Bangalore District Court
B.R.Nikhilesh S/O. B.L.Ramesh vs N.Nandish S/O. Late. N.Nagaraj on 5 October, 2019
1
Crl.A.No.271/2015
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE (CCH-56)
:Present :
Sri K. Narayana Prasad, B.Sc., LL.M.,
LV Addl. City Civil & Sessions Judge,
Bangalore
: Crl. A. No. 271/2015 :
DATED: THIS THE 5th DAY OF OCTOBER 2019
APPELLANT :: 1. B.R.Nikhilesh S/o. B.L.Ramesh
Babu, Aged 26 years, Partner:
ESS NIKIS BUY AD SAVE, No.3
(Old No.245/1), 9th Cross,
N.R.Colony, Bengaluru- 560 019
2. Smt. Shruthi B.R. D/o.
B.L.Ramesh, Aged 27 years,
Partner: ESS NIKIS BUY AD SAVE,
No.3 (Old No.245/1), 9th Cross,
N.R.Colony, Bengaluru- 560 019
(Rep. By Sri. M.K.V., Advocate)
-V/s-
RESPONDENT :: N.Nandish S/o. Late. N.Nagaraj,
Residing at No.65, First Block,
First Main Road, Sai Baba Mandir
Road, Tyagarajanagar,
Bengaluru-560 028
(Rep. By Sri R.R.S., Advocate)
JUDGMENT
This is an appeal arising out of Judgment and conviction passed in C C No.5665/2015 dated: 27-01-2015 by XXII ACMM., Bengaluru.
2
Crl.A.No.271/2015
2. The present appeal is filed by the accused No.1 & 2 of this case. The Rank of the parties are repeated as complainant and accused in this appeal for clarity and clear understanding and to avoid confusion.
3. The facts of the case of the complainant before the trial court is that, the accused No.1 & 2 approached the complainant for financial assistance of Rs.5,00,000/- and promised to repay the same within three months. Towards repayment of the said amount the accused have issued cheque bearing No.441570 dated 04-09-2013 for a sum of Rs.5,00,000/- drawn on Bank of India, Bengaluru Main Branch. When the said cheque presented, it returned unpaid with an endorsement 'exceeds arrangements'. Later legal notice was issued and even after issuance of legal notice, the accused No.1 & 2 have not paid any amount. Accordingly, complaint was filed.
4. The trial court has secured the presence of accused No.1 & 2. Complainant got himself examined as PW-1 and he has produced Ex.P-1 to P-8 before the trial court. Accused No.1 got examined as DW-1 and no 3 Crl.A.No.271/2015 documents are produced. After recording the statement of accused and after recording the defence evidence the trial court has convicted the accused No.1 & 2 by imposing fine of Rs.5,05,000/-, of which Rs.5,00,000/- towards compensation and Rs.5000/- towards fine.
5. Aggrieved by the said Judgment and Conviction the accused No.1 & 2 have filed present appeal on various grounds. Some of the main grounds are that, the legal notice was not served on accused No.2. There was absolutely no transaction between the complainant and accused No.1 & 2. The cheque in question was issued as security to the landlord of accused No.1 & 2, who is brother of the complainant. The said cheque was misused by the complainant, which fact is not properly considered by the trial court. The Magistrate has mechanically passed the order without considering the evidence of PW-1 in proper perspective. The trial court has not observed that, there is no legally recoverable debt. In view of this prays for allowing the appeal.
4
Crl.A.No.271/2015
6. On issuance of notice the Respondent has entered appearance before the court through Advocate.
7. The appellants through their Advocate have addressed arguments in this case. Respondent remained absent and not addressed any arguments.
8. After going through the records, documents and grounds of appeal, the points that arise for consideration are;
1. Whether the complainant has proved before the trial court that, towards repayment of the amount the accused No.1 & 2 have issued cheque bearing No.441570 dated 04-09-2013 for a sum of Rs.5,00,000/- drawn on Bank of India, Bengaluru Main Branch, in favour of complainant which when presented, returned unpaid with an endorsement 'exceeds arrangements' and even after issuance of notice the accused have not paid any amount ?
2. Whether the appellants have proved that, there is no legally recoverable debt and service of notice is not in accordance with law ? 5
Crl.A.No.271/2015
3. Whether the order passed by the trial court require any interference ?
4. What order ?
9. My answers to the above points are as under:
Point No.1 : In the Affirmative
Point No.2 : In the Negative
Point No.3 : In the Negative
Point No.4 : As per final order for the
following.......
REASONS
10. POINT NO.1 & 2 :: These two points are dealt together as they are interlinked with each other and also it is done to avoid repetition of facts.
The complainant has reiterated the complaint averments in his evidence. Ex.P-1 is the cheque which when presented, returned unpaid with an endorsement Ex.P-2 showing the reason ' Exceeds Arrangements'. The Ex.P-3 is the copy of legal notice, Ex.P-4 & 6 are postal receipts, Ex.P-7 to 9 are postal acknowledgements. On going through the evidence of DW-1 he has stated that, the cheque was never issued to the complainant. The cheque was issued when accused No.1 & 2 were tenants under the 6 Crl.A.No.271/2015 brother of complainant. The said cheque was given to Sri. Narasimha Murthy, the brother of complainant as security. Even after repayment of the amount payable to Narasimha Murthy, he has not returned the cheque and it was misused through complainant. This is the specific defence of the accused. It is further stated that, no legal notice was served on accused No.2.
11. The trial court has appreciated the evidence and came to the conclusion that, there is legally recoverable debt. Under Negotiable Instruments Act, there are strong presumptions of law provided U/s. 118 & 139 of N.I.Act. In a recent decision reported in Criminal Appeal No.508/2019(Arising out of Special Leave Petition (Crl.) 1883/2018) Rohitbhai Jivanlal patel Vs State of Gujarath the Honb'le Supreme Court at para-14 has held as follows................
"........The said cheques were presented to the Bank concerned within the period of their validity and were returned unpaid for the reason of either the balance being insufficient or the account being closed. All 7 Crl.A.No.271/2015 the basis ingredients of Section 138 as also of Sections 118 and 139 are apparent on the face of the record. The Trial Court had also consciously taken note of these facts and had drawn the requisite presumption. Therefore, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e., the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the accused-appellant to establish a probable defence so as to rebut such a presumption...."
Hon'ble Supreme Court has observed in para 16 as follows;
".........On the aspects relating to preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the Court to conclude either that the consideration did not exist or that its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This Court has, time and again, emphasized that though there may not be sufficient 8 Crl.A.No.271/2015 negative evidence which would be brought on record by the accused to discharge his burden, yet mere denial would not fulfill the requirements of rebuttal as envisaged under Section 118 and 139 of the NI Act....."
In the same decision at Para-17 the Hon'ble Supreme Court has held as follows;
".....even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing 9 Crl.A.No.271/2015 loan to the accused-appellant. The aspect relevant for consideration had been as to whether the accused-appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence......."
In the same decision at Para-19 the Hon'ble Supreme Court has held as follows;
".......Needless to reiterate that the result of such presumption is that existence of legally enforceable debt is to be presumed in favour of the complainant when such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not........"
In the same decision at Para-20 the Hon'ble Supreme Court has held as follows;
"........On perusing the order of the Trial Court, it is noticed that the Trial Court proceeded to pass the order of acquittal on the mere ground of 'creation of doubt'. We are of the considered view that the Trial 10 Crl.A.No.271/2015 Court appears to have proceeded on a misplaced assumption that by mere denial or mere creation of doubt, the appellant had successfully rebutted the presumption as envisaged by Section 139 of the NI Act. The scheme of the NI Act, mere creation of doubt is not sufficient......"
In the same decision at Para-21 the Hon'ble Supreme Court has held as follows;
"..........The result of discussion in the foregoing paragraphs is that the major considerations on which the Trial Court chose to proceed clearly show its fundamental error of approach where, even after drawing the presumption, it had proceeded as if the complainant was to prove his case beyond reasonable doubt...."
12. On going through the above citation the burden is heavy on the accused to prove that, the cheque issued is not towards legally recoverable debt etc., The demand notice was issued as per Ex.P-3. It was duly served as per Ex.P-7 & P-9. The contention of accused No.2 is that, it was not personally served on accused No.2. Accused No.1 has received the legal notice on behalf of accused No.2. It has 11 Crl.A.No.271/2015 been admitted during the course of cross-examination of DW-1 that accused No.2 is a business partner of accused No.1 and also his sister. On going through Ex.P-1 cheque it has been issued on behalf of firm. It is not the case of the accused that, such notice was not at all brought to the notice of accused No.2 etc., Accused No.1 has not clarified as to why he has received the notice on behalf of accused No.2, if he is not concerned with accused No.2. It is not the case of accused that, they are not in good terms with each other. Nothing prevented the accused No.1 from refusing to such notice, if he is not concerned with accused No.2. Having received notice on behalf of accused No.2, now it is not open for accused No.1 to say that, there is no valid service of notice. The statutory notice was issued only for the purpose of intimating the account holder that, the cheque is returned and they are called upon to pay the amount as required under law. Accused No.1 & 2 are partners of the firm and they are doing business together. Under these circumstances, this court see no illegality in coming to the conclusion that, there is valid service of 12 Crl.A.No.271/2015 notice. Hence, accused have failed to show that, there is no valid service of notice.
13. Another important aspect is legally recoverable debt. The complainant has stated that, he knows the accused, as they were the tenants of his brother. He has specifically stated, towards repayment of the amount Ex.P-1 is issued. The accused have denied the said fact and stated that cheque was handed over to the brother of complainant and it was misused etc., There is absolutely no valid evidence to believe the version of accused No.1 & 2. It has been specifically suggested during the course of cross- examination that, number of cheque bounce cases are pending against the accused. It has been suggested that, even the shop owner of accused No.1 & 2 has filed complaint and another person has also filed such complaint. The case numbers are also suggested to accused No.1 during the course of cross-examination. Except self-serving statement of DW-1, there is absolutely nothing available before the court to believe the claims and contentions of accused No.1. If the accused No.1 is residing 13 Crl.A.No.271/2015 separately and not residing with accused No.2, then question of giving cheque to the landlord does not arise. The cheque in question is a cheque issued on behalf of firm as partners . The accused No.1 & 2 are educated persons and they have not stated before the court why they have given blank cheque to Mr. Narasimhamurthy etc.,
14. In the evidence of DW-1 it has been stated that, towards advance amount such blank cheque was issued and later cash was paid etc., Not even receipt issued by landlord is produced before the court. Normally, the advance amount would be paid by the tenants at the time of taking the property on lease. Once the property is taken on lease and advance amount is paid, the same are refundable at the time of vacating the property. The accused No.1 & 2 are not clear as to why blank cheque was issued when cash is paid towards advance amount etc., The evidence of DW-1 when considered as a whole do not inspire any confidence. Apart from that the accused No.1 & 2 never issued any reply to the legal notice or initiated any disciplinary action for alleged misusing of cheque given to 14 Crl.A.No.271/2015 Narasimhamurthy or presentation of the cheque by the complainant. These act clearly shows that, the accused and their version are imaginary and not believable in the facts and circumstances of the case.
15. The learned counsel for respondent vehemently submitted that, the complainant failed to prove his source of income or capacity to lend money. He further submitted that, accused had no need to receive any money from the complainant and they are all created story. The learned counsel further submits that, there is no valid service of legal notice and the Magistrate has not appreciated the documents and decisions relied on by the accused in proper perspective and prays for allowing the appeal. The learned counsel for the appellants relies on the following decisions...........
1. AIR 2006 Supreme Court 3366 (M.S.Narayana Menon @ Mani Vs. State of Kerala & another) in head note-A it is held as follows;
(A) Dishonour of cheque-Presumption as to
-Rebuttal of- Accused carrying on transaction in shares through respondent in 15 Crl.A.No.271/2015 Stock Exchange allegedly issued cheque for discharge of debt which was dishnooured- Said liability by way of debt arose in terms of transactions-Discrepancies found in book of accounts maintained by respondent for proving said transactions-Defence of accused that cheque was issued for purpose of discounting appears to be probable- Accused discharging his initial burden- Failure on part of respondent to discharge burden shifted to him-Conviction of accused, set aside.
2. I(2009) BC 11 (SC) P.Venugopal Vs. Madan P.Sarathi) In Headnote (I) it is held that, Dishonour of Cheque-Presumption-Rebuttal
-Failure to discharge-Complainant discharged initial burden that he gave loan to appellant-Finding of fact arrived at by Courts below that appellant failed to discharge his burden-It does not require any interference by this Court-Question of service of notice in terms of Section 138 proviso is again question of fact and requires no interference in exercise of jurisdiction under Article 136 of Constitution-Further, appellant was aware about address of respondent complainant- 16
Crl.A.No.271/2015 No case made out for interference by this Court with impugned Judgment-Constitution of India,1950-Article136
(ii) Dishonour of Cheque-Presumption raised in favour of holder of cheque must be kept confined to matters covered thereby- Negotiable Instruments Act, 1881.
3. AIR 2009 Supreme Court 1518 (M/s. Kumar Exports Vs. M/s. Sharma Carpets) (A) Presumption that cheque was for discharge of debt/liability-Rebuttal of-Need not be by proof of defence beyond reasonable doubt.
4. AIR 2010 Supreme Court 1898 (Rangappa Vs. Mohan) (A) Dishonour of cheque-On account of Stop payment instructions sent by accused to Bank in respect of post dated cheque- S 138 is attracted-Insufficiency of funds in account, irrespective (B) Existence of legally recoverable debt or liability - Is matter of presumptions u/S. 139
5. 2014 CRL. L.J. 2304 (John K.Abraham Vs. Simon C. Abraham and another) Dishonour 17 Crl.A.No.271/2015 of cheque-Complainant alleging that accused borrowed a sum of Rs.1,50,000/- from him and issued a cheque for said sum which was dishonoured-For drawing presumptions under S. 118 r.w. S.139 burden is heavily upon complainant- Complainant not sure as t who wrote cheque nor aware as to when and where existing transaction took place for which cheque was issued by accused-Defects in evidence of complainant as noted by trial court brushed aside by High Court without assigning any valid reason-Conviction of accused therefore, not proper.
6. 2014(2) Banker's Journal 721 (Supreme Court of India, New Delhi) ( Ramdas Vs. Krishnanand) Negotiable Instruments Act, 1881, Section 138- Dishonour of cheque - Conviction and sentence-Sustainability of- Accused deals with sale and purchase of landed properties-Complainant works as a Lorry driver under accused with salary of Rs.2500/- p.m. plus Rs.20/- per day as bhatta-Cheque is question was for Rs.5,00,000/--Stand of complainant that he had given a hand loan of Rs.1,75,000/- to accused-Claim of complainant giving hand 18 Crl.A.No.271/2015 loan to accused not supported by any material on record-No calculation of account or stipulation of any interest on alleged loan amount to show as to how amount of Rs.5,00,000/- was figured return of loan of Rs.1,75,000/- Complainant admitted that he made no enquiry with bank as to whether sufficient funds were available or not in account of accused-No authenticated and supporting evidence to make believe that complainant employed under accused raised Rs.1,75,000/- that too by obtaining loan of Rs.1,50,000/- from a Bank-Admission of complainant that his net saving in a year comes about Rs.10,000/--Not trustworthy that complainant was in a position to extend hand loan of such bid amount to accused- D.W.2 fully corroborated the version of accused that talks of sale/purchase of 3 acres of land were held between parties in his presence-Accused agreed to purchase 3 acres of land belonging to complainant and paid Rs.30,000/- as advance and handed over a cheque for Rs.5,00,000/--D.W.6 also corroborated sale purchase deal between parties-Corroborative evidence adduced by defence witnesses-Impugned judgment of 19 Crl.A.No.271/2015 High Court convicting accused set aside- Judgment of acquittal of Trial Court restored.
7. 2015 CRI.L.J. 912 (K.Subramani Vs. K.Damodara Naidu) Dishonour of cheque-
Complaint-Finding by trial court on consideration of entire oral and
documentary evidence-That complainant had no source of income to lend sum of Rs.14 Lakhs to accused-He failed to prove that there is legally recoverable debt payable by accused to him-Acquittal of accused- was proper-Order by High Court remanding case for retrial-Liable to be set aside
8. ILR 2008 KAR 4629 (Shiva Murthy Vs. Amruthraj) HELD, The Courts below more particularly, the Appellate Court before whom the additional documents were produced has not directed itself in this regard to fid out as to whether the complainant has proved the existence of legally enforceable debt. Both the Trial Court and the Appellate Court have mainly proceeded to consider the conduct of the accused. Before considering the conduct the accused to find out as to whether or not he 20 Crl.A.No.271/2015 has been able to rebut the Statutory Presumption available under Section 139 the Courts ought to have considered as to whether the complainant has proved the existence of legally enforceable debt. It is only after satisfying that the complainant has proved the existence of legally enforceable debt or liability, the Courts could have proceeded to draw presumption under Section 139 of the N.I. Act and thereafter find out as to whether or not the accused has rebutted the said presumption- Judgment of conviction as sentence are liable to be set-aside-Accused is acquitted.
9. 2011 CRI.L.J. 552( Amzad Pasha Vs. H.N.Lakshmana) (A) Dishonour of cheqe- Notice demanding payment-Deemed service on drawer-Notice stated to have been sent by certificate of posting was not properly addressed-Thee cannot be a deemed service of notice.
10. 2012(3) KCCR 2057 (Veerayya Vs. G.K.Madivalar) Held, mere issuance of cheque is not sufficient unless it is shown that said cheque was issued towards discharge of a legally recoverable debt- 21
Crl.A.No.271/2015 When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity-Judgments of Courts below were set aside-Petitioner was acquitted.
11. 2012 (2) Banker's Journal 384 (Between M.B.Rajashekar Vs. Savithramma) Held (i) Negotiable Instruments Act, 1881, Sections 138 & 139 - Dishnour of Cheque-
Presumption against execution of cheque - Once execution of cheque is admitted, a presumption arises under Section 139 in favour of complainant, that said cheque was issued towards discharge of debt or liability
-Presumption that arises is rebuttable- If accused raised a probable defence, it is sufficient to rebut presumption raised under Section 139 of the Act - Blank cheque given by accused to complainant's wife who promised to send her abroad to work as domestic help in house of compalinant's daughter living abroad- Blank cheque given to complainant as security-Contents of cheque being in different handwriting- Subsequently offer of job rejected by accused but cheque not returned to her- Defence of accused held probable and 22 Crl.A.No.271/2015 acceptable-Complainant failed to discharge the initial burden of getting a post dated cheque as a security for repayment of loan...
12. 2015 (5) KCCR 990 (Between L.Raju Vs. Gurappa Reddy) -.....Acquittal - Existence of legally enforceable debt- Complainant failing to establish - Accused probabilising his defence-Discharging the burden cast upon him that cheque was not issued towards discharge of legally enforceable debt-Trial Court appreciating evidence in its proper perspective -Acquitting accuse d-Declined to interfere with....
13. 2011 CRI.L.J. 531 (Between Joseph Vilangadan Vs. Phenomenal Health Care Services Ltd., and another) -Dishonour of cheque-Cheque in question not issued for discharge of any debt or liability - But was issued as security deposit for due performance of terms of contract-Dishonour thereof-No case under S. 138 made out- Process issued against accused liable to be quashed....
23
Crl.A.No.271/2015
14. III (2014) BC 349 (Bombay) -Bombay High Court (Between Vijaya Kundanlal Sharma Vs. Satyawan Bhikaji Jadhav and another)- .......Dishonour of Cheque- Legally Enforceable Debt - Appeal against acquittal- Complainant admitted that besides disputed cheque, there was no other evidence to show that she had advanced an amount of Rs.5 Lacs in cash as a loan-Disputed cheque was a blank cheque-Amount was not mentioned-It cannot be believed that complainant had given an amount of Rs.5,80,000/- which she had received by way of chit funds-Complainant had failed to establish date of extending the loan-Learned Magistrate rightly found that the complainant has failed to prove that disputed cheques were issued towards legally enforceable debt....
15. III (2014) BC 313 (Bombay) Bombay High Court ( Between Rakesh Chajjer Vs. State of Maharashtra and another).....Dishonour of Cheque-Appeal against acquittal- Presumption rebutted by accused on basis of admission of complainant-Cheques issued towards legally enforceable debt-No 24 Crl.A.No.271/2015 documentary evidence to prove-Accused rightly acquitted....
16. 2016(2) Bankers Journal 772 (Between Venkatesh Sadanand Pai Vs. Kanchan A.Kakodkar and Another).....- Presumption- Extent of scope-Presumption under Sections 139 & 118 of the Act can arose only where signature is admitted-Legally enforceable debt-Not mandatory for accused to rebut presumption-All transaction made in cash and not evidenced in any income tax returns-Appellant failed to establish that cheque issued in discharge of any legally enforceable debt. Appeal dismissed.....
17. I(2008) BC 3 Andhara Pradesh High Court (Between G.Veeresham Vs. S.Shiva Shankar and Another).....- Dishonour of Cheque- Presumption-Rebuttal of-Complainant alleged that accused obtained hand loan of Rs.40,000/- and issued cheque in his favour towards discharge of loan-Accused stated he never borrowed amount-Complainant specifically admitted in cross-examination that he has no proof of lending Rs.40,000/- to accused as hand loan-No material on record placed to prove same-He did not even 25 Crl.A.No.271/2015 say date, month or year of said loan-Accused able to rebut presumption available under Sections 118, 139, Negotiable Instruments Act-Impugned Judgment of Trial Court upheld....
18. 2013 (2) Baners Journal 518 (Between Hazi Bhhoore Hussain Ansari Vs. State of U.P. and Another)............(i) Dishonour of cheque-Presumption under Section 139- Complainant not filed any agreement to sale alleged to have been executed by accused in her favour-Complainant failed to discharge her initial burden to prima facie, establish that accused had issued dishonoured cheque for discharge in whole or in part of any debt or other liability-Presumption under Section 139 not applicable-Magistrate failed to consider important aspects of matter and wrongly taken cognizance on complaint of complainant against accused- Impugned order not in conformity with entire ingredients of Section 138 of N.I.Act- Order illegal and set aside....
19. 2013 (1) Bankers Journal 93 (BetweenBhaskar Gupta Vs. State of Jharkhand and Another)......-Offence under Section 138-Acquittal-Respondent accused 26 Crl.A.No.271/2015 has been acquitted on ground that the complainant has not been able to prove the allegation beyond the shadows of all reasonable doubts-Scope of interference with-Legally enforceable debt-Rebuttal of presumption-Nothing brought on record to prove the case of complainant-Accused has rightly been acquitted-Interference with acquittal declined-Appeal dismissed...
20. 2016 (4) KCCR 2891 (Between Prabhakar Murthy Vs. S.G.Shankaraiah)...Legally enforceable debt-Complainant pleading that he had paid cash-Found to be highly improbable as reflected in material on record-Accused not probabilising that cheque was stealthily taken away by complainant-Courts below blowing this fact out of proportion-Holding that accused failed to substantiate his defence-But accused probabilising that there was no debtor-creditor relationship-Effectively rebutting presumption in this behalf- Conviction not proper-Hence, set aside...
21. IV (2016) BC 423 (P & H) (Between Amit Kumar Vs. Yogesh Arora)....Dishonour of Cheque-Presumption-Cheque issued for sum 27 Crl.A.No.271/2015 of Rs.4.25 lacs by complainant-Complainant failed to prove as to in which capacity he paid such a huge amount without any document-Presumption goes against complainant-No case made out against accused and he was acquitted of charge...
16. On going through the above decisions the majority of the decisions relied on by the accused is to show that, complainant has to prove the case and initial burden is on him and he has to show valid service of notice and also the capacity to lend etc., All these decisions are also placed before the Trial Court and it appears to this court the Trial Court as correctly applied the law in proper perspective.
17. The accused themselves relied on a Full Bench Decision of Rangappa Vs. Mohan-wherein the Honble Supreme Court has set right the confusion in applying the law. The Hon'ble Supreme Court has clearly observed in the decision that, presumption mandated under Section 139 of N.I. Act does indeed include the existence of legally enforceable debt or liability. However it is 28 Crl.A.No.271/2015 rebuttable. The Supreme Court has also observed that, accused can prove his defence by materials available on record and also by way of cross-examination. Herein the case on hand, accused have taken contention that, the cheque in question was issued towards security to his landlord and they have further stated that, they have paid the amount in cash and later it was not returned etc. There is no convincing proof in this regard. There is a confusion as to why the accused have to give cheque as security even after paying amount in cash. The evidence lead in this regard to show that it was given as security is not convincing
18. Apart from that, much has been argued about the reliance of Magistrate about the source of income of complainant. On going through the records, the complainant has even furnished his Income Tax returns copy before the court. However, the same is not marked before the court. The said aspect is also observed by the present appellant and it is mentioned in the grounds of appeal also. Hence, one thing is very clear that, the 29 Crl.A.No.271/2015 complainant is a person, who has some capacity in financial matters. It is further relevant to observe here that, nowhere in the evidence of accused they have stated about the incapacity of complainant to lend such money. It is not the case of accused in his chief examination that complainant was not at all in a position to pay any amount etc., Hence, the defence taken by the accused by suggesting some thing during the course of cross-examination is not consistently stated in the evidence of accused.
19. The law laid down by the Hon'ble Supreme Court and various High Courts referred and relied on by the accused in this appeal are well settled. Almost all the Judgments have clearly stated that, the initial burden is on the complainant to prove the case. It is always on the accused to show as to how the cheque reached the hands of complainant. Once the cheque and notice are produced, the presumption U/s. 118 & 139 of N.I. Act starts. However, it is a rebuttable presumption. Except self-serving statement of DW-1, nothing is available before the court to disbelieve the case of complainant. There is a suggestion 30 Crl.A.No.271/2015 during the course of cross-examination that, number of cheque bounce cases are pending against them. Having regard to all these facts, the accused have failed to rebut the presumption and the evidence placed before the court by the accused are not strong enough to doubt the existence of legally enforceable debt between the parties.
20. Now coming to the aspect of legal notice, this court has already discussed about the service of notice. Both accused are partners and one of the partners has received notice issued against other partner also. It is not their case that, notice is served on unconcerned person. Hence, the citations relied on by the appellants/accused in the matter of service of legal notice are not applicable to the present set of facts.
21. Another contention raised is that, the learned Magistrate has not considered the correct picture of status of accused. According to the accused No.1 & 2 they are running a business called ESS NIKIS BUY AND SAVE. In paragraph-14 learned Magistrate has observed that, the said firm is run by the complainant, it appears that it is only 31 Crl.A.No.271/2015 an observation error and no importance can be given to such mistake. The citations relied on by the accused before the trial court are correctly appreciated by the trial judge. In view of the present and latest ruling of Hon'ble Supreme Court in Rohitbhai's case mentioned above the law is very celar that, the burden is heavy on the accused to prove the case and to rebut the evidence. Hence, the contention of the accused in stating that they are not under the obligation of proving the case, it is for the complainant to prove etc., are merit less in view of present position of law .
22. Viewed from any angle the order passed by the trial court cannot be interfered. In facts and circumstances of the case, the grounds urged before this court are not strong enough to reverse the findings of trial court. However, on going through the grounds of appeal and impugned Judgment and on perusal of the documents this court is of the considered view that, the case of the accused and defence set up by them are not trustworthy in the absence of rebutting strong presumptions U/s. 118 & 32 Crl.A.No.271/2015 139 of N.I.Act. Accordingly, Point No.1 is answered in affirmative and point No.2 in negative.
23. In view of findings on point No.1 & 2, the appeal fails. The order passed by the trial court requires confirmation hence, proceed to pass the following...
ORDER Appeal is dismissed with costs.
Order passed by the trial court in C C No.5665/2014 Dated. 27-01-2015 by XXII ACMM is confirmed.
Office to send back the LCR along with copy of Judgment to the trial court for needful action.
[Dictated to the Stenographer, transcribed by her, transcription corrected and then pronounced by me in open court, dated this the 5th day of October, 2019.] (K.Narayana Prasad), th 55 Addl. City Civil & Sessions Judge, Bangalore.