Bangalore District Court
Syed Basheer Ahmed vs Complainant: M/S.Sree Gokulam Chits & on 28 January, 2021
IN THE COURT OF LXXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, MAYOHALL UNIT, BANGALURU. (CCH.74)
PRESENT:
Sri.Yamanappa Bammanagi, B.A., LL.B., (Spl.,)
LXXIII Addl.City Civil & Sessions Judge,
Mayohall Unit, Bangaluru.
Dated this the 28th day of January, 2021.
Crl. Appeal No.25145/2018
Accused/
Appellants: 1. Syed Basheer Ahmed,
S/o.Syed Ali,
M/s.Super Sum Product (P) Ltd.,
Executive Director,
Govindapura Main Road,
A.C. Post, Bangaluru45.
2. Syed Shabeer Ahmed,
S/o.Syed Ali,
M/s.Super Sum Product (P) Ltd.,
Managing Director,
Govindapura Main Road,
A.C. Post, Bangaluru45.
(By Sri.Mohamed Wazeer - Adv.)
V/S
Respondent/
Complainant: M/s.Sree Gokulam Chits &
Finance Co. (P) Ltd.,
having its Registered Corporate
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Office at: "Sree Gokulam Towers",
No.66, Arcot Road, Kodambakkam,
Chennai600024.
And having Branch Office at:
Rear Block, 1st Floor,
Punjab Mansion, No.23,
Ebrahim Sahib Street,
Shivajinagar, Bangaluru03.
Rep.by its Board Resolution
Holder: S.Rajesh Kumar.
(Respt.Absent)
JUDGMENT
Being aggrieved by the judgment and sentence, passed by the learned XV Small Causes Judge (SCCH19) & 23 rd ACMM, Bangaluru, in CC No.81487/2009, dated 19.07.2018, convicting the appellants for the offence punishable under Section 138 of N.I.Act, sentencing them for six month simple imprisonment and to pay fine of Rs.2,000/ each, in default of payment of fine amount, the accused persons shall undergo simple imprisonment for 30 days. Further directed the appellants to pay compensation of Rs.2,50,000/ to the complainant within one month from the date of trial court 3 Crl.A. No.25145/2018 order, being aggrieved by the said order, the appellants are before this court, challenging the legality and correctness of judgment and sentence of trial court.
2. Brief facts of the case:
It is the case of the appellants that, the present respondent has filed complaint against the present appellants u/S 200 of Cr.P.C. for the offence punishable u/S 138 of the N.I. Act. It is contended in the appeal memo that, the respondent herein has filed complaint against the present appellants u/S 200 of Cr.P.C. alleging that the complainant/respondent is the company limited (P) Ltd., doing business of chit fund and finance in the name and style of M/s.Sree Gokulam Chits & Finance Co.(P) Ltd., represented by its Authorised Board Resolution holder. Thus, the appellant/accused No.1 is subscriber of a Chit Group No.G2E 1398 with ticket No.06 and accused No.2 is subscriber of a Chit Group No.G2E 1398 with ticket No.05 4 Crl.A. No.25145/2018 and both accused persons were participated in the auction and prized the chit and received the amount after deduction 25% for sale value of Rs.1,00,000/ each; i.e., Rs.75,000/ each and executed promissory notes. After receiving the amount of chits and after some time both accused persons failed to remit the future installments. Thus, the accused persons chronic defaulter in repayment. When complainant company had demanded the accused persons in order to payment of liability of principal and interest, the accused persons had issued joint cheque for sum of Rs.1,51,000/ bearing No.391902 dated 04.04.2009, drawn on Canara Bank, Fraser Town, Bangaluru. Thereafter, on 11.04.2009 the complainant company had presented the cheque for encashment through its bankers Axis Bank Ltd., CoxTown, Bangaluru, but cheque returned with bank endorsement "Invalid Account Number". Thus, on 30042009 the complainant company got issued notice to the accused 5 Crl.A. No.25145/2018 persons calling upon them to pay cheque amount within 15 days from the date of receipt of notice. Notice returned unserved. Thus, the cheque issued by the accused persons has been dishonoured after stipulated period the complainant company has filed complaint against the present appellants for the offence punishable u/S 138 of N.I. Act.
3. On being satisfied with the material placed before it, the trial court has taken cognizance for the offence punishable u/s 138 of NI Act against the accused persons, for the offence punishable u/S 138 of the N.I. Act, issued summons u/S 204 of Cr.P.C. In pursuance of the summons, the accused persons have appeared before the trial court, the trial court enlarged the accused persons on bail, thereafter, plea was recorded, the accused persons pleaded not guilty and claimed to be tried.
4. In order to prove its case the authorized person of complainant was examined as P.W.1 and P.W.2 and got 6 Crl.A. No.25145/2018 marked Ex.P.1 to P.12, on 10.09.2015 statement of accused persons was recorded U/sec. 313 of Cr.P.C., on 06.07.2018 the learned counsel for the accused persons has cross examined PW2. After hearing the argument of the learned counsel for the complainant and accused persons, the trial court has recorded the order of conviction, convicting the appellants/accused persons for the offence punishable u/S 138 of the N.I. Act, with default clause. Being aggrieved by the said judgment and order of conviction, the accused persons are before this court, challenging the correctness and legality of the said judgment order of conviction on the following: "GROUNDS I. The impugned judgment passed by the learned trial court is contrary to law and facts and material placed before it. The trial court failed to appreciate the facts stated in the affidavit filed in examinationinchief that the 7 Crl.A. No.25145/2018 amount of Rs.75,000/ each, the accused persons have received by executing promissory note. But, no promissory note produced. The accused has rebutted the presumption availed to complainant by proving defense.
But, trial court has not been considered in view of the repayment debt, there is no recoverable debt. II. Further the complainant has not complied with the provision of Section 138 of the N.I. Act, because cheque returned with bank endorsement "Invalid Account No.", then the complainant has presented cheque, which is not belongs to the accused. The trial court has not applied its judicial mind and just relying upon the documents produced by the complainant and passed the impugned judgment.
III. The complainant initially examined on its behalf
Mr.Raju.H.M., and Mr.Sidharaju, 8 Crl.A. No.25145/2018 who were not tendered for cross examination, thereafter, the present appellants have preferred an revision and revisional court directed to trial court to give an opportunity for crossexamination of P.W.1 and P.W.2. By violating trial revisional order the trial court permitted the complainant to examine another witness by name Sudhakar as P.W.2, P.W.2 was crossexamined by appellants and evidnece of Raju.H.M. and Sidharaju were discarded.
IV. It is admitted in the cross examination that the complainant was not employee of the complainant company at the time of transaction and admittedly who do not know anything about the transaction between complainant company and the accused persons. Thus, his evidence is hearsay in nature, even he did not know where he has signed his affidavit. This 9 Crl.A. No.25145/2018 fact was not appreciated and not considered by the trial court, because the appellants are entitled persons who knows the facts of the case as per the law laid down by the Hon'ble Apex Court.
V. The trial court did not considered admitted fact that company has issued Ex.D.1 and D.2 to the accused persons and made entry in the books about the payment and the balance as per admitted fact only Rs.22,000/. But, as per Ex.D.2 and D.2 the accused persons have paid Rs.1,28,000/ as against due of Rs.1,51,000/ admittedly. Thus, blank cheque issued by the accused persons has been misused by the complainant company. Thus, there is no debt to the extent of Rs.1,51,000/ and relied on decision of the Apex Court (2007) 5 SCC
264. VI. The complainant company did not produced statement of account 10 Crl.A. No.25145/2018 to show the liability of the accused persons, even the complainant did not produced the any document to show how much amount has been paid. Under such cricumstances, the complainant is entitle for acquittal as complainant is failed to prove his case as per the law laid down by the Hon'ble Apex Court in the decision reported in (2006) 6 Supreme Court Cases 39. Thus, the judgment of trial court is liable to be setaside. With these grounds the appellants sought for allowing the appeal.
5. On admitting the appeal, this court has passed the order, on the application filed by the appellants u/S 389 (1) of Cr.P.C., and suspended the operation and execution of the trial court order and issued notice to the respondent. The respondent appeared through counsel and received TCR, heard argument on both side.
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6. I have perused impugned judgment and order of the trial court, reappreciated oral and documentary evidence, led by both the parties before the trial court, considered material placed before the court, considered the arguments of the learned counsel for the appellant and respondent. On perusal of the same, the points that would arise for my consideration are as follows:
1. Whether complainant proves the existence of legally recoverable debt and accused has issued cheque towards discharge of legally recoverable debt?
2. Whether the complainant proves that he has issued notice to the accused as required u/S 138 of N.I. Act?
3. Whether accused proves that he has rebutted the presumption on preponderance of probabilities?
4. Whether the appellants/ accused persons made out 12 Crl.A. No.25145/2018 grounds to show that the order of conviction and sentence recorded by the trial court, in C.C. No.81487/2009, dated 19.07.2018, is deserves to be setaside and call for the interference of this court?
5. What order?
7. My answer to the above points are as follows: Point No.1: In the Negative, Point No.2: In the Affirmative, Point No.3: In the Affirmative, Point No.4: In the Affirmative, Point No.5: As per final order, for the following: REASONS
8. POINT No.1 to 4: These four points are interconnected to each other, in order to avoid the repetition I proposed to answer these four points commonly. The rank of the parties is referred as they were referred before the trial court.
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Crl.A. No.25145/2018 It is alleged in the complaint that the complainant is the company registered under the Companies Act, represented by its authorised person. The accused Nos.1 and 2 are the subscribers of the complainant company. The accused No.1 is the subscriber of a Chit Group No.G2E No.1398 with ticket No.06 and accused No.2 is subscriber of a Chit Group No.G2E No.1398 with ticket No.05 and both accused persons have participated in the auction, prized the chit and received the amount after deduction of 25% from sale value of Rs.1,00,000/, each Rs.75,000/ received after executing the promissory note. Thereafter, both accused persons failed to remit the future installments to the complainant, both accused persons are chronic defaulter in repayment, both accused persons total liability of Rs.1,51,000/. Thus, both accused persons had issued joint cheque bearing No.391302 for Rs.1,51,000/ dated 04.04.2009, drawn on Canara Bank, Fraser Town, Bangaluru. The complainant presented the said 14 Crl.A. No.25145/2018 cheque for encashment on 4.4.2009, same was returned with bank endorsement as "Invalid Account Number". Thereafter, complainant got issued notice dated 30.04.2009 to the accused persons calling upon them to pay cheque amount within 15 days from the date of receiving notice. Said notice was returned unserved. But, UCP notice has been served on the accused persons. Even after serve of notice accused persons failed to repay the same. Thus complainant constrained to file complaint.
9. Being satisfied with the material placed before it, the trial court has taken cognizance, issued summons to accused u/S 204 of Cr.P.C. In pursuance of the summons the accused appeared through counsel and enlarged on bail. Thereafter, posted for plea on 16.11.2013.
10. On 16.11.2013 plea was recorded, accused not pleaded guilty, claimed to be tried. Hence, posted for complainant evidence. The representative of the complainant 15 Crl.A. No.25145/2018 is examined as PW1 & another representative of the complainant company is examined P.W.1. Due to non tendering of P.W.1 for crossexamination, their evidence has been discarded and new officer of the complainant company is examined as P.W.2.
11. It is specific case of complainant that, the complainant is the company registered under the Companies Act, running chit fund business and accused No.1 and 2 are the subscribers of chit group No.G2E 1398, ticket No.06 and G2E 1398, ticket No.05, both accused had participated in the auction and prized the chit and received the amount after deduction of 25% from sale value of Rs.1,00,000/ each, then Rs.75,000/ each were received. Thereafter, the accused persons failed to remit the future installments. Thus, in order to repay the installments both accused persons jointly issued cheque bearing No.391902 for Rs.1,51,000/ dtd. 4.4.2009 drawn on Canara Bank, Fraser Town, Bangaluru. Thereafter, 16 Crl.A. No.25145/2018 the complainant company had presented the said cheque, cheque was dishonoured. Hence, complainant got issued notice to the accused persons and after stipulated period complaint was filed against the accused for the offence punishable u/S 138 of N.I. Act.
12. I have perused oral and documentary evidence led by the parties, it is clear that transaction between the accused and complainant is not in dispute and issuance of the cheque and signature of the accused over the cheque is also not in dispute. The defence of the accused persons is that the accused persons have paid chit fund amount installments and the complainant company had misused the blank cheque kept in the company while participating in auction.
13. The second defence was that the accused has repaid the installments amount and there was no legally recoverable debt to issue cheque and present the same for encashment.
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14. The trial court was not appreciated the oral and documentary evidence with reference to fact in issue and wrongly come to conclusion that, accused failed to rebut the presumption available U/sec.138 of N.I. Act.
15. This court has received entire trial court records and reappreciated the oral and documentary evidence led by the parties. PW.2 deposed in the crossexamination that, the accused No.1 & 2 have paid installments amount after deducting 25% of sale value of Rs.75,000/. Further he deposed that, the accused No.1 & 2 have repaid the due amount of Rs.62,000/ and accused No.2 has paid Rs.54,950/ for that the complainant company has made entries in Ex.D1 & D2 for receipt of said amount. Now it is relevant to extract crossexamination of PW1, which reads thus: ಪರರರದ ಸಸಸಸಸಯವರರ ಇಬಬರರ ಆರಸರರಪಗಳಳ ತಲರ ಕಸರವಲ ರರ. 75,00000 ಗಳನರನ 18 Crl.A. No.25145/2018 ಕಸರಡಲರಗರತತದಸ ಎಸದರಸ ಸರ.
ಅರಸರರಪತರಬಬರರ ತಲರ ರರ.60,000 00 ಗಳನರನ ಈಗರಗಲಸರ ಪರರರದಗಸ ಬರಬಸಕಗಸ ಪರವತ ಮರಡರರತರತರಸ ಎಸದರಸ ಸರ ಅಲಲ ನಡ.1 ರಸತರರವ ಚರಟದರರರ ಪರಸ ಪಪಸತಕದಲಲ ತಳಸರರವಸತಸ 1 ನಸರ ಆರಸರರಪ ಸರಮರರರ ರರ.62,00000 ಗಳನರನ ಪರವತ ಮರಡರರತರತರಸ ಎಸದರಸ ಸರ. ಸರಕ ಸಸತತ 2 ನಸರ ಆರಸರರಪಯರ ಕಸರವಲ 42,00000 ಗಳನರನ ಪರವತ ಮರಡರರತರತರಸ ಎಸದರ ನರಡದರರತರತರಸ. 1 ನಸರ ಆರಸರರಪಗಸ ಸಸಬಸಧಪಟಟಸತಸ ಕಸರವಲ ರರ.13,00000 ಗಳನರನ ಬರಕ ಇರರತತದಸ ಎಸದರಸ ಸರ ಅಲಲ. ನಡ.2 ರಸತರರವ ಪರಸ ಪಪಸತಕದಲಲ 2 ನಸರ ಆರಸರರಪಯರ ಸರಮರರರ ರರ.54,95000 ಗಳನರನ ಬರಬಸಕಗಸ ಪರವತ ಮರಡರರತರತರಸ ಎಸದರಸ ಸರ. ಸರಕಯರ ಅದನರನ ಬರಬಸಕನ ಲಸಡಡರ ಎಕಕ ಟರಟಕಟ ಪಪಸತಕವನರನ ನಸರರಡ ಹಸರಳಬಸರಕರಗರತತದಸ ಎಸದರ ನರಡದರರತರತರಸ.
16. This portion of evidence clearly establishes that, the complainant company has advanced chit fund of Rs.75,000/ after deducting 25% of the sale valuation of 19 Crl.A. No.25145/2018 Rs.1,00,000/. It is also clear from the evidence of PW.2 that accused No.1 has paid Rs.62,000/ and accused No.2 has paid Rs.54,950/ to the complainant. For that the complainant has made an entries in Ex.D1 & D2 for having received the repayment of amount from the accused No.1 & 2.
17. Now it is relevant to appreciate Ex.D.1 and Ex.D.2 which are the pass books issued by the complainant company for making necessary entries with regard to payment of installments by the accused person. Now it is relevant to appreciate Ex.D.1 and Ex.D.2. I have perused Ex.d1 & D2 which clearly establishes that accused No.1 has paid installments amount ofRs.62,000 and accused No.2 has paid Rs.54,950 to the complainant company. Ex.D1 & D2 clearly establishes the entries of payment of installments. Now it is relevant to extract the crossexamination of PW.1 dtd.0907 2018, which reads thus:
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4. ನಮಮ ಫಸಫನರನಕ ಕಸಪನಯಸದ ಚರಟದರರರಗಸ ಹಣ ಪರವತ ಮರಡಲರ ಕಸರಟಟರರವ ಪಪಸತಕವಪ ಚರಟದರರರ ಹತತರ ಇರರತತದಸ ಎಸದರಸ ಸರ. ಈ ಪಟಕರಣದಲಲ ಆರಸರರಪತರಗಸ ತಲರ ಒಸದಸರಸದರ ಪಪಸತಕವನರನ ಕಸರಡಲರಗತರತ ಎಸದರಸ ಸರ. ನಮಮ ಕಸಪನಯ ಪಟತನಧಗಳಳ ಆರಸರರಪತರ ಹತತರ ಹಸರರಗ ಹಣವನರನ ಪಡಸದರ ಆ ಪಪಸತಕದಲಲ ನಮರದರ ಮರಡ ಬರರತರತರಸ ಎಸದರಸ ಸರ ಅಲಲ.
ಚರಟದರರರರ ಹಣವನರನ ಪರವತ ಮರಡರರವ ಕರರತಸತಸ ರಶರದಯನರನ ಕಸರಡಲರಗರತತದಸ ನಸತರ ಅವರರ ತಸಗಳಗಸ ಒಸದರ ಸರರ ಬರಬಸಕಗಸ ಬಸದರ ಪರಸ ಪಪಸತಕದಲಲ ಕಸಪಪಬಟರ ಅನರನ ನಸರರಡ ನಮರದರ ಮರಡ ಕಸರಡಲರಗರತತದಸ. ಈಗ ನನಗಸ ತಸರರರಸರರವಸತ ಒಸದರ ಪಪಸತಕವನರನ ನಮಮ ಫಸಫನರನಕ ಕಸಪನಯಸದ ಸಸಫಯದ ಬಶರರ ಅಹಮದ ಇವರಗಸ ಕಸರಟಟರರವಸತ ಪಪಸತಕ ಆಗರರತತದಸ ಎಸದರಸ ಸರ. ಸರಕಯರ ನಸರರಡ ಗರರರತಸ ಒಪಪಕಸರಸಡರರವಸತಹ ಪಪಸತಕವನರನ ನಡ.1 ಎಸದರ ಗರರರತಸಲರಯತರ. ಈಗ ನನಗಸ ತಸರರರಸರರವಸತಹ ಪಪಸತಕವನರನ ನಮಮ ಫಸಫನರನಕ ಕಸಪನಯಸದ ಸಸಫಯದ ಶಬಬರರ ಅಹಮದ ಇವರಗಸ ಕಸರಟಟರರವಸತಹ ಪಪಸತಕ ಆಗರರತತದಸ ಎಸದರಸ ಸರ. ಸರಕಯರ ನಸರರಡ 21 Crl.A. No.25145/2018 ಗರರರತಸ ಒಪಪಕಸರಸಡರರವಸತಹ ಪಪಸತಕವನರನ ನಡ.2 ಎಸದರ ಗರರರತಸಲರಯತರ. ಆ ಪಪಸತಕದಲಲಲ ಮರಡಲರದ ನಮರದರಗಳನರನ ನಮಮ ಬರಬಸಕನವರರ ಮರಡರರತರತರಸ ಎಸದರಸ ನಮರದರ ಮರಡರರವಪದರ ಕಸಡರಬರರತತದಸ ಆದರಸ ಅದನರನ ಬರಬಸಕನ ದರಖಲಸಗಳಸಳ ಸದಗಸ ಹಸರರಲಕಸ ಮರಡ ಹಸರಳಬಸಸರಕರಗರತತದಸ.
18. But trial court has not been considered Ex.D.1 and Ex.D.2 and there is no proper appreciation on Ex.D1 & D2. But I have gone through the judgment of trial court it is seen that the trial court of was the view that though Ex.D1 & D2 are discloses the transaction between the complainant and accused but for the purpose of proving the payment, the accused have not adduced any oral evidence and also not produced any document.
19. When PW.2 admitted, the crossexamination extracted supra, that accused No.1 has paid Rs.62,000/ and accused No.2 has paid Rs.54,950/. This fact is not only admitted in the crossexamination but it is supported by 22 Crl.A. No.25145/2018 admitted document produced by the accused persons marked at Ex.D1 & D2. That apart, Ex.D1 & D2 marked during the crossexamination of PW.2 on confrontation and on admission of the contents of entries made in Ex.D1 & D2. Thus, the accused persons have proved that they have paid an amount of Rs.62,000/ and Rs.54,950/ respectively. It is specific case of the complainant that complainant company has paid Rs.75,000/ each of the accused persons. So, it is clear that there was no legally recoverable debt of Rs.1,51,000/. That apart, the complainant nowhere stated in the complaint for having received the said amount. This clearly shows that the complainant has not approached the court with clean hands but he approached the court suppressing the material fact.
20. Now it is relevant to appreciated the fact stated in the complaint. This court has carefully perused the complaint and found that, nowhere stated in the complaint about 23 Crl.A. No.25145/2018 repayment made by the accused, it is only admitted by the complainant in the crossexamination that, accused persons have paid Rs.62,000/ and accused No.2 has paid Rs.54,950/ and same have been entered in Ex.D1 & D2 having received the installments amount from the accused persons. Further it is admitted by the complainant that, the complainant has taken blank signed cheque from the accused persons at the time of issuing Ex.D1 and D2.
21. But complainant has not stated anything about payment of loan amount paid by the accused. Ofcourse, the issuance of cheque and signature is not in dispute. Even transaction is also not in dispute. But the complainant himself has admitted in the crossexamination that, the accused No.1 & 2 have paid Rs.62,000/ and accused No.2 has paid Rs.54,950/ for that entries have been made in Ex.D1 & D2 for having received the same. Under such circumstances, it can be safely held that, the complainant has misused a 24 Crl.A. No.25145/2018 cheque even after receiving the due amount from the accused. Thus, the accused has rebutted the presumption available U/Sec.139 of N.I. Act and he has proved his defence on Preponderance of probability. Thus, the complainant failed to prove the existence of legally recoverable debt of Rs.1,51,000/ to present the cheque, issued by the accused, after fillup in the blank.
22. Ofcourse, it is wellsettled law that, once issuance of cheque and signature is admitted the accused cannot escape from the liability as per section 20 of the N.I. Act. This settled possession of law puts a foundation to give initial presumption to the complainant U/Sec.139 of the N.I. Act and the trial court was also rightly given the benefit of section 139 of N.I. Act to the complainant at a initial stage and shifted the burden of proof on the accused to rebut the presumption. But trial court failed to appreciate the defence evidence of the accused. The accused has proved the defence 25 Crl.A. No.25145/2018 by producing documents Ex.D.1 and Ex.D.2 which have not been denied by the complainant.
23. So, Ex.D1 and D2 clearly shows the payment of entries in respect of chit funds. It is specific case of the complainant that the accused persons has to repay the installments in terms and conditions of company. Thus, the accused persons have paid the installments as per Ex.D.1 and Ex.D.2 which reflects the name of the complainant company. Ex.D.1 and Ex.D.2 clearly establishes that the accused has paid Rs.62,000/ and Rs.54,950/ each. Thus, there was no legally recoverable debt of Rs.1,51,000/. Now it is relevant to extract crossexamination of P.W.2 dated 09072018, which reads thus:
"ನಮಮ ಫಸಫನರನಕ ಕಸಪನಯಸದ ಚರಟದರರರಗಸ ಹಣ ಪರವತ ಮರಡಲರ ಕಸರಟಟರರವ ಪಪಸತಕವಪ ಚರಟದರರರ ಹತತರ ಇರರತತದಸ ಎಸದರಸ ಸರ."26
Crl.A. No.25145/2018
24. This portion of evidence clearly establishes that at the time of auction the complainant company has taken blank signed cheque belongs to the accused for security purpose and complainant company has presented the cheque after fulfilling the excess amount in the cheque without notice of accused even after payment of loan amount. Hence, the trial court failed to consider the payment made by the accused and trial court failed to appreciate the facts admitted and document produced by the accused in support of his defence. It is wellsettled law that, the standard of proof on the accused is not beyond reasonable doubt. If he proved his defence on preponderance of probability, is sufficient to say that, the accused has rebutted the presumption available U/Sec.139 of N.I. Act.
25. Now it is relevant to extract Section 20 of the N.I. Act, which reads thus:
27
Crl.A. No.25145/2018 "20. Inchoate stamped instruments.__ Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India] and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person signing shall be liable upon such instrument, in the capacity in which he signed the same to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder:"28
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26. This provision empowers the drawee or holder in due course that they can fill up blank cheque for the amount which is legally recoverable debt or liability. But, does not empowers to fill up excess amount then the legally recoverable debt which will lead dishonour of cheque. In the case on hand, it is admitted that the complainant has taken blank cheque from the accused for security purpose and it is also clear from evidence of PW.2 and crossexamination of PW.2. But it is clear from the material placed before court and evidence from PW.2 that complainant company has prsesented the cheque by fullfilling excess amount then legally recoverable debt which led to dishonor of cheque. Thus, it is clear that the accused persons have proved their defence and rebutted the presumption available u/s 118 and u/s139 of NI Act to the complainant.
27. On careful perusal of material placed before the court and oral and documentary evidence it is clear that the 29 Crl.A. No.25145/2018 accused persons have proved their defence on preponderance of probability. This facts were not considered by the trial court and trial court did not appreciated Ex.D1 & D2 with reference to facts admitted in the crossexamination of PW.2 as extracted supra.
28. In the case on hand, the complainant has admitted that accused No.1 & 2 have paid Rs.62,000/ and Rs.54,950/ and made entries in Ex.D1 & D2 for having received the same. Thus, the accused has rebutted the presumption available U/Sec.139 of N.I.Act. In support of this finding I relied on the judgment reported in (1973) to SCC 808 in case of Kali Ram v/s state of Himachal Pradesh. The lord ship have held in the judgment at Para 23, which reads thus:
"One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person 30 Crl.A. No.25145/2018 arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in 31 Crl.A. No.25145/2018 such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocent of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal."
29. Further, I relied on the decision reported in 2019(1) KCCR 212 in case of B.P. Venkatesulu v/s K.P. Maninayar. The lordship held thus:
CODE OF CRIMINAL
PROCEDURE, 1974Sections 397
and 401NEGOTIABLE
INSTRUMENTS ACT. 1981Sections 138 and 139Presumption that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or liability Presumption rebuttable and may get displaced by the very 32 Crl.A. No.25145/2018 prosecution material on record or through independent evidence led by the accused or from suspicious circumstance clouding the prosecution case and damaging it.
Held: That under the facts
and circumstances of the case
arising out of alleged a loan
agreement dated 14.8.1987
executed in favour of the
complainant and dated 14.12.1990 for repayment of the principal amount referred to in the agreement, even though the agreement stipulated repayment within 4 years from the date of the agreement with interest at 12% p.a., together with erasure and retyping of the month "12" in the agreement and complainant himself not having been shown to have been financially capable of advancing Rs. 1,50,000/ to the accused as on the date of the alleged agreement, the presumption under 33 Crl.A. No.25145/2018 section 139 stood rebutted.
Therefore, the Sessions Judge was right in setting aside the conviction of the accused by the Magistrate and acquitting him.
30. Ofcourse, the accused has admitted signature on the cheque such admission the complainant is entitle for presumption as per the law laid down in Rangappa case. But, it is a rebuttal presumption. If the accused rebutted the presumption by producing documentary evidence or by eliciting from the mouth of complainant in the cross examination, then again burden proof of complainant's case shift on the complainant to prove his case. In the case of hand, on perusal of the oral and documentary evidence as discussed the accused has rebutted presumption available to the complainant but, complainant failed to prove his case after rebutting the presumption. 34
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31. I have gone through the impugned judgment it is seen that, trial court has relied on the admission of the accused that the accused has admitted the signature and issuance of cheque hence, the complainant has proved the ingredients of section of 138 of N.I. Act. The findings of the trial court is not correct for the reason that though it is a settle principal of law that on admission of signature on the cheque is sufficient to hold that the complainant is entitle to have a shelter u/s 139 of N.I. Act but, it is rebuttable presumption the accused can rebut the presumption. In the case hand trial court did not considered the evidence of accused and documents produce by the accused at Ex. D.2 and Ex.D.1 and Ex.D.2 are the documents, which clearly establishes that the accused has paid Rs. 1,51,000/.
32. Section 139 of the N.I Act shifts the burden on the accused to prove the fact which rebuttes the presumption taken by the complainant. Section 139 of the 35 Crl.A. No.25145/2018 N.I. Act is only shifts the burden of proof but it does not provides that the complainant has proved the ingredients of section 139 of N.I. Act.
33. So far as defence with regard to service of notice is concerned, it is clear from Ex.P.5 is postal receipt and Ex.P.6 is under certificate of posting it is clear that, though notice through counsel by RPAD returned unserved. But complainant got issued notice under UCP. This document is sufficient to hold that complainant has complied the requirement of Sec.138 of NI Act.
34. On appreciating the oral and documentary evidence led by both the parties and material placed before the court and reasons assigned and relying on the decision referred above, the observation of the trial court in the judgment of conviction, recorded by the trial court, in C.C. No.81487/2009, dated: 19072018, requires the interference 36 Crl.A. No.25145/2018 of this court. With this observation, I answer point No.1 in the Negative and point Nos.2 to 4 in the Affirmative.
35. POINT No.5: In view of the findings made on point No.1, I proceed to pass the following: ORDER The appeal preferred by the Appellant/Accused, U/S 374 of the Cr.P.C. is hereby allowed.
Consequently, the judgment of conviction and sentence recorded by the learned XV Small Cause Court and XXIII ACMM, Mayohall Unit, Bengalore, in CC No 81487/2009, dated: 19072018, convicting the Appellant/Accused for the offence punishable U/s 138 of the N.I. Act, is hereby set aside and the Appellant/Accused is hereby acquitted for the offences punishable U/s 138 of the N.I.Act.
37
Crl.A. No.25145/2018 Further, the trial court is hereby directed to release 20% of cheque amount with fine amount of Rs. 5,000/ in the name of the Appellant/Accused, after proper identification if the accused/ appellant deposited 20% of the cheques amount with fine amount Rs. 5000/ in order to comply with the order passed by this court on 20.08.2018, after appeal period.
Remit the TCR to the trial court, along with the copy of the judgment.
No order as to costs.
(Dictated to the Stenographer, on computer, after computerization, corrected and pronounced by me in the Open Court, this the 28th day of January, 2021) (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, B'luru.(CCH74).
38 Crl.A. No.25145/2018 39 Crl.A. No.25145/2018 Judgment pronounced in the open court (vide separate judgment).
ORDER
The appeal preferred by the
Appellant/Accused, U/S 374 of the Cr.P.C. is hereby allowed.
Consequently, the judgment of conviction and sentence recorded by
the learned XV Small Cause Court and XXIII ACMM, Mayohall Unit, Bengalore, in CC No 81487/2009, 1 Crl.A. No.25145/2018 dated: 19072018, convicting the Appellant/Accused for the offence punishable U/s 138 of the N.I. Act, is hereby setaside and the Appellant/Accused is hereby acquitted for the offences punishable U/s 138 of the N.I.Act.
Further, the trial court is hereby directed to release 20% of cheque amount with fine amount of Rs.
5,000/ in the name of the Appellant/Accused, after proper
identification if the accused/ appellant deposited 20% of the cheques amount with fine amount Rs. 5000/ in order to comply with the order passed by this court on 20.08.2018, after appeal period.
Remit the TCR to the trial court, along with the copy of the judgment.
No order as to costs.
LXXIII Addl. CC & SJ, M.H. Unit, B'luru.(CCH74).
2 Crl.A. No.25145/2018