Bangalore District Court
Mr. Munibyregowda vs S/O Late R.D. Ramaiah on 28 May, 2019
IN THE COURT OF THE LXXII ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU,
(CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 28th day of May, 2019.
Crl. Appeal. No.25231/2018
Appellant/ Mr. Munibyregowda,
Accused:- S/o Late R.D. Ramaiah,
Aged about 44 years,
R/at Bidarahalli Village,
Bedarahalli Hobli,
Bangalore East Taluk,
Bengaluru-560 040.
[By M/s. Parva Law-Adv]
V/s
Respondent/ Smt. Sarojamma,
Complainant: W/o K. Nagaraju,
Aged about 55 years,
R/at No.57,
HAL 2nd Stage, Dupanahalli,
Vasanthapura Garden,
Bangalore.
(By Sri. H.S. Somnath- Adv.)
JUDGMENT
This Appeal is preferred by the Appellant U/Sec. 374(3) of Cr.P.C., being aggrieved by the Judgment and 2 Crl.Appeal.No.25231/2018 Order of conviction passed by the XV Addl. Small Causes Judge and XXIII Addl. CMM, Member MACT, Bengaluru, in CC. No.26743/2011, dtd.05.11.2018, convicting the Appellant/Accused for the offence punishable U/Sec. 138 of NI Act, thereby sentencing him to undergo Simple Imprisonment for six months and shall pay fine of Rs.2,000/-, in default of payment of fine amount, he shall further undergo Simple Imprisonment for a period of 30 days. Further directed to pay compensation of Rs.10,00,000/- to the Complainant/Respondent within 2 months from the date of this order.
2. The Brief facts leading to the filing of the present appeal are:
The present Respondent filed a Complaint U/Sec.
200 of Cr.P.C., against the present Appellant, alleging that, the present Appellant purchased the lands in Sy.No.256, Bidarahalli Village, Bengaluru, from the Respondent, under a Registered Sale Deed dtd.26.11.2009. Towards part payment of the sale 3 Crl.Appeal.No.25231/2018 consideration amount under the said Sale Deed, the Appellant issued a cheque bearing No.685395 dtd.26.11.2009 drawn on the Vijaya Bank, K.R.Puram Branch, for a sum of Rs.9,13,000/-. On receiving the said cheque, the Respondent presented it for its encashment, which has been returned unencashed with an endorsement "Insufficient Funds", on 09.02.2010. The same was intimated to the Appellant.
At the request of the Appellant again the said cheque was presented for its encashment on two occasions viz., on 17.04.2010 and 27.04.2010. The said cheque has returned unencashed. Thereafter, the Appellant approached the Respondent and issued a fresh cheque bearing No.685398 dtd.01.05.2010 for a sum of Rs.9,13,000/-, drawn on the Vijaya Bank, K.R.Puram branch, Bengaluru. The Appellant has also executed deed of undertaking on 01.05.2010 and assuring the Respondent that cheque would be honored on its presentation. On the said undertaking and assurance of the Appellant, the Respondent presented the said 4 Crl.Appeal.No.25231/2018 cheque through her Banker Syndicate bank, Indiranagara Branch, Bengaluru, for its encashment, but the same has been returned unencashed with an endorsement "Funds Insufficient" on 04.08.2010. The Respondent issued a legal notice to the Appellant through his counsel on 14.08.2010 demanding to pay the amount under the cheque, by RPAD acknowledgment and also UCOP on 16.08.2010. The same is received by the Appellant. The Appellant neither paid the amount under the cheque nor has given any reply to the said notice. Hence, the Respondent was constrained to file the complaint U/Sec.200 of Cr.P.C. alleging that the Appellant has committed an offence punishable U/Sec. 138 of N.I.Act.
3. On being satisfied, the Trial Court has issued summons U/Sec.204 of Cr.P.C. to the Appellant on 24.06.2011. The Appellant has appeared before the Trial Court on 05.06.2014 and he was enlarged on bail. Plea was recorded by the Trial Court on 08.08.2014, 5 Crl.Appeal.No.25231/2018 wherein the Appellant did not plead guilty and claims to be tried.
4. The Complainant inorder to prove her case got examined herself as PW.1 and got marked 11- documents as Ex.P.1 to Ex.P.11. P.W.1 was cross- examined on behalf of the Accused on 28.03.2015 and 05.10.2018.
5. The Accused got himself examined as DW.1 and got marked Ex.D.1 and ExD.2. DW.1 was cross examined on behalf of the Complainant on 16.10.2018.
6. On hearing the Complainant and the Accused, the Trial Court recorded the Order of conviction against the Accused on 05.11.2018. Hence, the Accused is before this Court, being aggrieved by the said Judgment of conviction.
7. On filing the appeal, the order of conviction passed by the Trial Court was suspended for a period of 3 months on 05.12.2018. The Respondent set-in his appearance on 28.12.2018. LCR were secured and 6 Crl.Appeal.No.25231/2018 07.01.2019. Heard the arguments of the Learned Counsels for the Appellant and the Respondent, respectively, on the appeal.
8. The Appellant has preferred this appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has miserably failed to appreciate the oral and documentary evidence on record in a proper and perspective manner;
b) The Trial Court ought to have considered that, the transaction inbetween the Complainant and the Accused under which initially cheque was issued by the Accused, is hit by the provisions of SCST PTCL Act;
c) The Trial Court ought to have considered that, when the transaction is barred under SCST PTCL Act, the transaction is hit by Sec.23 of the Indian contract Act;
d) The Trial Court has failed to observe that the Complainant has not discharged her initial burden to avail the benefit of presumption;7 Crl.Appeal.No.25231/2018
e) The Trial Court ought to have appreciated that the Appellant has successfully rebutted the presumption envisaged U/Sec. 139 of N.I. Act. Hence, prayed to allow the said application.
9. Following points arise for my consideration;
1. Point No.1: Whether the Appellant/Accused shows that the Order of Conviction and Sentence recorded by the Trial Court in C.C.No.26743/2011, dtd.05.11.2018, deserves to be setaside, and thereby call for the interference of this Court?
2. What Order?
10. My finding on the above points are as under:
Point No.1 : In the Negative;
Point No 2 : 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. 8 Crl.Appeal.No.25231/2018
The Complainant has filed a complaint U/Sec. 200 of Cr.P.C. alleging that the Accused has committed an offence punishable U/Sec. 138 of N.I.Act. The Complainant has produced eleven documents viz., Ex.P.1-cheque bearing No.685395, dtd.26.11.2009, for an amount of Rs.9,13,000/-; ExP.2-is the cheque bearing No.685398, dtd.01.05.2010 for an amount of Rs.9,13,000/-; ExP.3-is the endorsement issued by the Vijaya Bank, ExP.4-is the endorsement issued by the Syndicate bank, Ex.P5-is the endorsement issued by the Syndicate bank, Ex.P6- is the endorsement issued by the Syndicate bank, Ex.P7-is the original deed of undertaking, Ex.P8-is the legal notice dtd.14.08.2010, Ex.P9 is the postal receipt, Ex.P10 is the UCOP certificate and Ex.P11 is the acknowledgement. On the basis of the said documents and the preliminary evidence led by the Complainant, the Trial Court has issued summon to the Accused U/Sec.204 of Cr.P.C., I do not find any error in the said order of the Trial Court.
9 Crl.Appeal.No.25231/2018
12. On appearance of the Accused, substance of accusation of the Accused was recorded on 08.08.2014. I have gone through the contents of the substance of the accusation recorded by the Trial Court. I do not find any fault in the 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, the Accused has issued cheque Ex.P1, indischarge of part payment of the consideration amount under the Registered Sale Deed dtd.26.11.2009. On presentation of the said cheque, the same was returned unencashed with an endorsement "Funds Insufficient". Further the Accused issued another cheque Ex.P2 for the said amount alongwith Deed of undertaking as per Ex.P7. Even the said cheque has returned unencashed with an endorsement "Insufficient funds", on its presentation; the Complainant issued the notice to the 10 Crl.Appeal.No.25231/2018 Accused through his counsel as per Ex.P8, which was served on the Accused as per Ex.P11.
14. Further as per the oral evidence of the Accused, more specifically, cross examination of DW1, dtd.16.10.2018 at Page No 5, para No.1, line Nos. 12 to 25, which reads as under:
"...... £À£ÀUÉ vÉÆÃj¸ÀÄwÛgÀĪÀ ¤¦-1 gÀAvÉ EgÀĪÀ £À£Àß ¨ÁåAPï SÁvÉUÉ ¸ÀA§AzÀ¥ÀnÖzÀÄÝ DVzÀÄÝ ªÀÄvÀÄÛ CzÀgÀ ªÉÄÃ¯É EgÀĪÀ ¸À»AiÀÄÄ £À£ÀßzÉà DVgÀÄvÀÛzÉ. ¸ÁQëAiÀÄÄ vÀ£ÀßzÀÄÝ JAzÀÄ UÀÄgÀÄw¹gÀĪÀ ¸À»AiÀÄ£ÀÄß FUÁUÀ¯Éà ¤¦-1 (J) JAzÀÄ UÀÄgÀÄw¸À¯ÁVgÀÄvÀÛzÉ. ¦gÁåzÀÄzÁgÀgÀVUÉ ¸ÀzÀj ZÉPÀÌ£ÀÄß AiÀiÁªÀ PÁgÀtPÁÌV PÉÆnÖgÀÄwÛÃj JAzÀgÉ d«Ää£À PÀæAiÀÄ ªÀiÁr PÉÆnÖgÀĪÀÅzÀPÉÌ £Á£ÀÄ PÉÆnÖgÀÄvÉÛãÉ.
¦gÁå¢zÁgÀgÀÄ §gÉzÀÄPÉÆnÖzÀAvÀºÀ PÀæAiÀÄ ¥ÀvÀæzÀ°è w½¸À¯ÁzÀAvÀºÀ £Á£ÀÄ PÉÆnÖzÀÝ ZÉPÀÄÌ CªÀiÁ£ÀåªÁVgÀÄvÀÛzÉ C £ÀAvÀgÀ ªÀÄvÉÆÛAzÀÄ ZÉPÀÌ£ÀÄß PÉÆnÖgÀÄvÉÛãÉAzÀgÉ ¸Àp ¸ÀzÀj ZÉPÀÌ£ÀÄß PÉÆqÀĪÁUÀ ¦gÁå¢ ªÀÄvÀÄÛ £ÁgÁAiÀÄt¥Àà EªÀjUÉ MAzÀÄ rqï C¥ï CAqÀgï mÉQÌUï ¥ÀvÀæªÀ£ÀÄß §gÉzÀÄPÉÆnÖgÀÄvÉÛãÉAzÀgÉ ¸Àj. CzÀgÀ ªÉÄðgÀĪÀ ¸À»AiÀÄÄ £À£ÀßzÀÄ CVgÀÄvÀÛzÉ. ¸ÁQëAiÀÄÄ UÀÄgÀÄw¹zÀ ¸À»AiÀÄ£ÀÄß FUÁUÀ¯Éà ¤¦7J JAzÀÄ UÀÄgÀÄw¸À¯ÁVgÀÄvÀÛzÉ. rqï C¥ï CAqÀgï mÉQÌUï ¥ÀvÀæªÀ£ÀÄß §gÉzÀÄPÉÆqÀĪÁUÀ d«ÄäUÉ 11 Crl.Appeal.No.25231/2018 ¸ÀA§AAzÀs¥ÀlÖAvÉ AiÀiÁªÀÅzÉà vÀAmÉ vÀPÀgÁgÀÄUÀ¼ÀÄ E¢ÝgÀ°®è JAzÀgÉ ¸Àp £Á£ÀÄ d«Ää£À°è ¸ÉÊlÄUÀ¼À£ÁßVà ªÀiÁr ªÀiÁgÁl ªÀiÁqÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è AiÀiÁªÀÅzÉà vÀAmÉ vÀPÀgÁgÀÄUÀ¼ÀÄ E¢Ýj°®è JAzÀgÉ ¸Àj. ..........".
As per this, DW.1-Accused admits that he had issued Ex.P1-cheque signed by him as per Ex.P1(a) as a part consideration amount for having purchased a land from the Complainant as per the Sale Deed. The said cheque has returned unencashed and in view of the same, Accused has issued one more cheque and has executed deed of undertaking as per Ex.P7, which is signed by him as per Ex.P7(a). And after purchase of the said land, sites were formed and the same were sold by the Accused, at that time, there was no any dispute.
Further as per the cross-examination of DW.1 dtd.16.10.2018, page No.7, Line Nos.13 to 15, which reads as under;
"...... £Á£ÀÄ ¦gÁå¢zÁgÀjUÉ PÉÆlÖAvÀºÀ ZÉPÀÌ£ÀÄß £ÀUÀ¢ÃPÀgÀtPÉÌ ºÁdgÀÄ ¥Àr¸À®Ä £À¤ßAzÀ AiÀiÁªÀÅzÉà µÀgÀvÀÄÛ 12 Crl.Appeal.No.25231/2018 E¢ÝgÀ°®è JAzÀgÉ ¸Àj. ¦gÁå¢zÁgÀgÀÄ F ¥ÀæPÀgÀt zÁR®Ä ªÀiÁqÀrgÀĪÀÅzÀÄ AiÀiÁªÁUÀ w½¢gÀÄvÀÛzÉ JAzÀÄ zÁR®Ä ªÀiÁrzÀ ¸ÀĪÀiÁgÀÄ MAzÀjAzÀ MAzÀƪÀgÉ ªÀµÀðzÀ £ÀAvÀgÀ £À£ÀUÉ w½¢gÀÄvÀÛzÉ. ..........".
As per this, the Accused admits that he has issued the cheque infavour of the Complainant and there were no any conditions for issuance of the said cheque.
15. Thus the Complainant has proved that the Cheque is issued by the Accused to him, there was a liability on the accused, to repay the part consideration amount under the Registered Sale Deed dtd.26.11.2009.
16. On viewing the amount of oral evidence with Ex.P.1 to P.11, 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 Hon'ble Apex Court in the case of K. Subramani V/s K. Damodara Naidu, 13 Crl.Appeal.No.25231/2018 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.
17. On close perusal of cross examination done to PW1 and the evidence of DW1, it can be said that, the Accused has questioned the transaction inbetween him and the Complainant, to be an illegal transaction as it is hit by the provisions of SCST PTCL Act and resultantly hit by Sec.23 of the Indian Contract Act.
18. On coming to the oral evidence on record, wherein it can be seen that in the cross examination of PW1 dated 05.10.2018 at Page No 10, Para No 1, line Nos 1 to 23, which reads as under, " ¸ÀªÉð £ÀA§gÀÄ.26 gÀ d«ÄãÀ£ÀÄß £Á£ÀÄ PÀȵÀÚ¥Àà J£ÀÄߪÀªÀjAzÀ Rjâ ªÀiÁrzÉÝ£ÀÄ. PÀȵÀÚ¥Àà EªÀgÀÄ AiÀiÁªÀ 14 Crl.Appeal.No.25231/2018 eÁwUÉ ¸ÉÃjgÀÄvÁÛgÉ JAzÀgÀÉ £À£ÀUÉ UÉÆwÛgÀiªÀÅ¢®è. PÀʵÀÚ¥Àà EªÀjUÉ d«ºÀãÀÄ £ÀiÀƪÀ jÃw §A¢vÀÄÛ J£ÀÄߪÀÅzÀÄ £À£ÀUÉ UÉÆwÛgÀªÀÅ¢®è. PÀȵÀÚ¥Àà EªÀgÀÄ ¥Àj²µÀÖ ºÁwUÉ ¸ÉÃjgÀÄvÁÛgÉ JAzÀgÉ £À£ÀUÉ UÀÉÆwÛgÀĪÀÅ¢®è. £À£Àß zÀÆj£À°è w½¸À¯ÁzÀ «¼Á¸ÀªÀÅ £ÀªÀÄä ªÁ¸ÀzÀ «¼Á¸À DVgÀÄvÀÛzÉ JAzÀgÉ ¸Àj. PÀȵÀÚ¥Àà EªÀgÀÄ ªÀÄUÀ §gÉzÀÄPÉÆnÖgÀĪÀAvÀºÀ PÀæAiÀÄ ¥ÀvÀæ ºÁUÀÆ £ÁªÀÅ DgÉÆæUÉ §gÉzÀÄPÉÆnÖzÀÝAvÀºÀ PÀæAiÀÄ¥ÀvÀæªÀ£ÀÄß ¸ÀºÁAiÀÄPÀ DAiÀÄÄPÀÛgÀªÀgÀÄ gÀzÀÄÝ¥Àr¹gÀÄvÁÛgÉ JAzÀgÉ £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è. ¸ÀºÁAiÀÄPÀ DAiÀÄÄPÀÛgÀªÀgÀ £ÁåAiÀiÁ®AiÀÄzÀ°è £ÀqÉAiÀÄÄwÛzÀÝAvÀºÀ ¥ÀæPÀgÀtzÀ PÀÄjvÀAvÉ £À£ÀUÉ ªÀÄvÀÄÛ £ÁgÁAiÀÄt¸Áé«Ä EªÀjUÉ w½¢vÀÄÛ £Á£ÀÄ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. £À£Àß zÀÆj£À°è w½¸À¯ÁzÀ «¼Á¸ÀªÀÅ £ÀªÀÄä CAZÉ «¼Á¸À DVgÀÄvÀÛzÉ JAzÀgÉ ¸Àj. £ÁªÀÅ §gÉzÀÄPÉÆnÖgÀĪÀvÀAºÀ PÀæAiÀÄ¥ÀvÀæªÀÅ gÀzÀÄÝUÉÆArgÀĪÀÅzÀjAzÀ DgÉÆæAiÀÄÄ £ÀªÀÄUÉ AiÀiÁªÀÅzÉà ºÀt PÉÆqÀĪÀÅzÀÄ EgÀĪÀÅ¢®è JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQë ¸ÀévÀB £ÁªÀÅ ¸ÀévÀÛ£ÀÄß ªÀiÁgÁl ªÀiÁqÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è AiÀiÁªÀÅzÉà vÀAmÉ vÀPÀgÁgÀÄ E¢Ýj°®è JAzÀÄ £ÀÄr¢gÀÄvÁÛgÉ. FUÀ £À£ÀUÉ vÉÆÃj¸ÀÄwÛgÀĪÀAvÀºÀ zÁR¯ÉAiÀÄÄ DgÉÆæUÉ §gÉzÀÄPÉÆnÖgÀĪÀ PÀæAiÀÄ¥ÀvÀæ DVgÀÄvÀÛzÉ JAzÀgÉ ¸Àj. ¸ÁQëAiÀÄÄ £ÉÆÃr UÀÄgÀÄw¹ M¶PÉÆArgÀĪÀ MAzÀÄ £ÉÆÃAzÁ¬ÄvÀ ±ÀÄzÀÞ PÀæAiÀÄ¥ÀvÀæzÀ zÀÈrüPÀÈvÀ ¥ÀæwAiÀÄ£ÀÄß ¤rB1 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. £ÁªÀÅ §gÉzÀÄPÉÆnÖgÀĪÀAvÀºÀ PÀæAiÀÄ¥ÀvÀæzÀ°è K£ÉãÀÄ §gÉAiÀįÁVgÀÄvÀÛzÉ 15 Crl.Appeal.No.25231/2018 JAzÀÄ w½zÀÄPÉÆAqÀ £ÀAvÀgÀ £Á£ÀÄ ¸Àj ªÀiÁrgÀÄvÉÛÃ£É JAzÀgÉ ¸Àj. £ÁªÀÅ §gÉzÀÄPÉÆnÖgÀĪÀAvÀºÀ PÀæAiÀÄ¥ÀvÀæzÀ°è PÀæAiÀÄzÀ ¸ÀéwÛUÉ ¸ÀA§AzÀ¥ÀlÖAvÉ AiÀiÁªÀÅzÉà vÀAmÉ vÀPÀgÁgÀÄUÀ¼ÀÄ EgÀĪÀÅ¢®è MAzÀÄ ªÉÃ¼É ºÁUÉãÁzÀgÀÆ d«ÄãÀÄ ¸ÀéwÛUÉ ¸ÀA§A¢¹zÀAvÉ vÀAmÉ vÀPÀgÁgÀÄUÀ¼ÀÄ K£ÁzÀgÀÆ ªÀÄÄAzÉ §AzÀ°è CQUÀ¼À£ÀÄß ªÀiÁgÁlUÁgÀgÁzÀ £ÁªÉÉà RÄzÀÄÝ ¤AvÀÄ £ÀªÀÄä ¸ÀéAvÀ Rað¤AzÀ §UɺÀj¹PÉÆqÀÄvÉÛÃªÉ JAzÀÄ §gÉAiÀįÁVgÀÄvÀÛzÉ JAzÀgÉ ¸Àj. DgÉÆæ ªÀÄĤ¨ÉÊgÉÃUËqÀ EªÀÄgÀ £ÀªÀÄUÉ AiÀiÁªÀÅzÉà ºÀt PÉÆqÀĪÀÅzÀÄ ¨ÁQ EgÀĪÀÅ¢®è £ÁªÉà CªÀjUÉ ºÀt PÉÆqÀ¨ÉÃPÁUÀÄvÀÛzÉ JAzÀgÉ ¸ÀjAiÀÄ®è". As per this, it is contended on behalf of the Accused that, land bearing Sy.No.256 belonging to Krishnappa was granted to him as a Member of SC and ST and the same is governed by the provisions of SCST PTCL Act, without obtaining necessary sanction, the same is sold to the Accused under the Sale Deed dtd.26.11.2009.
Further in the cross examination of DW1 dated 16.10.2018 at Page No.6, Para No 2, line Nos 1 to 6, which reads as under, " ........... £Á£ÀÄ Rjâ¹zÀAvÀºÀ d«ÄäUÉ ¸ÀA§AzÀs¥ÀlÖAvÉ vÀAmÉvÀPÁgÁgÀÄUÀ¼ÀÄ AiÀiÁªÀ ªÀµÀðzÀzÀ°è 16 Crl.Appeal.No.25231/2018 ¥ÁægÀA¨ÀsªÁVgÀÄvÀÛzÉ JAzÀgÉ £À£ÀUÉ E¸À« £É£À¥ÀÅ EgÀĪÀÅ¢®è. K£ÀÄ vÀAmÉ vÀPÁgÁgÀÄ EvÀÄÛ JAzÀgÉ ¥Àj²µÀÖ eÁw ªÀÄvÀÄÛ ¥Àj²µÀÖ ¥ÀAUÀqÀzÀ d«ÄãÀÄ DVgÀÄvÀÛzÉ JAzÀÄ £ÁåAiÀiÁ®AiÀÄ¢AzÀ DzÉñÀªÀ£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ §AzÀÄ vÀPÀgÁgÀÄ ªÀiÁrgÀÄvÁÛgÉ. CzÀÄ MAzÀÄ vÀAmÉ vÀPÀgÁgÀ£ÀÄß ©lÖgÉ ¨ÉÃgÉ AiÀiÁªÀÅzÉà vÀAmÉ vÀPÀgÁgÀÄ EgÀĪÀÅ¢®è JAzÀgÉ ¸Àj. ....."
As per this, the Accused contends that, the land purchased by him is hit by the provisions of SCST Act and this is the only dispute in respect of the said land.
Further in the cross examination of DW1 dated 16.10.2018, at Page No 7, Line Nos 8 to 17 , which reads as, ".... £Á£ÀÄ Rjâ ªÀiÁrzÀÝ d«Ää£À°è MlÄÖ 52 ¸ÉÊlÄUÀ¼À£ÀÄß ªÀiÁr¹zÉÝãÀÄ. £À¤ßAzÀ ¸ÉÊlÄUÀ¼À£ÀÄß Rjâ ªÀiÁrzÀªÀgÀÄ G¥À «¨sÁ¢üPÁjUÀ¼À DzÉñÀzÀ «gÀÄzÀÞ ªÀiÁ£Àå GZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ°è jmï ¦nµÀ£ï ¥ÀæPÀgÀt zÁR®Ä ªÀiÁrgÀÄvÁÛgÉAzÀgÉ £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è. PÀæAiÀÄ ¥ÀvÀæ ªÀiÁrPÉÆAqÀ ¢£ÀªÉà PÀæAiÀÄzÀ ºÀtªÀ£ÀÄß PÉÆqÀ¨ÉÃPÁVvÀÄÛ. £Á£ÀÄ ¦gÁå¢zÁgÀjUÉ PÉÆlÖAvÀºÀ ZÉPÀÌ£ÀÄß £ÀUÀ¢ÃPÀgÀtPÉÌ ºÁdgÀÄ ¥Àr¸À®Ä £À¤ßAzÀ AiÀiÁªÀÅzÉà µÀgÀvÀÄÛ E¢Ýj°®è JAzÀgÉ ¸Àj. ....."
17 Crl.Appeal.No.25231/2018As per this, the Accused contends that he has formed 52-sites in the said land and has sold the same to the respective buyers and he is not aware whether the said respective buyers have challenged the Orders passed by the Assistant Commissioner, by way of Writ Petition.
19. Thus inorder to rebut the presumption, the Accused has to prove, on preponderance of probabilities, that the cheque given by him towards the satisfaction of the consideration amount under the Sale Deed dtd.26.11.2009, the transaction under the said Sale Deed is hit by Sec. 23 of the Indian Contract Act.
20. On the basis of the cross-examination of DW.1-Accused, it can be said that the Accused on the purchase of the said land has formed 52-sites and has sold the said sites to their respective purchasers and at the time of his sale to the said purchasers, there was no any dispute much-the-less, the dispute under the provisions of SCST Act. As per this piece of evidence it can be said that, the Accused by paying part 18 Crl.Appeal.No.25231/2018 consideration amount, without paying the part consideration amount involved under the cheque has purchased the land and by forming the 52-sites have sold it. When the Accused has sold the land, at the time of sale, there was no any dispute, at that point of time, the Accused has issued the cheque which is admitted by him. On the basis of such admission, now the Accused cannot turn back and contend that subsequent to the issuance of the cheque and subsequent to the sale of 52-sties to the respective purchaser, after purchasing of the land by the respective purchaser, a litigation has been cropped up and for such litigation, the contract inbetween the Accused and the Complainant is hit by the provisions of PTCL Act and thereby hit by Sec.23 of Indian Contract Act. The Accused is estopped U/Sec. 115 of Indian Evidence Act to contend so. Thus, the contention raised by the Learned Counsel representing the Accused/Appellant holds no water and the same is turned down.
19 Crl.Appeal.No.25231/2018
21. Considering the inconsistent contentions raised by the Accused in the cross examination of PW1 and the examination of DW1, 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 evidence, the different and distinct stands taken up by the Accused, cannot be accepted at all.
22. Thus for the stand takenup by the Accused, no any evidence is putforth by it, to strengthen its defence. On the contrary it has taken altogether distinct and different stands, which are 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.
20 Crl.Appeal.No.25231/2018
23. On close scrutiny of the cross-examination done on behalf of the Accused to P.W.1, except mere denial, there is no any specific denial from the side of the Accused, as to the income of the Complainant or the accountability of the Complainant. Section 118 of N.I.Act lays down a presumption that, every Negotiable Instrument made or drawn, is made or drawn for consideration, unless contrary is proved. Sec. 139 of N.I.Act lays down a presumption that, the holder of a cheque has received a cheque for the discharge of a debt or liability, legally recoverable, unless contrary is proved. Under such 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 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 21 Crl.Appeal.No.25231/2018 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.
24. I have carefully gone through the reasoning given by the Trial Court, while awarding compensation to the Complainant U/Sec.357 of Cr.P.C. The Trial Court has rightly consider 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).
25. Further 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 security, then the liability subsists 22 Crl.Appeal.No.25231/2018 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".
Further 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".
26. 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 its burden to rebut that presumption. 23 Crl.Appeal.No.25231/2018
27. The Court below has considered all the aspects, the grounds taken up by the Accused as defense. Even I do not find any fault with the Order of the Trial Court in awarding compensation to the Complainant. When no fault is committed by the Trial Court, interference by this Court does not arise at all. Thus, I am declined to interfere with the findings recorded by the Trial Court.
28. 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.1 in the Negative.
29. Point No.2: For the aforesaid reasons, I proceed to pass the following:
ORDER Acting U/Sec.386 of Cr.P.C., the Appeal preferred by the Appellant/Accused is hereby Dismissed.24 Crl.Appeal.No.25231/2018
In the consequences, the order passed by the Learned XV Addl. Small Causes Judge, and XXIII ACMM, Member, MACT, Bengaluru in CC No.26743 of 2011, dated 05.11.2018,
recording conviction of the Accused, is hereby confirmed.
The order of suspension passed by this Court U/Sec.389 of Cr.P.C. stands revoked.
The Court below shall execute its order, as per law.
No order as to costs.
Remit the LCR to the Court below,
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 28th day of May, 2019) [Abdul-Rahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)