Bangalore District Court
Accused: 1. M/S.Goldrush Clothings vs M/S.Goldrush Clothings on 31 July, 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 31st day of July, 2021.
Crl. Appeal No.25034/2020
Appellants/
Accused: 1. M/s.Goldrush Clothings,
A Registered Partnership Firm,
No.V52, 7th Main Road,
Peenya 2nd Stage,
Bangaluru-560058.
2. Smt.Veena.N.,
D/o.V.Nagaraj,
W/o.Late.G.Vijayakumar,
aged about 33 yrs,
Partner of Goldrush Clothings,
R/at.Sri.Krishna Nilaya,
No.71, 3rd Floor,
1st Main Road,
Ganapathi Nagara,
Peenya 2nd Stage,
Bangaluru-560058.
(By Sri.G.M.Gadilingappa - Adv.)
V/S
Respondent/
Complainant: M/s.Mafatlal Industries Limited,
A company incorporated under the
provisions of Companies Act-1956,
2
Crl.A. No.25034/2020
having it's registered office at
No.301-302, Heritage Horizon,
3rd Floor, Off C.G.Road,
Navarangapura,
Ahmedabad-380009.
Branch Office at No.103, 1st Floor,
Prestige Tower, Residency Road,
Bangaluru-560025.
(Respt.-Absent)
JUDGMENT
Being aggrieved by the judgment and sentence, passed by the learned XIV ACMM, Bangaluru, in CC No.50589/2019, dated 06.01.2020, convicting the appellant for the offence punishable under Section 138 of N.I.Act, sentencing him to pay fine of Rs.2,80,000/-, in default of payment of fine amount, the accused shall undergo simple imprisonment for 3 months. Further ordered that, out of fine amount the accused shall pay Rs.5,000/- to the state exchequer. Further directed the appellant to pay compensation of Rs.2,75,000/- to the complainant, being aggrieved by the said order, the 3 Crl.A. No.25034/2020 appellant is 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 appellant company that, the present respondent company has filed complaint against the present appellant company u/S 200 of Cr.P.C. for the offence punishable u/S 138 of the N.I. Act. It is alleged in the complaint that, complainant company is incorporated under the provisions of the Companies Act, 1956, having its registered office at No.301-302, Heritage Horizon, 3 rd Floor, Off C.G.Road, Navarangpura, Ahmadabad-380009 and the complainant is having its branch office in Bangaluru at the address shown in the cause title. The complainant company is a public limited company doing business of stock exchanges, registered under the Companies Act and engaged in inter alia in the business of manufacturing, selling and dealing in various textiles and denim products, including yarns, fabrics, garments and related goods. The accused No.1 is the partnership firm 4 Crl.A. No.25034/2020 registered under the Partnership Act and engaged in the manufacturing and trading business of denim and textile goods and making of garments and other products. The accused No.2 is the partner and authorised signatory of accused No.1 and accused No.2 is looking after a day today affairs of the accused No.1.
Such being the fact, accused Nos.1 and 2 have placed purchase orders to the complainant company and ordered for manufacturing of different types of clothes worth of Rs.22,65,507/- and accused Nos.1 and 2 have offered and agreed to make a payment of invoice to the complainant within 30 days from the date of receipt of invoices. As per the order of the accused Nos.1 and 2 the complainant company has sent the goods to the accused Nos.1 and 2 and same were received by the accused Nos.1 and 2 without any defects and complainant has issued invoices for the same, which were also accepted by the accused and same was reflected in the ledger account of the complainant. But, accused firm failed to pay the payment 5 Crl.A. No.25034/2020 within 30 days even after repeated reminders and personal approach by the complainant. Thereafter, on demand, the accused firm had issued cheque No.924546, dated 25.10.2018, for the amount of Rs.2,50,000/-, drawn on Canara Bank, SME Peenya Branch, Bangaluru, towards payment of invoices to the complainant.
Believing the words of the accused firm, the complainant company presented the said cheque for encashment through its banker Axis Bank Limited, Richmond Road Branch, Bangaluru, on 11.12.2018, but, said cheque was returned with a bank endorsement dated 12.12.2018 'Funds Insufficient'. Thereafter, the complainant company has issued notice to the accused firm on 12.12.2018, calling upon the firm to pay the cheque amount, through RPAD, same was returned unserved with a shara 'not claimed' on 15.12.2018. Even after receipt of the notice, accused firm did not paid the cheque amount, after statuary period of 15 days, the 6 Crl.A. No.25034/2020 complainant constrained to file complaint U/Sec.200 of Cr.P.C. for the offence p/u/sec. 138 of the 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 the N.I. Act, issued summons u/S 204 of Cr.P.C. In pursuance of the summons, the accused No.2 has appeared before the trial court, the trial court enlarged the accused No.2 on bail, thereafter, plea was recorded, the accused No.2 pleaded not guilty and claimed to be tried.
4. In order to prove its case the sworn statement of the representative of the complainant company has been treated as evidence of representative of the complainant company and examined as C.W.1 and got marked Ex.P.1 to P.18, on 26.08.2019 statement of accused firm was recorded U/sec. 313 of Cr.P.C., the learned counsel for the accused firm has cross-examined CW1. Thereafter, the accused No.2 was examined as D.W.1 and no documents 7 Crl.A. No.25034/2020 have been got marked and D.W.1 was cross examined by the learned counsel for complainant company. After hearing the argument of the learned counsel for the complainant company and accused firm, the trial court has recorded the order of conviction, convicting the appellants/ accused 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 firm is before this court, challenging the correctness and legality of the said judgment order of conviction on the following:-
"GROUNDS I. The judgment and order of trial court is contrary to law and evidence on record and illegal and trial court has misunderstood the evidence on record and found guilty of the accused for the offence.
II. The trial court has not
considered the evidence on
record, contradictions,
development, unnaturalness and
improbabilities of the
8
Crl.A. No.25034/2020
complainant's case. Trial court
failed to consider Ex.P.18
Authorization Letter, which is not in accordance with law.
III. Though there is no specific
allegation against the
accused/appellants, but, trial
court failed to consider this
aspect and committed error in
convicting the appellants. With
these grounds, the appellants
prayed 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. Even though notice to respondent company through RPAD, served on respondent company, the respondent company remained absent. Thereafter, received TCR, heard argument on appellants' side.
6. I have perused impugned judgment and order of the trial court, re-appreciated oral and documentary 9 Crl.A. No.25034/2020 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 appellants. On perusal of the same, the points that would arise for my consideration are as follows:-
1. Whether complainant company proves that it has discharged initial burden to have a benefit u/S 139 of the N.I. Act?
2. Whether complainant company proves the existence of legally recoverable debt and accused firm has issued cheque towards discharge of legally recoverable debt?
3. Whether accused firm proves that it has rebutted the presumption on preponderance of probabilities?
4. Whether the appellants/ accused firm made out grounds to show that the order of conviction and sentence recorded by the trial court, in C.C. No.50589/2019, dated 06.01.2020, is deserves to 10 Crl.A. No.25034/2020 be set-aside 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 Affirmative, Point No.2: In the Affirmative, Point No.3: In the Negative, Point No.4: In the Negative, Point No.5: As per final order, for the following:-
REASONS
8. POINT Nos.1 & 2: These two points are interconnected to each other, in order to avoid repetition, I proposed to answer these two points commonly. The rank of the parties is referred as they were referred before the trial court.
The complainant/respondent company herein and accused/appellants firm herein are known to each other. The complainant company is a public limited company registered under the provisions of Companies Act and engaged in the business of manufacturing, selling and 11 Crl.A. No.25034/2020 dealings in various textiles and denim products including yarns, fabrics, garments and related goods. The accused firm registered under the Partnership Act and engaged in manufacturing and trading business of denim and textiles goods and making garments and other products. Accused No.2 is the partner and authorised signatory of accused No.1 firm. Further the complainant company deposed before the court that accused firm have placed purchase orders before the complainant company and ordered for manufacturing of different types of clothes of worth of Rs.22,65,507/-. The accused No.1 and 2 have offered and agreed to make payment of invoice to the complainant company within 30 days from the date of receipt of invoice. As per the purchase order of accused firm the complainant company has sent goods to the accused and accused received the goods without any defect.
Thereafter, the complainant company demanded for payment of invoice amount within 30 days from the date of receipt of invoice, but, the accused has issued cheque 12 Crl.A. No.25034/2020 bearing No.924546 dated 25.10.2018, towards payment of invoice amount, which is legally recoverable debt. But, said cheque returned with endorsement 'Funds Insufficient'. Thereafter, the complainant company had issued notice to the accused firm, calling upon it to pay the cheque amount within 15 days from the date of receipt of the notice, but, said notice returned with endorsement 'not claimed'. Thus, after stipulated period the complainant company has filed complaint before the trial court against the accused firm for the offence punishable u/S 138 of N.I. Act.
9. In order to prove its case, the complainant company has produced as many as 18 documents, which have been marked at Ex.P.1 to Ex.P.18. Ex.P.1 is the original cheque issued by the authorised signatory of accused No.1 firm in the name of complainant company, Ex.P.2 is the bank memo issued by the Axis Bank showing the reasons for dishonour of cheque, Ex.P.3 is the legal notice issued by the complainant company through 13 Crl.A. No.25034/2020 Advocate to the accused firm by RPAD, Ex.P.4 to Ex.P.8 are the postal receipts, Ex.P.9 is the RPAD cover addressed to the accused No.1 firm, Ex.P.10 is the RPAD envelope issued to the accused No.2, who is authorised signatory of accused No.1, which reflects that addressee refused, Ex.P.11 is the RPAD envelope issued to the accused No.2, same is returned with a endorsement 'addressee refused', Ex.P.12 is the RPAD envelope returned with a endorsement 'no such firm in this address', Ex.P.13 is the RPAD envelope with a endorsement 'left', Ex.P.14 is the tax invoice dated 6.8.2017, Ex.P.15 is the tax invoice dated 12.8.2017, Ex.P.16 is the tax invoice dated 22.8.2017, Ex.P.17 is the tax invoice dated 22.8.2017 and Ex.P.18 is the authorization letter.
10. On being satisfied with the above documents, the trial court has issued summons to the accused U/sec.204 of Cr.P.C. Hence, this court finds no error in issuing summons to the accused by the trial court. In pursuance of the summons, the accused appeared through 14 Crl.A. No.25034/2020 counsel and plea was recorded by reading substances of accusation, in the language known to the accused.
11. On perusal of the oral and documentary evidence led by the complainant company and accused, it is clear that, the accused has admitted the issuance of cheque bearing No.924546, dated 25.10.2018 for sum of Rs.2,50,000/-, towards discharge of liability, same was dishonoured due to insufficient fund in the account maintained by the accused. Further it is clear from the material placed before the court that, accused has admitted the issuance of cheque, signature on the cheque. Now it is relevant to extract the chief-examination of DW1, dt.23.10.2019, at page 1, para 1, which reads thus:
"ಫಿರ್ಯಾದಿದಾರ ಕಂಪನಿ ಗೊತ್ತು. ನನ್ನದು ಗೋಲ್ ರಷ್ ಕ್ಲೋತಿಂಗ್ಸ ಎಂಬ ಪಾಲುಗಾರಿಕೆ ಸಂಸ್ಥೆ ಇತ್ತು.
ಸದರಿ ಪಾಲುಗಾರಿಕೆ ಸಂಸ್ಥೆಯು 2010 ರಲ್ಲಿ
ಪ್ರಾರಂಭವಾಗಿ ಜೂನ್ 18 ರಲ್ಲಿ ಅದು
ಕೊನೆಗೊಂಡಿತ್ತು. ಅದರಲ್ಲಿ ನಾನು ಹಾಗೂ ನನ್ನ
ಗಂಡನ ತಂದೆಯಾದ ಕೆ.ಸಿ.ಗೋಪಾಲಪ್ಪ ಇವರು ಪಾಲುಗಾರರಾಗಿದ್ದೆವು. ಸದರಿ ಪಾಲುಗಾರಿಕಾ ಸಂಸ್ಥೆಯು ಬಟ್ಟೆಯನ್ನು ಹೊಲೆಯುವ ವ್ಯಾಪಾರ 15 Crl.A. No.25034/2020 ಮಾಡುತ್ತಿತ್ತು. ಪಿರ್ಯಾದಿದಾರ ಕಂಪನಿಯು ನಮ್ಮ ಪಾಲುಗಾರಿಕಾ ಸಂಸ್ಥೆಗೆ ಫ್ಯಾಬ್ರಿಕನ್ನು ಪೂರೈಸುತಿತ್ತು. ಸದರಿ ಪಾಲುಗಾರಿಕಾ ಸಂಸ್ಥೆಯ ವ್ಯವಹಾರವನ್ನು ನನ್ನ ಗಂಡನೇ ನೋಡಿಕೊಳ್ಳುತ್ತಿದ್ದರು. ಫರ್ಯಾದಿದಾರರು ಮಾಲನ್ನು ಉದ್ರಿಯ ಮೇಲೆ ಕೊಟ್ಟು ನಮಗೆ 30 ದಿನಗಳ ಸಮಯಾವಕಾಶ ಕೊಡುತ್ತಿದ್ದರು. ಆ ಅವಧಿಯಲ್ಲಿ ನಾವು ಮಾಲಿನ ಹಣವನ್ನು ಫಿರ್ಯಾದಿದಾರ ಕಂಪನಿಗೆ ನೀಡುತ್ತಿದ್ದೆವು."
12. This deposition of D.W.1 in the chief examination itself clearly establishes the existence of transaction between the complainant company and accused firm. It is also relevant to extract the chief examination of D.W.1 dated 23.10.2019, at page-3, after 4 lines from top, which reads thus:
"ನಾನು ಸದರಿ ಬಾಕಿ ಹಣವಾದ ಎರಡೂವರೆ ಲಕ್ಷ ರೂಪಾಯಿಯನ್ನು ಫಿರ್ಯಾದುದಾರರಿಗೆ ಕೊಡಲು ಬದ್ಧಳಾಗಿದ್ದೇನೆ. ನಿಪಿ.1 ಚೆಕ್ಕನ್ನು ನಾನು ಫಿರ್ಯಾದುದಾರರಿಗೆ ಕೊಟ್ಟಿರುತ್ತೇನೆ ಹಾಗೂ ಸಹಿ ನನ್ನದು. ನಿಪಿ-1 ಚೆಕ್ಕನ್ನು ಬ್ಯಾಂಕಿಗೆ ಹಾಕಿದ ವಿಚಾರ ನನಗೆ ಈ ಪ್ರಕರಣದಲ್ಲಿ ಹಾಜರಾದ ಮೇಲೆ ಮೊದಲ ಬಾರಿ ಗೊತ್ತಾಯಿತು. ನನಗೆ ಫಿರ್ಯಾದುದಾರ ವಕೀಲರಿಂದ ಯಾವುದೇ ನೋಟೀಸು ಬಂದಿರುವುದಿಲ್ಲ. ನಿಪಿ-1 ರಲ್ಲಿ ತೋರಿಸಿದ ಚೆಕ್ಕಿನ ಹಣವನ್ನು ಕೊಡಲು ನಾನು ಬಾಧ್ಯಸ್ಥಳಾಗಿದ್ದೇನೆ."16
Crl.A. No.25034/2020
13. When issuance of cheque Ex.P.1 and signature on it is not in dispute, then the complainant is entitle to have shelter U/sec.118 and 139 of the N.I. Act as held in the decision reported in (2010) 11 SCC 441 in case of Rangappa v/s Sri.Mohan. The Hon'ble Apex Court has held thus:
"Once issuance of cheque and signature thereon are admitted, the presumption of legally enforceable debt in favour of the holder of the cheque arises. It is for the accused to rebut the said presumption. Though accused need not adduced his own evidence and can rely upon the materials submitted by the complainant. However, mere statement of the accused may not be sufficient to rebut the said presumption."
14. I have perused carefully the chief examination of D.W.1 at page-2. On perusal of the examination in chief of D.W.1 at page-2, it is clearly admitted by the accused that 17 Crl.A. No.25034/2020 there was a transaction between the complainant company and accused firm and D.W.1 also admitted the issuance of 5 cheques in respect of Rs.5,00,000/- and admitted the liability towards complainant company. On careful perusal of the examination in chief of D.W.1 it is clear that accused has admitted entire case of the complainant company, such as, liability, issuance of cheque towards payment of legally recoverable debt. So, on perusal of the oral and documentary evidence of the complainant company and accused it is clear that it is a fit case to avail the provision of Section 118 and 139 of the N.I. Act. Further accused has taken contention that he has issued blank cheque. When the issuance of cheque, existence of legally recoverable debt and liability, then accused cannot escape from the liability by saying that he has issued blank cheque unless cogent evidence placed before the court about the misuse of the blank cheque. I have perused the cross of the complainant company, nothing has been 18 Crl.A. No.25034/2020 elicited from the cross of P.W.1 to disbelieve the case of the complainant company.
15. Another defence taken by the accused before the trial court is that the complainant company has not complied with the requirement of Section 138 of N.I. Act as the notice issued by the complainant company to the accused was not served. On this ground the accused submitted that complaint itself is not maintainable u/S 138 of the N.I. Act. Now it is relevant to appreciate Ex.P.3 to P.13. Ex.P.3 is the legal notice issued by the complainant company to the accused, Ex.P.4 to 8 are the postal receipts. Ex.P.9 is the RPAD envelope through which notice has been issued to the accused No.1 firm, which was returned with postal endorsement 'left'. Ex.P.10 and P.11 are the RPAD envelopes issued to the accused No.2 who is authorised signatory of accused No.1 and same are returned with a endorsement 'addressee refused'. When the RPAD returned with a postal shara as not claimed then it is deemed to be served on the accused as it 19 Crl.A. No.25034/2020 is held in the decision reported in (1996) 7 SCC 523 in case of State of MP v/s Hira Lal and the decision reported in AIR 1992 SC 1604 in case of Jagadish Singh v/s Nathu Singh. The Hon'ble Apex Court held that, where the addressee manages to have the notices returned with a postal remarks "refused", "not available in the house", "house-locked", and "shop closed", respectively, it must be deemed that notices have been served on the addressee.
16. Further it is held by the Hon'ble Supreme Court about the deemed service of notice in the decision reported in (2007) 6 SCC 555 in case of C.C.Alavi Haji v/s Palapetty Mohammed and Another, held thus:
"According to Section 114 of the Evidence Act, read with illustration (f), hereunder, when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that thing 20 Crl.A. No.25034/2020 would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case.
Consequently, the court can presume that the common course of business followed in particular cases. When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural events, the communications would have been delivered at the address of the addressee. But, the presumption that is raised u/S 27 of the General Clauses Act is a far stronger presumption. Further, while Section 114 of Evidence Act 21 Crl.A. No.25034/2020 refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready and reference, Section 27 of G.C. Act is extracted below:
Section 27. Meaning of Service by post - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."22
Crl.A. No.25034/2020
17. Section 27 of G.C. Act gives rise to a presumption that service of notice has been effected when it sent to the correct address by registered post. In view of the said presumption, when it is stated that the notice has been sent by registered post to the address of the drawer, it is unnecessary to further aware in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business.
18. When Ex.P.10 & P.11 clearly reflects that postal authority has visited the addressee and same has been returned with a endorsement "NOT CLAIMED". Under such circumstances it can be safely held that the complainant company has issued legal notice to the accused as per Section 138 of the N.I. Act and same was deemed to be served on the accused.
23
Crl.A. No.25034/2020
19. On re-appreciation of oral and documentary evidence, it is clear that, no materials are produced by the accused and nothing has been elicited from the cross- examination of P.W.1 to hold that the accused has rebutted the presumption and on perusal of the admitted facts, there is no question of misusing of cheque issued by the accused. Hence, presumption u/S 139 and 118 of the N.I. Act remained unrebutted.
20. On careful scrutiny of oral and documentary evidence, it is clear that except mere denial of the evidence of C.W.1 and the documents produced by the complainant company there is no specific denial and no specific case has been made out by the accused to rebut the presumption u/S 139 and 118 of the N.I. Act. So, on perusal of the material placed before the court, perusal of judgment of the trial court, I am of the opinion that trial court committed no error in recording of conviction, because the trial court has considered the admitted fact of issuance of cheque, legally recoverable debt and 24 Crl.A. No.25034/2020 transaction between the complainant company and accused firm.
21. I have perused the documentary and oral evidence, led by both the parties and material placed before the court, it is clear that, trial court has recorded the plea by framing accusation made against the accused and read over to the accused in the language known to him, accused not plead guilty and claimed to be tried and trial court has recorded the statement of accused u/S 313 of Cr.P.C. after evidence of complainant company. I have carefully perused the documentary as well as oral evidence and I have re-appreciated the same. On perusal of the same, I am of the opinion that, trial court has rightly come to conclusion that, the appellant/accused has committed offence u/S. 138 of the N.I. Act.
22. I have gone through the reasonings given by the trial court for awarding the compensation u/s 357 of Cr.P.C. On going through the same, it is clear that trial 25 Crl.A. No.25034/2020 court has considered the facts and circumstances of the case and awarded the compensation to the complainant. On perusal of the observation made, reasoning assigned by the trial court, for awarding the compensation, I am of the opinion that the trial court has awarded the compensation in accordance with the principle laid down by the Hon'ble Apex Court in the decision reported in (1988) 4 SCC 551 in case of Hari Singh v/s Sukbhir Singh.
The lordships have held that; power given to the court to direct for payment of compensation is intended to do something for the victim. The provision was held to be a step forward in our criminal justice system. The lordships have made the observation in the said decision at para No.10, which reads thus:
"It empowers the court to award compensation to victim while passing judgment of conviction, in addition to conviction, the court may order the accused to pay some amount by way of compensation to the victim who 26 Crl.A. No.25034/2020 has suffered by the action of accused. It may be noted that this power of courts to award compensation is not a ancillary to other sentence but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We therefore, recommend to all courts to exercise this power liberally, so as to meet the ends of justice in a better way."
23. Further I relied on the decision reported in 2005 (1) KLT 478 in case of General Auto Sales v/s Vijayalakshmi, and submitted that in the said decision the lordship have held that even blank cheque issued for discharge of liability or as a security, under such 27 Crl.A. No.25034/2020 circumstances also the liability subsists and same is presented to the bank for encashment, the person who had drawn the cheque cannot escape from the liability fixed u/ s 138 of N.I. Act.
24. Hence, on going through all the circumstances of the case, I am of the opinion that, the trial court has considered the admitted facts and oral and documentary evidence, led by both the parties, with reference to fact in dispute. Hence, I hold that the trial court rightly hold the guilty of the accused of offence punishable u/s 138 of N.I. Act. With these reasons, conviction order, recorded by the trial court is confirmed, and does not warranted the interference of this court. Hence, I answer points No.1 & 2 in the Affirmative.
25. POINT Nos.3 & 4: These two points are interconnected to each other, in order to avoid repetition, I proposed to answer these two points commonly. The accused has taken defence that notice issued by the complainant is not served on the accused. I have gone 28 Crl.A. No.25034/2020 through the cross examination of C.W.1 and evidence of accused D.W.1, it is clear that, the accused has admitted the case of the complainant company admitting the fact of transaction between the complainant and accused company and existence of the legally recoverable debt as discussed on point Nos.1 and 2 in the chief examination itself. Thus, the grounds made out in the appeal memo are contrary to the facts admitted by the accused in the deposition of D.W.1. Under these circumstances and on perusal of the oral and documentary evidence led by the complainant company and accused, it can be safely held that, no material has been produced by the accused before the court for rebuttal of presumption and nothing has been elicited in the cross-examination of C.W.1 to rebut the presumption. Considering the admissions of issuance of cheque, signature on cheque and existence of legally recoverable debt, I am of the opinion that, there is no material to hold that, the accused has rebutted the presumption atleast on preponderance of probabilities. 29
Crl.A. No.25034/2020 Hence, I hold that accused failed to rebut the presumption available to the complainant company and the grounds made out in the appeal are not sufficient to hold that accused has rebutted the presumption on preponderance of probabilities. With this observation, reasons assigned and relying on the decisions referred supra, I answer points No.3 & 4 in the Negative.
26. POINT No.5: In view of the discussion made on point Nos.1 to 4, I proceed to pass the following:-
ORDER Acting u/S 386 of Cr.P.C.
the appeal preferred by the
appellants/accused is hereby
dismissed.
Consequently, the
judgment and order of
conviction and sentence, dated
06-01-2020, passed by learned
XIV ACMM, Mayohall Unit,
Bangaluru, in CC
No.50589/2019, is hereby
confirmed.
30
Crl.A. No.25034/2020
The suspension order,
dated 04.02.2020, passed by
this court, on the application
filed u/S 389 of Cr.P.C. stands
canceled.
No order as to costs.
Office is directed to send
TCR to the trial court with
copy of the judgment.
(Dictated to the Stenographer, on computer, after computerization, corrected and pronounced by me in the Open Court, this the 31st day of July, 2020) (Yamanappa Bammanagi) 73rd Addl. CC & SJ, M.H.Unit, Bangaluru. (CCH-74) 31 Crl.A. No.25034/2020