Bangalore District Court
Yarab Pasha vs Pankaj Pathania on 4 January, 2025
KABC0A0046282022
IN THE COURT OF THE LXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU.
(CCH-75)
Dated: This the 4th day of January, 2025.
PRESENT:
Sri.PRAKASH CHANNAPPA KURABETT, B.Sc., LL.B.,(Spl.),
74th Addl. City Civil and Sessions Judge, Bengaluru.
CRL. APPEAL No.25300/2022
APPELLANT/
ACCUSED: Yarab Pasha,
S/o.H.G.Ismail,
aged about 49 yrs,
R/at.Vettigal Village,
Kamasamudram Hobli,
Bangarpet Taluk,
Kolar District.
(Rep.by Sri.K.R.Prabhu, Advocate)
V/S
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CRL.A. No.25300/2022
RESPONDENT/
COMPLAINANT: Pankaj Pathania,
S/o.Bhagat Singh Pathania,
aged about 34 yrs,
R/at.Building 12,
House No.42,
Urdu School Road,
Bommanahalli,
Behind BBMP Office,
Bengaluru-560068.
(Rep.by Sri.P.Nehru, Advocate)
JUDGMENT
This is an appeal filed by the appellant/accused aggrieved against the judgment passed by XIV ACMM, Bengaluru, in CC No.53494/2021 on 14.10.2022 convicting the appellant for the offence punishable u/S 138 of N.I. Act and sentencing him to pay a fine of Rs.9,70,000/- and in default to undergo simple imprisonment for a period of 6 months.
2. The appellant was the accused and respondent herein was the complainant before the trial court and 3 CRL.A. No.25300/2022 hereinafter they are referred to as per the ranks assigned to them before the trial court.
3. In brief the appellant/accused has stated in the memorandum of appeal that the trial court has convicted him in C.C. No.53494/2021 for the offence punishable u/S 138 of N.I. Act by holding that he has issued a cheque bearing No.000045, dated 14.3.2020 for Rs.8 lakhs in favour of the complainant. The said judgment has been challenged by the accused on the following grounds:-
1. That though the appellant has denied the entire case of the complainant and disputed regarding issuance of cheque towards discharge of any legal liability or enforceable debt and disputed the handwriting in the cheque in question Ex.P.1.
2. That the defence taken by the appellant in the trial court that he has not liable to pay any amount as alleged in the complaint, the complainant himself admitted that the appellant is representing Smt.Rajamma, 4 CRL.A. No.25300/2022 Shankrachari, and Puttachari as a power of attorney holder and is duly admitted that he has seen some of the document pertaining to property bearing sy.No.30/10 measuring 1 Acre 14 Guntas like khatha and GPA, the khatha stood in the name of 4 members and he do not remember the names of the khatha holders.
3. That the P.W.1 further deposed that there is some problems in the documents and the appellant needs urgent money and assured to furnish all the documents within six months but the same is not reflected in the sale agreement dated 16.1.2018 Ex.P.6. No prudent man will pay the amount for purchase of property without verifying valid title and relevant papers of the property, the complainant is not taken any legal action against the owners of the property as shown in Ex.P.6.
4. That the trial court failed to consider that the specific case of the appellant that the cheque in question and another cheque was given to Dr.Venkatesh, resident of Malur in the year 2016 and there was some financial transactions with Dr.Venkatesh, and for the security purpose appellant deposited two cheques and the same are not returned.5
CRL.A. No.25300/2022
5. That the complainant suppressing the material facts, however he has received the amount by way of cash. The appellant had filed an application u/S 91 of Cr.P.C. summing the account statements of accused and his wife from January 2018 to December 2021, the respondent undertaken to produce the statement of accounts, but not furnished.
6. That the trial court failed to apply its judicial mind to consider the admissions that the respondent has not issued any notice for specific performance of contract, demanding to execute the sale deed and volunteers that he requested through phone and also admits that he has no impediment to issue notice demanding to execute the sale deed. If, the cheque Ex.P.1 is issued by the appellant for discharge of liability involved in Ex.P.6 the respondent shall prove the agreement for cancellation of registered agreement Ex.P.6. Since the Ex.P.6 is the registered documents there must be an agreement for cancellation of Ex.P.6 in the absence of agreement for cancellation the question of issuing Ex.P.1 does not arise.
7. That the respondent has not approached the trial court with clean hands, in order 6 CRL.A. No.25300/2022 to extract the money he had colluded with Dr.Venkatesh and presented the complaint before the trial court.
8. That the alleged earnest money paid by the respondent to landlord is Rs.5 lakhs, the alleged cheque Ex.P.1 is for Rs.8 lakhs, it is excess of 60% of amount for a period 2 years and 2 months.
9. That on plain perusal of the cheque itself clearly reflects that ink, pen and handwriting used in the signature and the contents of name, date and amount are different.
Thereby on all these grounds the appellant has prayed for setting aside the judgment dated 14.10.2022 passed by XIV ACMM.
4. After filing of this appeal, the presence of the respondent was secured. The trial court record was called and received.
5. Heard argument and perused the entire materials placed on record.
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6. The points that would arise for my consideration are:
1. Whether the judgment passed by the trial court is in accordance with law and facts of the case?
2. If, not whether the interference of this court is required in the impugned judgment passed by the trial court?
3. What order?
7. My answer on the aforesaid points are as under:-
Point No.1: In the Affirmative, Point No.2: In the Negative, Point No.3: As per the final order, for the following:-8
CRL.A. No.25300/2022 REASONS
8. POINT Nos.1 & 2: Both these points are interrelated, they have been taken up for consideration together.
9. In brief it is the case of the complainant before the trial court that the accused representing himself to be GPA holder of Rajamma, Puttachary and Shankarachary in respect of the landed property bearing Sy.No.30/10 situated at Janagutte Village, Kamasamudra Hobli, Bangarpet Taluk, Kolar District, totally measuring 1 Acre 14 Guntas had entered into registered Agreement of Sale with the complainant on 16.1.2018. It was agreed to purchase the said property for total sale consideration of Rs.5,50,000/-. The complainant has paid an amount of Rs.4,85,000/- through cheque and the remaining amount Rs.15,000/- is paid by cash. The balance of Rs.50,000/- was agreed to pay at the time of execution of the sale deed. The time fixed 9 CRL.A. No.25300/2022 for registration of the sale deed was within 11 months. In spite of complainant's readiness to pay the balance amount and to get executed the sale deed, the accused has not come forward for registration of sale deed. After dodging for nearly two years, accused has retracted and intimated the complainant that he had dropped the idea of selling the said property and also requested the complainant not to insist upon specific performance of the agreement and agreed to repay advance amount along with compensation. He has issued the cheque in question bearing No.000045 dated 14.3.2020 for Rs.8 lakhs towards full and final settlement of all the claims under the said sale transaction. When the complainant presented the said cheque for encashment, but the said cheque was returned with an endorsement 'Account Closed' dated 18.03.2020. Thereby the complainant got issued a notice to the accused on 13.04.2020. The said notice was served upon the accused. In spite of it the accused has neither paid the cheque amount nor replied to 10 CRL.A. No.25300/2022 the notice. Thereby he filed the complaint against the accused on 17.06.2020 for the offence punishable u/S 138 of N.I. Act.
10. The trial court records would show that after filing of this complaint the court has taken the cognizance of the offence and has recorded the sworn statement, registered the case against the accused. Further the records would also show that after the presence of the accused has been secured, substance of accusation has been recorded, the accused has not pleaded guilt and thereafter the trial court has recorded the evidence of the complainant and subsequently the accused has not led any evidence, on the basis of the material on record, the trial court has convicted the accused for the offence u/S 138 of N.I. Act sentencing him to pay a fine of Rs.9,70,000/-, in default to undergo simple imprisonment for a period of 6 months. The said conviction judgment is challenged before this court. 11
CRL.A. No.25300/2022
11. This court being the appellate court is duty bound to look into the entire material and the evidence on record to come to conclusion whether interference of this court is required in the judgment passed by the trial court and to hold whether the judgment passed by the trial court is in accordance with the law or on facts or not.
12. The main grounds on which the appeal has been challenged are the trial court has not considered the evidence on record has only relied on the complainant's evidence and has convicted accused and it is the case of the accused that there was no dischargeable liability and no cogent evidence for due of such huge amount and alleged charges not proved and if the Ex.P.1 was drawn by the accused without accepting liability of another in writing it would not attract Section 138 of N.I. Act and no supporting material evidence were produced and failed to show his competency to pay such an huge amount. But, the learned 12 CRL.A. No.25300/2022 Magistrate to appreciate this fact on defence side even though the complainant has admitted the above mentioned facts during trial. Thereby the conviction is liable to be set aside.
13. In the light of grounds urged by the accused if the trial court records are perused, it would show that the complainant has produced the documents such as Ex.P.1 the cheque in issue, bank endorsement, copy of the notice and the postal receipt, etc., at Ex.P.2 to Ex.P.6. These documents and the oral evidence of the complainant are sufficient for the court to raise the statutory presumption in favour of the complainant. There is nothing wrong on the part trial court in raising the presumption in favour of the complainant on the basis of the records and the evidence.
14. The question before the court is whether the accused has rebutted the presumption and has shifted the 13 CRL.A. No.25300/2022 burden on the complainant to prove the case on the touch stone of preponderance of probabilities.
15. In respect of the proof of the fact that the cheque has been issued for discharge of legally enforceable debt, there is a presumption of law under Sec.139 of N.I. Act, in favour of the holder of the cheque, which reads as follows:-
'Sec.139 - Presumption in favour of holder: it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.'
16. The presumption u/S 139 of N.I. Act is a presumption of law and not the presumption of fact. The presumption has to be raised in all the cases once the factum of issuance of cheque and its dishonour is established. U/S 118 (2) of N.I. Act, there is a presumption in respect of passing of consideration in favour of the complainant. The onus of proof to rebut the presumption lies on the accused. 14
CRL.A. No.25300/2022 The accused need not rebut the presumption beyond all reasonable doubt. But, the accused has to place sufficient materials to convince the court that his case is more probable when it is compared with the case of the complainant. Accused may adduce direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability. He may also rely upon the averments in the complaint, statutory notice and the circumstantial evidence adduced by the complainant during the trial. Accused need not enter into the witness box to rebut the presumption.
17. In the case on hand, the complainant has established the factum of issuance of cheque and its dishonour. Therefore, this court shall raise a presumption u/ S 139 of N.I. Act that the accused has issued cheque towards discharging the legally enforceable debt. After raising initial presumption it is for this court to consider whether the 15 CRL.A. No.25300/2022 presumption has been rebutted by bringing in cogent materials on record with reference to the defence raised by the accused that no existence of legally recoverable debt.
18. The defence of the accused is that the bank account of the accused maintained at HDFC Bank, Bangarpet Branch from which the alleged cheque has been drawn was closed earlier to entering of the sale agreement and therefore the question of issuing the alleged cheque do not arise and the accused had money transaction with one Dr.Venkatesh during the year 2016. Accused has given two cheques to Dr.Venkatesh and one of the said cheques is being misused through the complainant for unlawful gain.
19. The defence of the accused is that the complainant has lent loan of Rs.5 lakhs to the accused through Dr.Venkatesh of Malur for interest. By deducting the interest of Rs.15,000/- the complainant has given Rs.4,85,000/- through cheque to the accused and as per the 16 CRL.A. No.25300/2022 instructions of the complainant the accused has deposited money to bank account of one Ramya who is the colleague of the complainant.
20. The defence of the accused is that the accused has paid Rs.8,50,000/- towards interest till he received summons of this case and the accused has entered into agreement in the capacity of GPA holder representing the owners of the property. Hence, the accused is not liable and the defence of the accused is that there is no privity of transaction between himself and the complainant and there is no existence of legally recoverable debt.
21. The learned Magistrate has exhaustively discussed the entire contentions of the accused as well as the complainant and has given well reasons regarding the facts that the accused has failed to rebut the presumption which lies in favour of the complainant. Merely because, the accused has got marked Ex.D.1 during cross-examination of 17 CRL.A. No.25300/2022 P.W.1, it cannot be said that the burden shifts on the complainant. The defence shall be a probable defence, which any reasonable person can believe that such a thing has happened or believes in the probability. The defence taken by the accused is not at all a probable defence and it cannot be believed that the person who was knowing the worldly affairs has given the signed cheques to the complainant without there being any liability. Hence, there is nothing on record to say that the accused has disproved the case of the complainant or raised any probable defence to shift the burden. Hence, the probabilities in the case of the complainant are more rather than in the defence taken by the accused. The trial court has rightly come to conclusion and has convicted the accused.
22. The trial court by considering the entire materials on record has rightly come to the conclusion that the accused has failed to rebut the presumption, which lies in favour of 18 CRL.A. No.25300/2022 the complainant and more over recently the Hon'ble Apex Court in Crl.Appeal at Special Leave Petition (Crl.) No.12802/2022, dated 09.10.2023 between Rajesh Jain v/s Ajay Singh has in detail discussed as to how the presumption operates and once the presumption operates, the onus rests on the accused to prove the non-existence of debt/liability. Wherein in the said above referred case, the accused was tried for the offence u/S 138 of N.I. Act. The trial court had acquitted the accused by considering that the onus of rebutting the presumption lay on the accused was discharged by raising a probable defence and the complainant has failed to prove his case beyond reasonable doubt and the defence of the accused has created a doubt regarding the truthfulness of the complainant case. Against the order of acquittal passed by the trial court, the complainant had preferred the appeal before the Hon'ble High Court. Wherein the Hon'ble High Court also upheld the order of acquittal holding that the complainant has failed to 19 CRL.A. No.25300/2022 prove that the cheque was issued in respect of legally enforceable debt. Wherein in the said case, it was the defence taken by the accused that the complainant had failed to mention the date, month and the year on which he advanced various sum of money towards the loan to the accused. The version of the complainant was doubtful, since the cheque was admittedly issued in part payment of outstanding dues and no where in the complaint or demand notice complainant disclosed the total amount loan to the accused. The court found that the complainant therein was an Orthopedic Surgeon could not have advance huge amount to an accused who was a Class-IV employee without an agreement or acknowledgement of loan advance etc. When the matter went up to Hon'ble Apex Court, the Hon'ble Apex Court in detail have discussed as to when a presumption is raised, how the accused have to rebut the said presumption and when the burden shifts on the complainant and at para- 56, page-33 the Hon'ble Apex Court has observed; 20
CRL.A. No.25300/2022 '56. At the stage when the courts concluded that the signature had been admitted, the Court ought to have inquired into either of the two questions (depending on the method in which accused has chosen to rebut the presumption): Has the accused led any defense evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque? In the absence of rebuttal evidence being led the inquiry would entail: Has the accused proved the nonexistence of debt/liability by a preponderance of probabilities by referring to the 'particular circumstances of the case'?'
23. The facts and circumstances of the present case are aptly applicable in the Hon'ble Apex Court Judgment. Because, in this case also neither the accused has entered the witness box nor he has raised any probable defence with which the court can doubt the case of the complainant. The grounds made out by the appellant are not proved by the appellant. The trial court has rightly on the basis of the evidence on record come to conclusion that there is absolutely no material on record to disbelieve the case of the 21 CRL.A. No.25300/2022 complainant and has rightly come to conclusion that the accused has intentionally committed an offence u/S 138 of N.I. Act and he has issued the cheque in spite of having knowledge that he was not having sufficient funds in his account. Thereby I hold the question of interfering by this court in the judgment passed by the trial court will not arise. The judgment passed by the trial court is well reasoned and in accordance with the law and facts. Accordingly, I hold point for consideration No.1 in Affirmative and No.2 in Negative and proceed to pass the following:-
ORDER Appeal is dismissed.
The Judgment passed by the
Learned XIV ACMM, Bengaluru, in
CC No.53494/2021, dated:
14.10.2022 convicting the
accused for the offence
punishable U/Sec.138 of N.I.Act is
confirmed.
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CRL.A. No.25300/2022
Send back Trial Court
Record (TCR) to the Trial Court
along with copy of judgment.
No order as to costs.
[Dictated to the Stenographer directly on computer, corrected and then pronounced by me in the open court on this the 4th day of January, 2025].
[PRAKASH CHANNAPPA KURABETT] LXXIV Addl. City Civil & Sessions Judge, Mayohall, Bengaluru.
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