Bangalore District Court
Aged About 41 Years vs Resort Pvt. Ltd on 24 March, 2022
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Crl.A.No.2181/2019
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Crl.A.No.2181/2019
KABC010316892019
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
Dated this the 24th day of March, 2022
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
Crl.A.No.2181/2019
Accused/ Mr.Shinu George
Appellant : Aged about 41 years,
Proprietor,
M/s Mithra Enterprises,
No.339, Chandrashekaran Block,
BEML Layout, 3rd Stage, 3rd Phase,
RR Nagar, Bengaluru.
(By Sri.Girish D.S., Advocate)
-V/S-
Complainant/ M/s. Thibbadevi Hotels and
Respondent: Resort Pvt. Ltd.,
No.6/108, Khatriguppe Main Road,
Banashankari 3rd Stage,
Bengaluru-560085.
Represented by its
Managing Director,
Mr.D.Shivalingaiah.
(By Sri.A.N.S., Advocate)
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Crl.A.No.2181/2019
JUDGMENT
This appeal is filed by the Appellant praying to set aside the judgment dated 18.09.2019 passed by the learned XLII ACMM, Bengaluru in C.C.No.21949/2018 and prayed to acquit him in the said case.
2. The appellant of this appeal was the accused before the Trial Court. The respondent of this appeal was the complainant before the Trial court. The rank of the parties to this appeal will be hereinafter referred to with the same rank as assigned to them before the trial court for the sake of convenience.
3. The brief facts which leads to file this appeal in nutshell are as follows:
The complainant had filed private complaint before the trial court bearing PCR No.9651/2018 against the accused alleging the commission of offence punishable u/Sec.138 of N.I. Act. It is alleged in the private compliant before the trial court that the complainant is a company, incorporated under the Companies Act, doing hotel business and also having a resort in the name and style of "The Garden Asia Resort", consisting of Hotel building rooms, Conference hall, Restaurant area, Bar area and other facilities. The complainant has leased the said resort to the accused under lease agreement dated 07.06.2016 by receiving deposit of Rs.25,00,000/- and monthly rent of Rs.20,00,000/- payable by the accused to the complainant upon other terms and 3 Crl.A.No.2181/2019 conditions incorporated in the said lease agreement. The accused had terminated the said lease agreement by the end of October 31, 2017. The accused had received an advance amount from a marriage party in a sum of Rs.20,00,000/-, which the accused is liable to pay to the complainant. In this contest the accused gave a cheque bearing No.253552 dated 12.04.2018 for Rs.20,00,000/-, drawn on Karnataka Bank Ltd., Rajarajeshwari Nagar Brach, Bengaluru, in favour of the complainant for discharge of above said liability legally due by the accused to the complainant. As per the instruction of the accused, the complainant has presented the aforesaid cheque for encashment through his banker Canara Bank, Kengeri Upanagara Branch, Bengaluru. The said cheque was dishonoured by the accused bank with endorsement "Payment stopped by drawer" on 19.04.2018. Thereafter, the complainant had issued legal notice to the accused on 15.05.2018 through RPAD by informing about dishonour of cheque and demanding the payment of cheque amount. The said RPAD notice sent to residential address of the accused was returned as "Not claimed"
and the legal notice sent to place of business was returned as "Addressee Left". The accused had not paid the cheque amount. Hence, the complainant has alleged before trial court that the accused has committed the offence punishable u/Sec.138 of N.I. Act.
4. After filing of the complaint, the trial court took cognizance for the offence punishable u/Sec.138 of N.I.Act 4 Crl.A.No.2181/2019 against the accused. Thereafter the trial court had recorded the sworn statement of the complainant. The complainant had adduced sworn statement of its Managing Director as C.W.1 before the trial court. The trial court after perusing the private compliant, sworn statement of the complainant and the documents produced by him was pleased to register criminal case against the accused in CC.No21949/2018 for the offence punishable u/Sec. 138 of N.I. Act and issued summons to the accused.
5. The accused had appeared before the trial court after the service of summons and he was enlarged on bail. On appearance of the accused before the trial court, the trial court had recorded the plea of accused for the offence u/Sec.138 of N.I.Act. The accused pleaded not guilty and claimed to be tried. Hence, trial court has posted the matter for evidence of the complainant.
6. The complainant company in order to prove its case, has adduced the oral evidence of its Managing Director as P.W.1. P.W.1 had produced 8 documents and got them marked as Ex.P.1 to P.8. Thereafter, the trial court had recorded the statements of the accused u/Sec.313 of Cr.P.C. The accused has denied all the incriminating evidence appearing against him and he has chosen to lead his defence evidence. The accused had adduced his oral evidence as D.W.1. D.W.1 had produced 4 5 Crl.A.No.2181/2019 documents and got them marked as Ex.D.1 to D.4 Then the matter was posted by the trial court for arguments.
7. The trial court, after hearing the arguments and after perusing the oral and documentary evidence was pleased to pass the judgment dated 18.09.2019 by convicting the accused for the offence punishable u/Sec.138 of N.I. Act. The trial court has sentenced the accused to pay fine of Rs.22,05,000/- and in default of payment of fine amount he shall undergo simple imprisonment for four months. The trial court has directed to pay Rs.22,00,000/- out of the said fine amount as compensation to the complainant and to forfeit remaining Rs.5,000/- amount towards fine. The accused being aggrieved by the said judgment of the trial court has preferred this appeal.
8. Grounds of appeal in nutshell as urged in the appeal memorandum are as follows:-
(a) The court below gravely erred in convicting the appellant for the offence punishable u/s.138 of N.I. Act. The appellant has clearly established before the trial court that there was no legally enforceable debt which the appellant has to pay to the complainant. The appellant has also established before the trial court that he is not liable to pay the amount mentioned in the Ex.P.3 cheque.
(b) The court below gravely erred in holding that the accused has received Rs.20,00,000/- advance amount for 6 Crl.A.No.2181/2019 marriage and day out parties that were supposed to be held in the said resort. The respondent has not produced any documents to show that appellant had collected sum of Rs.20,00,000/- as advance amount for marriage in the resort.
The appellant has not issued Ex.P.3 cheque to the respondent towards transaction of the said advance amount.
(c) The complainant in the complaint has averred that the accused has received sum of Rs.2,00,000/- from the marriage party which the accused is liable to pay to the complainant and in this context the accused has gave a cheque for Rs.20,00,000/- as per Ex.P.3. The trial court has not properly appreciated the actual fact stated in the complaint.
(d) The complainant has only alleged that the accused had took Rs.2,00,000/- as advance from a marriage party and not Rs.20,00,000/- as mentioned in Ex.P.3 cheque. As such, the amount mentioned in Ex.P.3 cheque is not a legally enforceable debt.
(e) The respondent has not produced the booking register given by the appellant to him to show that the accused had collected advance amount of Rs.20,00,000/- on behalf of resort from marriage party and in the absence of said register, the respondent has failed to establish that the amount claim under Ex.P.3 is a legally enforceable debt.
(f) The court below gravely erred in not appreciating the fact that in Ex.P.2 there is no recital about any due of 7 Crl.A.No.2181/2019 Rs.20,00,000/- from the appellant and in the absence of any recital in Ex.P.2 clearly proves that the appellant is not liable to pay Rs.20,00,000/- to the respondent. The trial court has not appreciated the fact that the respondent has mis-utilized the blank cheque of the appellant for its illegal gain.
(g) The trial court has not considered the defence evidence lead by the appellant and documents produced on behalf of the appellant. The respondent has not returned the advance amount of Rs.25,00,000/- paid by the appellant to it. During forceful eviction of the appellant from the resort, the appellant has lost his three cheques in his office at resort and same has been informed to the respondent and requested them to return the lost cheques if same are traced. The appellant was regularly requesting the respondent to return the advance amount. But the respondent instead of returning the advance amount had filed false complaint against the appellant by misusing the cheque belonging to the appellant. The trial court has not appreciated all these facts.
(h) As per Ex.D.1, the appellant has given stop payment to his banker informing that the has lost three cheques. After receiving the notice from the complainant, the appellant had lodged complaint to S.P. of Ramanagar immediately. The police have called the complainant to the police station and on enquiry the respondent admitted regarding possession of remaining two cheques and returned those two cheques to the appellant which 8 Crl.A.No.2181/2019 are produced at Ex.D.2 and D.3. The trial court has not appreciated this fact.
On these among other grounds stated in the appeal memorandum, the appellant has prayed to set aside the order of the trial court.
9. After filing of the appeal, it is registered as Crl.A.No.2181/2019 and notice was issued to the respondent. After service of the notice, the respondent was appeared through his counsel. Thereafter, the lower court record was called for. After the receipt of lower court record, the matter was posted for arguments.
10. Heard the arguments of the Learned counsel for the appellant and respondent. Perused the appeal memorandum, trial court records and other materials on record.
11. Having done so, the following points will arise for my consideration:
(1) Whether the appellant proves that the trial court is erred in convicting him for the offence punishable u/s.138 of N.I.Act ?
(2) Whether the appellant proves that the interference of this court is required with the impugned judgment of the trial court?
(3) Whether the appeal filed by the appellant is deserves to be allowed?
(4) What order?9
Crl.A.No.2181/2019
12. My findings on the above points are as under:
(1) Point No.1 .. In the Affirmative
(2) Point No.2 .. In the Affirmative
(3) Point No. 3 .. In the Affirmative
(2) Point No.4 .. As per final order
for the following:
REASONS
13. Point No.1 to 3:- These three points are interrelated to each other and as such, they are taken together for discussion to avoid repetition of facts.
14. The complainant had filed private complaint before the trial court u/Sec.200 of Cr.P.C. by alleging the commission of offence u/Sec.138 of N.I.Act by the accused. Since the complainant had alleged that the accused had committed the offence punishable u/Sec.138 of N.I.Act, it is for the complainant to prove all the essential ingredients of Sec.138 of N.I.Act. Hence, it is relevant to note down the provisions of Sec.138 of N.I.Act herein, in order to know its essential ingredients.
Sec.138 of N.I. Act provides as follows:
"Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to 10 Crl.A.No.2181/2019 honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque or with both. "
15. Thus from reading the aforesaid section, it is clear that the complainant has to prove the following essential ingredients for holding the accused guilty of offence under the said section.
(a) The cheque has been drawn by the accused on Bank account which is maintained by him with a particular Banker.
(b) The amount of money mentioned in the cheque is for discharging the legal liability either wholly or partially and
(c) The cheque is dishonoured or it is returned unpaid due to insufficiency of funds etc.,
16. The complainant company in order to prove his case, had adduced the oral evidence of its Managing Director as P.W.1. P.W.1 in his examination-in-chief filed by way of affidavit has stated that the complainant is a company, incorporated under the Companies Act, doing hotel business and also having a resort in the name and style of "The Garden Asia Resort", consisting of Hotel building rooms, Conference hall, Restaurant area, Bar area and other facilities. P.W.1 has further stated in 11 Crl.A.No.2181/2019 his examination-in-chief that the complainant company has leased the said resort to the accused under lease agreement dated 07.06.2016 by receiving deposit of Rs.25,00,000/- and monthly rent of Rs.20,00,000/- payable by the accused to the complainant upon other terms and conditions incorporated in the said lease agreement. P.W.1 has further stated in his examination-in-chief that the accused had terminated the said lease agreement by the end of October 31, 2017. The accused had received an advance amount from a marriage party in a sum of Rs.20,00,000/-, which the accused is liable to pay to the complainant. P.W.1 has further stated in his examination-in-chief that in this contest the accused gave a cheque bearing No.253552 dated 12.04.2018 for Rs.20,00,000/-, drawn on Karnataka Bank Ltd., Rajarajeshwari Nagar Brach, Bengaluru, in favour of the complainant company for discharge of above said liability legally due by the accused to complainant company. P.W.1 has further stated in his examination-in-chief that as per the instruction of the accused, the complainant has presented the aforesaid cheque for encashment through his banker Canara Bank, Kengeri Upanagara Branch, Bengaluru. The said cheque was dishonoured by the accused bank with endorsement "Payment stopped by drawer" on 19.04.2018. P.W.1 has further stated in his examination-in-chief that thereafter, the complainant company had issued legal notice to the accused on 15.05.2018 through RPAD by informing about dishonour of cheque and demanding the payment of cheque 12 Crl.A.No.2181/2019 amount. P.W.1 has further stated in his examination-in-chief that the said RPAD notice sent to residential address of the accused was returned as "Not claimed" and the legal notice sent to place of business has returned as "Addressee Left". The accused had not paid the cheque amount. Hence, P.W.1 has stated in his examination-in-chief that the accused had committed the offence punishable u/Sec.138 of N.I. Act.
17. P.W.1 apart from adducing his oral evidence has produced certain documents. Ex.P.1 is the original lease agreement between the complainant company and the accused about the lease of "The Garden Asia Resort" belonging to the complainant. Ex.P.2 is the original cancellation agreement. Ex.P.3 is the original cheque bearing No.253552 dated 12.04.2018 for Rs.20,00,000/-, drawn on Karnataka Bank Ltd., Rajarajeshwari Nagar Brach, Bengaluru, issued by the accused to the complainant. Ex.P.3(a) is the signature of the accused. Ex.P.4 is the bank endorsements. In Ex.P.4, it is mentioned that Ex.P.3 cheque is dishonoured due to "Payment stopped by drawer". P.W.1 has produced the office copy of legal notice dated 15.05.2018 issued by him to the accused at Ex.P.5. Ex.P.5(a) & (b) are the postal receipts of the said legal notice. Ex.P.6 and 7 are the copies of the legal notices dated 15.05.2018. Ex.P.6(a) & P.7(a) are the unserved RPAD cover of Ex.P.6 and P.7 notices. Ex.P.8 is the private complaint.
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18. The oral and documentary evidence adduced on behalf of the complainant company corroborates with the averments made in the complaint. The accused has not disputed the fact that Ex.P.3 cheque is belonging to him and it bears his signature and it is drawn on the bank account maintained by him. But it is the contention of the accused that at the time of his forcible eviction from the resort belonging to the complainant, he had lost his three cheques in his office. It is further contention of the accused that he had intimated the same to the complainant and requested the complainant to return his lost cheques if same were traced. The accused has also contended that he was regularly requesting to return the cheques. Further it is the contention of the accused that the respondent misused one the said cheques which was lost by the appellant in the resort and filed the false compliant against him. It is also the contention of the accused that he came to know about the said fact when he had received court notice of the complaint filed by the complainant. It is also the contention of the accused that he had given complaint to S.P. of Ramanagara and complainant was called by the police and on enquiry, the complainant admitted about the possession of remaining of two cheques and returned the same to the appellant. Hence, the accused has contended that he is not liable to pay the cheque amount and amount mentioned in Ex.P.3 cheque is not legally recoverable debt.
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19. From the contention of the accused, it is clear that the accused has not disputed the fact of Ex.P.3 cheque is belonging to him and it bears his signature and it is drawn from the account maintained by him. D.W.1 during the course of cross-examination has also clearly admitted that the seal and signature found in Ex.P.3 is that of his signature. Whether the accused is succeeded in proving his defence or not will be discussed in later paras. But the accused has clearly admitted that Ex.P.3 cheque is belonging to him and it was drawn from the account maintained by him and it bears his signature. The said cheque was presented by the complainant and the same came to be dishonoured. As such, the complainant firm will became the holder of the cheque within the meaning of Sec.8 of N.I.Act. Once a cheque is issued by the drawer, a presumption under Sec.118(a) r/w. S.139 of N.I.Act must follow.
Sec.118(a) of N.I.Act provides as follows:
"Until the contrary is proved, the following presumption shall be made
(a) That every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration."
Sec.139 of N.I.Act provides as follows:
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature 15 Crl.A.No.2181/2019 referred to in Sec.138 for the discharge, in whole or in part, of any debt or other liability.
20. Thus, u/s.139 of N.I.Act, the initial presumption arises in favour of the complainant that the said cheque was issued for discharge of legally enforceable debt. Once the cheque is proved to be relating to the account of the accused and he admits the signature on the said cheque, then the initial presumption as contemplated u/Sec.139 of N.I.Act has to be raised by the court in favour of the complainant. Further u/Sec.118(a) of N.I.Act there is presumption that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted for consideration. Presumption u/Sec.118(a) and 139 of N.I.Act is a legal presumption and it is a mandatory presumption. The initial mandatory statutory presumption as provided u/Sec.118 r/w. S.139 of N.I.Act are in favour of the complainant.
21. In the recent decision of Hon'ble Supreme Court of India reported in (2021) 5 Supreme Court cases 283 : 2021 Online SC 75 (Kalamani Tex and another V/s P.Balasubramanian, rendered by Hon'ble three judges bench, the Hon'ble Supreme Court of India has discussed about the provisions of Sec.139 and 118 of N.I.Act. In the said judgment, the Hon'ble Supreme Court of India has held in Para No.13 while discussing the provisions of Sec.118 and 139 of N.I.Act, that the statute mandates that once the signature of an accused on the 16 Crl.A.No.2181/2019 cheque is established, then these "reverse onus" clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. Thus from the aforesaid decision of Hon'ble Supreme Court of India in Kalamani Tex case, it is clear that once the accused admits his signature on the cheque, it can be presumed u/Sec.139 of N.I.Act that the cheque was issued for discharge of legally enforceable debt.
22. Thus from the provisions of Sec.118(a) and Sec.139 of N.I.Act, it is clear that the court shall raise presumption in favour of the complainant that he has received the cheque in question for discharge of legal liabilities and cheque was made and drawn for said purpose. This principles is also clearly held by the Hon'ble Supreme Court of India in Kalamani Tex case as discussed above. The burden is upon the accused to adduce satisfactory evidence to rebut the strong presumption as provided u/Sec.118 and Sec.139 of N.I.Act.
23. The accused in order to rebut the presumption u/Sec.118(a) and 139 of N.I.Act, has adduced his oral evidence as D.W.1 before the trial court. D.W.1 in his examination-in-chief has admitted the fact that he was taken the resort of complainant firm and he was running his business till October 2017. D.W.1 has further in his examination-in-chief has admitted that during October 2017, the complainant firm had forcibly evicted him from the resort and some person belonging to 17 Crl.A.No.2181/2019 complainant company have also took his signature on some papers and took key of his office. D.W.1 has further in his examination-in-chief has admitted that he took Rs.2,50,000/- as advance amount for conducting marriage and day out ceremony in the month of December 2017. D.W.1 in his examination-in- chief has stated that he paid Rs.2,50,000/- to the complainant company after receiving his belongings. D.W.1 in his examination-in-chief has stated that at the time of vacating his officer he has lost three blank signed cheques of his bank account. D.W.1 has further stated in his examination-in-chief that he has told the complainant to return those cheques if they were traced. D.W.1 has further ststed in his examination-in-chief that he has also given stop payment mandate to his banker. D.W.1 has further stated in his examination-in-chief that the complainant company has misused one of the said cheque and filed false case against him. D.W.1 has further stated in his examination-in-chief that with respect to two more cheques lost by him he had given police complaint and police have called the complainant to the police station and complainant had returned those two cheques to him in the police station. D.W.1 has further stated in his examination-in-chief that he is not liable to pay any amount as mentioned in Ex.P.3 cheque and the said cheque was not issued by him for discharge of his legally enforceable debt or liability.
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24. D.W.1 apart from adducing his oral evidence has produced stop payment mandate issued by him to his bank on 07.12.2017 at Ex.D.1. In Ex.D.1, it is mentioned that they have misplaced the cheques when shifting the office and requesting the bank to stop payment for these cheques. Ex.D.2 is the endorsement issued by C.P.I, Harohalli Circle dated 25.02.2019 on the basis of the complainant given by him by stating that the dispute between him and complainant company is pertaining to financial transaction and directing him to settle the dispute before the court. The accused has also produced Ex.D.3 and D.4 cheques which are alleged to have been misplaced by him and which are alleged to have been given by the complainant to him in the police station. Though the accused has produced the xerox copy of complaint given by him to the S.P. of Ramanagara, he has not got marked the said complaint as it is xerox copy.
25. From the defence of the accused, it is clear that Ex.P.3 cheque was lost by him and it was not issued by him for discharge of any legal debt or liability. In order to substantiate the said defence, the accused has also produced the stop payment mandate at Ex.D.1 issued by him to his banker. In Ex.D.1, there is reference about number of cheque which is produced at Ex.P.3. Further there is also reference about Ex.D.3 and D.4 cheques. Ex.D.1 stop payment mandate was issued by the accused on 07.12.2017. Whereas Ex.P.3 is dated 19 Crl.A.No.2181/2019 12.04.2018. Further the legal notice was issued by the complainant company about dishonour of the cheque on 15.05.2018. As on 07.12.2017, proceedings regarding dishonour of the disputed cheque was not yet commenced. Further there is no dispute regarding the complainant or the accused at the time of issuance of Ex.D.1 letter by the accused to his bank. At an undisputed point of time, the accused had given stop payment mandate to his bank aboutEx.P.3 cheque and two more cheques.
26. The complainant company has not disputed Ex.D.1 letter issued by the accused to his banker. It is not the contention of the complainant that Ex.D.1 was created by the accused. Since Ex.D.1 is prior to the date mentioned in the cheque, there is no possibility of accused creating Ex.D.1. During the course of cross-examination of D.W.1, the complainant company has not disputed Ex.D.1 document. No suggestions are put to D.W.1 stating that he had created Ex.D.1 document. It is also not the case of the complainant that the cheque No.254861 was issued by the accused to the complainant company prior to 07.12.2017. The complainant company either in the complaint or in the Ex.D.1 not mentioned the date on which the accused was given Ex.P.3 cheque to it. Further no suggestions are also put to D.W.1 during the course of cross-examination that he had issued Ex.P.3 cheque much prior to issuance of Ex.D.1 letter. Under these facts and 20 Crl.A.No.2181/2019 circumstances, I do not find any valid reasons to disbelieve Ex.D.1 document produced by the accused. Further the accused had also given police complaint by stating that he had lost three cheques and the complainant company had misplaced one of the said cheque and filed false case against him and requesting the police to direct the complainant company to return those two remaining cheques. The said complaint fwas given by the accused after his appearance before the trial court. It is the contention of the accused that he came to know about Ex.P.3 cheque only when summons was served upon him from the trial court. The accused had appeared before the trial court on 13.12.2018 and thereafter the accused had filed complaint before the S.P. of Ramanagara in the month of January.
27. It is an admitted fact that the accused had vacated the premises of the complainant company on 31.10.2017. During the course of cross-examination of P.W.1, it was suggested on behalf of the accused that from 01.11.2017 the resort of the complainant company was not in possession of the accused. It is the allegations of the accused that the complainant company had forcibly evicted him and took his signature on certain documents and three singed cheques belonging to him were misplaced while shifting the office and those cheques were traced by the complainant. Further as it is discussed earlier, the accused had also given stop payment mandate to his 21 Crl.A.No.2181/2019 banker by mentioning the cheque numbers. The said stop payment mandate was given by the accused prior to presentation of the cheque and prior to the date mentioned in Ex.P.3 cheque. Under these facts and circumstances, I am of the opinion that the defence of the accused that Ex.P.3 cheque was lost by him while shifting the office seems to be a probable defence evidence to rebut the presumption u/Sec.118(a) and 139 of N.I.Act. When the accused adduced addressed sufficient evidence to prove the fact that Ex.P.3 cheque was lost by him and it was not issued by him for payment of any debt or legal liability, burden shifts upon the complainant to prove existence of legal liability. As such, the complainant has to establish the fact that there exist legal liability of Rs.20,00,000/- by the accused on 12.04.2018 to the complainant and accused had issued Ex.P.3 cheque to discharge the said legal liability.
28. The complainant company has mainly relied upon Ex.P.1 and P.2 documents in order to prove its contention that the accused is liable to pay Rs.20,00,000/- to it. There is no dispute regarding the fact that the complainant is owner of "The Garden Asia Resort". Further there is also no dispute about the fact that the accused took the said resort on rental basis. There is a lease agreement also. The accused had not dispute Ex.P.1 document. Further there is no dispute regarding terms and conditions of Ex.P.1.
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29. The accused has admitted his signature on Ex.P.2. It is the allegation of the accused that the complainant had obtained his signature on blank papers at the time of vacating him forcibly from the resort and created Ex.P.2. But in order to prove the said contention, the accused has not adduced any sufficient believable evidence. The accused has not lodged any complaint against the complainant company immediately after his signature was taken as alleged by the accused by alleging that the complainant company had took his signature forcibly on certain documents. The reasons for delay in lodging the complaint is not properly explained by the accused. The accused has given complaint against the complainant to the police in the year 2019. There is possibility that the accused might have given complaint to the police after filing of the complaint in order to set up a defence that Ex.P.2 was created document. As such, the police have also not registered any FIR against the complainant company regarding cheating or any other offences. The police have given endorsement stating that the dispute is of civil in nature and directed the accused to approach the civil court. Under these facts and circumstances, I am of the opinion that the contention of the accused that Ex.P.2 document is created cannot be acceptable one.
30. Nowhere in Ex.P.2, the accused has not admitted that he is liable to pay Rs.20,00,000/- to the complainant company. Further nowhere in Ex.P.2, the accused has admitted that he had obtained Rs.20,00,000/- advance amount from the 23 Crl.A.No.2181/2019 parties for conduct of marriage and day out ceremony in the resort during December 2017. In Ex.P.2, it is only mentioned that the detail of booking of four marriage and one day out ceremony fixed during December 2017 is handed over to the managing director of Thibbadevi Hotels and Resort Pvt. Ltd. It is also mentioned in the said letter that the accused will pay the advance amount taken for marriage and one day out ceremony from the parties. But it is not specifically stated that the accused had received Rs.20,00,000/- as advance amount and he will return the said amount to the complainant company.
31. P.W.1 in his cross-examination has admitted that in Ex.P.2 there is no mention about undertaking by the accused to pay Rs.20,00,000/- to the complainant company. P.W.1 in his cross-examination has admitted that in Ex.P.2, the details of four marriages and one day out to be conducted during the month of December 2017 is not stated. Further P.W.1 has admitted that he has also not furnished any documents pertaining to those marriages and day out ceremony before the court. P.W.1 during the course of cross-examination has stated that in Ex.P.2 agreement of termination, it is not mentioned about how many marriages to be conducted in their resort. When it is asked to P.W.1 during the course of cross-examination about the expenses of one day day out in the resort during the month of December 2017, he has replied that he do not know about the said expenses. P.W.1 in his cross-examination has clearly admitted that the accused had given all the details to the 24 Crl.A.No.2181/2019 complainant company about the marriages that which booked to be conducted in resort which are mentioned in Ex.P.2. P.W.1 in his cross-examination has admitted that the accused has given the register pertaining to booking of marriages and day out to the complainant company. P.W.1 in his cross-examination has admitted that he has no impediment to produce the said register. P.W.1 in his cross-examination has admitted that in the said register, there is mentioned about the advance taken for performing one day outing in the resort during the month of December. P.W.1 in his cross-examination has admitted that he do not know about the rent fixed for conducting marriage in "The Garden Asia Resort".
32. From the aforesaid statement of P.W.1 in his cross- examination, it is clear that the accused has furnished the register containing the details of amount taken by him as advance for booking the marriage and day out ceremony in the resort during December 2017. It is the contention of the accused that he has received only Rs.2,50,000/- as advance amount and he has already repaid the same. As such, the burden is upon the complainant to prove the fact beyond reasonable doubt that the accused had taken advance of Rs.20,00,000/- for booking four marriages and one day out ceremony in the resort during 2017. The case of the complainant before the trial court is mainly depending upon the allegation that the accused had received Rs.20,00,000/- as advance amount for booking four marriages and one day out ceremony 25 Crl.A.No.2181/2019 and the accused had agreed to return the said advance amount and he had issued Ex.P.3 cheque for payment of said advance amount. But the complainant has failed to adduce any sufficient believable evidence to prove the fact that the accused had booked four marriages and one day out to be conducted during December 2017 in the resort and the accused had received Rs.20,00,000/- for the said purpose. Even though P.W.1 has admitted that the accused has furnished register containing the details of amount received by him as advance and details of marriages and day out ceremony booked in the resort for December 2017, the complainant has not produced the said register to prove his case. Since it is admitted by P.W.1 that the accused has furnished the said register to him, the accused cannot expected to produce the said register before the court. The complainant has to produced the said register. Further the complainant has not furnished the details of marriages which were booked by the accused during December 2017. He has also not furnished the details of day out ceremony booked by the accused during December 2017. Further the complainant has not produced any materials to show that from whom the accused had received advance amount for booking four marriages and for whom the accused had received the advance amount for day out ceremony programs. Further the complainant has also failed to adduce any sufficient evidence to furnished the details about how much amount the accused has received from each persons. The complainant has failed to adduced sufficient evidence to 26 Crl.A.No.2181/2019 prove that the total advance received by the accused for four marriages and one day out ceremony is Rs.20,00,000/-. Further the complainant has failed to show that four marriages and one day out ceremony as booked by the accused was conducted in the resort during December 2017 on the booking dates and the complainant company has received remaining amount from the parties.
33. The complainant has failed to adduce any sufficient oral and documentary evidence to prove the fact that as on 12.04.2018, the accused was liable to pay Rs.20,00,000/- to the complainant company and it is the advance amount taken by the accused for conducting marriages and day out in the resort during December 2017. Further the complainant in the complaint has also not specifically mentioned the fact that the accused had received Rs.20,00,000/- as advance amount from the marriage parties for conducting marriages in the resort during December 2017. In para No.5 of the complaint, it is only stated that the accused has received as advance amount from a marriage party in a sum of Rs.2,00,000/- which the accused is liable to pay to the complainant. As it is rightly pointed out by the Learned counsel for the accused, the complainant has only made reference about receipt of advance amount by the accused from the four marriage party to the tune of Rs.2,00,000/-. No allegations is made in the complaint stating that the accused had received advance amount of Rs.20,00,000/- for booking four marriage functions and one day 27 Crl.A.No.2181/2019 out ceremony function in the resort during December 2017. Further P.W.1 in the examination-in-chief has also stated about accused receiving Rs.2,00,000/- as advance amount from a marriage party. P.W.1 in his examination-in-chief has also not deposed anything about the accused receiving the Rs.20,00,000/- as advance amount for conducting four marriages and one day out in the resort. According to the complainant, Ex.P.2 was executed by the accused on 21.10.2017. If really the accused had received advance amount of Rs.20,00,000/- for booking of four marriages and one day out ceremony in the resort during December 2017 then what was the impediment to state the same in the complaint as well as in the eviction of P.W.1 is not properly explained by the complainant. Even if it is presumed that Rs.20,00,000/- is mentioned in para No.5 of the complaint, complainant company would have noticed the same at the time of adducing the sworn statement of the complainant company's Managing Director as well as at the time of adducing the oral evidence of P.W.1 and would have given proper explanation for the said mistake and the complainant company would have clarified the same and would have clearly mentioned that the accused has taken Rs.20,00,000/- for booking of four marriages and one day out ceremony in the resort and as such, doubt arises about the contention of the complainant company that the accused had received advance amount of Rs.20,00,000/- for booking of four marriages and one day out ceremony in the resort during 28 Crl.A.No.2181/2019 December 2017 and the accused has agreed to pay the said amount to the complainant company and as such, he had issued Ex.P.3 cheque for payment of the said advance amount.
34. From the materials on record and from the oral and documentary evidence adduced on behalf of the accused and also from the evidence of P.W.1 in the cross-examination as discussed above, it is clear that the accused has adduced sufficient evidence to rebut the presumption u/Sec.118(a) and 139 of N.I.Act and the accused has adduced sufficient evidence to prove fact that he had not issued the cheque for discharge of any legal liability. Further the accused has adduced sufficient evidence to prove the fact that Ex.P.3 cheque was lost by him while shifting the office. Only on the ground that the accused has not examined the bank authority to prove Ex.P.1 stop payment mandate, the entire case of the accused cannot be disbelieved. As it is discussed earlier, complainant company has not disputed Ex.P.1 stop payment mandate. As such, there is no necessity for the accused to examine the bank authority to prove Ex.D.1. When the accused has adduced sufficient probable defence evidence to rebut the presumption u/s.139 of N.I. Act, it is for the complainant to prove the fact of existence of legally recoverable debt and to prove that the accused had issued Ex.P.3 cheque for legal enforceable debt. The complainant company has failed to adduce sufficient oral and documentary evidence to prove the fact of the existence of legally enforceable 29 Crl.A.No.2181/2019 debt payable by the accused and to prove that the accused had issued Ex.P.3 cheque for discharge of said liability. Even though as per Ex.P.2, the accused had undertaken to pay the advance amount taken by him for booking of wedding and one day out ceremony to be conducted during December 2017 in the resort, on the said ground alone it cannot be presumed that the accused was liable to pay Rs.20,00,000/- as on the date mentioned in Ex.P.3 cheque.
35. From Ex.P.2 it can be presumed that there may be some financial transaction between the accused and the complainant company. For which complainant company has got civil remedy of recovery of any amount due by the accused. In order to attract u/s.138 of N.I. Act, the complainant company has to prove beyond reasonable doubt that as on 12.04.2018 the accused was liable to pay Rs.20,00,000/- to it and the accused had issued the said cheque for discharge of said liability. But Ex.P.1 to P.7 produced by the complainant company is not helpful to the complainant company to prove the said fact. Further nothing has been elicited during the course of cross- examination of D.W.1 to prove that the accused was liable to pay Rs.20,00,000/- to complainant company and on discharge of said amount the accused had issued Ex.P.3 cheque to the complainant company. Under these facts and circumstances, I am of the opinion that the trial court is erred in coming to the conclusion that the complainant company has proved that the 30 Crl.A.No.2181/2019 accused had committed the offence punishable u/s.138 of N.I. Act. In order to attract the commission of offence u/s.138 of N.I. Act mere proving of the fact that the disputed cheque is belonging to the accused and it bears his signature and the mere proving of the fact that the said cheque was dishonoured itself it is not sufficient. The complainant company has to prove the fact that the cheque was issued for discharge of legally enforceable debt or liability. Even though there is a presumption u/s.139 of N.I. Act in favour of the complainant company, for the discussions made above, I am of the opinion that the said presumption is also not helpful to the complainant company to prove that Ex.P.3 cheque was issued for discharge of legally enforceable debt by the accused or to prove the existence of legally enforceable debt as on the date of issuance of cheque. Under these facts and circumstances, I am of the opinion that the trial court is erred in holding that the accused had committed the offence punishable u/s.138 of N.I. Act. Further I am of the opinion that the trial court is erred in convicting the accused for the offence punishable u/s.138 of N.I. Act. The other contentions taken by the accused regarding non-service of legal notice upon him cannot be acceptable one. The complainant company had issued notice Ex.P.5 notice to the residential and business address of the accused. The accused in his cross- examination has admitted that the address shown in the Ex.P.6 is correct. Ex.P.6 notice issued to the accused was returned with shara not claimed even though intimation was given. As 31 Crl.A.No.2181/2019 such, presumption u/Sec.27 of General Clauses Act can be raised regarding proper service of legal notice. Further in view of the decision of Hon'ble Supreme Court of India reported in (2007) 6 SCC 555 (C.C.Alavi Haji V/s Palapetty Muhammed and another). It can be come to the conclusion that the legal notice is duly served upon the accused.
36. The appellant has proved that the trial court is erred in convicting him for the offence punishable u/s.138 of N.I. Act and trial court is erred in sentencing him to pay fine of Rs.22,05,000/- for commission of said offence. Since it is held that the trial court is erred in convicting the accused and sentencing him for the offences punishable u/s.138 of N.I. Act, I am of the opinion that the interference of this court is required with the impugned judgment of conviction and sentence passed by trial court against the accused. The appellant has proved the Points No.1 and 2. Accordingly, I answer Points No.1 and 2 in Affirmative.
37. The appellant in this appeal has prayed to set aside the impugned judgment of conviction and sentence passed by the trial court in CC.No.21949/2018 dated 18.09.2019 and prayed to acquit him. Since it is held that the trial court is erred in convicting the accused for the offence punishable u/s.138 of N.I. Act and since it is held that the interference of this court is required with the impugned judgment of the trial court and since complainant company has not proved the commission of offence 32 Crl.A.No.2181/2019 u/s.138 of N.I. Act committed by the accused, I am of the opinion that the accused is entitled for acquittal for the alleged offence punishable u/s.138 of N.I. Act. As such, the appeal filed by the appellant is deserves to be allowed. Accordingly, I answer Point No.3 in Affirmative.
38. Point No.4:- In view of my findings on point No.1 to 3, I proceed to pass the following:
ORDER The Appeal filed by the appellant u/s.374(3) of Cr.P.C., is hereby allowed.
The order passed by learned XLII ACMM, Bengaluru, dated 18.09.2019 in C.C.No.21949/2018 is hereby set aside.
The accused is acquitted for the offence punishable u/Sec.138 of N.I.Act. The bail bond and surety bond of accused shall stands cancelled.
Send back the lower court records along with copy of this order.
(Dictated to the Stenographer directly on computer, corrected and then pronounced by me in the open court on this the 24 th day of March, 2022).
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.33
Crl.A.No.2181/2019 Judgment pronounced in the open court (vide separate order) ORDER The Appeal filed by the appellant u/s.374(3) of Cr.P.C., is hereby allowed.
The order passed by learned XLII ACMM, Bengaluru, dated 18.09.2019 in C.C.No.21949/2018 is hereby set aside.
The accused is acquitted for the offence punishable u/Sec.138 of N.I.Act. The bail bond and surety bond of accused shall stands cancelled.
Send back the lower court records along with copy of this order.
LII Addl. City Civil & Sessions Judge, Bangalore.