER

Arali Nagaraj, J.

1. The petitioner herein who is accused in C.C.No. 848/03 has challenged the legality
and correctness of the impugned judgment and order of conviction and sentence
passed in the said case by the learned Addl. Civil Judge (Jr.Dn.) & JMFC, Puttur,
Dakshina Kannada (hereinafter referred to as the 'trial Court' for short) convicting
this petitioner-accused for the offence punishable under Section 138 of the
Negotiable Instruments Act ('N.I.Act' for short) and sentencing him to pay a fine of
Rs. 27,000/-. She has also challenged the judgment dated 3.7.2007 passed in CrLA.
No. 183/06 on the file of the learned I Addl. Sessions Judge, Dakshina Kannada,
Mangalore (hereinafter referred to as the 'Appellate Court' for short) confirming the
said judgment and order of conviction and sentence passed by the trial Court.

2. Though this case was listed on 5.9.08 for admission it was taken for final disposal
with the consent of the learned Counsel appearing for both sides and their arguments
on merits were heard in part and then the case was adjourned to 22.9.2008. Further
arguments of the learned Counsel for the petitioner were heard on 22.9.2008. Since
the learned Counsel for the respondent-1 was not present his arguments came to be
taken as heard and the case is listed today i.e., 25.9.08 for dictating order. Today,
arguments of Sri Gangadharaiah, the learned Counsel for respondent-1, are heard.
Perused the impugned judgments and also the entire material on record in the said
case obtained from the trial Court.

3. Having heard both the sides the point that arises for my determination is,

Whether the trial Court and also the Appellate Court are justified in holding that the
petitioner-accused is guilty of the offence punishable under Section 138 of N.I. Act?

4. My finding on the above point is in the 'negative' for the following

REASON

5. The case of the complainant as averred in his complaint filed in the said case under
Section 200 Cr. P.C. is as under:

a) The accused is known to the complainant since some time. She approached his
shop namely M/s. Souza Electronics. After mutual discussion he sold to the accused
electronic items worth Rs. 24,335/- and the accused gave him the cheque bearing No.
831567 dated 4.12.2001 drawn in favour of M/s. Souza Electronics.

b) On being presented to the bank on 4.12.2001 itself the said cheque came to be
bounced for want of funds. Therefore the complainant issued statutory notice dated
12.12.2001. Despite receipt of the said notice the accused did not reply to it
Therefore the complainant filed the said case.

6. Sri Nishith Kumar Shetty, the learned Counsel for the petitioner strongly
contended that both the trial Court and the Appellate Court proceeded to examine the
case of the complainant and also that of the accused on the assumption that the
presumption under Section 139 of N.I. Act extends not only to the fact that the
accused issued cheque in question towards discharge of legally enforceable debt, but
also to the factum of existence of such debt as on the date of issue of the cheque. He
further submitted placing his reliance on the decision of Madras High Court in the
case of B. Adarsh Rao v. Tamil Nadu Electrical rep. by its Manager reported in Cases
on Dishonour of Cheques page 341 (year of the citation is not found on the xerox copy
of the citation furnished) urged that since the cheque was issued in the name of M/s.
Souza Electronics, the complainant, namely Lynal Pinto could not maintain the
complaint in his own name and the courts below lost sight of this fact and therefore
both the judgments deserve to be set aside.

7. As against the above submission, Sri Gangadhariah, the learned Counsel for
respondent-1, submitted that since the presumption has to be drawn in favour of the
complainant as provided under Section 139 of the N.I. AU when once the cheque is
issued the same is held to be issued towards discharge of legally enforceable debt
and therefore, since the issuing of cheque by the accused is not in dispute, both the
courts below rightly held the accused guilty of the said offence and as such the
judgments impugned in this revision do not call for any interference.

8. On careful reading of the averments in the complaint it is seen that the

complainant has filed the said case in the capacity of the proprietor of M/s. Souza
Electronics. It is seen from the evidence of P.W.I complainant in the cross-examination
made on behalf of the accused that it is clearly suggested to him that the accused
issued as many as 10 cheques towards payment of installments. Therefore, the
contention of the learned Counsel for the petitioner accused that the complaint filed
by the complainant could not be maintained as there is not sustainable.

9. On perusal of the averments of the said complaint it is further seen that the
complainant stated therein that he sold to the accused on 4.12.2001 electronic items
worth Rs. 24,335/- and therefore the accused gave him the said cheque on that date
only. He has not stated the particulars of electronic items said to have been sold to
her. Further, besides not producing any documents, he has clearly stated in his cross-
examination that he cannot say in certainty as to whether he had any documents for
having sold TV and electronic items to the accused on that date as the transaction
was old one.

10. The defence of the accused, as stated in her evidence as D.W. 1 is that during the
year 1998 she visited the shop of the complainant for purchasing a TV on installment
basis and on that day, she issued the complainant as many as 10 blank cheque leaves
on the promise made by him that he would supply her TV on installment basis. She
has further stated in her evidence that since she wanted to buy Thompson TV and the
said TV was not available with the complainant on that day she left the cheque leaves
with him and asked him to give her Thomson TV only. She has also stated that
thereafter the complainant did not give her Thomson TV nor did he return her the
said cheque leaves even after lapse of many months.

11. When a suggestion was put to P.W.I complainant in his cross-examination that the
accused had given him 10 cheque leaves as security towards payment of installment,
towards purchase of TV he has said that he could not say how many cheque leaves
were given to him by the accused. He has further deposed in the cross-examination
that he presented some of the cheques issued to him by the accused for encashment
to the bank every month, but he does not remember the number of such cheques.
Thus it is clear that the complainant received several cheque leaves from the
accused, if not 10 cheque leaves as stated by the accused in her evidence and, he
presented some of them to the bank and got the same encashed. Despite this being so
he has presented the cheque in question for Rs. 24,335/-being the entire cost of TV
set which is alleged to have been supplied by him to the accused.

12. On careful reading of both the impugned judgments it is seen that both the trial
Court and the Appellate Court proceeded to examine the case of the accused on the
assumption that the accused was to prove her case beyond reasonable doubt. The
learned Counsel for the petitioner-accused has placed reliance on the decision of the
Hon'ble Apex Court in the case of Krishna Janardhan Bhat v. Dattatraya Q. Hegde
reported in : 2008CriLJ1172 . The Apex Court observed at para 23 as under:

An accused for discharging the burden of proof placed upon him under a statute need
not examine himself. He may discharge his burden on the basis of the materials
already brought on record. An accused has a constitutional right to maintain silence.
Standard of proof on the part of an accused and that of the prosecution in a criminal
case is different.

Furthermore, whereas prosecution must prove the guilt of an accused beyond all
reasonable doubt, the standard of proof so as to prove a defence on the part of an
accused is 'preponderance of probabilities'. Inference of preponderance of
probabilities can be drawn not only from the materials brought on record by the
parties but also by reference to the circumstances upon which he relies.

13. If the facts of the present case are examined in the light of the above
observations, it could be seen that if it is the case of the complainant that on that day
of alleged purchase of the said electronic items from his shop by the accused, she
issued only one cheque for the said amount of Rs. 24,335/- being the full value of the
electronic items purchased by her, it is the defence of the accused that she issued as
many as 10 blank cheque leaves to the complainant for purchasing Thomson TV as
the said TV was not available with the complainant on that date he could not deliver
the same to her and promised her to give her the said TV on next day and therefore
she left with the complainant all the cheque leaves, aneUctumei. The complainant has
admitted in his evidence that he received more than one cheque leaf and he
presented to bank one cheque every month from out of the cheque leaves issued to
him by the accused. He has not stated in the complaint that after getting some of the
cheques issued by the accused encashed, the balance amount of Rs. 24,335/- was left
unpaid and therefore he got the balance amount filled in one of the remaining cheque
leaf and presented the same. On the other hand, it is his case that the accused issued
the said cheque in question for the full price of all the electronic goods said to have
been purchased from him. The defence of the accused that she issued more than one
cheque to the complainant as security towards payment of installments for the
purchase of TV from the complainant appears to be quite probable in view of clear
admission of the complainant in his evidence that he received more than one cheque
leaf from the accused on that date. Besides this though it is averred in the complaint
that he sold to the accused some electronic items it is his case, as deposed in his
evidence, that he sold one TV only. Added to this he has not produced any document
such as copy of invoice which has to be maintained by such a shop owner towards
sale of electronic goods. Therefore, I am of the considered opinion that the accused
has been able to place on record legally acceptable evidence by eliciting from the
evidence of P.W. 1 himself and also by deposing herself as D.W. 1 in support of her
defence and thereby successfully rebutted the presumption that was to be drawn in
favour of the complainant by virtue of Section 139 of N.I. Act. Both the Trial Court
and the Appellate Court committed serious error in not considering this aspect of the
case.

14. In the same judgment referred to supra the Hon'ble Supreme Court has observed
as to the presumption to be drawn in favour of the complainant under Section 139 of
N.I. Act as under.

At Para 20: 'Section 138 of the Act has three ingredients, viz,:

(i) that there is a legally enforceable debt;

(ii) that the cheque was drawn from the account of bank for discharge in whole or in
part of

any debt or other liability which presupposes a legally enforceable debt; and

(iii) that the cheque so issued had been returned due to insufficiency of funds.

At para 21:
The proviso appended to the said section provides for compliance of legal
requirements before a complaint petition can be acted upon by a court of law. Section
139 of the Act merely raises a presumption in regard to the second aspect of the
matter. Existence of legally recoverable debt is not a matter of presumption under
Section 139 of the Act. It merely raises a presumption in favour of a holder of the
cheque that the same has been issued for discharge of any debt or other liability.

At para 22:

The courts below, as noticed herein before, proceeded on the basis that Section 139
raises a presumption in regard to existence of a debt also. The courts below, in our
opinion, committed a serious error in proceeding on the basis that for proving the
defence the accused is required to step into the witness box and unless he does so he
would not be discharging his burden. Such an approach on the part of the courts, we
feel, is not correct.

15. Above observations aptly apply to the facts of the present case inasmuch as
though not required as per the above observation, the accused has stepped into the
witness box and deposed in support of her defence. Besides this the accused has
elicited in the cross-examination of P.W. 1 that she gave him more than one cheque
and he got some of them encashed by presenting the same to the bank. But he has
not explained in respect of which debt, other than the price of the electronic goods
alleged to have been sold to the accused, the said other cheques were issued to him.
This being so, the case of the complainant that the said cheque in question was issued
by the accused towards discharge of the whole amount of Rs. 24,335/- could not have
been accepted by the trial Court as well as the Appellate Court. It is quite apparent
from the evidence of P.W. 1 complainant that he did not approach the Court with clean
hands. Therefore, I am of the considered view that the accused has successfully
established that there did not exist any debt payable by her to the complaint as on the
date of issuing of the cheque in question and the successfully rebutted the
presumption to be raised under Section 139 of the N.I. Act in favour of the
complainant.

16. For the reasons aforesaid I am of the considered opinion that both the trial Court
and the Appellate Court committed serious error in recording their findings in their
respective Judgments against the accused for the offence punishable under Section
138 of N.I Act As such the revision petition deserves to be allowed and both the said
judgments deserve to be set aside.

17. In the result the present revision petition is allowed. The judgment and order of
conviction and sentence dated 8.5.2006 passed in C.C. No. 848/03 by the Addl.Civil
Judge (Jr. Dn.) & JMFC, Puttur, and also the judgment dated 3.7.2007 passed in CrI.A.
No. 183/06 on the file of the 1 Addl. Sessions Judge, Dakshina Kannada, Mangalore,
are hereby set aside. The accused is hereby acquitted of the offence punishable under
Section 138 of N.I. Act. The bail bonds of the petitioner-accused shall stand cancelled.
If any amount of fine is deposited by the petitioner-accused in the trial Court the
same shall be returned to her. If any part of the fine amount deposited in the court by
the accused has been paid to the complainant, the same shall be recovered from him
and refunded to the accused.

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