Bangalore District Court
Mrs. Priya Keshav Gouda vs W/O Keshav Murthy. J on 16 January, 2021
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 16th day of January, 2021.
Crl. Appeal. No.25059/2020
Appellant/ Mrs. Priya Keshav Gouda,
Accused: W/o Keshav Murthy. J,
R/at No.68, 4th Cross,
Vaastu Enclave,
Next to G.K Jewel C,
Kudulu Gate,
Bengaluru560 068.
[By Sri. Shiv ShankerAdvocate]
V/s
Respondent/ M/s Reddy's Chits Private Limited,
Complainant: Registered Office at No.85,
South End Road,
Basavagudi,
Bengaluru560 004.
Managing Director/Forman,
Sri.Rajeev Reddy. V
[By Sri. P.P JayakumaraAdvocate]
2 Crl.Appeal.No.25059/2020
JUDGMENT
This Appeal is preferred by the Appellant U/Sec. 374(2) of Cr.P.C, being aggrieved by the Judgment of conviction passed by the XV Addl. Small Causes Judge & 23 rd ACMM, Member MACT, Bangalore in CC.No.59379 of 2018, dtd.01.02.2020, convicting the Appellant for the offence punishable U/Sec. 138 of NI Act, thereby sentencing her to undergo Simple Imprisonment for a period of three months and to pay fine of Rs.2,000/, indefault to undergo Simple Imprisonment for a period of thirty days. Further directed the Accused to pay an amount of Rs.1,65,000/, to the Complainant within two months, as compensation U/Sec. 357 of Cr.P.C.
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, it is a Company registered under the Companies Act, 1956, having its Registered Office at No.85, SouthEnd road, Basavanagudi, Bengaluru, 3 Crl.Appeal.No.25059/2020 running a business of promoting and conducting chits under the provisions of ChitFunds Act 1982. The husband of the Accused by name Mr. Keshavamurthy J., had subscribed for a chit bearing No.R2W523, having chit value of Rs.5,00,000/, payable at Rs.10,000/ per month for 50months. Mr. Keshavamurthy participated in the chit auction held on 16.12.2016 and was declared as the price bidder, in the said auction draw and received the price money of Rs.3,00,000/ on deduction of bid amount and standard deductions on 20.12.2016, for which he and the Accused executed on Demand Promissory Note, surety form, guarantee bond and other relevant documents, in its favour. After receiving the price amount, Mr. Keshavamurthy was not regular in paying the chit installments. He paid only Rs.33,000/ as against Rs.5,00,000/ as per the chit Agreement and thereafter became the defaulter. The Respondent was forced to issue a legal notice to him and to the Accused on 23.06.2018. Thereafter, the Accused personally came to the office of the Respondent and requested 4 Crl.Appeal.No.25059/2020 the Respondent to settle the said chit dues and issued a Cheque bearing No.211224 for a sum of Rs.1,50,000/ on 16.07.2018, drawn on the ICICI Bank, Banashankari Branch, Bengaluru, towards part payment of the chit dues and requested not to file a suit and proceed further as per the legal notice dtd.23.06.2018.
The Respondent presented the Cheque for its encashment on 17.07.2018 through its Banker, Punjab and Sind Bank (PSB), Ulsoor Branch, Bengaluru. But the said Cheque has returned unencashed with an endorsement "Funds Insufficient". Thereafter, the Respondent issued a legal notice to the Appellant through its Counsel, which was served upon her on 23.07.2018. But the said notice was neither replied nor complied by the Appellant.
On completion of the stipulated period required under the statute, the Respondent was constrained to file the present Complaint against the Accused for the offence punishable U/Sec.138 of N.I.Act.
5 Crl.Appeal.No.25059/20203. On being satisfied, the Trial Court has issued summons U/Sec.204 of Cr.P.C., to the Accused on 12.10.2018. The Appellant appeared before the Trial Court on 31.08.2019 and she was enlarged on bail. Substance of Accusation of the Appellant/Accused was recorded by the Trial Court on 11.10.2019, wherein the Appellant pleads not guilty and claims to be tried.
4. The Complainant inorder to prove its case got examined its Managing Director Mr. Rajeev Reddy V., as P.W.1 and got marked 13documents as Ex.P.1 to Ex.P.13. PW1 was cross examined by the Learned Counsel for the Accused on 27.11.2019 04.12.2019 and 02.01.2020. Statement U/Sec. 313 of Cr.P.C., of the Accused was recorded on 18.12.2019. Though, Appellant/Accused submitted to have his defence evidence U/Sec. 313 of Cr.P.C., but has failed to adduce the same, hence defence evidence was taken as Nil on 08.01.2020. On hearing both the sides, the Trial Court has passed the Judgment convicting the Accused for the offence punishable U/Sec. 138 of N.I. Act on 01.02.2020.
6 Crl.Appeal.No.25059/2020Hence, the Appellant is before this Court, being aggrieved by the said Judgment of conviction.
5. On filing the appeal, this Court has issued notice of the Appeal memo and I.A.No.1 to the Respondent and TCR were called for. Respondent setin its appearance on 10.03.2020. TCR were secured on 10.03.2020.
Heard the Learned Counsels for the Appellant and Respondent.
6. 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;
c) The Trial Court has failed to consider that, the Cheque in question was not issued by the 7 Crl.Appeal.No.25059/2020 Accused towards payment of any Cheque amount, but the said Cheque was obtained by the Complainant as security;
d) The Trial Court has failed to consider that the alleged Cheque was received by the Complainant at the time of chit auction, as a security;
e) The Trial Court has failed to consider that, the Appellant has not borrowed any financial assistance nor there is any transaction inbetween the Appellant and the Respondent;
f) The Trial Court has failed to consider that, notice dtd.23.06.2018 has not been produced by the Complainant, inorder to fulfill the ingredient of Sec.
138 of N.I. Act, to say that there is a legally recoverable debt towards issuance of the Cheque in question;
g) The Trial Court has not properly appreciated and considered the principles of law laid down by the Hon'ble High Court of Karnataka, in the case of R. Pramila Bai V/s Bhaskar Narasimhaiah, (Crl.No.1387 of 2011);
h) The Trial Court has failed to convict the Appellant on the basis of assumptions and presumptions, which are not sustainable under the law;
i) The Trial Court has wrongly arrived 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;
8 Crl.Appeal.No.25059/2020Hence, prayed to allow the said appeal.
7. Apart from the above grounds of appeal, the Learned Counsel has placed one more ground of appeal at the time of arguments i.e., the Complaint filed by the Respondent before the Trial Court is barred by Law of Limitation U/Sec. 468 of Cr.P.C.
8. 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 probabilities that the Cheque in question was issued to the Complainant as security, at the time of chit auction and not after issuance of the alleged notice dtd.23.06.2018 by the Complainant?
9 Crl.Appeal.No.25059/20203. Whether the Appellant/ Accused satisfies that the Complaint filed by the Complainant is barred by limitation U/Sec. 468 of Cr.P.C.?
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.59379/2018, dtd.01.02.2020, is perverse and deserves to be setaside, thereby calling for the interference of this Court?
6. What Order?
9. 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 :10 Crl.Appeal.No.25059/2020
REASONS
10. Point No.1: The rank of the parties will be referred to, as they were before the Trial Court.
As per the averments of the Complainant in the complaint, wherein it is contended that, on issuance of notice, recalling the payment of installment amount, the Accused issued a ChequeEx.P.2 infavour of the Complainant. The said Cheque was presented for its encashment through its Banker, but the same is returned unencashed with an endorsement "Insufficient Funds" as per Ex.P.3. Thereafter, the Complainant issued a notice calling upon the Accused to repay the amount covered under the Cheque on 21.07.2018 through its Counsel, as per Ex.P.4 by RPAD, as per Postal receipt Ex.P.5. the said notice was received by the Accused, as per the Postal acknowledgementEx.P.5.
11. On the basis of the preliminary evidence, the Trial Court has issued summons to the Accused 11 Crl.Appeal.No.25059/2020 on 12.10.2018. Perused the said orders. Do not find any error, in it.
12. The Accused has appeared before the Trial Court on 31.08.2019 and she was enlarged on bail. The Trial Court has recorded Plea/Substance of Accusation of the Accused on 11.10.2019. Carefully gone through it. Do not find any error, in it.
13. On careful perusal of the evidence led by the Complainant as well as the Accused, it is the case of the Complainant that, inorder to repay the chit amount, after issuance of notice the Accused has issued the Cheque Ex.P.2 towards part payment, but the said Cheque has returned unencashed.
14. As per the ocular evidence, more specifically, crossexamination of PW.1 at Page No.6, Para No.1, Line Nos.5 to 10, which read as under;
".......ಚಚಟ ಬಡಡನ ಹಣವನನ ನ ಕಕಡನವ
ಸಮಯದಲ ಚಚಟದರರರದ ಮನರಗಡವಗ
ಚಕನ
ಕ ಗಳನನನ ನವ ಪಡದನಕಕಳನಳ ತತದವ ಎರದರ
ಸರಯಲಲ. ಯವ ಆಧರದ ಮಚಲ ಆರಕಚಪಗ
ಚಚಟ ಹಣವನನ ನ ಕಕಡಲಗರನತತದ ಎರದರ ಶಕರಟ
ಪಮರ ಮತನತ ಗಗರರಟ ಬರಡ ಹಗಕ ಆನ
12 Crl.Appeal.No.25059/2020
ಡಮಗರಡ ಪಪಮಸರ ನಕಚಟನಗಳನನ ನ
ಪಡದನಕಕರಡನ ಹಣವನನನ ಕಕಡಲಗರನತತದ.
ಆರಕಚಪಯ ಕಡಯರದ ನವ ಚಚಟ ಬಡಡನ
ಹಣವನನ
ನ ಕಕಡನವ ಸಮಯದಲಯಚ ಖಲ ಚಕಕನನ ನ
ಪಡದನಕಕರಡದಡವ ಎರದರ ಸರಯಲಲ. ಆರಕಚಪಯ ಕಡಯದದ ಖಲ ಚಕಕನನ ನ ಪಡದನಕಕರಡ ನರತರ ಆರಕಚಪಯ ಮನಯ ಹತತರ ಹಕಚಗ ಅವರರದ ಹಣವನನನ ಪಡದನಕಕರಡನ ಬರದಝತತಚವ ಎರದರ ಸರಯಲಲ."
As per this evidence, it is suggested to PW.1 on behalf of the Accused that, at the time of paying the bid amount, Cheques are taken in advance, but PW.1 has denied the said suggestion. Further PW.1 has denied the suggestion made to him, on behalf of the Accused that, Ex.P.2, a blank Cheque was obtained from the Accused at the time of giving the chit bid amount.
As per this suggestions, two things can be cult out viz., giving of Ex.P.2 Cheque by the Accused is not disputed, but the time of giving the said Cheque is in dispute. Secondly, receipt of chit bid amount is not in dispute.
15. Thus, as per the documentary evidence produced by the Complainant, as per Ex.P2 to Ex.P6 13 Crl.Appeal.No.25059/2020 and on the basis of the admission on the part of the Accused, by way of suggestions, it can be said that the Complainant has initially proved that, the Cheque Ex.P2 belongs to the Accused and the signature on it, is of the Accused. And on presenting the said Cheque, the same has returned un encashed, as per Ex.P3, for which he has issued legal notice as per Ex.P4 and Ex.P.5postal receipt, which is received by the Accused as per postal acknowledgementEx.P.6.
Thus, the above documentary and oral evidence will suffice the Complainant, to have benefit of presumption available U/Sec.138, 139 of N.I. Act.
Therefore, Complainant has shown that it is initially entitle for the benefit of Presumption available U/Sec. 139 of N.I. Act. The Trial Court has considered the said aspect. No fault can be attributed on the Trial Court in this regard. Hence, POINT NO.1 IS ANSWERED IN THE AFFIRMATIVE.
14 Crl.Appeal.No.25059/202016. POINT Nos.2 AND 4:
Both these points are taken for joint discussion as they are interlinked with each other and inorder to avoid repeatation and confusion in the discussion.
The first line of defence taken up by the Accused is that, the ChequeEx.P.2 was issued by the Accused to the Complainant, at the time of receiving the chit bid amount, as security and not after issuance of the alleged notice dtd.23.06.2018 by the Complainant. Further the Learned Counsel for the Appellant would contend that, the notice dtd.23.06.2018 is not issued to the Accused and the same is not produced by the Complainant.
16.1. On careful perusal of the legal notice issued on behalf of the Complainant marked as Ex.P.4, wherein there is a recital at para No.4 of the said document, about issuance of legal notice dtd.23.06.2018, against which the Accused has issued the Cheque. But the Complainant has not produced the said legal notice dtd.23.06.2018.15 Crl.Appeal.No.25059/2020
Though, Ex.P.4Demand notice dtd.21.07.2018 is received by the Accused as per Ex.P.6 postal acknowledgement, but the Accused has not issued any reply to the said notice, either denying the receipt of the legal notice dtd.23.06.2018 by the Accused or taking up a specific contention that, the ChequeEx.P.2 is issued at the time of receipt of the chit bid amount.
Under such circumstances, the contention taken up by the Learned Counsel for the Appellant that no any legal notice dtd.23.06.2018 was issued to the Accused, is not sustainable.
16.2. Though it was contended on behalf of the Accused that the ChequeEx.P.2 was issued at the time of receipt of the chit bid amount, but no any evidence either documentary or oral is coming forth from the side of the Accused, to fortify the said contention.
Coming to the ocular evidence on this point, more specifically, crossexamination of PW.1, at Page No.8, Line Nos.10 & 11, which reads as under;
16 Crl.Appeal.No.25059/2020"..... ಈ ಪಪಕರಣದಲನ ಆರಕಚಪಯನ ಅವರ ಗರಡನ ಜತಯಲಯಚ ಬರದನ ನಮಗ ಚಕಕನನ ನ ಕಕಟಟರನತತರ. ಚಕಕನನ ನ 2018 ರಲ ಕಕಟಟದನದ ಆದರ ದನರಕ ನನಪರನವದಲಲ. ..."
As per this evidence, PW.1 contends that Accused on accompanying her husband had come to them and has given the Cheque.
Further as per the crossexamination of PW.1, at Page No.5, Para No.2, Line Nos.1 to 3, which reads as under;
"ಆರಕಚಪಯನ ಯವಗ ಚಕಕನನ ನ ಕಕಟಟರನತತರ ಎರದರ ಅವರನ ಚಚಟಯ ಹಣವನನ ನ ಕಟಟಲನ ವಫಲರದ ನರತರ ನಮ ಮ ಕರಪನಯರದ ನಕಚಟಸನನ ನ ಕಕಟಟನರತರ ಜನಲಲ ತರಗಳಲ ಚಕಕನನ ನ ಕಕಟಟರನತತರ. ..."
As per this evidence, PW.1 contends that, Accused has issued the Cheque when they became the defaulter to pay the amount back and on receipt of the notice issued by the Company in the month of July.
Further as per the crossexamination of PW.1, at Page No.6, Line Nos.5 to7, which reads as under;
17 Crl.Appeal.No.25059/2020"..... ಯವ ಆಧರದ ಮಚಲ ಆರಕಚಪಗ ಚಚಟ ಹಣವನನ ನ ಕಕಡಲರನತತದ ಎರದರ ಶಕರಟ ಪಮರ ಮತನತ ಗಟರರಟ ಬರಡ ಹಗಕ ಆನಡಮಗರಡಪಪಮಸರ ನಕಚಟನಗಳನನ ನ ನ ಕಕಡಲಗರನತತದ. ..."
ಪಡದನಕಕರಡನ ಹಣವನನ As per this evidence, PW.1 has denied the suggestion made to him on behalf of the Accused that, Cheque was given two years back, at the time of receiving the chit bid amount.
Further as per the crossexamination of PW.1, at Page No.8, Line Nos.13 to 16, which reads as under;
"..... ಆರಕಚಪಗ ಬಕ ಹಣದ ಪವತಯ ಕನರತರತ ನಕಚಟಚಸನನನ ಜಕನ2018 ರಲ ಕಳನಹಸಲಗದನ ದ ಮತನತ ಚಕ ಬನನ ಕನರತರತ ನಕಚಟಚಸನನನ ಜನಲಲ ತರಗಳಲ ಕಳನಹಸಲಗರನತತದ. ನ ಜನಲಲ ತರಗಳಲ ಕಕಟಟರನತತರ. ..."
ಚಕಕನನ As per this evidence, PW.1 contends that legal notice was issued in the month of June for which they have received the Cheque in the month of July and on getting the Cheque bounce, they have issued the demand notice in the month of July.
As per the above ocular evidence, when PW.1 denies the suggestion made to him on behalf of the Accused that, the ChequeEx.P.2 was issued at the 18 Crl.Appeal.No.25059/2020 time of receiving the chit bid amount and when PW.1 contends that the said Cheque was issued by the Accused after receipt of the notice by her, then under such circumstances, it is for the Accused to prove the fact that the Cheque Ex.P.2 was issued by her to the Complainant, while receiving the chit bid amount and not after the receipt of the notice dtd.23.06.2018, on the basis of preponderance of probabilities.
16.3. The Complainant has produced Promissory Note at Ex.P.7, chit agreement at Ex.P.8, guarantee agreement at Ex.P.9. On careful perusal of these documents, it is seen that there is no any recital withregard to receipt of blank Cheques from the Accused, who as per Ex.P.7 and Ex.P.9, happens to be a guarantor.
So as per the above said oral and documentary evidence, it is crystal clear that the Accused has failed to prove the issuance of Cheque by her to the Complainant, at the time of receiving the chit bid amount.
19 Crl.Appeal.No.25059/202017. The second line of defence of the Accused is that, she is a guarantor and she is not liable to pay any amount under the chit agreement to the company, so there is no any recoverable debt from the Accused, for issuance of Cheque Ex.P.2. Further the Learned Counsel for the Appellant has placed his reliance on the decision of the Hon'ble High Court of Karnataka, in the case of R. Parimala Bai V/s Bhaskar Narasimhaiah, wherein it is held that, "There should be an existence of legally recoverable debt inorder to attract Sec. 138 of N.I. Act and the party has to plead withregard to the existence of legally recoverable debt".
17.1. As per Ex.P.7 Promissory Note and Ex.P.9 guarantee Agreement, wherein the Accused is shown as the guarantor.
As per Sec. 128 of Indian Contract Act, which says the liability of the surety is coextensive with that of the Principal Debtor, unless it is otherwise provided by the contract.
20 Crl.Appeal.No.25059/2020Illustration to the said Section also says that when A gurantees to B the payment of bill of exchange by C, the acceptor. The bill is dishonoured by C. A is liable for not only for the amount of bill, but also for any interest and charges which may have become due on it.
17.2. It is an admitted fact from the side of the Accused that, she was a guarantor to the transaction inbetween her husband, as a chit bidder, on one hand and the Complainant Company, on the other hand.
17.3. Even as per the ocular evidence more specifically, crossexamination of PW.1, at Page No.8, Line Nos.3 & 4, which reads as under;
"..... ಆರಕಚಪಯನ ಅವರ ಗರಡನ ಚಚಟ ಹಣಕಕ ಗಗರರಟದರರನ ಆಗರನತತರ. ..."
As per this evidence, PW.1 contends that Accused was a guarantor for repayment of her husband's chit money.
21 Crl.Appeal.No.25059/202017.4. Further as per the decision of the Hon'ble Apex Court, in the case of ICDS Ltd., V/s Beena Shabbir and Another, reported in AIR 2002 SC 3014, wherein it is held that;
"The language of the Statute depicts the intent of the lawmakers to the effect that wherever there is a default on the part of one in favour of another and in the event a Cheque is issued in discharge of any debt or other liability, there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act. 'Any Cheque' and 'other liability' are the two key expressions which stand as clarifying the legislate intent so as to bring the factual context within the ambit of the provisions of the Statute. Any contra, interpretation would defeat the intent of the Legislature. The High Court, it seems, got carried away by the issue of guarantee and guarantor's liability and thus has overlooked the true intent and purport of Section 138 of the Act".
Thus, applying the above preposition of law to the instant case at hand and looking to the intent of the law makers, it can be said that, the Accused cannot get absorbed the liability under the Cheque 22 Crl.Appeal.No.25059/2020 Ex.P.2, by contending that she was a guarantor and she had issued the Cheque Ex.P.2, in view of her guarantor ship. Further in the present case neither the Accused has proved on preponderance of probabilities that, she had issued the Cheque Ex.P.2 in view of her guarantor ship or she has issued the Cheque Ex.P.2 at the time of receiving the chit bid amount. Thus, this Court finds no stuff in the submission of the Learned Counsel for the Appellant to contend that since the Accused is a guarantor for the transaction, issuance of Cheque by her will not fall within the ambit of Section 138 of N.I. Act.
17.5. Further on careful scrutiny of the Judgment passed by the Trial Court, more specifically, at Para No.15, wherein the Trial Court has appreciated the concept of the term 'legally enforceable debt' as a mandatory ingredient of Sec. 138 of NI Act, wherein the Trial Court has observed that, mere denial in the crossexamination is not sufficient to disbelieve the alleged misuse of the Cheque by the Complainant, but it requires 23 Crl.Appeal.No.25059/2020 something more, that is to say, a proof on the basis of the preponderance of probabilities, inorder to inspire the confidence of the Jury, to conclude that really Cheque was given at the time of receipt of the chit bid amount, as contended on behalf of the Accused. Even this Court do not find any irregularity in the discussion, handled by the Trial Court in this regard.
18. The third line of defence taken up on behalf of the Accused is that, inspite of having repaid the entire amount, the Complainant has misused the Cheque of the Accused and has filed the Complaint.
18.1. This line of defence can be seen as per the ocular evidence, more specifically, cross examination of PW.1, at Page No.9, Line Nos.1 to 3, which reads as under;
"..... ನವ ಆರಕಚಪಯ ಮನಯ ಹತತರ ಹಕಚಗ ಬಕ ಕಕಡಬಚಕಗದದ ಹಣವನನ ನ ವಸಕಲ ಮಡಕಕರಡನ ಬರದರನತತಚವ ಎರದರ ಸರಯಲಲ. ..."
As per this evidence, PW.1 has denied the suggestion made to him on behalf of the Accused 24 Crl.Appeal.No.25059/2020 that, he has recovered the entire dues from the Accused on visiting her house.
18.2. Further as per the crossexamination of PW.1, at Page No.6, Para No.1, Line Nos.11 & 12, which reads as under;
"..... ಆರಕಚಪಯ ಕಡಯರದ ಖಲ ಚಕಕನನ ನ ಪಡದನಕಕರಡನ ನರತರ ಆರಕಚಪಯ ಮನಯ ಹತತರ ಹಕಚಗ ಅವರರದ ಹಣವನನ ನ ಪಡದನಕಕರಡನ ಬರದರನತತಚವ ಎರದರ ಸರಯಲಲ."
As per this evidence, PW.1 has denied the suggestion made to him on behalf of the Accused that, he has recovered the entire dues from the Accused on visiting her house and has taken a blank Cheque from her.
18.3. Further as per the cross examination of PW.1, at Page No.10, Line Nos.10 to 19, which reads as under;
"..... ಆರಕಚಪಯನ ನಮ ಮ ಕರಪನಯ ಸದಸಗರದ ನರತರ ಬಡನ ಹಣವನನ ನ ಪಡದನಕಕಳನ ಳ ವವರಗಕ ನರರತರವಗ ಕರತನ ಹಣವನನನ ಪವತ ಮಡನತತ ಬರದರನತತರ ಎರದರ ಸರಯಲಲ. ಕರತನ ಹಣವನನ ನ ಸರಯಗ ಪವತ ಮಡದದದರಕ ಸಹ ವನರತಯ ಮಚರಗ ಚಟಬಡ ನಲ ಬಗವಹಸ ಬಡನ ಹಣವನನ ನ ಪಡದನಕಕಳಳಲನ ಅನನಮತ ಕಕಡಲಗನತತದ. ಆರಕಚಪಯ ಬಗರಕ ಖತಗ ಬಡನ ಹಣವನನ ನ ಪವತ ಮಡನವದಕಕರತ 25 Crl.Appeal.No.25059/2020 ಪವರ ದಲಯಚ ಆರಕಚಪಯನ ಎಲ ಲ ಕರತನ ಹಣವನನ ನ ಪವತ ಮಡರನತತರ ಎರದರ ಸರಯಲಲ. ಆರಕಚಪಯನ ಎಲ ಲ ಕರತನ ಹಣವನನ ನ ಸರಯಗ ಪವತ ಮಡದ ನರತರವಚ ಅವರಗ ಬಡನ ಹಣವನನ ನ ಪವತ ಮಡರನತತಚವ ಎರದರ ಸರಯಲಲ.
ಕರತನ ಹಣವನನನ ಸರಯಗ ಪವತ ಮಡದದರಕ ಸಹ ಮಡರನವದಲಲ ಎರದನ ಸನಳನ ಳ ಹಚಳನತತದನ ಎರದರ ಸರಯಲಲ."
As per this evidence, PW.1 has denied the suggestion made to him on behalf of the Accused that, Accused has paid all the installments regularly and inspite of making entire payments towards repayment of the bid amount, present false Complaint is foisted against her.
18.4. When the PW.1 has denied the suggestions made to him on behalf of the Accused, that the Accused or her husband has repaid the installment amount towards chit bid amount, then it is for the Accused to prove the said fact on the basis of preponderance of probabilities.
18.5. As per the decision of the Hon'ble Apex Court, in the case of APS Forex Services Pvt. Ltd., V/s Shakthi International Fashion Linkers 26 Crl.Appeal.No.25059/2020 & Others, reported in 2020 (1) Apex Court Judgments 500 (SC), wherein it is held that;
"Once the Accused admits issuance of Cheque, which bears his signature, as security, for obtaining the loan, as per his contentions, initially there is presumption that there exists a legally enforceable debt or liability. Such presumption is rebuttable and the Accused is required to rebut such presumption on the basis of preponderance of probabilities. And to make his defence probable has to lead the evidence that, entire amount due and payable to the Complainant was paid. Section 139 of the Act, is an example of reverse onus clause and therefore once issuance of Cheque has been admitted and even the signature has been admitted, there is always a presumption infavour of the Complainant that there exist a legally recoverable debt or liability and thereafter it is for the Accused to rebut such presumption by leading evidence."
18.6. As per the decision of the Hon'ble High Court, 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, 27 Crl.Appeal.No.25059/2020 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".
19. Considering all the contentions raised by the Appellant, it can be said that, the Accused has failed to prove that on the basis of preponderance of probabilities that the Cheque Ex.P.2 was issued by her as security, at the time of chit auction and thereby rebut the presumption available to the Complainant U/Secs. 118(a) and 139 of N.I. Act. The Trial Court has considered all these aspects. No any irregularities can be attributed to the discussion made by the Trial Court, inorder to arrive to a conclusion that, the Accused has failed to rebut the presumption. Hence, I answer POINT NO.2 IN THE NEGATIVE and consequently, POINT No.4 IN THE AFFIRMATIVE.
20. POINT NO.3:
The Learned Counsel for the Appellant would submit that, as per the averments of the Complaint 28 Crl.Appeal.No.25059/2020 and as per the documents produced by the Complainant, the Complaint filed by the Complainant is barred by limitation U/Sec. 468 of Cr.P.C., as the Cheque is issued on 16.12.2016 and the present Complaint is filed after lapse of two years from the date of issuance of Cheque i.e., 16.12.2016.
20.1. Though it was contended on behalf of the Accused that, the Cheque Ex.P.2 is issued on receipt of chit bid amount, but the Accused has failed to prove the said fact.
20.2. The Complainant has produced the Cheque in question at Ex.P.2 and on perusal of the said Cheque, the same is dtd.16.07.2018. As per Sec. 118 (b) of N.I. Act, a presumption is attributed to a Negotiable Instrument as to its date, which requires to presume that, the date found on the Negotiable Instrument, is the date which such Instrument was drawn. It is a rebuttable presumption. Nothing is forthcoming from the side of the Accused to rebut the said presumption. So under such circumstances, it is hard to believe that the 29 Crl.Appeal.No.25059/2020 Cheque Ex.P.2 was issued on 16.12.2016 and since the Complaint is filed on 27.08.2018, it is barred under Sec. 468 (b) of Cr.P.C.
Thus, the contention of the Learned Counsel for the Appellant holds no water to contend that the Complaint filed by the Complainant is barred by limitation.
Hence, I answer POINT NO.3 IN THE NEGATIVE.
21. POINT No.5:
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 her burden to rebut the said presumption.
22. The Trial Court has considered all the aspects, the grounds taken up by the Accused as defence. As well as the Order of the Trial Court in awarding compensation to the Complainant, is well reasoned. This Court does not find any irregularity 30 Crl.Appeal.No.25059/2020 or illegality, in the said order, granting compensation to the Complainant as well as awarding penalty.
23. 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.
24. Thus, this Court is declined to interfere with the findings recorded by the Trial Court.
25. 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 compensation to the Complainant, as ordered by the Trial Court.
Hence, for the above reasons I ANSWER POINT NO.5 IN THE NEGATIVE.
26. POINT NO.6:
For the aforesaid reasons, I proceed to pass the following:31 Crl.Appeal.No.25059/2020
ORDER Acting U/Sec.386 of Cr.P.C., the Appeal preferred by the Appellant/Accused is hereby Dismissed.
In the consequences, the order
passed by the Learned XV Small
Causes Judge and 23rd ACMM,
Member MACT, Bangalore in
C.C.No.59379 of 2018,
dtd.01.02.2020, recording conviction of the Accused, is hereby confirmed.
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.
Remit the TCR to the Trial Court, on obtaining necessary acknowledgement, alongwith the copy of this Judgment.32 Crl.Appeal.No.25059/2020
(Dictated to the Judgmentwriter directly on the computer, corrected and pronounced in open court this the 16th day of January, 2021.) [AbdulRahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)