Bangalore District Court
Mrs. Priya Vargheese vs Aged About 40 Years on 23 March, 2021
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 23th day of March, 2021.
Crl. Appeal. No.25034/2019
Appellant/ Mrs. PRIYA VARGHEESE
Accused: Aged about 40 years,
W/o. Mr. Vargheese
R/at No.12, Victory Colours,
Barak Building, Near Sukhsagar
Cross, 3rd Main, 3rd Cross,
Ganesha Temple Road,
Kammanahalli,
Bengaluru560 084.
Presently at #13/1,
Banjara Layout, Horamavu Agara,
Priyavargheese,
K.R.Puram Hobli,
Bengaluru560 043.
[By Sri.K.Srinivasa & CoAdvocate]
V/s
2 Crl.Appeal.No.25034/2019
Respondent/ Mrs. SUJA SUKUMAR,
Complainant: Aged about 48 years,
W/o. Mr. Sukumar,
No.30, Chikkannappa Layout,
Near Ayyappa Temple
Byrathi, Kothanoor Post,
Bengaluru560 077.
(By Sri. K.Ajayakumar Adv.)
JUDGMENT
This Appeal is preferred by the Appellant/ Accused U/Sec. 374(3)(a) of Cr.P.C., being aggrieved by the Judgment of conviction passed by the LVII Addl. CMM, Bangalore, in CC.No.55706 of 2014, dtd.10.01.2019, convicting the Appellant for the offence punishable U/Sec. 138 of NI Act, thereby sentencing her to pay fine of Rs.5,000/. IN default, to undergo Simple Imprisonment for a period of three months. Further directed to pay an amount of Rs.42,62,625/ to the Complainant as compensation, under Sec.357 of Cr.P.C. Indefault, to pay the compensation, the Accused shall undergo Simple Imprisonment for a period of one year.
3 Crl.Appeal.No.25034/20192. The Brief facts leading to filing of the present appeal are:
The Respondent filed a Complaint U/Sec.200 of Cr.P.C. against the Appellant alleging that, the Appellant was her neighbourer, due to her request, she has paid totally an amount of Rs.14,50,000/, Rs.1,00,000/, Rs.1,50,000/, Rs.1,50,000/, Rs.1,25,000/ and Rs.1,00,000/. In total she has paid an amount of Rs.20,75,000/ to the Appellant. Further it is contended that she has paid some of the said amount, on the assurance of the Appellant that, she will be made a partner in a Firm. On demand the Appellant openly told her that, she will not take her in her business, but she will pay an amount of Rs.20,75,000/ and interest over it.
The Appellant had also collected a sum of Rs.2,00,000/ from her husband, but she had failed to repay the same as agreed. Later due to intervention of the friends and wellwishers, she has paid the said amount in three installments of Rs.50,000/, Rs.1,00,000/ and Rs.50,000/.4 Crl.Appeal.No.25034/2019
Thereafter, the Appellant had issued a Cheque bearing No.054568 dtd.145.03.2013 for Rs.15,00,000/ infavour of the Respondent, towards discharge of part liability and another postdated Cheque towards balance principle amount and had promised to pay interest after clearing both the Cheques. On presentation of the aforesaid two Cheques for encashment, they were returned unencashed.
The Respondent again approached the Appellant to repay the handloan amount of Rs.20,75,000/ with interest. On repeated requests and with the intervention of the friends and well wishers the Appellant has amicably settled the issue and has issued a Cheque bearing No.054569, dtd.08.05.2013, for Rs.21,25,000/, towards the discharge of the liability. On presentation of the said Cheque, again the said Cheque has returned unencashed with the reason "Funds Insufficient". The same was intimated to the Appellant, but she has willfully neglected to pay the amount covered under the said Cheque. The Respondent got issued 5 Crl.Appeal.No.25034/2019 the legal notice to the Appellant on 01.06.2013, calling upon the Appellant to repay the amount covered under the said Cheque. The said notice was sent to the Appellant through the Counsel, by RPAD, as per the track report, the same is served on the Appellant on 05.06.2013. Though, the said notice was received by the Appellant, neither she replied nor complied the same. Hence, the Respondent was constrained to file a Complaint against the Appellant.
3. On being satisfied, the Trial Court has issued summons U/Sec.204 of Cr.P.C. to the Appellant on 30.09.2014. The Appellant appeared before the Trial Court on 17.02.2017 and she was enlarged on bail. Substance of Accusation of the Appellant was recorded by the Trial Court on 10.03.2017, wherein the Appellant/Accused pleads not guilty and claims to be tried.
4. The Complainant inorder to prove her case got herself examined as P.W.2 and the translator was examined as PW.1. Complainant/PW.2 got 6 Crl.Appeal.No.25034/2019 marked 11documents as Ex.P.1 to Ex.P.11. PW.2 was cross examined on behalf of the Accused/ Appellant on 07.08.2017 and 03.04.2018.
Trial Court has recorded the Statement of Appellant/Accused U/Sec. 313 Cr.P.C. on 06.03.2018. Appellant/ Accused got herself examined as D.W1 on 06.07.2018 and got marked two documents as Ex.D.1 and Ex.D.2. DW.1 was cross examined on behalf of the Complainant/ Respondent on 14.09.2018 and 09.10.2018.
5. The Trial Court heard both the sides and has recorded Judgment of Conviction against the Appellant on 10.01.2019. Hence, the Appellant is before this Court, being aggrieved by the said Judgment of conviction.
6. On filing the appeal by the Appellant/Accused, this Court has suspended the sentence, under appeal initially for a period three months, on 07.02.2019. Notice of the Appeal memo and I.A.No.1 was issued to the Respondent and TCR 7 Crl.Appeal.No.25034/2019 were called for. Respondent setin her appearance on 12.03.2019. TCR were secured on 21.03.2019.
7. Heard the Learned Counsels for the Appellant/Accused and the Respondent/ Complainant, respectively.
8. The Appellant has preferred the appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has gravelly erred in convicting the Appellant for the offence punishable U/Sec. 138 of N.I. Act, which is manifestly erroneous and opposed to the facts and circumstances of the case;
b) The Trial Court has miserably failed to appreciate the oral and documentary evidence on record, in a proper and perspective manner;
c) The Trial Court has failed to consider that, the Cheque in question was given by the Accused to the husband of the Complainant, as security alongwith three other Cheques, while borrowing an amount of Rs.2,00,000/, and not to the Complainant, muchtheless towards discharge of any debts, as contended by the Complainant;8 Crl.Appeal.No.25034/2019
d) The Trial Court has failed to consider that, the cheque in question which was issued, as security to the husband of the Complainant, but the Complainant, by misusing the same, has filed the present Complaint;
e) The Trial Court has failed to arrive at a conclusion that, the Complainant has discharged her initial burden to avail the benefit of presumption, but the Accused has not rebutted the said presumption;
f) The Trial Court has failed to consider that, the notice said to have been issued by the Complainant has not been received by the Accused;
g) The Trial Court has failed to consider that, the Complainant has not produced any materials on record to show her capacity to pay the amount and any materials to show that, amount is paid to the Accused by the Complainant.
Hence, prayed to allow the said appeal.
9. Following points arise for my consideration;
1. Whether the Trial Court is right in holding that the Respondent/ Complainant is initially entitle for the benefit of presumption, available U/Sec. 139 of N.I. Act?
2. Whether the Appellant/Accused proves on the basis of preponderance of probability that, 9 Crl.Appeal.No.25034/2019 the ChequeEx.P.1 was given by the Accused to the husband of the Complainant, alongwith three other Cheques as security while obtaining the handloan of Rs.2,00,000/?
3. Whether the Trial Court is right in holding that the Appellant/ Accused has failed to rebut the presumption available to the Complainant U/Sec.139 of N.I. Act?
4. Whether the Appellant/ Accused shows on the basis of preponderance of probabilities that, she had not received the notice Ex.P.4, got issued by the Complainant, through her Counsel?
5. Whether the Appellant/Accused shows that the Order of Conviction and Sentence recorded by the Trial Court in C.C.No.55706/2014, dtd.10.01.2019, is perverse and deserves to be setaside, thereby calling for the interference of this Court?
6. What Order?
10. My finding on the above points are as under:
10 Crl.Appeal.No.25034/2019Point No 1 : In the Affirmative; Point No 2 : In the Negative;
Point No 3 : In the Negative;
Point No 4 : In the Negative;
Point No 5 : Partly in the Affirmative; Point No 6 : As per final order for the following :
REASONS
11. Point No.1: The rank of parties will be referred as they were before the Trial Court.
The Complainant has filed a Complaint U/Sec. 200 of Cr.P.C. alleging that, as per the request of the Accused, she has paid money to her on several occasions. In total she has paid an amount of Rs.20,75,000/ to the Accused. Initially, the Accused assured her to get introduced her, in her business as a partner, but subsequently, she refused to do so and agreed to pay the said amount of Rs.20,75,000/ with interest. Accordingly, the Accused issued a Cheque bearing No.054568, dtd.14.03.2013 for Rs.15,00,000/ in her favour towards part payment and had also issued a post 11 Crl.Appeal.No.25034/2019 dated Cheque for the balance principal amount and had promised to pay the interest. Both the Cheques issued in her favour were presented by her, but the same were returned unencashed.
Further the Complainant contends that, the Accused had taken handloan of Rs.2,00,000/ from her husband, due to intervention of the friends and wellwishers, she has repaid the said amount in three installments.
Further the Complainant contends that, on repeated demands, the Accused has issued Cheque bearing No.054569, dtd.08.05.2013, for Rs.21,25,000/ towards towards discharge of her liability, as per Ex.P.1. On presenting the said ChequeEx.P.1, the same has returned unencashed with an endorsement "Funds Insufficient", as per Ex.P.2 and Ex.P.3. The said fact was intimated to the Accused, but she has purposely neglected to pay the amount under the said Cheques. Then the Complainant got issued legal notice to the Accused on 20.05.2013, as per Ex.P.4, by RPAD, as per Ex.P.5postal receipt and the same has been 12 Crl.Appeal.No.25034/2019 delivered to the Accused, as per Ex.P.6tracking report issued by the Department of Post, India.
On the basis of the said documents and the preliminary evidence led by the Complainant, the Trial Court has issued summons to the Accused U/Sec.204 of Cr.P.C., on 30.09.2014. I have perused the said orders, I do not find any error in the said order of the Trial Court.
12. On issuance of summons U/Sec. 204 CrPC, the Accused has appeared before the Trial Court, on 17.02.2017. She was enlarged on bail. Substance of accusation/plea of the Accused was recorded on 10.03.2017. I have gone through the contents of the substance of accusation recorded by the Trial Court. I do not find any fault in the plea/substance of accusation recorded by the Trial Court.
13. On careful perusal of the evidence led by the Complainant, as well as the Accused, it is the case of the Complainant that, she at the instance of the Accused has given Rs.20,75,000/ to her as 13 Crl.Appeal.No.25034/2019 handloan. Inorder to repay the same, the Accused has issued the ChequeEx.P.1, to her. The Complainant presented the said cheque for its encashment, which has returned unencashed, as funds insufficient, as per Ex.P.2 and Ex.P.3.
14. Coming to the ocular evidence on this point, more specifically, cross examination of PW.2, at Page No.3, Para No.2, Line Nos.1 and 2, which reads as under:
"It is true that the Accused has issued the Cheque drawn at ICICI Bank....."
As per this evidence, a suggestion is made to the Complainant/PW.2 on behalf of the Accused, that the ChequeEx.P.1 is drawn by the Accused pertaining to ICICI Bank, which is affirmed by the Complainant/PW.1. As per this suggestion, the Accused admits that, Ex.P.1 Cheque pertains to her.
Further as per the crossexamination of DW.1, at Page No. 6, Para No.1, Line Nos. 4 to 6, which reads as under;
14 Crl.Appeal.No.25034/2019"..... It is true that Ex.P.1 Cheque is drawn at ICICI Bank. The signature found in Ex.P.1 at Ex.P.1(a) is my signature."
As per this evidence, the Accused admits that, Ex.P.1 Cheque belongs to her and the signature found on it as Ex.P.1(a) also belongs to her.
Thus, as per the above oral and documentary evidence more specifically, Ex.P.1, it can be said that, Cheque Ex.P.1 belongs to the Accused and signature found on it as Ex.P.1(a) also belongs to the Accused.
15. Thus the Complainant has proved the initial burden casted upon her U/Sec.138 of N.I. Act, to say that the Cheque belongs to Accused and the signature on the said Cheque is of the Accused.
16. On viewing the amount of oral evidence with Ex.P.1, which will suffice the Complainant to have benefit of presumption available U/Sec.138, 139 of N.I.Act. As per the trite principle of law, dealing with the presumption U/Sec.138 & 139 of N.I.Act and as per the dictum laid down by the 15 Crl.Appeal.No.25034/2019 Hon'ble Apex Court in the case of K. Subramani V/s K. Damodara Naidu, reported in 2014 (12) SCALE 677, as well as in the case reported in (2010) 11 SCC 441, wherein it is held that, "Presumption U/Sec.139 of N.I.Act accrues to the benefit of the Complainant, unless the Accused rebut that presumption".
Now it is for the Accused to rebut the said presumption, available to the Complainant U/Sec.139 of N.I.Act.
Hence, I ANSWER POINT NO.1 IN THE AFFIRMATIVE.
17. Point Nos.2 and 3: Both these points are taken for joint discussion, as they are interlinked with each other and inorder to avoid repeatation and confusion in the discussion.
17.01. On close perusal of cross examination done to PW2 and the evidence of DW1, the Accused has taken following defences;
16 Crl.Appeal.No.25034/201917.02. The first defence taken by the Accused that, Complainant is not known to her, but she knows the husband of the Complainant. This evidence can be found in the examination in chief of DW.1 at Page No.1, Line No.4, which reads as under;
"..... Complainant is not known to me I know her husband. ...."
Further as per the crossexamination of DW.1, at Page No.4, Para No.1, Line Nos.9 to 13, which read as under;
"..... When it is questioned to the witness that, how you came to know the Complainant; the witness said that, she and Complainant were residing at Geddalahalli Janakiramnagara, wherein Complainant was her neighbourer. ...."
17.03. The Complainant in her Complaint, more specifically, in Para No.3 has stated that she and the Accused were neighborers and were known to each other.
17.04. Thus, as per the above oral evidence, it is hard to believe the contention of the Accused 17 Crl.Appeal.No.25034/2019 that, she was not knowing the Complainant, but only knowing her husband.
18. The second defence takenup by the Accused that, the ICICI officials had come to their locality, wherein she and the Complainant had opened the account with them and the Cheque Book issued by them, is retained by the Complainant. This defence can be seen as per the crossexamination of PW.2, at Page No.3, Para No.2, Line Nos.2 to 5, which read as under;
" .....When it is suggested to the witness that in the year 2012 the ICICI officials came to our locality and myself and Accused together opened the bank account, the witness said she do not remember the said fact. ....".
Further as per the crossexamination of PW.2, at Page No.5, Line Nos.10 to 13, which read as under;
" ..... It is false to suggest that myself and Accused have together opened a bank account. It is false to suggest that I have retained the Cheque 18 Crl.Appeal.No.25034/2019 book of Accused state the I will do the transaction".
As per this evidence, it is suggested to the Complainant/PW.2 that, she and the Accused together have opened a Bank account and she has retained the Cheque book of the Accused, to have the transaction in the said Account. The said suggestion is denied by the Complainant/PW.2.
18.01. On the basis of the above ocular evidence, a defence is taken by the Accused that, she and the Complainant have opened an account with the ICICI Bank and the Cheque book pertaining to the said account is retained by the Complainant to have transactions in her account. First of all, the Accused has to show that, she and the Complainant have opened the account with the ICICI Bank; secondly, she has to show that a Cheque book is issued to her, which contains Ex.P.1 Cheque, by the said ICICI Bank; thirdly, the said Cheque book is kept by her with the Complainant or the Complainant has retained the said Cheque book, with her. But 19 Crl.Appeal.No.25034/2019 no any material insupport of such contentions are coming forth from the side of the Accused.
19. The third defence taken up by the Accused is that, she and the Complainant are running a brick factory. This defence can be seen as per the crossexamination of PW.2, at Page No.3, Para No.2, line Nos.7 to 9, which reads as under;
" ..... It is false to suggest that prior to the year 2011 the Accused was working as a school teacher at Saint Paul High School. I do not know whether the salary has been credited to the bank account of Accused or not."
Further as per the crossexamination of PW.2, at Page No.4, Line Nos.3 to 8, which reads as under;
" ..... When it is questioned to the witness that you have stated Rs.14,50,000/ in the money and Cheque is for Rs.21,25,000/ and in the Complaint it is shown that the amount is Rs.20,75,000/ as such how you have paid Rs.21,25,000/ to the Accused, the witness said the Accused taken money promising me to take as a partner. We 20 Crl.Appeal.No.25034/2019 entered into a business of hollow blocks. ....."
As per this evidence, when it was questioned to the Complainant/PW.2 as to how she has paid an amount of Rs.21,25,000/ to the Accused, the Complainant/PW.2 has stated that, the Accused has taken money from her on a promise to make her a partner. Further, she contends that, she and the Accused have entered into a business of Hallow Blocks.
19.01. As per the above ocular evidence, though the Complainant admits that she and the Accused have entered into a business of Hallow Bricks, but the Accused has not produced any material to show that, either she has given/issued ExP1Cheque in the course of the said business transaction or the Complainant has taken Ex.P.1 Cheque from her, under the said business transaction.
20. The fourth defence takenup by the Accused that, she had borrowed Rs.2,00,000/ from 21 Crl.Appeal.No.25034/2019 the husband of the Complainant and towards the same, she had issued four Cheques bearing Nos. 054566, 054567, 054568, 054569, to him, as security. And the ChequeExP1 bearing No 054569 is misused by the Complainant by filing the present Complaint.
This line of defence can be seen in the ocular evidence, more specifically,
a) Examination in chief of DW.1, at Page No.1, Line Nos.4 to 13, which reads as under;
".... I have borrowed Rs.2 Lakhs from the husband of Complainant namely Sukumar in the month of December 2012. At that time, I have issued four signed blank Cheques bearing No.054566, 054567, 054568, 054569 of ICICI Bank, HRBR Layout branch. In the year 2013 I have repaid the aforesaid amount in three installments to the husband of Complainant. After the repayment though I have asked the husband of the Complainant to return the Cheques he has not returned the Cheque to me. Other than the aforesaid one transaction. ....."22 Crl.Appeal.No.25034/2019
b) Further as per the examination in chief of DW.1, at Page No.1, Para No.2, Line Nos.13 to 15, which reads as under;
" .... Ex.P.1 Cheque has been given to the husband of Complainant namely Sukumar while I have borrowed Rs.2 Lakhs. The Complainant has not at all come to my house and asked her to pay the amount claimed in the Complaint".
c) Further as per the cross examination of PW.2, at Page No.2,, Line Nos.5 to 12, which reads as under;
" .... It is false to suggest that my husband hs obtained four signed blank cheques bearing Nos 054566, 054567, 054568 & 054569 drawn on the ICICI bank for advancing Rs 2 Lakhs as security. ...".
d) Further as per the cross examination of PW.2, at Page No.2, Line Nos.1 to 5, which reads as under;
"When it is questioned to the witness that the amount of Rs 2 Lakhs borrowed by the accused from her husband has been repaid by her to her husband in the year 2012; the witness said that the 23 Crl.Appeal.No.25034/2019 amount borrowed by the husband of the accused has been repaid to her husband. ...".
e) Further as per the crossexamination of PW.2, at Page No.8, Line Nos.23 to Page No.9, Line No.2, which read as under;
"..... It is false to suggest that no notice has been served to the Accused. It is false to suggest that when the Accused borrowed Rs.2 Lakhs from my husband, issued the blank signed Cheque in favour of my husband as a security. It is false to suggest that I have created the same as Ex.P.1 Cheque in the case. ...".
20.01. As per the above ocular evidence, it is seen that the Accused contends that she has borrowed Rs 2,00,000/ from the husband of the Complainant and has paid the same to him. But the Complainant contends that her husband had borrowed Rs 2,00,000/ from her husband and the same is paid by him.
20.02. But as per Para No 8 of the Complaint, the Complainant has contended that the 24 Crl.Appeal.No.25034/2019 Accused had borrowed Rs 2,00,000/ from her husband and with the intervention of the friends and well wishers, she has paid the same in three installments of Rs 50,000/, Rs 1,00,000/ and Rs 50,000/.
20.03. So it is clear that the Accused had borrowed Rs 2,00,000/ from the husband of the Complainant and she has paid the said amount.
20.04. Further as per the examinationin chief of DW.1, at Page No.6, Line No.4 to Page No.7, Line No.1, which read as under;
"..... It is true that in my defence evidence I have claimed that I have issued four cheques bearing Nos 566566, 566567, 566568 & 566569 to the husband of the complainant. I have not caused any written notice to the complainant or husband of the complainant to return the cheques. I have not issued any stop payment instructions inrespect of the said cheques to my banker. I have not initiated any legal proceedings against the complainant or her husband for returning the cheques till this date. ...".25 Crl.Appeal.No.25034/2019
As per this evidence, the Accused/DW1 contends that she has not issued any written notice either to the Complainant or to her husband to return the four cheques; or not issued stop payment instructions to her banker; or not initiated any legal action against the Complainant or her husband.
20.05. Under such a situation, the Accused has to first prove that she has issued four signed cheques to the husband of the Complainant, as security; and on payment of the borrowed money, he has not returned the said cheques, including ExP1Cheque. No any material is place by the Accused on record to show that she had issued four cheques to the husband of the Complainant, as security; and he has not returned. Nor the Accused has led evidence of any of the person, much the less the friends or well wishers, who said to have intervened and got repaid the borrowed money to the husband of the Complainant.
Further an ordinary man of prudence under such situation is expected to have either issued 26 Crl.Appeal.No.25034/2019 notice to the husband of the Complainant, calling upon him to return the cheques; or issue instructions to her banker, stating that the cheques has not been returned by the husband of the Complainant, inspite of payment of the borrowed money; or would have initiated any action against the Complainant or her husband. But nothing is coming forth from the side of the Accused, to this effect.
20.06. Considering this aspect, alongwith the earlier three different and divergent defences, it can be said that, the defence takenup by the Accused that she while borrowing Rs 2,00,000/ from the husband of the Complainant had issued four cheques, including ExP1 Cheque, as security, to him, appears to be a palpable defence and not a probable defence, to inspire the confidence of the Court.
21. Further the Accused denies that she has not received any amount from the Complainant, much the less Rs 20,75,000/, as contended by her.
27 Crl.Appeal.No.25034/201921.01. Further the Learned Counsel for the Accused would contend that there is no any existence of recoverable debt, for the Accused to issue the cheque; and has placed his reliance on the below mentioned decisions:
a) of the Hon'ble Apex Court, in the case of Girdhari Lal Rathi V/s P.T.V. Ramanujachari, reported in LAWS (APH) 1997 1 45; which reads as under:
"When the debt was not legally enforceable at the time of issuance of the cheque, then as per the Explanation to Sec 138 of the Negotiable Instruments Act, the drawer of the cheque cannot be fastened with the liability under Sec 138 of the Act."
b) of the Hon'ble Apex Court, in the case of Krishna Janardhan Bhat V/s Dattatraya G. Hegde, reported in (2008) 4 SCC 54; wherein it is observed at Page No.30 as under:
"30. 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 28 Crl.Appeal.No.25034/2019 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."
c) of the Hon'ble Apex Court, in the case of Vijay V/s Laxman and Another, reported in (2013) 3 SCC 86; wherein it is observed at Page No.9 as under:
"9. It is undoubtedly true that when a cheque is issued by a person who has signed on the cheque and the complainant reasonably discharges the burden that the cheque had been issued towards a lawful payment, it is for the accused to discharge the burden under Section 118 and 139 of the N.I. Act that the cheque had not been issued towards discharge of a legal debt but was issued by way of security or any other reason on account of some business transaction or was obtained unlawfully. The purpose of the N.I. Act is clearly to provide a speedy remedy to curb and to keep check on the economic offence of duping or cheating a person to whom a cheque is issued 29 Crl.Appeal.No.25034/2019 towards discharge of a debt and if the complainant reasonably discharges the burden that the payment was towards a lawful debt, it is not open for the accused/signatory of the cheque to set up a defence that although the cheque had been signed by him, which had bounced, the same would not constitute an offence."
d) of the Hon'ble High Court of Delhi, in the case of M/s Jage Ram Karan Singh & Another V/s State & Another, (Crl.Rev.Pet. No.82/3013 date of decision 21.07.2019), wherein it is held that:
"Once signature is admitted on the cheque, existence of legally enforceable debt or liability has to be presumed, but the said presumption is rebuttable."
e) of the Hon'ble High Court of Karnataka, in the case of K. V. Subba Reddy V/s N. Raghava Reddy, in Criminal Appeal No.545/2010, date of decision 28.02.2014, wherein it is observed at Para No.6 as under:
"6. At this juncture, it is relevant to state that under Section 138 of the Act, 30 Crl.Appeal.No.25034/2019 complainant has to prove that accused had issued cheque to discharge legally recoverable debt/liability. The complainant cannot rest contend by production of cheque and assigning reasons for dishonour of cheque."
f) of the Hon'ble Supreme Court, in the case of K. Subramani V/s K. Damodara Naidu, reported in (2015) 1 SCC 99; wherein it is observed at Para No.9 as under:
"9. In the present case the complainant and the accused were working as Lecturers in a Government college at the relevant time and the alleged loan of Rs.14 lakhs is claimed to have been paid by cash and it is disputed. Both of them were governed by the Government Servants' Conduct Rules which prescribes the mode of lending and borrowing. There is nothing on record to show that the prescribed mode was followed. The source claimed by the complainant is savings from his salary and an amount of Rs.5 lakhs derived by him from sale of site No.45 belonging to him. Neither in the complaint nor in the chiefexamination of the complainant, there is any averment with regard to the sale price 31 Crl.Appeal.No.25034/2019 of site No.45. The concerned sale deed was also not produced. Though the complainant was an incometax assessee he had admitted in his evidence that he had not shown the sale of site No.45 in his incometax return. On the contrary the complainant has admitted in his evidence that in the year 1997 he had obtained a loan of Rs.1,49,205/ from L.I.C. It is pertinent to note that the alleged loan of Rs.14 lakhs is claimed to have been disbursed in the year 1997 to the accused. Further the complainant did not produce bank statement to substantiate his claim. The trial court took into account the testimony of the wife of the complaint in another criminal case arising under Section 138 of the N.I. Act in which she has stated that the present appellant/accused had not taken any loan from her husband. On a consideration of entire oral and documentary evidence the trial court came to the conclusion that the complainant had no source of income to lend a sum of Rs.14 lakhs to the accused and he failed to prove that there is legally recoverable debt payable by the accused to him."
g) of the High Court of Karnataka, in the case of Sri. P. L. Thammanna V/s Sri. D. G. 32 Crl.Appeal.No.25034/2019 Pohit, reported in Crl.Rev.Pet. No.435/2014; wherein it is observed at Para No 11 as under:
"11. It is pertinent to state that such a relevant fact of material alternation has not even pleaded in the Complaint nor in the deposition byway of examinationinchief of the Complainant. The Appellate Court bases its finding on the fact that the alteration is attested by the signature of the Accused and that the Accused has not denied this signature. This is nothing but a hair splitting argument. It is not even the case of the Complainant. Further, the signatures attesting the alteration are not marked and it is also the specific defence of the Accused that the alteration is not done by him and he has denied the alteration and has asserted the same in the form of suggestions and crossexamination. The defence of the Accused is based on the specific ground that the date on the cheque on 04.01.2007 and not 04.06.2009. In this regard, it is to be noticed as to who carried out the alteration. It is admitted that the year as mentioned as 7 and is later altered to read as 9. ...."33 Crl.Appeal.No.25034/2019
h) of the Hon'ble High Court of Karnataka, in the case of Branch Manager, Pca and Rd Bank Ltd., Belthangady V/s Suresh Ganapathi Das, reported in LAWS (KAR) 2018 2 208; wherein it is held that:
"As on the date of issuing the cheque there was no legally recoverable debt which was due by the accused ot the complainant bank. Therefore, it is clear that the cheque ExP1 was given in blank as a security at the time of availing loan and there was no liability existing at the time of issuance of the cheque."
i) of the Hon'ble High Court of Bombay, in the case of Sanjay Yadhavraoji Makode V/s Suhas Prakashji Dhote, reported in LAWS (BOM) 2018 7 67; wherein it is observed at Para Nos 7 and 10 as under:
"7. ... If there was presumption that cheque was issued for discharge of legal debt or liability, once the signature on the cheque was admitted, the Appellant (Complainant) was still required to prove foundational facts of his case. It was further submitted that when the appellant failed to prove such foundational facts 34 Crl.Appeal.No.25034/2019 regarding hand loan advanced to the Respondent, the presumption under the said Act would not be triggered.
10. .... It was further submitted that even if presumption was to operate against the Respondent, he was entitled to rebut the same on the basis of material brought on record byway of cross examination of the appellant. It was submitted that inorder to rebut the presumption, it was not necessary for the Respondent to enter the witness box and that he could very well rebut the presumption by discrediting the appellant in crossexamination. Both the parties placed reliance on various judgments pertaining to the said question."
j) of the Hon'ble High Court of Karnataka, in the case of Sami Labs Limited V/s Mr. M. V. Joseph, reported in ILR 2019 KAR 1953; wherein it is observed at Para No.23 as under:
"23. In the instant case, when the housing loan disbursed to the Accused in full, was a sum of Rs.5,00,000/ and since it is established that a portion of it has already been repaid by the Accused or has already been recovered y the Complainant company from out of the 35 Crl.Appeal.No.25034/2019 salary of the Accused, then the total outstanding liability would be any sum lesser than the cheque amount. Thus, when any sum issued in the cheque is for an higher amount than the outstanding liability and if that excess amount is also not towards any interest, cost, penalty etc., but remains unexplained, then Section 138 of NI Act cannot be said to be applicable."
k) of the Hon'ble Supreme Court, in the case of Basalingappa V/s Mudibasapa, reported in AIR 2019 Supreme Court 1983; wherein it is observed at Para No.23 as under:
"23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting 36 Crl.Appeal.No.25034/2019 the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. 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 they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the Accused to come in the witness box to support his defence."
l) of the Hon'ble Supreme Court, in the case of Anss Rajashekar V/s Sugustus Jeba Ananth, reported in 2019 Crl.L.J. 1498; wherein it is observed at Para No.14 as under:
"14. On a totality of the facts and circumstances and based on the evidence on the record, the first appellate court held 37 Crl.Appeal.No.25034/2019 that the presumption under Section 139 of the Act stood rebutted and that the defence stood probabalised. From the judgment of the High Court, the significant aspect of the case which stands out is that there has been no appreciation of the evidence or even a reference to the reasons furnished by the first appellate court. The High Court adverted to the judgment of this Court in Rangappa (supra). Having adverted to that decision, the High Court reversed the order of acquittal by holding that a mere denial of the transactions or an omnibus denial of the entire transaction could not be considered as a tenable defence. The judgment of the High Court is unsatisfactory and does not contain any reference to the evidence whatsoever. There was absolutely no valid basis to displace the findings of fact which were arrived at by the first appellate court, while acquitting the accused."
m) of the Hon'ble High Court of Karnataka, in the case of Yeshwanth Kumar V/s Shanth Kumar N, reported in Criminal Appeal No.939/2010, date of decision 07.08.2019, wherein it is observed at Para No.16 as under:
"16. .... But he has only stated that, at the time of taking the loan the Accused 38 Crl.Appeal.No.25034/2019 agreed to repay the said amount within six months. Though there may be some discrepancy in forming of sentence, however, there is no clear terms on what date he has paid the amount to the Accused. Therefore, on this ground also the Complainant is unable to show on what date he has paid the loan amount to the Accused. Therefore, the contention of the Complainant that he has actually lent the loan and in discharge of the said loan the Accused issued the cheque to discharge the legally recoverable debt cannot be acceptable."
n) of the Hon'ble High Court of Karnataka, in the case of N. S Vijaykumar V/s C. Gayathri, reported in Criminal Appeal No.999/2010, date of decision 18.02.2019, wherein it is observed at Para No.10 as under:
"10. .... Thus, the issuance of the cheque which is at Ex.P1 by the Accused to the Complainant is not in dispute. Therefore, once the issuance of cheque is shown by the Complainant in his favour, a presumption about the existence of legally enforceable debt under Section 139 of NI Act, forms in his favour. The Hon'ble Apex Court in Rangappa V/s Sri. Mohan, reported in {2010 (11) SCC 441}, has also 39 Crl.Appeal.No.25034/2019 observed that, issuance of the cheque would create a presumption with respect to legally enforceable debt in favour of the payee of the cheque, however, the said presumption is rebuttable. Thus, what is to be looked into in the case now is whether the said presumption formed in favour of the Complainant has been successfully rebutted by the Accused."
o) of the Hon'ble High Court of Karnataka, in the case of Ramdas V/s Krishnanad, reported in 2015(2) SCCR 1115 (SC); wherein it is held that:
"In absence of any authenticated and supporting evidence, Court cannot believe that Complainant has raised an amount of Rs.1,75,000/ that too by obtaining loan of Rs.1,50,000/ from a bank, only to give hand loan to his employee. Trial Court taking note of financial condition of Complainant and corroborative and unshaken defence version, dismissing Complaint. Acquitting Accused. Justified. Interference by High Court. Not proper."
21.02. Percontra, the Complainant contends that, the Accused has executed ExP8Money bond for having received the money. And further contends that the said document is sufficient to lead 40 Crl.Appeal.No.25034/2019 to a presumption mandated U/Sec 139 of NI Act. Further he has placed his reliance on the below mentioned decisions:
a) of the Hon'ble Apex Court, in the case of Rangappa Vs Sri Mohan, reported in (2010)11 SCC 441, wherein it is held that, "Presumption mandated by Sec 139 includes a presumption that there exists a legally enforceable debt or liability."
b) of the Hon'ble Apex Court, in the case of K N Beena Vs Nuniyappan and Anr, reported in (2001)8 SCC 458, wherein it is held that, "In view of provisions contained in Secs 118 & 139, the Court has to presume that the cheque had been issued for discharging a debt or liability. However the said presumption is a rebuttable presumption. The said presumption can be rebutted by the Accused, by proving contrary. Mere denial or rebuttal by Accused in the reply to the notice is not sufficient, but the Accused had to prove by cogent 41 Crl.Appeal.No.25034/2019 evidence that there was no debt or liability."
c) of the Hon'ble Apex Court, in the case of T Vasanthkumar Vs Vijayakumari, reported in (2015)8 SCC 378, wherein it is held that, "When the cheque as well as the signature on the cheque has been accepted by the Accused, the presumption U/Sec 139 of NI Act would operate. Then the burden is on the Accused to disprove the cheque or the existence of any legally recoverable debt or liability."
21.03. The Complainant has produced Money Bond at ExP8. It is seen that the Complainant is shown as Principal and the Accused is shown as Borrower and the contents of the said document speak that the Complainant has paid an amount of Rs 14,50,000/ and the borrower/Accused has agreed to repay the same within 1 year.
42 Crl.Appeal.No.25034/2019Coming to the ocular evidence on this point, more specifically, cross examination of PW2 at Page No 3, Para No 3, Line Nos 1 to 3, which reads as under:
"When it is questioned to the witness that whether the accused has signed ExP8 in presence of witness then the witness said that accused has signed the document in the presence of witnesses. ...."
As per this evidence, the Complainant/PW2 contends that the Accused has signed on ExP8, in the presence of the Witnesses named in it.
Further as per the cross examination of PW2 at Page No 7, Line Nos 14 to 17, which reads as under:
".... It is false to suggest that the signature of accused in ExP8 has been created and fabricated by me. The witness stated in the ExP8 is my husband and my family friend. ...."
As per this evidence, the Complainant/PW2 denies the suggestion made to her that signature found on ExP8 is not that of accused and the said 43 Crl.Appeal.No.25034/2019 document is created. Witnesses named in it is her husband and family friend.
Further as per the cross examination of DW1 at Page No 5, Para No 2, Line Nos 5 to 9, which reads as under:
".... The signature now shown to be is my signature. The witness admitted the signature at ExP8, that has been marked as ExP8(a). The witness volunteers that she has not executed that document. ...."
As per this evidence, the Accused/DW1 though admitted her signature on ExP8, as ExP8(a), but contends that she has not executed ExP8.
21.04. Further the Learned Counsel for the Complainant/Respondent would contend that the Accused admitting her signature on ExP8, then there remains no burden on the Complainant to prove the writings and execution of ExP8, but onus shifts on the Accused to explain how ExP8, came to be signed by her. Further the Learned Counsel for the Complainant/Respondent has placed his reliance on 44 Crl.Appeal.No.25034/2019 the decision of the Hon'ble Apex Court in the case of Narbada Devi Gupta Vs Birendra Kumar Jaiswal and Anr, reported in AIR 2004 SC 175, wherein it is observed in Para No 16, as under:
"16. Reliance is heavily placed on behalf of the Appellant on the case of Ramji Dayawala and Sons (P) Ltd (supra). The legal position is not in dispute that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'. The situation is, however different where the documents are produced, they are admittedly by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the Court. We find no force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions of the rent receipts near the 45 Crl.Appeal.No.25034/2019 place where the admitted signatures of the Plaintiff appear, the rent receipts as a whole cannot be treated as have been exhibited as an admitted documents."
21.05. As per the above ocular evidence and on applying the principles of law employed in the decision referred to supra, it is seen that, firstly, the Accused denied her signature on ExP8Money bond, but when it was confronted to her, in her cross examination, she admitted her signature, but denies the execution. Considering this line of evidence, in the presence of ExP8 Money bond, the Complainant has shown the existence of ExP8 Money bond and when the Accused denies, its existence/execution, then she has to show or make out that, the said document falls within the exception available to Sec 91 of Evidence Act. In the absence of the same, the Accused has to fail. But no evidence is coming from the side of the Accused to that effect. So Accused has to fail.
46 Crl.Appeal.No.25034/201922. As per the decision of the Hon'ble Apex Court, in the case of APS Forex Services Pvt. Ltd., V/s Shakthi International Fashion linkers & others, wherein it is held that;
"When the financial capacity of the Complainant is questioned in support of probable defence, despite presumption U/Sec. 139 of the N.I. Act, withregard to the existence of legally enforceable debt, the onus shifts on the Complainant to prove the financial capacity. Under such circumstances, complainant is required to prove his financial capacity, inorder to raise the presumption available U/Sec. 139 of N.I. Act, in his favour".
Further, as per the decision of the Hon'ble Apex Court, in the case of Basalingappa V/s Mudibasappa, reported in (2019) 5 SCC 418, wherein it is held that;
"Appellant disputing financial capacity of the Complainant to pay the amount, by leading cogent evidence to prove it, leads to the Accused probablising his defence, then burden would be on the Complainant to establish his financial capacity".47 Crl.Appeal.No.25034/2019
23. The evidence, both oral and documentary, goes to show that,
a) the Accused has failed to show that, she has issued four cheques including ExPCheque to the husband of the Complainant, while borrowing Rs 2,00,000/; and
b) the Complainant has initially proved that the ChequeExP1 in question, has been issued by the Accused, for the legally recoverable debt.
Hence, I do not find any force in the submission of the Learned Counsel for the Appellant/ Accused, to disbelieve it. Hence the same is discarded.
24. Considering the inconsistent contentions raised by the Accused in the cross examination of PW2 and in her evidence as DW.1, cumulatively, it can be said that, the stand taken up by the Accused, is not fortified with cogent evidence, on the basis of preponderance of probabilities, inorder to rebut the presumption available to the Complainant, U/Sec 139 of NI Act. So, in the absence of material 48 Crl.Appeal.No.25034/2019 evidence, the different and distinct stands, taken up by the Accused, cannot be accepted at all.
25. Thus for the various inconsistent stands takenup by the Accused, no any cogent evidence is putforth by her, to strengthen her defence. On the contrary, she has taken altogether distinct and different stands, which are contradictory to each other, as placed on record. Hence, presumption available to the Complainant U/Sec.139 of N.I.Act stands unrebutted. I have gone through the Judgment of the Trial Court, rightly the Trial Court has concluded that the Accused has failed to rebut the presumption available to the Complainant U/Sec.139 of N.I.Act.
26. Under these circumstances, there is no any hurdle to derive the presumption available to the holder of the cheque U/Sec.118 as well as 139 of N.I.Act. I find force to my above opinion as per the decision of Hon'ble Apex Court in the case of Hiten Pidalal V.s Bratindranath Banergi 49 Crl.Appeal.No.25034/2019 reported in 2001 Crl.L.J. 4647 (Supreme Court) as well as in the case of M.S.Narayan Menon @ Mani V/s State of Kerala and Another reported in 2006 SAR.Crl.616 and in the case of Krishna Janardhan Bhat V/s Dattatreya G. Hegde reported in (2008)2 SCC Crl. 166.
Rightly, the Trial Court has considered all these aspect and there is no any fault on the part of the Trial Court. I do not find any force in the submission of the learned counsel for the Appellant.
Hence I answer POINT NOS.2 & 3 IN THE NEGATIVE.
27. POINT NO 4:
The contention taken up by the Accused is that, she has not received the notice issued to her by the Complainant, as per Ex.P.4.
27.01. The Learned Counsel for the Appellant would contend that when the notice as required U/Sec 138 of NI Act is not served on the Accused, then she cannot be convicted. He has 50 Crl.Appeal.No.25034/2019 placed his reliance on the decision of the High Court of Karnataka, in the case of Sri. P. L. Thammanna V/s Sri. D. G. Pohit, reported in Crl.Rev.Pet. No.435/2014; wherein it is observed at Para No.7 as under:
"7. The Appellate Court has proceeded to reverse the findings of the Trial Court that a notice has not been served in accordance with the provisions of the NI Act. The Appellate Court while not interfering the findings of the Trial Court regarding the non service of notice by RPAD has proceeded to hold that the notice under Section 138(b) of NI Act has been served by the certificate of posting.
The Appellate Court once having concurred with the Trial Court's finding that the notice was not served by RPAD ought not to have concluded the compliance under the provisions of Section 138(b) of the Act. ..."
27.02. Percontra, the Learned Counsel for the Complainant/Respondent contends that, the NoticeExP4 was issued to the Accused by RPAD and the same is delivered to her as per ExP6. There 51 Crl.Appeal.No.25034/2019 arises a presumption U/Sec 27 of the General Clauses Act, wtihregard to service of notice to the Accused. He has placed his reliance on the decision of the Hon'ble Apex Court, in the case of N Parameshwaran Unni Vs G Kannan and Anr, reported in (2017) 5 SCC 737, wherein it is held that, "Notice sent by Payee by Registered Post to the correct address of the drawer of the cheque. Postal authorities acknowledge service of notice. As per Sec 27 of General Clauses Act, service is deemed service.
Drawer entitled to rebut that presumption, but in absence of rebuttal, requirement of Sec 138 proviso (b) would stand complied with."
27.03. The Complainant has produced the Notice issued to the Accused on 20.05.2013 at Ex.P.4, which was issued to her through her Counsel by RPAD, as per postal receipt Ex.P.5. The Complainant has also produced the track report for having served the said notice to the Accused on the 52 Crl.Appeal.No.25034/2019 address shown on it, as per Ex.P.6. As per Ex.P.6, it is shown that the said notice is delivered to the addressee shown on it, on 05.06.2013. So there exist a presumption of issuance of notice and receipt of it, unless contrary is proved.
27.04. The Accused contends that, she is not residing in the address shown in the Ex.P.4 Notice, but she is residing in the address, "No 13, Kakagiri road, 4th cross, Banjara Layout, Horamavu Agrahara.
27.05. Coming to the ocular evidence on this point, more specifically, cross examination of PW2, Page No.8, Line Nos. 1 to 14, which reads as under:
"When it is questioned to the witness that when you have caused a legal notice the Accused was not residing in the address stated in the legal notice; the witness said that when she caused a legal notice the Accused has changed her address and she is keep changing the address. When I have caused legal notice the Accused was residing in the address stated in the legal notice. It is false to 53 Crl.Appeal.No.25034/2019 suggest that the Accused never resided in the address stated in the legal notice. When it is questioned to the witness that the Accused stated in the legal notice is not the residential address of the Accused; the witness said that when she sent the notice to the Accused to her residence, notice has not been served on her hence, notice has been sent to the shop address of the Accused. ..."
Further as per the cross examination of PW2, cross examination, at Page No 8, Line Nos 20 to 23, which reads as under:
".... It is true that there is no full address o Accused at Ex.P7. It is false to suggest that we have sent the notice to the false address of the Accused. It is false to suggest that no notice has been served to the Accused. ..."
Further as per the examinationinchief of DW1 at Page No.2, Para No.2, Line Nos.1 to 4, which reads as under:
"I am residing at No.13, Kakagiri Road, 4th Cross, Banjara Layout, Horamavy Agrahaara sine 2012 till this date. No notice has been served on me 54 Crl.Appeal.No.25034/2019 before filing the Complaint. I have not at all residing in the cause title address at any time. ..."
As per the above ocular evidence, the Accused has denied that she is not residing in the address shown in the NoticeExP4.
27.06. The Complainant has produced Money Bond at ExP8. The Accused has admitted her signature on it, which can be seen as per the cross examination of DW1 at Page No 5, Para No 2, Line Nos 5 to 9, which reads as under:
".... The signature now shown to be is my signature. The witness admitted the signature at ExP8, that has been marked as ExP8(a). The witness volunteers that she has not executed that document. ...."
As per ExP8, the address of the Accused, who is shown as the Borrower is shown as, "Residing at No 12, Victory Colours, Barak Building, Near Sukhsagar Cross, 3rd Main, 3rd Cross, Ganesha Temple Road, Kamanahalli, Bangalore 560 084"
55 Crl.Appeal.No.25034/2019On perusal of ExP4Notice, it is seen that same address is shown in it.
27.07. The Accused has produced her Bank Pass Book at ExD1. The Address of the Accused shown in it is, "No 28, Jainkiram Layout, Hennur Main Road, Geddalahalli."
This address is different then the address stated by the Accused, in her cross examination, referred to above, at Para No 27.05. Even this address is different then the one mentioned by the Complainant in ExP4.
27.08. So, on the basis of the documentary evidence like Ex.P4 to Ex.P6 and Ex.P8, the contention of the Accused that she was not residing on the address shown in Ex.P4, is not reliable, because the address which she has given in her cross examination is not tallying with her address shown in her Pass BookExD1.
27.09. So, the Complainant has initially shown that as per ExP8, the address of the Accused 56 Crl.Appeal.No.25034/2019 is the same as shown in ExP4Notice. The said fact leads to draw an inference U/Sec 114 of Evidence Act that, the Accused has received the notice Ex.P4, as per the postal track report Ex.P6.
27.10. As per Sec. 27 of the General Clauses Act, which gives rise to a presumption that, service of notice is presumed to be affected when it is sent to the correct address, by registered post.
27.11. Applying the said specific presumption to the instant case at hand, when the Complainant has shown that the NoticeExP4 is sent to the Accused on her address, as found in ExP8Money Bond, under such circumstances, it is deemed that the NoticeExP4 has been served to the Accused/ addressee shown in Ex.P.6 Track Report, which leads to presume/deemed that the Accused is having the knowledge of the notice, unless the contrary is proved.
And when the Accused has challenged about the correctness of her residential address found on 57 Crl.Appeal.No.25034/2019 ExP4Notice, then the Accused has to show that the said address is incorrect and has to give proof of her correct address. In the present case, the Appellant has not placed any material in contrary to the material available on record like Ex.P.4 and Ex.P.6.
Thus, notice issued by the Complainant under Ex.P.4 is deemed to have been served upon the Accused, as per Ex.P.6. I find force to my above view as per the decision of the Hon'ble Apex Court in the case of C.C. Alavi Haji V/s Palapetty Muhammad & Another, reported in (2007) 6 SCC 555.
Thus, the Appellant/Accused has failed to show on the basis of preponderance of probabilities that, the notice issued to her, is not served upon her.
Hence, I answer POINT NO.4 IN THE NEGATIVE.
28. POINT NO.5:
Statement of the Accused is recorded U/Sec 313 of CrPC, by the Trial Court on 06.03.2018. It covers the entire incriminating substance, brought on 58 Crl.Appeal.No.25034/2019 record by way of evidence, against the Accused. The Trial Court has examined the Accused U/Sec. 313 of Cr.P.C. I have gone through the statement of the Accused recorded by the Trial Court U/Sec. 313 of Cr.P.C., and reply given by the Accused, to the said questions, in the statement. I do not find any fault in the statement of the Accused, recorded by Trial Court U/Sec 313 of Cr.P.C.
29. I have carefully gone through the reasonings given by the Trial Court, while awarding compensation to the Complainant U/Sec.357 of Cr.P.C. The Trial Court ought to have considered the date of issuance of cheque and the purpose of advancement of hand loan by the Complainant.
29.01. Further the Trial Court has directed the Accused to pay compensation of Rs.42,62,625/, without any basis.
29.02. So considering above aspects, the Trial Court ought to have awarded compensation to the Complainant to the tune of Rs.39,10,000/, 59 Crl.Appeal.No.25034/2019 instead of Rs.42,62,625/, as compensation U/Sec 357(1) of Cr.PC., I find support for the calculation of the compensation as calculated above, on the basis of the guiding principles laid down by the Hon'ble Apex Court, in the case of Harisingh V/s Sukhbir Singh reported in (1988) 4 SCC 551, as well as in the case of Suginthi Suresh Kumar V/s Jagadishan reported in 2002 Crl.L.J. 1003 (Supreme Court).
29.03. Thus, the sentence passed by the Trial Court on convicting the Accused, requires to be modified U/Sec 386(b)(iii) of Cr.PC.,
30. Further inorder to conclude, as per the decision of the Hon'ble High Court has held in General Auto Sales Vs Vijayalakshmi, reported in 2005(1) KLT 478 in Paragraph No 8 thereof, that:
"Even if a blank signed cheque has been given towards liability or even as 60 Crl.Appeal.No.25034/2019 security, then the liability subsists and quantified, if the cheque is filled up and presented to the Bank, the person who had drawn the cheque, cannot avoid the criminal liability under Section 138 of NI Act".
30.01. Further as per the decision of the Hon'ble Apex Court has held in Rangappa Vs Sri Mohan, reported in (2010) 11 SCC 441, that;
"once issuance of cheque and signature thereon are admitted, presumption of a legally enforceable debt infavour of the holder of the cheque arises. It is for the Accused to rebut the said presumption, though Accused need not adduce his own evidence and can rely upon the material submitted by the Complainant. However, mere statement of the Accused may not be sufficient to rebut the said presumption".
31. In this case there was really presumption available infavour of the Complainant, in terms of Section 138 & 139 of Negotiable Instruments Act, against the accused and the accused has not discharged her burden, to rebut that presumption.
61 Crl.Appeal.No.25034/201932. The Trial Court has considered all the aspects, the grounds taken up by the Accused as defence. The Order of the Trial Court in awarding compensation to the Complainant, is required to be modified and the said compensation is to be awarded, out of fine amount. When no fault is committed by the Trial Court, in coming to the conclusion, convicting the Accused for the offence punishable U/Sec 138 of NI Act, interference to that effect, by this Court does not arise at all. Thus, I am declined to interfere with the findings recorded by the Trial Court, subject to modifications, withregard to fine and compensation, as stated above.
33. Necessarily, the prosecution succeeds. The conviction is therefore confirmed, as the accused is found guilty of the offence punishable under Section 138 of Negotiable Instruments Act.
Hence, for the above reasons I ANSWER POINT NO. 5 AS PARTLY IN THE AFFIRMATIVE.
34. Point No.6:
62 Crl.Appeal.No.25034/2019For having answer Point No.1 in the Affirmative; Point Nos.2 to 4 in the Negative; and Point No.5 as Partly in the Affirmative, I proceed to pass the following:
ORDER Acting U/Sec.386(b)(iii) of Cr.P.C., the Appeal preferred by the Appellant/Accused is hereby Partly Allowed.
In the consequences, the order of conviction passed by the Learned LVII Addl. CMM, Bengaluru in C.C.No.55706/2014 dtd 10.01.2019, recording conviction of the Accused, is hereby confirmed, subject to the modification that, the Accused shall pay fine of Rs.39,15,000/. Out of which an amount of Rs.39,10,000/, shall be paid as compensation to the Complainant U/Sec 357(1) of Cr.PC., and Rs.5,000/, shall be paid to the State ExChequer.
In default of payment of fine amount, the Accused shall undergo Simple Imprisonment for a period of three months.63 Crl.Appeal.No.25034/2019
The order of suspension passed by this Court U/Sec.389 of Cr.P.C. stands revoked.
The Trial Court shall execute the order, as per law.
No order as to costs.
In case, if the Accused has deposited the amount, as directed U/Sec. 148 of N.I. Act, the same may be dealt with, as per Law U/Sec. 143 of the said Act.
Remit the TCR to the Trial Court, on obtaining necessary acknowledgement, from it, alongwith the copy of this Judgment.
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me, in the open court on this the 23rd day of March, 2021.) [AbdulRahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)