Bangalore District Court
M/S. Econz It Services Pvt. Ltd vs Level 7 on 3 May, 2019
IN THE COURT OF THE LXXII ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU,
(CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 3rd day of May, 2019.
Crl. Appeal. No.25138/2018
Appellant/ M/s. eConz IT services Pvt. Ltd.,
Accused:- Level 7, Mfar Green Heart Phase,
IV, Manyata Tech Park,
Off Hebbal, Quter Ring Road,
Bengaluru-560 045.
And also at
No.18, first floor,
Upasana 9th Main,
Kalyan Nagar Post,
Bengaluru-560 045.
Rep. By Managing Director,
Mr. Moby Karedath Babu
[By Sri. M.N.Nehru -Advocate]
V/s
Respondent/ Mr. Evans Francisco Jesus
Complainant: Mendonca, S/o Late Wilfred
Sebastiao Jose, Mendonca,
Aged 48 years,
Address at 8 C Tower 3,
Grand Pacific Views,
Siu Lam New Territories,
Hong Kong.
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Also at:
"Aikya" 29, Dr. Rajkumar Layout,
Behind Bible Society of India,
Kalkere, Horamavu,
Bengaluru-560043.
(By Sri.K.M.A. Peres- Adv.)
JUDGMENT
This Appeal is preferred by the Appellant U/Sec. 374(3) R/W Sec.386 of Cr.P.C, being aggrieved by the Judgment of conviction passed by the LVIII Addl. CMM, Bangalore in CC.No.52480 of 2016, dtd.13.07.2018, convicting the appellant for the offence punishable U/Sec. 138 of NI Act, thereby sentencing him to pay fine of Rs.19,20,639/-, out of which Rs.19,15,639/- shall be paid to the Complainant as compensation under Sec.357(1) of Cr.P.C., and further Rs.5,000/- shall be paid to the State Exchequer as fine. In-default of payment of fine Accused shall undergo simple imprisonment for a tenure of three months.
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2. The Brief facts leading to filing of the present appeal are:
The present Respondent filed a Complaint U/Sec. 200 of Cr.P.C. against the present Appellant, alleging that, the Appellant approached the Complainant requesting for the loan, which the Respondent agreed and paid the same under Loan Agreement dated 20.05.2015, wherein the Appellant had agreed to pay the same in 3 installments and further the Appellant had agreed to give cheque of Rs 17,15,639 dated 01.12.2015, with a condition that the said cheque will be returned to Econz IT Services Pvt., Ltd., once the payment is settled and the lender (Respondent) will be having all rights to take legal action in case of default on the part of the borrower (Appellant). Accordingly the Respondent paid an amount of Rs 16,00,000/- to the Appellant. Further it is contended that, towards refund of the said advance amount, the Accused has issued a cheque bearing No.000584 dtd. 01.12.2015 for an amount of 4 Crl.Appeal.No.25138/2018 Rs.17,15,639/- drawn on the HDFC Bank, Banaswadi, Bengaluru, in his favour. On its presentation through his banker, Syndicate Bank, Banaswadi Branch, Bengaluru, the said cheque returned unencashed, with an endorsement "Payment stopped by Drawer", by virtue of memos dtd.17.12.2015 and 30.01.2016. On receipt of the said memos, the Respondent issued a legal notice to the Appellant on 11.02.2016, through his counsel. On completion of the stipulated period required under the statute, the Respondent was constrained to file a complaint against the Accused for the offense punishable U/Sec.138 N.I.Act.
3. On being satisfied, the Trial Court has issued summons U/Sec.204 of Cr.P.C. to the Appellant on 12.04.2016. The Appellant appeared before the Trial Court on 14.11.2016 and he was enlarged on bail. Plea of the Appellant was recorded by the Trial Court on 10.01.2017, wherein the Appellant pleads not guilty and claims to be tried.
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4. The Complainant inorder to prove his case got himself examined as P.W.1 and got marked Ten documents as Ex.P.1 to Ex.P.10. PW1 was cross examined by the Learned Counsel for the Accused on 29.05.2017 & 16.04.2018.
5. On 31.03.2017 statement of the Appellant U/Sec. 313 of Cr.P.C. was recorded, wherein the Appellant got examined its Managing Director as DW.1 and got marked one document as Ex.D.1. DW1 was cross examined by the Learned counsel for the Complainant on 19.06.2018. The Trial Court heard both the sides and has recorded Judgment of Conviction against the Appellant. Hence, the Appellant is before this Court, being aggrieved by the said Judgment of conviction.
6. On filing the appeal, the Court has suspended the sentence under appeal for a period of three months, initially on 07.08.2018. Notice of the Appeal memo and I.A.No.1 was issued to the Respondent and 6 Crl.Appeal.No.25138/2018 LCR were called for. Respondent set-in his appearance on 20.03.2019. LCR were secured on 03.12.2018. Initially this Appeal was made over to CCH-20. As per the orders of the Hon'ble Prl City Civil & Sessions Judge, Bengaluru in Crl Misc No 8758/2018 dated 16.02.2019, this appeal was transfer to this Court on 14.03.2019. Heard the Learned Counsels for the Appellant and the Respondent respectively, on the appeal.
7. The Appellant has preferred this appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has miserably failed to appreciate the oral and documentary evidence on record in a proper and perspective manner;
b) The Trial Court has not afforded full and proper opportunity to the Appellant, before it;
c) The Trial Court has failed to take note of the fact that cheque inquestion is not issued towards the 7 Crl.Appeal.No.25138/2018 repayment of the alleged loan, but as a security which the Complainant has misused the same;
d) The Trial Court ought to have seen that the Complainant is taking revenge against the Appellant, for failure of a joint venture inbetween it and the Complainant under the name and style as MAKAZAI HOME products Private Ltd., which the Appellant has produced the Memorandum of Association and Articles of Association at ExD1;
e) The Trial Court has failed to arrive at a conclusion that the Complainant has discharged his initial burden to avail the benefit of presumption, but the Accused has not rebutted the said presumption;
f) The approach of the Trial Court is against the sound principles of Criminal Jurisprudence, which will lead to disturbing the fair trial of the case and which has led to miscarriage of justice.
Hence, prayed to allow the said appeal. 8
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8. Following points arise for my consideration;
1. Point No.1: Whether the Appellant/Accused shows that the Order of Conviction and Sentence recorded by the Trial Court in C.C.No.52480/2016 dtd 13.07.2018, deserves to be setaside, and thereby call for the interference of this Court?
2. What Order?
9. My finding on the above points are as under:
Point No.1 : In the Negative;
Point No 2 : As per final order for the following :
REASONS
10. Point No.1:- The rank of parties will be referred as they were before the Trial Court.
The Complainant has filed a complaint U/Sec. 200 of Cr.P.C. alleging that the Accused has committed an offense punishable U/Sec. 138 of N.I.Act. The Complainant has produced Ten documents viz., Ex.P.1-Loan Agreement dated 11.06.2015; ExP.2-Draft 9 Crl.Appeal.No.25138/2018 Delivered Voucher dated 11.06.2015; ExP.3- Cheque bearing No.000584 dated 01.12.2015 for Rs 17,15,639/- said to have been issued by the Accused; ExP.4 and ExP5 are the endorsements issued by the Syndicate Bank dated 17.12.20015 & 30.01.2016, Ex.P.6- legal notice dtd.11.02.2016, ExP7 & ExP8 are the Postal receipts for having sent ExP6; ExP9 & ExP10 are the Postal Acknowledgment and returned envelop, respectively, inrespect of ExP6. On the basis of the said documents and the preliminary evidence led by the Complainant, the Trial Court has issued summons to the Accused U/Sec.204 of Cr.P.C., I do not find any error in the said order of the Trial Court.
11. On appearance of the Accused, plea was recorded on 10.01.2017. I have gone through the contents of the plea recorded by the Trial Court. I do not find any fault in the plea recorded by the Trial Court.
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12. On careful perusal of the evidence led by the Complainant as well as the Accused, it is the case of the Complainant that he has given loan to the Accused and the Accused has entered into an agreement with him as per ExP1 on 11.06.2015. On careful perusal of the said document it is seen that the Complainant is a Lender and the Accused is the borrower under this agreement and both have agreed that the Complainant has to pay an amount of Rs 16,00,000/- to the Accused by crediting to his account mentioned therein, which the Accused has undertaken to pay the said amount in 3 installments mentioned in the said agreement. Further there is mention about issuance of cheque by the Accused for Rs 17,15,639/- dated 01.12.2015, which will be returned to it, once the payment is settled and the lender will have all rights to recover, incase of default on the part of the Accused. Further the Complainant has produced Draft Delivered Voucher dated 11.06.2015 at ExP2. As per this document it is seen that as per ExP1 agreement, the 11 Crl.Appeal.No.25138/2018 Complainant has transferred an amount of Rs 16,00,000/- to the account of the Accused. Further as per the oral evidence of the Accused, more specifically, cross examination of DW1, at Page No 7, line Nos 3 & 4, which reads as under:
"...... £Á£ÀÄ ¸Á®zÀ AiÀiÁªÀÅzÉà PÀgÁgÀÄ §gÀÉzÀÄPÉÆnÖgÀĪÀÅ¢®è. ¤¦1 gÀ°è ¸À»UÀ¼ÀÄ EgÀÄvÀÛzÉ. ....."
As per this the Managing Director of the Accused Company has admitted that he has signed ExP1 agreement as per ExP1(a) and ExP2(a) {sic ExP1(b)}.
Further it is the case of the Complainant that inorder to repay the said loan amount, the Accused has issued the Cheque bearing No 000584 dated 01.12.2015 for Rs 17,15,639/- as per ExP3. On presentation of the said Cheque by the Complainant through his banker, the same has returned unencashed with an endorsement "Payment Stopped by Drawer" as per ExP4 and ExP5. Subsequently, the Complainant has issued demand notice as per ExP6 to it, through his counsel by RPAD on its both the addresses, as per Postal Receipts ExP7 & ExP8, Postal 12 Crl.Appeal.No.25138/2018 Acknowledgement as per ExP9 and returned Postal cover as per ExP10. The Accused has received the said notice and has neither replied nor complied.
13. On coming to the oral evidence on record, wherein it can be seen that, in the cross examination of PW1 dated 16.04.2018 at Page No 13, Para No 6, line Nos 4 to 7, which reads as, ".......... ªÉÆzÀ® ¸Á®ªÀ£ÀÄß ªÀÄgÀÄ¥ÁªÀw ªÀiÁqÀzÉà D¥Á¢üvÀjUÀÉ £Á£ÀÄ ªÀÄvÉÆÛªÉÄä gÀÆ.15 ®PÀëªÀ£ÀÄß PÉÆnÖzÉÝ JAzÀgÉ ¸Àj. ªÉÆzÀ®Ä ¸Á®ªÀ£ÀÄß ªÀÄgÀÄ¥ÁªÀw ªÀiÁqÀzÉà 2£Éà ¸Á®ªÀ£ÀÄß £Á£ÀÄ PÉÆqÀĪÀÅ¢®è JAzÀÄ ºÉüÀ®Ä £À£ÀUÉ AiÀiÁªÀÅzÉà vÉÆAzÀgÉ EgÀ°®è. 2 ¸Á®ªÀ£ÀÄß £Á£ÀÄ §rØUÁV PÉÆnÖzÀÉÝ JAzÀgÉ ¸Àj. ......". As per this the Complainant admits the suggestion made to him, that he has given second time loan to the accused, inspite of non repayment of loan given at the first instance. Further he admits that both the loans were given by him to earn interest. 13
Crl.Appeal.No.25138/2018 Further in the cross examination of PW1 dated 16.04.2018 at Page No 13, Para No 7, Line Nos 3 to 5, which reads as, " ............. D¥Á¢üvÀjVAvÀ ºÉZÀÄÑ ºÀtªÀ£ÀÄß £Á£ÀÄ PÀA¥À¤AiÀÄ°èÌ ºÀÆrPÉ ªÀiÁrzÀÝjAzÀ D¥Á¢üvÀjVAvÀ £Á£ÀÄ ¨ÀszÀævÉUÉ ZÉPÀë£ÀÄß ¥ÀqÀÉzÀÄPÉÆArzÀÉ JAzÀgÉ ¸ÀjAiÀÄ®è . .........".
As per this the Complainant contends that Cheque ExP3 is issued as security.
Further in the cross examination of DW1 dated 19.06.2018 at Page No 7, Para No 4, Line Nos 5 & 6, which reads as, ".............. SÁ° ZÉPÀ£ÀÄß PÉÆnÖzÉÝãÉ, AiÀiÁªÀ ¢£ÁAPÀzÀAzÀÄ SÁ° ZÀPÀÌ£ÀÄß PÉÆmÉÖ JAzÀÄ ¢£ÁAPÀ UÉÆwÛ®è ".
As per this the Managing Director of the Accused company contends that he has given blank cheque.
Further in the examination-in-chief of DW1 dated 08.05.2018 at Page No 1, Para No 2, Line Nos 5 to 8, which reads as, 14 Crl.Appeal.No.25138/2018 "...... I represented to stop payment to my account, when the complainant prepared to present the cheques. .......". As per this the Managing Director of the Accused Company contends that he has issued directions to the bank for stopping the payment against the encashment of the cheque, when the complainant prepared to present it.
Thus the Complainant has proved that the Cheque is issued by the Accused to him, there was a liability on the accused, to repay the loan of the Complainant and the Accused has issued instructions to the Bank to stop the payment of the said cheque.
14. On viewing the amount of oral evidence with Ex.P.1 to P.10, which will suffice the Complainant to have benefit of presumption available U/Sec.138, 139 of N.I.Act. As per the trite principle of law dealing with the presumption U/Sec.138 & 139 of N.I.Act and as per the dictum laid down by the Hon'ble Apex Court in the case of K. Subramani V/s K. Damodara Naidu, 15 Crl.Appeal.No.25138/2018 reported in 2014 (12) SCALE 677, as well as in the case reported in (2010) 11 SCC 441, wherein it is held that, "presumption U/Sec.139 of N.I.Act accrues to the benefit of the Complainant, unless the Accused rebut that presumption". Now it is for the Accused to rebut the said presumption available to the Complainant U/Sec.139 of N.I.Act.
15. On close perusal of cross examination done to PW1 and the evidence of DW1, it can be said that, the Accused has denied issuance of the Cheques-Ex.P3 to the Complainant towards repayment of the loan.
16. On coming to the oral evidence on record, wherein it can be seen that in the cross examination of PW1 dated 29.05.2017 at Page No 10, Para No 3, line Nos 8 to 10, which reads as under, ".... Makazai PÀA¥À¤AiÀÄ ªÀåªÀºÁgÀzÀ ¸À®ÄªÁV §AqÀªÁ¼À ºÀÆrzÉÝÃ£É JAzÀgÉ ¸ÀļÀÄî. Makazai PÀA¥À¤AiÀÄ°è ºÀÆrPÉ ªÀiÁrzÀ ºÀtªÀ£ÀÄß F ¥ÀæPÀgÀtzÀ ¸Á® JAzÀÄ ºÉÉýzÉÝÃ£É JAzÀgÉ ¸ÀļÀÄî. .....". 16
Crl.Appeal.No.25138/2018 As per this, the Complainant has denied the suggestions made to him, on behalf of the Accused that he has made investments in Makazai Company and now he is posing the said investment as loan in this case.
Further in the cross examination of PW1 dated 29.05.2017 at Page Nos 10 & 11, Para No 3, line Nos 11 & 12, which reads as under, " Makazai PÀA¥À¤AiÀÄ ºÀt ºÀÆrPÉ ¸ÀªÀÄAiÀÄzÀ°è DgÉÆæAiÀÄ PÀqɬÄAzÀ ¨ÀszÀævÉUÁV ¥ÀqÉzÀ ZÉPïUÀ¼À£ÀÄß zÀÄgÀÄ¥ÀAiÉÆÃUÀ ¥Àr¹PÉÆAqÀÄ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è".
As per this, the Complainant has denied the suggestion made to him, that the Accused has issued the said cheque as security to the Complainant towards his investments in Makazai Company.
Further in the cross examination of PW1 dated 16.04.2018, at Page No 13, Para No 7, Line Nos 5 to 8, which reads as, 17 Crl.Appeal.No.25138/2018 " ¤¦-1£ÀÄß D¥Á¢üvÀgÀ «¼Á¸À EgÀĪÀ ¥ÀvÀæzÀ°è vÀAiÀiÁgÀÄ ªÀiÁqÀ¯ÁVzÉ JAzÀgÉ ¸Àj. D PÁgÀtPÁÌV £Á£ÀÄ ¸Á®PÁÌV vÀAiÀiÁj¹zÀ PÁgÁgÀÄ ¥ÀvÀæªÁVgÀĪÀÅ¢®è ªÀÄvÀÄÛ ¸ÀļÀÄî PÀgÁgÀÄ ¥ÀvÀæ JAzÀgÉ ¸ÀjAiÀÄ®è. ¤¦-1£ÀÄß ºÀt zÀÄgÀÄ¥ÀAiÉÆÃUÀPÁÌV ¸ÀȶֹzÀ zÁR¯É JAzÀgÉ ¸ÀjAiÀÄ®è ". As per this, the Complainant has denied the suggestion made to him, that ExP1-Agreement is got created inorder to misuse the funds.
Further in the cross examination of PW1 dated 29.05.2017 at Page Nos 10, line Nos 3 & 4, which reads as under, " ........ £Á£ÀÄ DgÉÆæ ¸ÀA¸ÉÜUÉ ªÉÄÃ¯É ºÉÃɽzÀ JgÀqÀÄ ¸Á®UÀ¼À£ÀÄß PÉÆnÖ®è, ºÁUÀÆ DgÉÆæ ¸ÀA¸ÉÜAiÉÆA¢UÉ ªÀªÀåºÁgÀ £ÀqÀɹ®è JAzÀgÉ ¸ÀļÀÄî. .......". As per this, the Complainant has denied the suggestion made to him, that he has not given loan to the Accused.
17. Thus inorder to rebut the presumption, the Accused has to prove, on preponderance of probabilities, that it had given the cheque ExP3 as 18 Crl.Appeal.No.25138/2018 security to the Complainant for his investments in Makazai Company; Complainant has not given any loan to him but had made investments in Makazai Company and the said cheque is misused by the Complainant by getting created ExP1-Agreement.
Further the Managing Director of the Accused Comapnay (DW1) has admitted his signatures on ExP1-Agreement, Please vide cross examination of DW1 dated 19.06.2018, referred to above, so it shows that ExP1 was signed by the Accused Company. Further as per ExP1 the said agreement is with the Accused Company and it has no bearing or nexus with the Makazai Company. And further as per ExP2 Draft Delivered Voucher dated 11.06.2015, it can be seen that the amount is credited to the account of the Accused Company as loan and not as investment to Makazai Company, because it has come in evidence that Makazai Company is having its independent Account, if at all the investments are to be credited to that company, then it would have been credited to its 19 Crl.Appeal.No.25138/2018 own account instead of crediting to the account of the Accused Company. All these evidence goes to show that there was an agreement as per ExP1 inbetween the Complainant and the Accused Company, wherein the Complainant has given loan to the Accused as per ExP2, for which the Accused has given the cheque ExP3, certainly as per ExP1, that incase of default on the part of the Accused to repay the said loan amount, can get it encashed. So the Complainant has proved that the Accused has issued a cheque to him towards repayment of the loan-legally recoverable debt.
Further the Learned Counsel for the Appellant would contend that the Accused Company is a Private Limited company, as per Sec 73 of Indian Companies Act, necessarily sanction is required to be accorded, when no necessary sanction is taken, then the act of the Complainant in giving the handloan is hit by Sec 23 of Indian Evidence Act. On close reading of the provisions of Sec 73 of Indian Companies Act, it can be said that it is the duty of the Accused company to have 20 Crl.Appeal.No.25138/2018 the said sanction, but the same is not taken by the Accused. On careful perusal of the cross examination of PW1 dated 16.04.2018, at Page No 13, Para No 6, Line Nos 8 & 9, which reads as ".............. AiÀiÁªÀÅzÉà ºÀtªÀ£ÀÄß §rØUÉ PÉÆqÀ¨ÉÃPÁzÁUÀ ¯ÉêÁzÉë ¥ÀgÀªÁ¤UÉ PÀ£ÁðlPÀ ¸ÀPÁðgÀ¢AzÀ ¥ÀqÉzÀÄPÉƼÀÄîªÀ §UÉÎ £À£ÀUÉ UÉÆwÛ®è". As per this evidence it can be said that the Complainant is not aware about it, but the Accused was aware about it. If so the Accused would have taken necessary sanction or permission. So it is the fault on the part of the Accused and not on the part of the Complainant. Any contract inbetween the Accused and the Complainant for taking loan as per ExP1 is a Voidable contract at the option of the Complainant, but not a void contract. Such contract can be enforceable as per law, at the instance of the Complainant. So the same is not hit by Sec 23 of the Indian Contract Act. Hence I do not find any force in the submission of the Learned Counsel for the Appellant. Hence the same is discarded. 21
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18. Considering the inconsistent contentions raised by the Accused in the cross examination of PW1 and cross examination of DW1, cumulatively it can be said that, the stand taken up by the Accused is not fortified with cogent evidence, on the basis of preponderance of probabilities, inorder to rebut the presumption available to the Complainant U/Sec 139 of NI Act. So, in the absence of material evidence, the different and distinct stands taken up by the Accused, cannot be accepted at all.
19. Thus for the stand takenup by the Accused, no any evidence is putforth by it, to strengthen its defence. On the contrary it has taken altogether distinct and different stands, which are placed on record. Hence, presumption available to the Complainant U/Sec.139 of N.I.Act stands unrebutted. I have gone through the Judgment of the Trial Court, rightly the Trial Court has concluded that the Accused has failed to rebut the presumption available to the Complainant U/Sec.139 of N.I.Act.
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20. In the present case, the Accused has neither made out its case that the Complainant has misused the blank signed letter head sheets and blank cheque given by it for security of handloan. Hence, the presumption U/Sec. 118 and 139 of N.I. Act, held unrebutted.
21. On close scrutiny of the cross-examination done on behalf of the Accused to P.W.1, except mere denial, there is no any specific denial from the side of the Accused, as to the income of the Complainant or the accountability of the Complainant. Section 118 of N.I.Act lays down a presumption that, every Negotiable Instrument made or drawn, is made or drawn for consideration, unless contrary is proved. Sec. 139 of N.I.Act lays down a presumption that, the holder of a cheque has received a cheque for the discharge of a debt or liability, legally recoverable, unless contrary is proved. Under such circumstances, there is no any hurdle to derive the presumption available to the holder of the cheque U/Sec.118 as well as 139 of 23 Crl.Appeal.No.25138/2018 N.I.Act. I find force to my above opinion as per the decision of Hon'ble Apex Court in the case of Hiten Pidalal V.s Bratindranath Banergi reported in 2001 Crl.L.J. 4647 (Supreme Court) as well as in the case of M.S.Narayan Menon @ Mani V/s State of Kerala and Another reported in 2006 SAR.Crl.616 and in the case of Krishna Janardhan Bhat V/s Dattatreya G. Hegde reported in (2008)2 SCC Crl. 166. Rightly, the Trial Court has considered all these aspect and there is no any fault on the part of the Trial Court. I do not find any force in the submission of the learned counsel for the Appellant.
22. Further 313 Statement is recorded by the Trial Court on 31.03.2017, it covers the entire incriminating substance, brought on record by way of evidence, against the Accused. The Trial Court has examined the Accused U/Sec. 313 of Cr.P.C. I have gone through the statement formed by the Trial Court and reply given by the Accused, to the said questions, in the statement. I do not find any fault in the 24 Crl.Appeal.No.25138/2018 statement of the Accused, recorded by Trial Court U/Sec 313 of Cr.P.C.
23. I have carefully gone through the reasoning given by the Trial Court, while awarding compensation to the Complainant U/Sec.357 of Cr.P.C. The Trial Court has rightly consider the guiding principles laid down by the Hon'ble Apex Court, in the case of Harisingh V/s Sukhbir Singh reported in (1988) 4 SCC 551, as well as in the case of Suginthi Suresh Kumar V/s Jagadishan reported in 2002 Crl.L.J. 1003 (Supreme Court).
24. Further the Hon'ble High Court has held in General Auto Sales Vs Vijayalakshmi, reported in 2005(1) KLT 478 in Paragraph No 8 thereof, that "even if a blank signed cheque has been given towards liability or even as security, then the liability subsists and quantified, if the cheque is filled up and presented to the Bank, the person who had drawn the cheque, 25 Crl.Appeal.No.25138/2018 cannot avoid the criminal liability under Section 138 of NI Act".
Further the Hon'ble Apex Court has held in Rangappa Vs Sri Mohan, reported in (2010) 11 SCC 441, that "once issuance of cheque and signature thereon are admitted, presumption of a legally enforceable debt infavour of the holder of the cheque arises. It is for the Accused to rebut the said presumption, though Accused need not adduce his own evidence and can rely upon the material submitted by the Complainant. However, mere statement of the Accused may not be sufficient to rebut the said presumption".
25. In this case there was really presumption available infavour of the Complainant in terms of Section 138 & 139 of Negotiable Instruments Act, against the accused and the accused has not discharged its burden to rebut that presumption. 26
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26. The Court below has considered all the aspects, the grounds taken up by the Accused as defense. Even I do not find any fault with the Order of the Trial Court in awarding compensation to the Complainant. When no fault is committed by the Trial Court, interference by this Court does not arise at all. Thus I am declined to interfere with the findings recorded by the Trial Court.
27. Necessarily the prosecution succeeds. The conviction is therefore confirmed, as the accused is found guilty of the offence punishable under Section 138 of Negotiable Instruments Act.
Hence, for the above reasons I answer point No.1 in the Negative.
28. Point No.2: For the aforesaid reasons, I proceed to pass the following:
ORDER Acting U/Sec.386 of Cr.P.C., the Appeal preferred by the Appellant/Accused is hereby Dismissed.
27
Crl.Appeal.No.25138/2018 In the consequences, the order passed by the Learned LVIII Addl. CMM, Bengaluru in CC No.52480 of 2016, dated 13.07.2018, recording conviction of the Accused, is hereby confirmed.
The order of suspension passed by this Court U/Sec.389 of Cr.P.C. stands revoked.
The Court below shall execute its order, as per law.
No order as to costs.
Remit the LCR to the Court below,
on obtaining necessary
acknowledgement, from it, alongwith
the copy of this Judgment.
--
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me, in the open court on this the 3rd day of May, 2019) [Abdul-Rahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)