Bangalore District Court
Sri. K. M. Ramachandrappa vs (M. Ramachandra) on 7 August, 2020
IN THE COURT OF THE LXXII ADDL. CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL BENGALURU,
(CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 07th day of August, 2020.
Crl. Appeal. No.25109/2019
Appellant/ Sri. K. M. Ramachandrappa,
Accused: (M. Ramachandra)
S/o late K.V. Muniyappa,
Advocate, aged about 70 years,
R/at " Sri. Mahalaxmi Nilaya",
Sri. Venkateshwara Theatre Road,
Devasandra, K.R.Puram
Bengaluru560 036.
[By Sri. B. Siddeshwara &
Associates Advocate]
V/s
Respondent/ Smt. N. Chandramma,
Complainant: W/o. Venkataramanappa,
Aged about 54 years,
R/o No.14, Vasavi Thirumala Nilaya,
5th main, Muniyappa Garden Layout,
K.R.Puram,
Bengaluru560 036.
(By Sri. N. Munikrishnappa Adv.)
JUDGMENT
This Appeal is preferred by the Appellant/Accused U/Sec. 374(3) of Cr.P.C, being aggrieved by the Judgment of conviction, passed by the LVII Addl. CMM, Bangalore, in CC.No.54960 of 2015, dtd.03.04.2019, convicting the Appellant for the offence punishable U/Sec. 138 of NI Act, thereby sentencing him to pay fine of Rs.5,000/, in default to pay the said fine, he shall undergo simple imprisonment for a period of 3months. And further directed the accused to pay compensation of Rs.19,60,000/ to the Complainant, under Sec.357(1) of Cr.P.C. In default, to pay the compensation, the Accused shall undergo Simple Imprisonment for a period of one year. Further prays to allow the appeal and to setaside the Judgment of conviction.
2. The Brief facts leading to filing of the present appeal are:
The Respondent filed a Complaint U/Sec.200 of Cr.P.C. against the Appellant alleging that, she had paid an amount of Rs. 10,00,000/ to the accused towards the purchase of the site, formed by the Appellant, as earnest money. Subsequently, the Appellant has failed to execute a registered sale deed infavour of the Respondent, thereby the Respondent started insisting the Appellant to refund the said earnest amount. Thereafter, a panchayat was conveyed, wherein the Appellant undertook to pay the said amount and has issued two cheques for Rs.5,50,000/ each, infavour of the Respondent. On receiving the said cheques the respondent presented the cheque bearing No.470908 dated 27.10.2014, through her banker, the same was returned unencashed, with an endorsement 'referred to drawer' on 28.10.2014. Thereafter, the same was intimated to the Appellant, for which the Appellant requested to represent the said cheque. Further, the Respondent presented the cheque bearing No.470909 dated 27.11.2014, through her banker, the same was returned unencashed, with an endorsement 'insufficient funds'. Thereafter, the same was also intimated to the Appellant, for which the Appellant requested to re present the said cheque. Both the cheques were again represented by the Respondent on 02.12.2014, again the said cheques were returned unencashed with an endorsement 'referred to drawer' on 05.12.2014.
On receipt of the said memos, the Respondent issued a legal notice to the Appellant on 12.12.2014, through her counsel, which was served on him 17.12.2014, for which the Appellant has issued a reply notice through his counsel on 31.12.2014. Hence, the Respondent was constrained to file a Complaint against the Appellant.
3. On being satisfied, the Trial Court issued summons U/Sec.204 of Cr.P.C. to the Appellant on 29.10.2015. The Appellant appeared before the Trial Court on 15.11.2016 and he was enlarged on bail. Substance of Accusation of the Appellant was recorded by the Trial Court on 27.02.2017, wherein the Appellant/Accused pleads not guilty and claims to be tried.
4. The Complainant inorder to prove her case got herself examined as P.W.1 and got marked 10documents as Ex.P.1 to Ex.P.10. PW1 was cross examined on behalf of the Appellant/Accused on 27.06.2017 and 21.07.2017.
5. On 31.10.2017, Statement of the Appellant/Accused was recorded U/Sec. 313 of Cr.P.C. The Appellant/Accused in defence got himself examined as DW.1 and got marked 16documents as Ex.D.1 to Ex.D.16. DW.1 was cross examined on behalf of the Complainant/Respondent on 04.08.2018 and 19.01.2019. Appellant/Accused got examined two witnesses namely C.Anand Moorthy as DW2 and N.Girish Babu as DW3. DW2 and DW3 were cross examined on behalf of the Complainant on 23.10.2018.
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 by the Appellant/Accused, this Court has suspended the sentence under appeal, for a period of three months, initially on 24.04.2019. Notice of the Appeal memo and I.A.No.1 was issued to the Respondent and TCR were calledfor. Respondent setin her appearance on 28.05.2019. TCR were secured on 25.07.2019.
7. Heard the Learned Counsels for the Appellant/Accused and the Respondent/Complainant, respectively. The learned counsel for the Appellant has relied upon the decisions reported in 1) ILR 2008 Kar 4629; 2)1992(1) ALT 643; 3) decision of the Hon'ble High Court of Karnataka in the case of A.M.Govindegowda V/s. B.V.Ravi(Crl.A.815/2010, date of decision 22.06.2015); 4) Decision of the Hon'ble High Court of Maharashtra, sitting at Goa, in the case of M/s. Enpee Earth Movers and Others V/s. M/s. Resource International and Others (Crl.A.Nos.6/2010, 7/2010, 8/2010, 9/2010 and 10/2010, date of decision 14.12.2012); 5) 1997(1) ALT Cri 509; 6) 2006 Crl.L.J 3140; 7) 1998 Crl.L.J 759; 8) Decision passed by the 25 th ACMM, Bengaluru in CC.No.10952/2013; 9) 2012(3) KCCR 2057; 10) 1997 (2) APLJ 389; 11) 1993 Crl.L.J 744(P & H); 12) (1997) 1 KLJ 168;
13) Decision of the Hon'ble Apex Court in the case of Basalingappa V/s. Mudibasappa (Crl.Ap.636/2019, date of decision 09.04.2019); 14) Decision of the Hon'ble Apex Court in the case of Krishnajanardhana Bhat V/s. Dattatreya G.Hegde (Appeal (Crl.) 518/2006 date of decision 11.01.2008); 15) Decision of the Hon'ble Apex Court in the case of Rangappa V/s. Sri. Mohan (2010(11)) SCC 441); 16) (2002) 1 SCC 234;
17) Decision of Hon'ble Apex Court in case of M.S.Narayana Menon @ Mani V/s. State of Kerala and another (Appeal (Crl.) 1012/1999, date of decision 04.07.2006; 18) Decision of the Hon'ble High Court of Karnataka in the case of Veerayya V/s. G.K.Madivalar, date of decision 30.11.2011; 19) Decision of Hon'ble High Court of Karnataka in the case of N.S.Vijayakumar V/s. C.Gayathri, date of decision 18.02.2019; 20) Decision of Hon'ble High Court of Delhi, in the case of Narendra Anand V/s. Maruthi Udyog Ltd, reported in 1998 Crl.L.J 759(Del); 21) Decision of Hon'ble High Court of Madras in the case of Arul Mari Joseph V/s. Edward Raj, date of decision 11.04.2018 and
22) A.I.R. 1973 Pg 2773.
Per contra, the Learned counsel for the Respondent has placed his reliance on 3 decisions, viz., 1) Of the Hon'ble Apex Court, in the case of APS Forex Services Pvt. Ltd., V/s. Shakthi International Fashions Linkers and Others (Crl.A.271/2020 date of decision 14.02.2020); 2) 2012(3) A.I.R Kar R 838; and 3) 2012 (3) A.I.R Kar R
315.
8. The Appellant has preferred this appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has gravelly erred in convicting the Appellant for the offence punishable U/Sec. 138 of N.I. Act, which is manifestly erroneous and opposed to the facts and circumstances of the case;
b) The Trial Court has miserably failed to appreciate the oral and documentary evidence on record, in a proper and perspective manner, more specifically, Ex.D1;
c) The Trial Court has failed to consider that, there exist no any legally enforceable debt against the Appellant/Accused, thereby there exist no any recoverable debt against the Appellant and the Cheques in question were not given by the Accused muchtheless towards the discharge of any debts, as contended by the Complainant;
d) The Trial Court has failed to consider that, the cheques in question were issued by the Appellant on humanitarian grounds and not towards discharge of any debts;
e) The Trial Court has failed to consider that the claim made by the Complainant, is a time barred claim, thus not executable;
f) The Trial Court has wrongly arrived at a conclusion that, the Complainant has discharged her initial burden to avail the benefit of presumption, but the Accused has not rebutted the said presumption;
Hence, prayed to allow the said appeal.
9. Following points arise for my consideration;
1. Whether the Appellant/Accused shows that the Order of Conviction and Sentence recorded by the Trial Court in CC.No.54960 of 2015, dtd.03.04.2019, deserves to be setaside, and thereby call for the interference of this Court?
2. What Order?
10. My finding on the above points are as under:
Point No.1 : Partly in the Affirmative;
Point No.2 : As per final order for the following :
REASONS
11. Point No.1: The rank of parties will be referred to, 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 offence punishable U/Sec. 138 of N.I.Act, by issuing two Cheques bearing No. 470908 dated 27.10.2014 and No. 470909 dtd. 27.11.2014, both for Rs. 5,50,000/ each, as per Ex.P.1 and P.2, to the Complainant towards repayment of the advance amount paid by her. On the request of the Accused, the Complainant presented the said Cheques for there encashment through her Banker, the same were returned unencashed, first cheque with an Endorsement "referred to drawer" on 28.10.2014 and the second cheque with an endorsement "Funds Insufficient" on 27.11.2014, as per Ex.P3. Thereafter, at the request of the accused, both the cheques were again presented for their encashment, which were returned with an endorsement 'referred to drawer' on 05.12.2014, as per Ex.P.4 and Ex.P5, respectively. On receipt of the same, the Complainant has issued legal notice to the Accused through her counsel on 12.12.2014, as per Ex.P.6, by RPAD., and as per Ex.P.7 Postal receipt. The said notice has been received by the Accused as per postal acknowledgement Ex.P.8 and tracking report issued by the Department of Post, India Ex.P9, for which the accused has issued a reply, through his counsel on 31.12.2014, as per Ex.P10.
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.
12. On issuance of NBW against the Accused, he has appeared before the Trial Court and he was enlarged on bail. Substance of Accusation was recorded on 27.02.2017. I have gone through the contents of the substance of Accusation recorded by the Trial Court. I do not find any fault, in the Plea/Substance of Accusation, recorded by the Trial Court.
13. On careful perusal of the evidence led by the Complainant, as well as the Accused, it is the case of the Complainant that, she had given Rs. 10,00,000/ as advanced money for purchase of a site formed by the accused. Since the accused failed to give the said site to the Complainant, she insisted him to return the said amount, for which a Panchayat meeting was conveyed, wherein the accused undertook to repay the said amount/earnest money and has issued the cheques Ex.P1 and Ex.P2, in her favour. As per the requests of the Accused, the Complainant presented the said cheques on two different occasions for their encashment, for which the said cheques have returned unencashed, with an endorsement 'referred to drawer'.
13.1. Per contra, the Accused contends that, the Complainant on installments had paid only Rs. 5,00,000/ and had agreed to pay the remaining balance amount and get registered the Sale Deed in respect of the site formed by him, in her favour. Since, the Complainant did not adhere to her commitment and pay the entire consideration amount, in time, the amount paid as advance money was got forfeited. Thereafter, again a Panchayat meeting was conveyed in the Vijaya Ganpathi Temple at K.R.Puram on 19.10.2014. In view of terms of settlement, he agreed to pay Rs.11,00,000/ to the Complainant and issued two cheques for Rs. 5,50,000/ each, dated 27.10.2014, 27.11.2014. Further, it was held in the said Panchayat, that Complainant, her husband, her children should sign the Agreement Ex.D1 and the Complainant has to present the said cheques for encashment, after obtaining the signature of her elder son Roopesh on Ex.D1. Since, the Complainant failed to obtain the signature of her son Roopesh on Ex.D1, he has issued "Stop Payment", instructions to his banker and thereby, to refer the same to him .
13.2. Secondly, the accused has taken up a contention that, there was no any legally enforceable debt for issuance of the cheques Ex.P1 and Ex.P2 infavour of the Complainant; Thirdly, the advanced amount paid by the Complainant is forfeited and the same is not recoverable, as it is a time barred debt.
14. According to the contentions of both the parties, the undisputed facts, are as under:
a) The Complainant had approached the Accused for purchase of a site formed by him and as per the Complainant, she has paid Rs.10,00,000/ as advance amount, which is denied by the Accused.
But the accused contends that, the Complainant had paid Rs.5,00,000/ in installments;
b) That a Panchayat meeting was conveyed in the Vijaya Ganapathi Temple, K.R.Puram.
15. Neither the Complainant nor the Accused have produced any document like agreement of sale etc., in this case, inorder to ascertain, as to what were the terms and conditions, entered into by the parties, under the transaction of sale of site.
15.1. Coming to the ocular evidence, on this point, more specifically, cross examination of PW.1, at Page No.2, Line Nos. 15 to 20, which read as under:
"....... It is true that we have not produced any document to show that I have paid Rs.10 lakhs to the Accused in the year 2008. It is true that I have not produced any agreement or receipt for having been paid the money to the Accused. Witness volunteers that the Accused has not given the receipt or agreement. ......."
As per this evidence, the Complainant/PW1 admits that, she has not produced any documents to show that, she has paid Rs.10,00,000/ to the Accused, in the year 2008. So also she admits that, she has not produced any agreement or receipt, either for having entered into agreement of sale or for having paid money to the accused.
15.2. Further, as per the examination of DW1, at page No.1, line Nos.4 to 6, which reads as under:
"....... There is no agreement between me and the Complainant regarding the said sale transaction. ....."
As per this evidence, the accused/DW1 admits that, no agreement was entered into between him and the Complainant regarding the sale transaction.
15.3. As per the above ocular evidence, it can be concluded that, there was transaction of sale in between the Complainant and the Accused, but the said transaction was not reduced into writing. In the otherwords, it can be said that, the Accused admits that, he has entered into a transaction of sale but the said transaction was not reduced into writing, in the form of an agreement of sale.
16. The Complainant and the Accused, both admit that, a Panchayat meeting was conveyed in the Vijaya Ganapathi Temple, K.R.Puram, Bengaluru.
16.1. Coming to the ocular evidence, on this point, more specifically, examinationinchief of DW1, at Page No.2, Para No.2, which reads as under:
"In the month of October2014 there was conciliation/panchayath regarding the refund of money at Vijaya Ganapathi Temple at K.R.Puram. In the conciliation/panchayath dtd.19.10.2014 it was held that on humanitarian ground I have to refund the advance amount to the Complainant. In view of the terms of settlement I agreed to pay Rs.11 lakhs to the Complainant by way of two cheques for Rs.5,50,000 each dtd.27.10.2014 and 27.11.2014. It is also held in the panchayat that the Complainant, her husband and her children should sign the agreement/Ex.D.1. The Complainant has to present the said cheques for encashment thereafter. The son of the Complainant has not signed the Ex.D.1 agreement till this date. Especially, elder son of the Complainant Roopesh has not signed the document at Ex.D.1. As the son of the Complainant has not signed the agreement, I have issued "stop payment' instructions to my banker to refer the matter to me".
As per this evidence, the Accused/DW1 admits that, a Panchayat regarding the refund of money to the Complainant was conveyed at Vijaya Ganapati Temple, K.R.Puram and in the said conciliation, he had agreed to pay Rs.11,00,000/ to the Complainant by way of two cheques for Rs. 5,50,000/ each, dated 27.10.2014, 27.11.2014. Further, it was held in the said Panchayat that, the Complainant, her husband and children should affix their signature on Ex.D1 Agreement, on obtaining the signatures, the Complainant has to present the said Cheques for there encashment. Since, the elder son of the Complainant by name Roopesh did not sign the Agreement Ex.D1, the Accused had issued instructions to his banker to stop payment and to refer honoring of the cheques, to him.
16.2. As per the above ocular evidence, it is clear and an admitted fact from the side of the Accused that, he has issued the Cheques Ex.P1 and Ex.P2 infavour of the Complainant.
16.3. It is one of the contentions of the Accused that, the Complainant had agreed under Ex.D1 Agreement, to have the signatures of her husband and children, over it. But, the same is denied by the Complainant. The said denial can be seen as per the suggestions made to DW1, in his cross examination, at Page No.15, Line No.17 to Page No.16, Line No.3, which reads as under:
"........It is false to suggest that though there is no condition at Ex.D.1 that the children of Venkataramana has to sign the Ex.D.1 and thereafter the cheque to be issued and I have taken such false defence in the case in order to defraud the Complainant. It is false to suggest that when it is questioned to the witness that if there is any condition at Ex.D.1 that the children of Complainant has sign Ex.D.1 you would have issued the cheque after their signature in Ex.D.1; the witness said that as the Complainant agreed to get their signatures he has issued the cheque. I is false to suggest that I have deliberately got bounced the cheque. It is false to suggest that I am deposing false before the Court."
As per this evidence, it is suggested on behalf of the Complainant to the Accused that, no any condition is made under Ex.D1, to obtain the signature of her children on ExD1Agreement.
16.4. So, it is for the Accused to prove that, the Complainant had agreed to get the signature of her son Roopesh on Ex.D1 Agreement, prior to the presentation of the Cheques, issued by the Accused.
a) The Accused has got marked the Agreement, styled as Receipt for refund of Deposit money, dated 19.10.2014 at Ex.D1, on confrontation to the Complainant/PW1;
b) The Complainant /PW1 has admitted her signatures and the signatures of her husband on Ex.D1, the same can be seen as per the cross examination of PW1, at Page No.4, line Nos.1 to 23, which reads as under: " ..... The signatures now shown to me in the agreement is of me, as the witness admitted her signature in the agreement in Deposit repayment receipt, the counsel for the Complainant objected for marking of the said document, stating that the document is insufficiently stamped and the document is insufficiently stamped document. Per contra, the counsel for the Accused submit that this document is relied by the Complainant but they have produced only photostat copy of the document, as the documents are produced in criminal trial this document is marked subject to the objection as Ex.D.1 and the signature is marked as Ex.D.1(a) to D.1(e). My husband is also signed in the said Ex.D.1 document and the witness identified the said signatures as the signature of her husband. Hence that has been marked as Ex.D.1(f) to D.1(j). I know how to read and write Kannada. I can read English to some extent. My husband also knows how read and write English. We have produced the copy of Ex.D.1 along with complaint. I have read the Ex.D.1 document. After bouncing of the cheque my husband collected copy of Ex.D.1 agreement. "We have not refused to sign the document when the Accused concealed the contents of document. Witness volunteers that as the Accused has given a cheque we have not raised objection. ............"
c) On perusal of Ex.D1, the said document bears the signature of the Complainant and her husband, as admitted by the Complainant, but the said document does not bear the signature of the children of the Complainant, more specifically, the signature of the elder son of the Complainant, by name Roopesh.
d) On careful perusal of Ex.D1, there is no any recital that, the Complainant has to present the said cheques for there encashment, on or after obtaining the signature of her son, on Ex.D1.
e) The accused has led the evidence of one witness by name C.Anand Moorthy - DW.2. Signature of D.W2 on Ex.D1, is got marked as Ex.D1(k). On careful perusal of the evidence of DW2, more specifically, cross examination of DW2, at Page No.2, Line No.13 to 18, which reads as under:
" .......... the witness volunteers that after the signature of children of Complainant on the agreement the cheques have to be presented for encashment. There is no reference in the Ex.D.1 agreement that the children of the Complainant has to sign the Ex.D.1 agreement and thereafter the cheques have to be presented for encashment. ....."
As per this evidence DW2 contends that, he was present when Ex.D1 was brought into existence and he has signed as witness on Ex.D1. Further, he contends that, the Complainant has undertaken to get the signature of her children on Agreement Ex.D1 and then to present the cheques for there encashment. Further, DW1 admits that, there is no such reference in Ex.D1Agreement that, the children of the Complainant has to sign Ex.D1 and thereafter, the cheques are to be presented for encashment;
f) When there is no such condition or in other words, when there is no any condition precedent mentioned in Ex.D1 for obtaining the signatures of the Children of the Complainant on Ex.D1 and subsequent to it, presentation of the cheques for encashment, then under such circumstances, the evidence of DW2, cannot be relied upon, as against the terms of Ex.D1, as it will not fall within the ambit of the exceptions to Sec.91 of the Indian Evidence Act.
g) Thus, the Evidence of DW2 presented by the Accused will not come to his aid to prove that, there was a condition of obtaining the signature of Roopesh (elder son of the Complainant), for presentation of the Cheques, by the Complainant.
h) The accused has also led the evidence of another witness N.Girish BabuDW3. On careful perusal of his evidence, it can be seen that, he is neither a witness to Ex.D1 nor a witness to the event of conciliation taken place at Vijaya Ganapathi Temple, K.R.Puram, Bengalure and merely, he is a hearse witness, who has deposed on the basis of the information received by him, from the Accused. So, his evidence also will not come to the aid of the Accused.
16.5. Thus, the Accused has failed to prove that, there was a condition precedent of obtaining the signature of the son of the Complainant by name Roopesh on Ex.D1, prior to presentation of the ChequesEx.P1 and Ex.P2 for there encashment.
17. Thus the Complainant has proved the initial burden casted upon her U/Sec.138 of N.I. Act, to say that, the Cheques belong to Accused and the signature on the said Cheque is of the Accused.
18. On viewing the amount of oral evidence with Ex.P.1 to Ex.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, 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.
19. On close perusal of cross examination done to PW1 and the evidence of DW1, it can be said that, the Accused has taken the second contention that, the amount paid by the Complainant to him in the form of advance money is forfeited, as the Complainant did not come forward to perform her part of contractpayment of balance consideration amount, in time. This stand of the Accused can be seen as per the examination in chief of DW.1, page No.1, Line Nos.6 to 12, which reads as under:
"......Subsequent the Complainant had not approached me and paid balance sale consideration and thereby to register the Sale Deed. The Complainant was avoiding me. According to he understanding between me and the Complainant, if the Complainant fails to make the balance consideration amount and get and sale registered then the advance amount was liable to be forfeited".
19.1. Neither the Complainant nor the Accused have produced any document, to know as to what were the terms and conditions of the contract, in between them. Further, the Accused has not produced any document to show that, either there was a forfeiture clause in the agreement or there was a terms and condition withregard to forfeiture of money, in the transaction taken place inbetween him and the Complainant. Further the Accused has also not produced any document/notice intimating or calling upon the Complainant to perform her part of contract and cautioning her that, incase if she fail to performed part of contract the advance amount paid will be forfeited. Even the Accused has not produced any document/notice sent to the Complainant, exhibiting his intention to forfeit the earnest money. Further the Accused has admitted that he has even not issued any notice to the Complainant withregard to forfeiture of the advance/earnest amount, given by the Complainant, to him. This can be seen as per the cross examination of DW.1, at Page No.9, Line Nos.2 to 4, which read as under:
"......I have not caused any written notice to the Accused stating that, I have forfeited the advance amount of Rs.5,00,000/..."
19.2. Thus, as per the above ocular evidence and in the absence of any documentary evidence, it can be concluded that neither there was any agreement in between the Complainant and the Appellant/Accused nor there was any terms and conditions of contract, withregard to forfeiture of the earnest amount paid by the Complainant to the Appellant/Accused, as contended by the Accused. Hence, the contention of the Appellant/Accused cannot be accepted at all.
20. The third line of defence of the Appellant/Accused is that, there is no any existence of legally enforceable debt, for issuance of the cheques under question, inorder to form an offence punishable U/Sec. 138 of N.I. Act. The Learned Counsel for the Appellant/Accused would contend that, the cheques in question were given on humanitarian ground to the Complainant and the same will not operate as issued for discharge of legally recoverable debt. Further he would contend that the Complainant has to establish or prove that there exist a legally enforceable debt for issuance of cheques in question, by the Accused. The Learned Counsel for the Appellant/Accused has placed his reliance on the following decisions:
a) of the Hon'ble High Court of Karnataka, in the case of Shivamurthy V/s Amruthraj, reported in ILR 2008 Kar. 4629, wherein it is observed at Para No.19, as under:
"19. Thus from the observations extracted above, it is clear that presumption under Section 139 of the N.I. Act is only to the extent that the cheque was drawn for discharge in full or in part of any debt of the existence of legally enforceable debt or liability. Therefore, before drawing the presumption under Section 139 of the N.I. Act, it is the duty of the Court to see whether or not the Complainant has discharged his initial burden as to existence of legally enforceable debt No doubt as per Section 118(a) of the Act, there is rebuttable presumption that every negotiable instrument was made or drawn for consideration and when such instrument is accepted, it shall be presumed that it was accepted for consideration. According to Clause (b) of Sec.118, there is a presumption that every negotiable instrument bearing a date was made or drawn such date".
b) of the Hon'ble High Court of Andhra Pradesh, in the case of Union Roadways (P) Ltd., V/s Shah Ramanlal Ritesh Kumar and Another, reported in 1992 (1) ALT 643, wherein it is observed at Para No.4 as under:
"4. A reading of the complaint shows that the cheque returned with the Endorsement "refer to drawer". From this, the Complainant inferred that the cheque was issued without necessary funds in the account of the Petitioners and the cheque was returned on account of the insufficiency of funds in their account. Such an inference cannot be drawn. The cheque might have been returned for various reasons. Under similar circumstances the Punjab and Haryana High Court in Abdul Samad V.s. Satya Narayan Mahawar (1993) 76 Comp Cas 241 (P & H), held tht there is no justification to let the proceeding continue. To the same effect is the decision of the Karnataka High Court in G.F. Hunasikattimath V/s State of Karnataka (1993) 76 Comp Cas 278 (Kar)".
c) of the Hon'ble High Court of Karnataka, in the case of A.M. Govindegowda V/s B.V. Ravi, (Crl.Apl.No.815/2010, date of decision 22.06.2015), wherein it is observed at Para No.7, as under:
"7. The specific case of the Complainant is that at the request of the Accused who was known to him, he advanced a cash amount of Rs.95,200/ and towards the repayment of the same, the Accused issue a cheque marked as Ex.P.1. But the defence of the Accused as could be seen from the evidence placed on record that he had issued the said cheque to one Sri. Lokendra and to substantiate the same, he examined one Sri. Suresha as DW.2 who supported the case of the Accused. The further defence of the Accused is that Sri. Lokendra in tun handed over th said cheque Ex.P.1 for Rs.5,200/ to the Complainant who in turn prefixed figure 9so as to make it as Rs.95,200/. In other words, the Accused had denied for having issued Ex.P.1, cheque in favour of the Complainant at any point of time. He has also denied for having taken loan for Rs.95,200/ from the Complainant. Though a presumption under Section 139 is in favour of the Complainant as to the issuance of cheque towards legally recoverable debt, there is no presumption as to the existence of legal liability and therefore it is for the Complainant to prove and establish that the Accused was due to pay a sum of Rs.95,200/ to the Complainant and to clear the said liability he issued Ex.P.1 cheque. Moreover, the Accused has categorically denied having taken loan from the Complainant. No material is forthcoming in order to establish the existence of loan liability except the interested testimony of complainant PW1. No witnesses have been examined o behalf of the complainant who had actually seen the advancement of hand loan by the complainant to the accused , nor the complainant has produced his pass book or any other document to show that as on that day, he had that much of amount so as to lend the same to the accused. The very fact that the figure shown in the cheque is Rs.95,200/ itself creates a doubt in the mind of the Court. No person would ask for loan of Rs.95,200/ unless there are some special reasons for the same. It is interesting to note that the complainant has produced two cheques of Rs.95,200/ said to have been issued by the accused towards the discharge of loan liability marked as Exs.P.1 and P.2. If he had really taken a hand loan of Rs.95,200/ with a condition to repay the same within two months, the issuance of two cheques does not arise. That also further creates a doubt in the mind of the Court. Thus, from the evidence placed on record, the accused has been able to establish his defence that he had not taken loan nor he was due to pay a sum of Rs.95,200/. Moreover, th complainant has not been able to place on record any evidence to establish the existence of liability. Thus, the learned Magistrate on proper appreciation of the evidence has rightly acquitted the accused.
d) of the Hon'ble High Court of MumbaiGoa, in the case of M/s. Enpee Earth Movers & Others V/s M/s. Resources International & Others, (Cr. Appeal.Nos.6/2010, 7/2010, 8/2010, 9/2010 & 10/2010, date of decision 14.12.2012), wherein it is observed at Para No.37, as under:
"37. As has been held by the Apex Court in the case of Rangappa(supra), it is a settled position that when an accused has to rebut th presumption under section 139 of the Act, the standard of proof for doing so is that of 'preponderance of probabilities'. The accused, in the present cases, in my considered opinion, has brought on record the preponderance of probabilities by reference to various circumstances, thereby cogently showing reasonable probability that as on the date of the cheques, the existing liability was not as claimed by the Complainant but was much less that that and that the accounts were not settled due to which the debt or liability was not ascertained. The accused, therefore, has raised probable defence sufficient to rebut the presumption under Section 139 of the Act. The onus of proving the legally enforceable debt or liability had shifted to the complainant. Th standard of proof for the Complainant is not 'preponderance of probabilities' but, ' proof beyond reasonable doubt'. Complainant has failed to prove the existence of consideration as claimed, as a matter of fact.
e) of the Hon'ble High Court of Karnataka, in the case of Shreyas Agro Services Pvt. Ltd., V/s Chandrakumar S.B., reported in 2007 (6) K.L.J. 237, wherein it is observed at Para No.5, as under:
"5. The appellant has also produced the letter written by the accused marked at Ex.P40 to contend that the accused had admitted the liability. The contents of the letter disclosed that the accused admits the principal amount but however disputes the interest claimed and states that the mount reflected in the cheques is not the correct legal liability. Section 20 of N.I. Act declares that inchoate instruments are also valid and legally enforceable. In the case of a signed blank cheque, the drawer gives authority to the drawee to fill up the agreed liability. If the drawee were to honestly fill up any excess liability and the extent of liability if it becomes bonafide matter of civil dispute in such case, the drawer has no obligation to facilitate the encashment of cheque. In the instant case the reply Ex.P40 disclosed that long before presentation of cheque, the extent of liability was disputed but ignoring the objection, the company filled up the cheque for an amount not admitted by the drawer. If the accused wee to prove that there is a bona fide dispute with regard to extent of liability, the dishonour of chque under such circumstance does not attract prosecution under section 138 of N.I. Act. The dismissal of complaint is sound and proper. The appeal is dismissed.
f) of the Hon'ble High Court of Delhi, in the case of Narender Anand V/s Maruthi Udyog Ltd., reported in 1998 Crl.L.J. 759, wherein it is observed that, "The Courts have to be very cautions in appreciating the materials placed before it and in case, Criminal case raises dispute of a civil nature, it is liable to be quashed".
g) of the Hon'ble High Court of Andhra Pradesh, in the case of Uplanchu Mallikarjun & Others V/s Rat Kanti Vimala & Another, reported in 1997 (2) APLJ 389, wherein it is held that;
"Where a cheque is issued by the drawer to discharge full or part of the debt or liability and if the said cheque was dishonoured due to insufficient funds, etc., then only Sec. 138 of N.I. Act, gets attracted, if other conditions are complied with. And when the cheque is not issued towards discharge of any legally enforceable debt, for instance, when the cheque is given by way of gift or present and if such cheque is dishonoured by the Bank, under such circumstances, the drawer or the maker of the cheque is not liable for prosecution. Inorder to attract criminal liability against the drawer, two conditions set out in Sec.138 are to be satisfied".
h) of the Hon'ble High Court of Punjab & Haryana, in the case of Rama Gupta and Others V/s Bakeman's Home Products Ltd., reported in 1993 Crl.L.J. 744, wherein it is observed at Para No.7, as under:
" Reliance in this respect has rightly been placed by counsel for the petitioners on th single Bench authority of this Court in Abdul Samad V. Satya Narayan Mahawar(1990) 2 RCR 335;[1993] 76 Comp Cs 241, 243, wherein it was observed that " Parliament in its wisdom has confined the offence referred to in Section 138 only to bouncing of a cheque on the goudnd of inadequate balance in the account concerned. Where the cheque is returned unpaid on other grounds, the same has not been made an offence."
i) of the Hon'ble High Court of Kerala, in the case of A.C. Raj V/s M. Rajan & Another, reported in 1997 Crl.L.J. 1939, wherein it is observed that;
"For the Complainant to succeed in entering conviction, he has to prove that the endorsement 'referred to drawer' is meant that there was no sufficient funds for honouring the cheque, as the endorsement 'referred to drawer' could mean many reasons, including the reason that there was no sufficient fund for honouring the cheque."
In the present case, since the Appellant/Accused/DW.1 has taken specific contention in his examination in chief that, since the son of the Complainant by name Roopesh had not affixed his signature on Ex.D.1, he (Appellant/Accused) had issued stop payment instructions to the banker and instructed to refer the same to him. And secondly, the Complainant in this case has produced memo issued by the bank at Ex.P.3, wherein an endorsement was issued by the Bank, about insufficiency of funds held by the Appellant/Accused in his account. Thirdly, neither the Appellant/ Accused has contended nor has raised a ground of defence coupled with cogent evidence that, he was having sufficient funds to honour both the cheques in question, as on the date of there dishonour. Thus, on the basis of these materials on record and on the basis of the defences taken by the Appellant/ Accused, it goes to show that, there was insufficiency of fund in the accounts held by the Appellant/Accused, on the day of dishonour of the cheques in question.
j) of the Hon'ble Apex Court, in the case of Basavalingappa V/s Mudibasappa, (Crl. Appeal No.636/2019, date of decision 09.04.2019), wherein it is held that;
"As soon as the Complainant discharges the burden to prove that the instrument/cheque was executed by the Accused, the rules of presumption U/Sec. 118 and 139 of the N.I. Act., held the Complainant to shift the burden on the Accused. The presumption will live, exist and survive and shall and only when the contrary is proved by the Accused. So the Accused has to raise a probable defence for getting the burden of proof shifted to the Complainant. To disprove the presumptions the Accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or there nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist."
k) of the Hon'ble High Court of Karnataka (Dharwad), in the case of Veeraiah V/s Madivalar (Crl. Rev. petition No.1571/2010, date of decision 30.11.2011), wherein it is observed that;
"Mere issuance of cheque itself would not be sufficient, unless it is shown that, the said cheque was issued towards discharge of recoverable debts."
l) of the Hon'ble High Court of Karnataka, in the case of N.S.Vijaykumar V/s C. Gayathri (Crl. Appeal No.999/2010, date of decision 18.02.2019), wherein it is held that;
"When the capacity of the Complainant to lend money is questioned, then it is for the Complainant to show that, he is having such capacity to lend the money."
In the present case, neither the Appellant/Accused has raised any grounds questioning the capacity of the Complainant to give the money/earnest money nor projected any such defence. On the contrary, the Appellant/Accused has taken up a contention that the Complainant had paid an amount of Rs.5,00,000/ to him in installments.
m) of the Hon'ble High Court of Madras, in the case of Arul Mari Joseph V/s Edward Raj, (Crl. Appal. No.622/2014, date of decision 11.04.2018), wherein it is observed that;
"The defence putforth up by the Accused is that bag containing cheque leaves and other articles was stolen away in the year 2007 and the disputed cheque leaf is one from the said cheque leaves, missed by the Accused. The Complainant has not established as to how he came in possession of the said cheque; existence of legally enforceable debt. It was held that Accused has rebutted the presumption through Ex.D.3, which creates doubt about the existence of legally enforceable debt or liability, which the Complainant has failed to establish it through acceptable evidence."
n) of the Hon'ble Apex Court, in the case of Kaliram V/s State of Himachal Pradesh, reported in AIR 1973 SC 2773, wherein it is observed that;
"The cardinal principles in the system of administration of criminal justice is that,
a) a person arrayed as an Accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence, as may show him to be guilty of the offence, with which he is charged;
b) the burden of proving the guilt of the Accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the Accused;
c) There are certain cases in which statutory presumptions arises regarding the guilt of the Accused, but the burden even in those cases is upon the prosecution to prove the existence of the facts, which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution, to exist, the Court can raise the statutory presumption and in such an event it will be for the Accused to rebut the said presumption;
d) The onus in such cases upon the Accused is not as heavy as is normally upon the prosecution to prove the guilt of the Accused;
e) If two vies are possible on the evidence adduced in the case, one pointing to the guilt of the Accused and the other to his innocence, the view which is favourable to the Accused should be adopted;
f) If a reasonable doubt arise regarding the guilt of the Accused the benefit of that cannot be withheld from the Accused; and
g) The guilt of the Accused has to be adjudged not by the facts that a vast number of people we believe, him to be guilty, but whether his guilt has been established by the evidence brought on record."
20.1. Per contra, the Learned Counsel for the Respondent/Complainant would contend that, the Accused has admitted issuance of cheques in question; the cheques belonging to him; the signatures on the said cheques; and the said cheques were issued on conciliation held, under Ex.D.1. And when such cheques are dishonoured, there arises presumption U/Sec. 138 of N.I. Act, that there exists a legally enforceable debt or liability and the said presumption is a rebuttable presumption, it will be for the Accused to rebut that presumption on the basis of cogent evidence. The Learned Counsel for the Respondent/ Complainant has relied upon the decisions:
a) of the Hon'ble Apex Court, in the case of APS Forex Services Pvt. Ltd., V/s Shakthi International Fashion Liners and Others, (Crl.Appeal No.271/2020, date of Decision 14.02.2020), wherein at Para No.7 it is observed as under:
"7. Coming back to the facts in the present case and considering the fact that the accused has admitted the issuance of the cheques and his signature on the cheque and that the cheque in question was issued for the second time, after the earlier cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 of the N.I. Act that there exists a legally enforecable debt or liability. Of course such presumption is rebuttable in nature. However, to rebut the presumption the accused was required to lead the evidence that full amount due an payable to the complainant has been paid. .....".
b) of the Hon'ble High Court of Karnataka, in the case of Ningegowda V/s Y.S. Hanumantha, reported in 2012 (3) AIR Kar. R 838, wherein at Para No.8, it is observed as under;
In the light of the aforesaid decision in law, as laid down in Rangappa's case by the Apex Court, in the instant case, the chque in question, Ex.P1 having been admitted by the petitioner, the presumption therefore has to be drawn in favour of the complainant, even in respect of the existence of legally recoverable debt. As far as the defence stand is concerned, though Ex.D1 is admitted by the complainant, the said document reveals that the complainant had received Rs.1,60,000/ and balance remained was only Rs.20,000/ and therefore, it is rather difficult to accept the argument that towards the balance amount the accused had issued the cheque for Rs.3/ lakh. Therefore, the presumption in favour of the complainant has not been rebutted by the accused.
c) of the Hon'ble High Court of Karnataka in the case of M/s. Shet and Company V/s Sri. Kulyadi Krishna Pai, reported in 2012 (3) AIR Kar. R 315, wherein at para No.4, it is observed as under;
The Apex Court in the case of Rangappa V. Mohan (AIR 2010 SC 1898): (2010AIR SCW 2946) while reversing the ratio laid down by Krishna Janardhan's case cited supra, held that when the cheque is issued, it is deemed to be a cheque issued towards legally enforceable debt under section 138 of N.I. Act and it is for the accused to rebut the presumption not only by offering the explanation but proof of explanation has to be produced.
20.2. Applying above principles of law to the instant case at hand, it is seen that, the Appellant/ Accused admits that, he has issued the cheques in question under Ex.D.1, wherein he has undertaken to pay an amount of Rs.11,00,000/ to the Respondent/ Complainant, as refund of the earnest amount paid by the Complainant to him. Under such circumstances, there is a presumption available to the Complainant U/Sec. 139 of N.I. Act, to the effect that, there exist a legally enforceable debt or liability. This presumption is a rebuttable presumption. The Accused has to rebut the said presumption. However, to rebut the presumption, the Accused was required to lead the evidence that either he has paid the full amount to the Complainant or there exist a condition precedent, on the satisfaction of which the Complainant will be entitle to receive the amount of Rs.11,00,000/. Though, the Accused in the instant case has taken up a contention that, there was a condition precedent of obtaining the signature of the elder son of the Complainant by name Roopesh on Ex.D.1, so that, the Complainant will be entitle to receive the amount under both the cheques. But the Accused has failed to prove that, such condition precedent exist in the contract entered into by him with the Complainant. The second defence which is taken up by the Appellant/Accused is that, the advance amount paid by the Complainant to him was forfeited, as the Complainant failed to pay the remaining balance consideration amount and to get registered the Sale Deed, in her favour. Even this defence theory was not proved by the Appellant.
20.3. Thus, the presumption available to the Complaint U/Sec. 139 of N.I. Act, has remained unrebutted, from the side of the Appellant/Accused.
21. The fourth defence taken up by the Appellant/Accused is that the Complainant cannot recover the earnest money paid by her as the right of recovery has become time barred debt and has placed his reliance on the decisions:
a) of the Hon'ble High Court of Andhra Pradesh, in the case of Giridhari Lal Rathi V/s P.T.V. Ramanujachary & Another, reported in 1997 (1) ALT Cri. 509, wherein it is observed at Para Nos.7 & 8, as under:
"7. The alleged loan was advanced in the year 1985 an the cheque was issued in the year 1990. By the time the cheque was issued, the debt appears to have been barred by limitation because no acknowledgment is alleged to have been obtained by the appellant from the first respondentaccused before expiry of three years from the date of loan. Thus, it is crystal clear that the debt was not legally enforceable at the time of issuance of the cheque and, therefore, vide Explanation to section 138 of the Negotiable Instruments Act, which reads as under:
"Explanation. Until the debt is legally recoverable the drawer of the cheque cannot be fastened with the liability under section 138 of the Act"
"8. There appears to be no force in the contention of learned counsel for th appellant that by issuance of the cheque, the limitation for realising the loan amount was extended, because at the time of issuance of the cheque the debt should be a legally recoverable debt. In case a cheque is issued for a timebarred debt and it is dishonoured, the accused cannot be convicted under section 138 of the Negotiable Instruments Act simply on the ground that the debt was not legally recoverable.
21.1. On careful perusal of Ex.D.1, which was confronted to the Complainant on behalf of the Accused in her cross examination, it is seen that, the Accused himself contends that, a panchayat was conveyed and in that panchayat he had under taken to repay the amount of Rs.11,00,000/ to the Complainant and towards repayment of the said amount of Rs.11,00,000/, he has admitted to have issued the cheques in question.
21.2. So, under such circumstances, repayment of Rs.11,00,000/ under Ex.D.1, by the Accused to the Complainant, will not amount to a time barred debt, as contended by the Accused.
22. All the evidence, both oral and documentary, goes to show that, the Complainant has initially proved that the Cheque in question, has been issued by the Accused, for the legally recoverable debt. Hence, I do not find any force in the submission of the Learned Counsel for the Appellant/Accused, to disbelieve it. Hence the same is discarded.
23. Considering the inconsistent contentions raised by the Accused in the cross examination of PW1 and in his evidence as DW.1, 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.
24. Thus for the various inconsistent stands takenup by the Accused, no any cogent evidence is putforth by him, to strengthen his defence. On the contrary, he has taken altogether distinct and different stands, which are contradictory to each other, as 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.
25. Under these 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 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.
26. Further 313 Statement is recorded by the Trial Court on 31.10.2017, 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 of the Accused recorded by the Trial Court U/Sec. 313 of Cr.P.C., and reply given by the Accused, to the said questions, in the statement. I do not find any fault in the statement of the Accused, recorded by Trial Court U/Sec 313 of Cr.P.C.
27. I have carefully gone through the reasonings given by the Trial Court, while awarding compensation to the Complainant U/Sec.357 of Cr.P.C. The Trial Court ought to have considered the date of issuance of cheque and the purpose for which the cheques in question have been issued, by the Complainant.
27.1. Further the Trial Court has directed the Appellant/Accused to pay compensation of Rs.19,60,000/, U/Sec. 357 of Cr.P.C., on calculating the interest @ 18% p.a. for 52months which comes to Rs.8,58,000/ and on observing the pendency of the case for one year 5months, it has awarded cost of Rs.2,000/.
27.2. Looking to the present situation at hand and taking into consideration the present bank interest rate, the Trial Court ought to have awarded compensation to the Complainant, by taking into consideration the rate of interest @ 7.5% pa. And by considering the date of execution of Ex.D.1, at present almost 6years will be completing, so the compensation was to be awarded to the tune of Rs. 4,95,000/ inaddition to the face value of cheques i.e., Rs.11,00,000/, totally which comes to Rs.15,95,000/. I find support for the calculation of the compensation as calculated above, on the basis of 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).
27.3. Thus, the sentence of awarding compensation U/Sec. 357 of Cr.P.C., passed by the Trial Court on convicting the Accused, requires to be modified U/Sec 386(b)(iii) of Cr.PC.
28. Further inorder to conclude, 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, 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".
29. 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 his burden to rebut that presumption.
30. The Trial Court has considered all the aspects, the grounds taken up by the Accused as defence. The Order of the Trial Court in awarding compensation to the Complainant, is required to be modified and the said compensation of Rs.15,95,000/ is to be awarded U/Sec. 357 of Cr.P.C., and an amount of Rs.5,000/ is to be imposed as fine.
30.1. When no fault is committed by the Trial Court, in coming to the conclusion, convicting the Accused for the offence punishable U/Sec 138 of NI Act, interference to that effect, by this Court does not arise at all.
30.2. Thus, I am declined to interfere with the findings recorded by the Trial Court, subject to modifications, withregard to fine and compensation, as stated above.
31. 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. The Accused is hereby directed to pay an amount of Rs.16,00,000/, out of which an amount of Rs.15,95,000/ is to be paid to the Complainant as compensation U/Sec. 357 of Cr.P.C., and Rs.5,000/ has to be paid towards fine amount, within a period of 3months from today, failing which, the Accused shall undergo Simple Imprisonment for a period of one year.
Hence, for the above reasons I answer point No.1 Partly in the Affirmative.
32. Point No.2: For the aforesaid reasons, I proceed to pass the following:
ORDER Acting U/Sec.386(b)(iii) of Cr.P.C., the Appeal preferred by the Appellant/Accused is hereby Partly Allowed.
In the consequences, the order of conviction passed by the Learned LVII Addl. CMM, Bengaluru in C.C.No.54960/2015 dtd 03.04.2019, recording conviction of the Accused, is hereby confirmed, subject to the modification that, the Accused shall pay fine of Rs.16,00,000/. Out of which an amount of Rs.15,95,000/, shall be paid as compensation to the Complainant U/Sec 357(1) of Cr.PC., and Rs.5,000/, shall be paid to the State ExChequer, as fine, which the Appellant/ Accused has to pay within 3months from today.
In default of payment of fine amount, the Accused shall undergo Simple Imprisonment for a period of one year.
The order of suspension passed by this Court U/Sec.389 of Cr.P.C. stands revoked.
The Trial Court shall execute the order, as per law.
No order as to costs.
In case, if the Appellant/Accused has deposited the amount, as directed U/Sec. 148 of N.I. Act, the same may be dealt with, as per Law U/Sec. 143 of the said Act.
Remit the TCR to the Trial Court, 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 07th day of August, 2020.) [AbdulRahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) ORDER Acting U/Sec.386(b)(iii) of Cr.P.C., the Appeal preferred by the Appellan/Accused is hereby Partly Allowed.
In the consequences, the order of conviction passed by the Learned LVII Addl. CMM, Bengaluru in C.C.No.54960/2015 dtd 03.04.2019, recording conviction of the Accused, is hereby confirmed, subject to the modification that, the Accused shall pay fine of Rs.16,00,000/. Out of which an amount of Rs.15,95,000/, shall be paid as compensation to the Complainant U/Sec 357(1) of Cr.PC., and Rs.5,000/, shall be paid to the State ExChequer, as fine, which the Appellant/ Accused has to pay within 3months from today.
In default of payment of fine amount, the Accused shall undergo Simple Imprisonment for a period of one year.
The order of suspension passed by this Court U/Sec.389 of Cr.P.C. stands revoked.
The Trial Court shall execute the order, as per law.
No order as to costs.
In case, if the Appellant/Accused has deposited the amount, as directed U/Sec. 148 of N.I. Act, the same may be dealt with, as per Law U/Sec. 143 of the said Act.
Remit the TCR to the Trial Court, on obtaining necessary acknowledgement, from it, alongwith the copy of this Judgment.
[AbdulRahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)