Bangalore District Court
Sri. Kannappa Soundarrajan vs S/O V. C. Kannappan on 11 October, 2021
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 11th day of October, 2021.
Crl. Appeal. No.25219/2019
Appellant/ Sri. Kannappa Soundarrajan,
Accused:- S/o V. C. Kannappan,
Aged about 58 years,
Proprietor,
M/s Registron,
No.22/5, Gangadhar Chetty Road,
Bengaluru-560 042.
[By Sri. V. G. Roushan Babu-Adv]
V/s
Respondent/ M/s Ackureeta Systems (P) Ltd.,
Complainant: Formerly M/s Paramount
Commerce Pvt. Ltd.,
Reg Office at 3rd Floor,
Sheriff House, No.85,
Richmond Road,
Bengaluru-560 025.
[By Sri. M. Arun Ponappa-Adv.]
2 Crl.Appeal.No.25219/2019
JUDGMENT
This Appeal is preferred by the Appellant U/Sec. 374(3) of Cr.P.C, being aggrieved by the Judgment and sentence passed by the LVIII Addl. CMM, Bangalore in CC. No.51850 of 2018, dtd.07.08.2019, convicting the Appellant for the offence punishable U/Sec. 138 of NI Act, sentencing him to pay fine of Rs.2,16,365/-. Further directed to pay an amount of Rs 2,11,365/- as compensation to the Complainant in terms of Sec. 357(1) of Cr.P.C and Rs.5,000 shall be paid to the State Ex-chequer, as fine. Indefault to payment of fine, the Accused shall suffer Simple Imprisonment for a tenure of 3 months.
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, contending that it was formerly known as M/s Paramount Commerce Pvt Ltd., and now known as M/s Ackuretta System (P) Ltd. Further alleged that, it is reputed distributor of Neo Star Paper in Bangalore and the Appellant had purchased the materials under various invoices. Towards 3 Crl.Appeal.No.25219/2019 repayment of the amount under Invoice No VAT/25/2015-16 dated 16.05.2016 to the tune of Rs 1,61,365/-, he issued the Cheque bearing No 959158 dated 02.06.2016 for Rs 1,61,365/-, drawn on the UCO Bank, Indira Nagar Branch, Bangalore. The said cheque was presented for its encashment, but the same has been returned, with an endorsement "Kindly contact Drawer". On receipt of the memo, the Appellant was contacted. Thereafter a notice was issued to the Appellant by the Respondent through its Counsel on 23.06.2016, the same was received by the Appellant. The Appellant has neither replied the said notice, nor complied it.
On completion of the stipulated period, it was constrained to file the Complaint against the Appellant U/Sec.200 of Cr.PC before the Trial Court, for the offence punishable under Sec.138 of NI Act.
3. On being satisfied, the Trial Court has issued summons U/Sec.204 of Cr.P.C. to the Appellant on 08.02.2018. The Appellant appeared before the Trial Court on 18.07.2018 and was enlarged on bail. Plea was recorded by the Trial 4 Crl.Appeal.No.25219/2019 Court on 18.08.2018, wherein the Appellant did not plead guilty and claims to be tried.
4. The Complainant inorder to prove its case has got its Representative/Manager Accounts examined as P.W.1 and got marked 7-documents as Ex.P.1 to Ex.P.7. PW1 was cross examined on behalf of the Appellant on 11.06.2019.
Statement of the Appellant/Accused U/Sec 313 of CrPC was recorded by the Trial Court on 18.07.2018. Appellant failed to lead his Defence Evidence.
5. The Trial Court heard the Respondent and has recorded the order 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 initially for a period three months, on 26.08.2019. Notice of the Appeal memo and I.A.No.1/2021 was issued to the Respondent and TCR were called for. Respondent set-in its 5 Crl.Appeal.No.25219/2019 appearance on 26.09.2019. TCR were secured on 26.09.2019.
7. Heard the Learned Counsels for the Appellant/Accused and the Respondent/ Complainant, respectively.
The Learned Counsel for the Appellant has placed his reliance on two decisions, viz., 1) LAWS (KER) 1996 1 34; and 2) AIR 1978 SC 1025.
8. The Appellant has preferred the 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;
c) The Trial Court has failed to consider that, the Complainant will not become the Holder or Holder in due course, so he cannot maintain the proceedings under the provisions of the Negotiable Instrument Act;6 Crl.Appeal.No.25219/2019
d) The Trial Court has failed to consider that, the Complaint has failed to issue notice to the Accused, intimating the change of name of the Firm;
e) The Trial Court has failed to consider that, there is material Alteration withregard to ExP1-
Cheque and the Instrument is obtained for unlawful means or for unlawful consideration;
f) The Trial Court has failed to consider that, the the Accused has paid the entire amount but the cheque was not returned;
g) The Trial Court has failed to arrive at a conclusion that, the Complainant has discharged its 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 Trial Court is right in holding that the Respondent/ Complainant is initially entitle for the benefit of presumption, available U/Sec. 139 of N.I. Act?
2. Whether the Appellant/Accused proves on the basis of preponderance of probability that, the Cheque-Ex.P.1 was issued to the M/s Paramount Commerce Pvt Ltd, and the present Respondent/ Complaint has no authority to file the Complaint, as it will neither become the 'Holder' or 'Holder in due course'?
7 Crl.Appeal.No.25219/20193. Whether the Appellant/Accused proves on the basis of preponderance of probability that, there are Material Alteration in the Cheque-Ex.P.1; and the same is hit by Sec 58 of the N I Act?
4. Whether the Trial Court is right in holding that the Appellant/ Accused has failed to rebut the presumption available to the Complainant U/Sec.139 of N.I. Act?
5. Whether the Appellant/ Accused shows that the Order of Conviction and Sentence recorded by the Trial Court in C.C.No.51850/2018, dtd.07.08.2019, is perverse and deserves to be setaside, thereby calling for the interference of this Court?
6. What Order?
10. My finding on the above points are as under:
Point No 1 : In the Affirmative;
Point No 2 : In the Negative;
Point No 3 : In the Negative;
Point No 4 : In the Affirmative;
Point No 5 : In the Negative;
Point No 6 : As per final order for the following :8 Crl.Appeal.No.25219/2019
REASONS
11. 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 issued the Cheque-ExP1 towards repayment of the Invoice bill-ExP7, for having purchased the goods under the said invoice. On presentation of the said cheque, the same have been returned unencashed with an endorsement "Kindly contact drawer" on 08.06.2016, as per the Memo-ExP2. Thereafter the Complainant got issued a Notice-ExP3, to the Accused by RPAD, as per Postal Receipt-ExP4. The same has been received by the Accused, as per the Postal Acknowledgment-ExP5.
The Complainant has produced the authorization letter, authorizing PW1 to represent the Complainant at 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., on 08.02.2018. I have perused 9 Crl.Appeal.No.25219/2019 the said orders, I do not find any error in the said order of the Trial Court.
12. On issuance of summons U/Sec. 204 of CrPC, the Accused set in his appearance on 18.07.2018. He was enlarged on bail. Substance of accusation/plea of the Accused was recorded on 18.07.2018. 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. Coming to the ocular evidence on the point of issuance of the Cheque-ExP1, more specifically,
a) Cross examination of PW1 at Page No 2, Para No 3, Line Nos 6 to 8, which reads as under:
".... ನಮ್ಮ ಕಂಪನಿಯ ಆಪಾಧಿತರಿಂದ ಖಾಲಿ ಚೆಕ್ ಗಳನ್ನು ಪಡೆದುಕೊಂಡು ಹಣವನ್ನು ಮರುಪಾವತಿ ಮಾಡಿದ ನಂತರ ಚೆಕ್ಗಳನ್ನು ವಾಪಸ್ಸು ಕೊಡದೇ ಮಾಡಿಲ್ಲ ಎಂಂದರೆ ಸರಿಯಲ್ಲ."
As per this evidence, it was suggested to PW1 that his Company had obtained blank cheque from the Accused, inspite of payment of the entire amount, the said cheque was not returned.
10 Crl.Appeal.No.25219/2019As per this suggestion, the Accused admits that the Cheque-ExP1 belongs to him and he had issued the said cheque to the Company of PW1.
14. Thus, the Complainant has proved the initial burden casted upon it U/Sec.138 of N.I. Act, to say that the Cheque belongs to Accused.
15. On viewing the amount of oral evidence, more specifically, the suggestion made to PW1, referred to supra, with the documentary Evidence- Ex.P.1 to ExP7, 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 of law 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".
11 Crl.Appeal.No.25219/2019Now it is for the Accused to rebut the said presumption, available to the Complainant U/Sec.139 of N.I.Act.
Hence, I ANSWER POINT NO.1 IN THE AFFIRMATIVE.
16. Point Nos.2:-
The first defence takenup on behalf of the Appellant/Accused that the Complainant will neither become the Holder, as required U/Sec 8 of NI Act, nor the Holder in due course, as required U/Sec 9 of NI Act. He has placed his reliance on the decision of the Hon'ble High Court of Kerala, in the case of P K Koya Moideen Vs G Hariharan, reported in LAWS(KER) 1996 1 34, wherein it is observed in Para No 5 and held in Para No 6, as under, "5. The respondent on his own showing is not a payee and the cheques were not drawn in his name. He admits in the complaint that the payee in whose name the cheques were drawn was his father. Now, we will consider whether the respondent is a holder in due course. The term "holder in due course" is defined under Section 9 of the Act as follows :
"Holder in due course means any person who for consideration became the possessor of a promissory note, bill of 12 Crl.Appeal.No.25219/2019 exchange or cheque if payable to bearer or the payee or endorsee thereof if payable to order, before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title."
6. It is clear from the definition that for a person to be a holder in due course, he must come into possession of the instrument for consideration. There is no averment in the complaint that the respondent has paid consideration to his father and thereby he became the holder in due course. As already stated, the allegation of the complainant is only that he was an executor under the will of his father and so he is entitled to collect the proceeds of the cheques. The executor of the will cannot be treated as the holder in due course."
Percontra, the Complainant contends that formerly it was known as Paramount Commerce Pvt Ltd.
16.01. Coming to the ocular evidence on the point of issuance of cheque and possession of the cheque-ExP1, more specifically,
a) Cross examination of PW1 at Page No 1, Para No 1, Line Nos 3 & 4, which reads as under:
"ಆಪಾಧಿತರು ಪ್ಯಾರಕಾರ್ಮಸ್ ಪ್ರೈ.ಲಿ. ನಿಂದ ಸರಕುಗಳನ್ನು ಖರೀದಿಸಿದ್ದರು ಎಂದರೆ ಸರಿ. ....."13 Crl.Appeal.No.25219/2019
As per this suggestion, the Accused admits that he had purchased the goods from M/s Paramount Commerce Pvt Ltd.
b) Cross examination of PW1 at Page No 2, Para No 4, Line Nos 5 & 6, which reads as under:
".... ಸರಕುಗಳನ್ನು ನವ್ಮು ಕಂಪನಿ ಸರಬರಾಜು ಮಾಡಿದ ಚೆಕ್ ಗಳನ್ನು ಪಡೆದುಕೊಳ್ಳು ಪದ್ಧತಿ ಇದೆ ಎಂದರೆ ಸರಿ. ....."
As per this evidence, PW1 admits that the Company used to receive the Cheques towards repayment of the amount for sale of goods.
c) Cross examination of PW1 at Page No 2, Para No 3, Line Nos 6 to 8, which reads as under:
".... ನಮ್ಮ ಕಂಪನಿಯ ಆಪಾಧಿತರಿಂದ ಖಾಲಿ ಚೆಕ್ ಗಳನ್ನು ಪಡೆದುಕೊಂಡು ಹಣವನ್ನು ಮರುಪಾವತಿ ಮಾಡಿದ ನಂತರ ಚೆಕ್ಗಳನ್ನು ವಾಪಸ್ಸು ಕೊಡದೇ ಮಾಡಿಲ್ಲ ಎಂಂದರೆ ಸರಿಯಲ್ಲ."
As per this evidence, it was suggested to PW1 that his Company had obtained blank cheque from the Accused, inspite of payment of the entire amount, the said cheque was not returned.
14 Crl.Appeal.No.25219/2019As per the ocular evidence referred to supra, it can be said that the Accused has admitted that he had purchased the goods from M/s Paramount Commerce Co., Ltd., and had issued the Cheque- ExP1 to it. And it was suggested to PW1 on behalf of the Accused that his Company has accepted the Cheque-ExP1 from him, but has failed to return the same, inspite of he making the payments.
16.02. Coming to the ocular evidence on the point of Change of company's name, more specifically,
a) Cross examination of PW1 at Page No 1, Para No 1, Line Nos 4 to 6, which reads as under:
".... 2016 ರಲ್ಲಿ ಪ್ಯಾರಕಾರ್ಮಸ್ ಪ್ರೈ.ಲಿ. ಹೆಸರಿನಿಂದ ನಮ್ಮ ಕಂಪನಿಯ ಪ್ರಸ್ತುತ ಹೆಸರಿಗೆ ಬದಲಾವಣೆಯಾಗಿತ್ತು. ನಮ್ದ ಕಂಪನಿಯ ಹೆಸರು ಬದೕಾವಣೆಯಾದ ಬಗ್ಗೆ ದಾಖಲೆಯನ್ನು ಹಾಜರು ಮಾಡಿರುತ್ತೇನೆ. ....."
As per this evidence, PW1 contends that in 2016 the name of his Company was changed from Paramount Commerce Pvt., Ltd., to the present name and he has produced the documents to shown change of name of the said Company.
15 Crl.Appeal.No.25219/201916.03. Further the Learned Counsel for the Appellant would contend that he was not informed about the change of name of the Company. Inotherwords, he would contend that, the Accused had no knowledge about the change of the name of the Company.
Coming to the ocular evidence on this point, more specifically, Coming to the ocular evidence on the point of issuance of cheque and possession of the cheque-ExP1, more specifically, cross examination of PW1 at Page No 2, Para No 3, Line Nos 1 to 4, which reads as under:
"3. ನಮ್ಮ ಕಂಪನಿಯ ಈಗ ಪ್ಯಾರಕಾರ್ಮಸ್ ಪ್ರೈ.ಲಿ. ಹೆಸರಿನಲ್ಲಿ ಚಾಲ್ತಿ ಇಲ್ಲ ಎಂದರೆ ಸರಿ. ಈಗ ಬೇರೆ ಹೆಸರು ಇರುತ್ತದೆ. ನಮ್ಮ ಕಂಪನಿಯ ಹೆಸರು ಬದಲಾವಣೆಯಾದ ನಂತರ ಎಲ್ಲಾ ವ್ಯವಹಾರಗಳು ಪ್ರಸ್ತುತ ಕಂಪನಿಯ ಹೆಸರಿನಲ್ಲಿ ಚಾಲ್ತಿಯಲ್ಲಿರುತ್ತದೆ ಎಂದರೆ ಸರಿ. ....."
As per this evidence, a suggestion was made to PW1 on behalf of the Accused that, his company is not in existence with the name Paramount Commerce Pvt., Ltd, which he affirms and further contends that, now the said company is having different name. Further he affirms the suggestion made to him that, after the change of the name of the Company, all the 16 Crl.Appeal.No.25219/2019 business affairs are run in the name of the present company.
As per this evidence, in the form of suggestion, it discloses that the Accused is having the knowledge of change of the Company's name and the present company is running the business of the former company, in its name.
17. Now let us see, whether the Complainant will become the Holder, or Holder in due course, inrespect of the Cheque-ExP1.
17.01. According to Section 8 of NI Act, a person must satisfy two conditions to become 'Holder', they are:
a) He should be entitled in his own name to the possession of the instrument;
b) He should have right to receive or recover the amount due thereon from the parties thereto.
Possession doesnot mean de-facto possession, but de-jure possession.
Holder would include 1) the payee; 2) the bearer; and 3) the indorsee.
17 Crl.Appeal.No.25219/201917.02. The test to determine whether a person is a Holder or not, is to answer a question:
Whether a person receiving payment on the basis of instrument can give a valid discharge?
If the answer is in the Affirmative, then such person will become an 'Holder'.
And if the answer is in the Negative, then such person will not become an 'Holder'.
17.03. Inorder to discharge from liability, payment should be made to the holder of the instrument. Section 78 of NI Act, provides that, subject to the provisions of Section 82(c), payment of amount due on a Promissory Note, Bill of Exchange, or Cheque must, inorder to discharge the maker or acceptor, be made to the holder of the instrument.
17.04. Applying the said preposition of law to the instant case at hand, and if it is question that, Whether the Complainant receiving payment on the basis of Cheque-ExP1, can it give a valid discharge.
Since the Complainant Company has changed its name from Paramount Commerce Pvt Ltd to M/s Ackuretta Systems (P) Ltd, on receipt of the payment, 18 Crl.Appeal.No.25219/2019 it can give a valid discharge. Then the Complainant Company will become an 'Holder', within the meaning of Sec 8 of NI Act.
17.05. Thus the Accused has failed to show that the Complainant Company is not authorizes; and has failed to show that the Complainant Company will not become the Holder, as per Sec 8 of NI Act.
Hence, I am constrained to answer POINT NO 2 IN THE NEGATIVE.
18. Point No 3:
The next defence takenup on behalf of the Accused that there is a Material Alteration in the Cheque-ExP1 and the same is hit by the provisions of Section 58 of NI Act.
18.01. He would further contend that, if ExP1-Cheque is seen carefully, the date is written on the Cheque with different ink; and the other writings in the Cheque is with different ink.
Firstly, the same will not form Material Alteration, as required U/Sec 87 of the NI Act.
19 Crl.Appeal.No.25219/201918.02. Secondly, he would contend that Cheque-ExP1 is obtained for unlawful means and for unlawful consideration.
18.02.01. As per the decision of the Hon'ble High Court of Kerala as 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".
18.02.02. As per the decision of 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 20 Crl.Appeal.No.25219/2019 of the Accused may not be sufficient to rebut the said presumption".
18.02.03. So when the Appellant/ Accused admits that Cheque-ExP1 belongs to him and he had issued towards purchase of the goods, coupled with the contention of the Complainant that the Accused has issued the Cheque-ExP1 towards payment of Tax Invoice-ExP7, then presumption of a legally enforceable debt is to be raised infavour of the Complainant, as it is the Holder of the Cheque- ExP1.
Then it is for the Accused to prove on the basis of the preponderance of probabilities that, the Cheque-ExP1 was not issued for any legal debt and the said Cheque was secured by the Complainant through unlawful means and without any lawful consideration.
Though the Appellant/Accused has contended so, he has neither produced any material on record, nor led the evidence to that effect, nor has secured any materials in the ocular evidence of PW1, in the form of cross examination. Under such circumstances, it is hard to believe that the said Cheque was secured by unlawful means without any 21 Crl.Appeal.No.25219/2019 consideration by the Complainant, inorder to attract the hit of Sec 58 of NI Act.
Thus, the Appellant/Accused has failed to prove the same.
Hence, I am constrained to answer POINT NO 3 IN THE NEGATIVE.
19. Point No 4:
Further the Accused has takenup a defence that he has paid the entire amount to the Company, but the Company has not returned the Cheque-ExP1. This type of defence can be found in the ocular evidence, more specifically,
a) cross examination of PW1 at Page No 2, Para No 4, Line Nos 7 to 9, which reads as under:
".... ಆಪಾಧಿತರು ಸಂಪೂರ್ಣ ಹಣವನ್ನು ಪಾವತಿ ಮಾಡಿದ್ದರು ಸಹ ಅವರು ಚೆಕ್ನ್ನು ವಾಪಸ್ಸು ಕೊಡದೇ ಸುಳ್ಳು ಪ್ರಕರಣ ದಾಖಲು ಮಾಡಿರುತ್ತೇನೆಂದರು ಸರಿಯಲ್ಲ."
b) cross examination of PW1 at Page No 2, Para No 3, Line Nos 6 to 8, which reads as under:
".... ನಮ್ಮ ಕಂಪನಿಯ ಆಪಾಧಿತರಿಂದ ಖಾಲಿ ಚೆಕ್ ಗಳನ್ನು ಪಡೆದುಕೊಂಡು ಹಣವನ್ನು ಮರುಪಾವತಿ ಮಾಡಿದ ನಂತರ ಚೆಕ್ಗಳನ್ನು ವಾಪಸ್ಸು ಕೊಡದೇ ಮಾಡಿಲ್ಲ ಎಂಂದರೆ ಸರಿಯಲ್ಲ."
When the Accused has taken such defence, then it is for the Accused to prove that he has made 22 Crl.Appeal.No.25219/2019 payments towards the Tax Invoice-ExP7, but the Accused has not lead any ocular or any documentary evidence to substantiate the said defence. Hence the Accused has failed to prove the said defence.
19.01. Learned Counsel for the Appellant would contend that, the Accused has right to remain silent. He has placed his reliance on the decision of the Hon'ble Apex Court, in the case of Smt Nandini Satpathy Vs P L Dani and another, reported in AIR 1978 SC 1025, wherein it is held in Para No 53 of the Judgment as under:
"53.We hold that section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Art. 20(3) goes back to the stage of police interrogation-not, as contended, commencing in court only. In our judgment, the provisions of Art. 20(3) and section 161( 1 ) substantially cover the same area, so far as police investigations are concerned. The ban on self- accusation and the right to silence, while one investigation or trial is- under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read 'compelled testimony' as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental 23 Crl.Appeal.No.25219/2019 coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like-not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Art. 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt, it becomes 'compelled testimony', violative of Art. 20(3)."
19.02. As per the decision of the Hon'ble Apex Court, in the case of M S Narayana Menon Alias Mani Vs State of Kerala & Another, reported in (2006) 6 SCC 39; in the case of wherein it is held that;
"Initial burden is on the Accused to rebut the presumption U/Sec 118(a) and 139, as to the issuance of cheque for consideration and discharge of debt, by raising probable defence. If the accused discharges the said burden, the onus thereafter shifts on to the complainant to prove his case.
Burden of proof on accused is not heavy. Accused need not disprove the prosecution case in its entirety.24 Crl.Appeal.No.25219/2019
Accused can discharge the burden on the basis of preponderance of probabilities through direct or circumstantial evidence."
19.03. Applying the above principles of law to the instant case at hand, it is seen that, in the instant case, the Accused has takenup a defence that,
a) he had issued blank Cheque-ExP1 to M/s Paramount Commerce Pvt ltd.,;
b) he had paid the entire amount to the said Company but the said Company has not returned the Cheque;
c) there are Material alterations in the Cheque-ExP1;
d) Complainant is neither the Holder nor the Holder in due Course of the Cheque-ExP1;
But the Accused has not proved any of the said defence taken by him, by way of cogent evidence, to discharge the presumption available to the Complainant U/Sec 138 & 139 of NI Act.
Secondly, when the Accused admits that, he had received the Notice-ExP3 issued on behalf of the Complainant to him, intimating the dishonour of the Cheque, but the Accused has failed to reply the said 25 Crl.Appeal.No.25219/2019 notice. The Accused could have contended the said defences, as putforth, in reply to the said notice. But he has failed.
Under these circumstances, the Accused/ Appellant should have led some cogent evidence to substantiate the defences, takenup by him. Unless the Accused leads cogent evidence to this effect, the defence of the Accused will not become probable, but it will be merely a palpable defence, which will not be sufficient to discharge his duty to rebut the presumption available U/Sec. 139 of the N.I. Act, to the Complainant.
19.04. Thus, as per the above oral and documentary evidence, it can be said that, the Accused has taken various stands in his defence. On looking to the line of defences and the various contentions taken up by the Accused, the version of the Accused is not inspiring the confidence of this Court, as the same is not supported by some cogent and believable evidence.
26 Crl.Appeal.No.25219/201919.05. Considering the inconsistent contentions raised by the Accused in the cross examination of PW1, 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.
19.06. 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.
20. I have carefully gone through the Judgment passed by the Trial Court, more specifically, at Para No 15, the Trial Court has considered the said aspect and has concluded that, 27 Crl.Appeal.No.25219/2019 the Accused has failed to rebut the presumption, available to the Complainant U/Sec.139 of N.I.Act.
21. 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.
Hence I answer POINT NO.4 IN THE
AFFIRMATIVE.
28 Crl.Appeal.No.25219/2019
22. POINT NO.5:
Statement of the Accused is recorded U/Sec 313 of CrPC, by the Trial Court on 18.07.2018. 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.
23. I have carefully gone through the reasonings given by the Trial Court, while awarding compensation to the Complainant U/Sec.357(1) of Cr.P.C. The Trial Court has considered all the aspects for the calculation of the compensation, 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).
29 Crl.Appeal.No.25219/201924. 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.
25. The Trial Court has considered all the aspects, the grounds taken up by the Accused, as defence. 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, by this Court does not arise at all. Thus, I am declined to interfere with the findings recorded by the Trial Court.
26. 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. 5 IN THE NEGATIVE.
30 Crl.Appeal.No.25219/201927. Point No.6:
For having answer Point Nos.1 & 4 in the Affirmative; Point Nos.2, 3 & 5 in the Negative, 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.
In the consequences, the order of conviction passed by the Learned LVIII Addl. CMM, Bengaluru in C.C.No.51850/2018 dtd 07.08.2019, 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 Trial Court shall execute its order, as per law.
No order as to costs.
In case, if the 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.31 Crl.Appeal.No.25219/2019
Remit the TCR to the Trial Court, on obtaining necessary acknowledgement, from it, alongwith the copy of this Judgment.
(Dictated to the Stenographer 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 11th day of October, 2021.) [Abdul-Rahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)