Bangalore District Court
M.Vasudev vs A.V.Ravi on 3 November, 2020
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 3 rd day of November, 2020
PRESENT
Smt. K.KATHYAYANI, B.Com., L.L.M .,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
Crl.Appeal No.22 of 2017 & Crl.Appeal No.23 of 2017
Appellant: M.Vasudev,
(in both the cases) Proprietor,
M/s V.P.R.O Engineering
Consultancy,
No.5, Krishna Elegance Apartments,
I Floor, I Main Road,
Amarajyothi Layout,
Sanjayanagar,
Bengaluru 560 097.
(By Sri.Yatishkumar,Adv.)
/Vs/
Respondent : A.V.Ravi,
(in both the cases) S/o Late A.Venkatesh,
Aged about 43 years,
No.856, 4th Main, 6th Cross,
Prakashnagar,
Bengaluru 560 021.
(By Sri.AA, Adv.)
COMMON JUDGMENT
The appellant/accused has preferred these appeals
against the respondent/complainant under Section 374(3)
of Cr.P.C. being aggrieved by the judgments of conviction
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Crl.A.No.22/2017 & 23/2017
passed in CC.No.39163/2010 and CC.No.43604/2010
respectively both dated 29.11.2016 by the learned XXI
ACMM, Bengaluru.
2. Since the parties are same and the grounds urged
in both the appeals are almost same, both the cases are
taken together for common judgment and for the sake of
convenience, the ranks of the parties are retained as they
are before the learned Magistrate Court.
3. The brief facts of the case are that;
a) The complainant has come up with these
complaints on the aversions that he and the accused are
well acquainted with each other. He is a Civil Engineer and
has worked with accused in many projects carried out by
the accused.
b) The accused was liable to pay a sum of
Rs.4,01,341/- towards service charges. Accused issued
cheque for Rs.3,78,841/- bearing No.140134 dated
07.07.2010 (in CC.No.39163/2010 i.e. Criminal Appeal
No.22/2017, for short, "the first case") and two cheques
bearing No.140136 for a sum of Rs.10,000/- and
No.140137 for a sum of Rs.12,500/- both dated
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Crl.A.No.22/2017 & 23/2017
10.07.2010 (in CC.No.43604/2010 i.e., Criminal Appeal
No.23/2017 for short, "the second case") which were drawn
on Vijaya Bank, Sanjayanagar Branch, Bengaluru.
c) When the said cheques were presented for
encashment, they were returned with the endorsements
dated 14.07.2010 in the first case and 15.07.2010 in the
second case and in both the cases with the shara that
"funds insufficient".
d) In spite of issuance of legal notice dated
17.07.2010 in the first case and 29.07.2010 in the second
case, which were duly served on the accused, the accused
did not pay the cheques amount. Accordingly, the
complaints were filed.
4. The trial Court record in both the cases reveal that
on receipt of the complaints, the learned Magistrate has
recorded the sworn statement of the complainant and on
satisfaction, has taken cognizance and issued summons to
the accused in both the cases.
a) In response to the due service of summons, in both
the cases, the accused appeared through his counsel and
was enlarged on bail.
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b) In support of his case, in both the cases, the
complainant himself has entered into the witness box as
PW-1. Got exhibited 10 documents Ex.P-1 to P-10 in the
first case and 12 documents at Ex.P-1 to P-12 in the
second case and closed his side.
c) In both the cases, the statement of the accused
under Section 313 of Cr.P.C. was recorded, wherein the
accused has denied the incriminating evidence against him
and in support of his defence, in both the cases, the
accused himself has stepped into the witness box as DW-1.
Got exhibited 5 documents at Ex.D-1 to D-5 in the first
case and 6 documents at Ex.D-1 to D-6 in the second case
and closed his side.
d) After hearing the arguments of both sides on
merits of the case and on going through the evidence on
record, in both the cases, the learned Magistrate has
passed the impugned judgments convicting the accused for
the offence punishable under Section 138 of the NI Act and
sentenced accordingly.
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Crl.A.No.22/2017 & 23/2017
5. Being aggrieved by the judgments of conviction,
the appellant/accused has approached this Court with
these appeals on the following common grounds;
a) The judgments of conviction and sentence passed
in both the cases are totally perverse, illegal, unlawful and
bad in law and contrary to the facts, materials and
evidence placed on record and as such are liable to be set
aside.
b) The trial Court has placed much reliance upon the
evidence of PW-1 when his evidence is totally unbelievable,
unacceptable, uncorroborated and throws great doubt
upon his credibility and responsibility which is contrary to
law and established principles of appreciation of evidence.
c) The trial Court has erred and failed to see that
issuance of cheque is not at all admitted fact and therefore,
without corroborating the evidence of PW-1 and in the
special circumstances of this case for want of corroboration
ought to have rejected the unbelievable story of PW-1 and
ought to have acquitted him.
d) On going through the entire record the following
grounds were found;
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i) No appreciation of evidence.
ii) Debt of liability not established.
iii) No cogent evidence for due of such huge amount.
iv) Alleged charges not proved.
v) If the Ex.P1 was drawn by him without accepting
liability of another in writing it would not attract Section
138 of the NI Act.
vi) No witness produced to prove existing debt or
liability.
vii) No supporting material evidence were produced.
But the trial Court failed to appreciate these facts on his
defence even though the complainant has admitted the
facts during the trial.
e) The cheques in question and the signature and
contents of the cheques are not at all admitted by him. He
came to know about the misuse of the cheques only when
he received the demand notice.
f) The complainant has managed to obtain the
suitable shara colluding with the postal official and he
came to know about the case only when he received the
summons from the Court and till then, he was kept in
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Crl.A.No.22/2017 & 23/2017
dark. Otherwise he might have taken steps against the
complainant to secure his cheques and accordingly, he has
given complaint before the Sanjayanagara police and also
to the Bank Authorities and also paper publication through
his advocate which are not appreciated by the trial Court.
g) He had never issued the cheque in question to
respondent towards any liability. Even though the
respondent has failed to prove the legally enforceable debt,
the trial Court has failed to appreciate the same on the
defence side which clearly establishes that the entire
judgment is one sided.
h) The trial Court has failed to appreciate that the no
documentary evidence is produced to ensure that the
complainant worked with his projects and that he is due in
a sum of Rs.4,01,341/- to the complainant.
i) The trial Court has committed grave error in not
exercising the judicial mind in appreciating the evidence
placed on record according to the well established judicial
pronouncement.
j) The judgment of the trial Court is based on
inadmissible documents and inadmissible evidence and
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Crl.A.No.22/2017 & 23/2017
has placed opinion on the imaginary grounds and surmises
and the same is liable to be set aside.
k) Right from the beginning, the trial Court was in
hurry to conclude the trial and failed to give sufficient
opportunity to him to prove his case effectively.
l) The impugned judgment is totally contrary and
opposed to law, facts and probabilities. Hence, prayed this
Court to set aside both the judgments of conviction and
sentences passed and acquit him in both the cases in the
interest of justice and equity.
6. In response to the due service of notice by this
Court in both the appeals, the complainant put his
appearance through his common counsel in both the
appeals.
7. Secured the Trial Court records.
8. The learned counsel for the complainant has filed
written arguments. Though sufficient time is given, the
counsel for appellant did not address arguments. Hence,
arguments of appellant on merits was taken as not
submitted and perused the record.
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Crl.A.No.22/2017 & 23/2017
9. On the basis of the grounds made out by the
accused in both the appeals, the following points are arisen
for the determination of this Court;
1) Whether the accused/appellant
proves the grounds urged by him in
support of this appeal?
2) Whether the impugned
judgment requires interference by
this Court?
3) What Order?
10. The findings of this Court on the above points are
answered in the;
1) Points Nos.1 & 2 : Negative.
2) Point No.3 : As per final order for the
following reasons.
REASONS
11. POINT Nos.1 AND 2:- As the findings on point
No.2 is consequential to the findings on point No.1, both
these points are taken together.
12. As it is necessary to keep in mind the pleadings of
the parties, the evidence they have let in, in support of
their respective case and proposition of law for the proper
and effective consideration of the grounds urged by the
accused in support of his present appeals, before venturing
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Crl.A.No.22/2017 & 23/2017
into the grounds of the accused, let me see first the
aversions of the complainant and the defence of the
accused, the evidence they have let in, in support of their
aversions and defence as well as the well settled
proposition of law for the adjudication of the offence under
Section 138 of the NI Act.
13. The trial Court records in both appeals
demonstrate that the aversion of the complainant and the
defence of the accused in both the cases are one and the
same and it is the aversions of the complainant that;
a) The accused is known to him since 10 years and
he is a Civil Engineer and worked with the accused in
many projects carried out by the accused.
b) The accused was liable to pay a sum of
Rs.4,01,341/- to him towards the service charges, dues
and other liabilities.
c) Accordingly, towards the discharge of the same, the
accused has issued the cheque bearing Nos.140134 dated
07.07.2010 in the first case and 140136 dated 12.07.2010
as well as 140137 dated 10.07.2010 in the second case for
Rs.3,78,841/-, Rs.10,000/- and Rs.12,500/- respectively
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Crl.A.No.22/2017 & 23/2017
and all were drawn on Vijaya Bank, Sanjayanagar Branch,
Bengaluru.
d) On presentation of the said cheques, they returned
dishonoured for funds insufficient as per the return
memos dated 14.07.2010 in the first case and both dated
15.07.2010 in the second case.
e) In spite of issuance of legal notice dated
17.07.2010 in the first case and 29.07.2010 in the second
case, which were duly served on the accused, the accused
did not pay the cheques amount.
14. On the other hand, the defence is that;
a) The complainant is known to him. But, the
complainant never worked for him. He was not in due of
any amount to the complainant.
b) Totally 4 cheques including the 3 cheques in
dispute in this case were missing from his cheque book. In
that regard, he has lodged the complaint before the
jurisdictional police, intimated to the concerned bank and
also taken public notice in the news paper.
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c) The complainant has stolen the cheque leaves from
his cheque book, misused the same and has come up with
these false complaints.
15. The evidence let in by the complainant in support
of his aversions is his own oral evidence and the
documents (in the first case) at;
a) Ex.P-1, the pay slip dated 12.07.2010 for collection
of the cheque for Rs.3,78,841/-.
b) Ex.P-2, the cheque dated 07.07.2010 for
Rs.3,78,841/-.
c) Ex.P-3, the return memo dated 13.07.2010
intimating the dishonor of the cheque at Ex.P-2 for the
reason of insufficient funds.
d) Ex.P-4, the postal receipt.
e) Ex.P-5, the COP receipt.
f) Ex.P-6, the postal acknowledgement.
g) Ex.P-7, the office copy of the legal notice dated
17.07.2010.
h) Ex.P-8, the certified copy of the Annual Statement
for the period from August 2007 to March 2010 pertains to
VPRO Engineering Consultancy.
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i) Ex.P-9, the certified copy of the Total Office
Expenditure for the period from August 2007 to March
2010 pertains to VPRO Engineering Consultancy.
j) Ex.P-10, the certified copy of the Annexure for the
period from August 2007 to March 2010 pertains to VPRO
Engineering Consultancy.
and in the second case at;
a) Ex.P-1, the pay slip dated 13.07.2010 for collection
of the cheques for Rs.12,500/- and Rs.10,000/-.
b) Ex.P-2, the cheque dated 12.07.2010 for
Rs.10,000/-.
c) Ex.P-3, the cheque dated 10.07.2010 for
Rs.12,500/-.
d) Ex.P-4 and 5, the return memos both dated
15.07.2010 intimating the dishonor of the cheque at Ex.P-
2 and 3 respectively for the reasons of insufficient funds.
e) Ex.P-6, the postal receipt.
f) Ex.P-7, the COP receipt.
g) Ex.P-8, the office copy of the legal notice dated
29.07.2010.
h) Ex.P-9, the postal acknowledgement.
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Crl.A.No.22/2017 & 23/2017
i) Ex.P-10, the Annual Statement for the period from
August 2007 to March 2010 pertains to VPRO Engineering
Consultancy.
j) Ex.P-11, the Total Office Expenditure for the period
from August 2007 to March 2010 pertains to VPRO
Engineering Consultancy.
k) Ex.P-12, the Annexure for the period from August
2007 to March 2010 pertains to VPRO Engineering
Consultancy.
15. On the other hand, in support of his defence, the
accused with his oral evidence has produced the
documents (in the first case) at;
a) Ex.D-1, Office Copy of the Reply Notice dated
25.07.2010.
b) Ex.D-2, the Postal Acknowledgement.
c) Ex.D-3, the Certified Copy of the Public Notice.
d) Ex.D-4, the Copy of the complaint dated
25.07.2020 by the Accused to the SHO., Sanjayanagar
Police Station, Bengaluru.
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e) Ex.D-5, the Photo copy of the Letter dated
02.07.2012 by the Accused to the SHO., Sanjayanagar
Police Station, Bengaluru.
and in the second case at;
a) Ex.D-1, A copy of E-Sanje Kannada News Paper
dated 29.07.2010.
b) Ex.D-2, Office Copy of the Reply Notice dated
03.08.2010.
d) Ex.D-3, the Postal Acknowledgement.
c) Ex.D-4, the postal Receipt.
d) Ex.D-5, the Copy of the Complaint dated
11.11.2010 by the accused to the SHO., Sanjayanagar
Police Station, Bengaluru.
e) Ex.D-6, the Photo Copy of the Letter dated
02.07.2010 by the accused to the SHO., Sanjayanagar
Police Station, Bengaluru.
16. It is apparent on the face of the trial Court
records in both the cases that;
a) VPRO Engineering Consultancy belongs to the
accused and since he has disputed his alleged signatures
over the disputed cheques at Ex.P-2/P-2 and 3 and the
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Crl.A.No.22/2017 & 23/2017
Annual Statement, the Total Office Expenditure and the
Annexure of the above VPRO Engineering Consultancy
at Ex.P-8 to 10/P-10 to 12, the said signatures were
referred to the hand writing expert for
comparison/examination with the admitted signatures of
the accused in the vakalath, 313 Statement, plea and other
admitted documents and for submission of report.
b) The handwriting expert of Truth Labs has given his
opinion that the person who wrote the
disputed/questioned signatures, also wrote the admitted/
standard signatures.
c) But, for the reasons best known to the accused, he
did not subject the handwriting expert to the cross
examination.
17. The respective counsels for both the complainant
and the accused have filed their written arguments before
the trial Court and the counsel for the accused has relied
on the following decisions.
1. (2014) 2 SCC 236.
2. 2011 (3) KCCR 1825.
3. ILR 2008 KAR 4629.
4. ILR 2008 KAR 3635.
5. (2008) 4 SCC 54.
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Crl.A.No.22/2017 & 23/2017
18. Since, before this Court, the counsel for the
accused did not address his arguments, it is thought just
and proper to go through the above noted decisions
wherein the counsel for the accused has highlighted the
portions on which he has relied on.
a) (2014) 2 Supreme Court Cases 236 (between
John K.Abram Versus Simon C. Abraham and another in
Criminal Appeal No.2043 of 2013 arising out of SLP (Crl.)
No.9505 of 2011 from the Judgment and Order dated
15.12.2010 of the High Court of Kerala at Ernakulam in
Criminal Appeal No.452 of 2004 decided on December 5,
2013 before their Lordships S.S.Nijjar and F.M.Ibrahim
Kalifulla, JJ.) wherein he has relied on the observations of
the Hon'ble Apex Court that;
"Debt, Financial and ...... -
dishonour of cheque - During
presumption under S.118 r/w S.139
- Pre-requisites for, when cheque is
for repayment of a loan/advanced
money - Proof required on the part
of complainant - Held, in order to
draw presumption under S.118 r/w
S.139, burden lies on complainant
to show; (i) that he had the requisite
funds for ......... - In view of said
serious defects/lacunae in evidence
of complainant, judgment of High
18
Crl.A.No.22/2017 & 23/2017
Court reversing acquittal of accused
by trial court, held, was perverse
and could not be sustained -
Aquittal restored.
...."
i) But, in the present case on hand, it is not the case
of the complainant that he had lent the money. On the
other hand, it is his case that the accused was liable to pay
the amount towards the service charges, dues and other
liabilities for the work he did as a Civil Engineer with the
accused in many projects carried out by the accused.
Hence, the principles rendered in the above case are not
applicable to the facts of the case.
b) 2011 (3) KCCR 1825 (between M/s. United
Distributors, Mangalore Versus Smt.Geetha K.Rai in
Criminal Appeal No.1136 of 2004 decided on 20.10.2010
before her Ladyship B.V.Nagarathna, J.) wherein he has
relied on the observations of the Hon'ble High Court of
Karnataka that;
".....
(C) NEGOTIABLE INSTRUMENTS
ACT, 1881 - ........ - Whether an
accused in an offence punishable
under Section 138, is expected to
prove his defence beyond reasonable
19
Crl.A.No.22/2017 & 23/2017
doubt? Held, no- An accused in an
offence punishable under Section
138, is not expected to prove his
defence beyond reasonable doubt,
as is expected by the complainant in
criminal trial.
...."
c) ILR 2008 KAR 3635 (between K.Naryana Nayak
vs Sri.M.Shivarama Shetty in Criminal Appeal
No.504/2002 dated 11th day of April, 2008 before his
Lordship K.Ramanna J.) wherein he has relied on the
observations of the Hon'ble High Court of Karnataka that;
"NEGOTIABLE INSTRUMENTS
ACT, 1881 - ..... , the
respondent/accused need not
disprove the appellant's case in its
entirety. He can discharge his
burden on the basis of
preponderance or probabilities
through direct or circumstantial
evidence, for which he can also rely
on the evidence adduced by the
complainant - Evidence .... - Order o
acquittal is Justified.
....."
d) (2008) 4 Supreme Court Cases 54 (between
Krishna Janardhan Bhat Versus Dattatraya G.Hegde in
Criminal Appeal No.518 of 2006 from the Final
Judgment/Order dated 22.06.2005 of the High Court of
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Crl.A.No.22/2017 & 23/2017
Karnataka at Bangalore in Crl.R.P.No.1470 of 2004 decided
on January 11, 2008 before their Lordships S.B.Sinha and
H.S.Bedi, JJ.) wherein he has relied on the observations of
the Hon'ble Apex Court that;
" .....
B. Negotiable Instruments Act,
1881 - .... - Where chances of false
implication cannot be ruled out,
the background fact and the
conduct of the parties together with
their legal requirements are required
to be taken into consideration -
Courts must be on guard to see that
merely on the application of
presumption as contemplated under
S.139, the same may not lead to
injustice or mistaken conviction -
Other principles of legal
jurisprudence, namely, presumption
of innocence as a human right and
the doctrine of reverse burden
introduced by S.139 should be
delicately balanced - Such balancing
acts would largely depend upon the
factual matrix of each case, the
material brought on record and
having regard to the legal principles
governing the same - ....
C. Criminal Procedure Code,
1973 - ..... Held, an accused need
not examined himself - He may
discharge his burden on the basis of
the material already brought on
record.- Hence, view taken by the
courts below that for proving the
defence the accused is required to
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Crl.A.No.22/2017 & 23/2017
step into the witness box and unless
he does so he would not be
discharging his burden, held, not
sustainable - Constitution of India -
Art. 19(1)(a) - freedom of speech and
expression - Right to be silent -
Evidence Act, 1872 - Ss.101, 103 &
3.
An accused .....
D. Criminal Trial - Appreciation
of evidence - Standard of proof
required on the part of an accused
is "preponderance of probabilities"
can be drawn not only from the
materials brought on record by the
parties but also by reference to the
circumstances upon which the
accused relies - evidence Act, 1872
- Ss. 101, 103, 105 & 3 - Negotiable
Instruments Act, 19818, S.138.
......
F. Criminal Trial - ....Presumption
of innocence of accused - Principle
as to - applicability in India - Held,
presumption of innocence of
accused is a human right - Principle
relating thereto, through contained
in European Convention of Human
rights which is not binding on India,
forms basis of criminal
jurisprudence in India subject to the
statutory interdicts - Certain
relevant considerations by court in
this regard also stated -
International Law - European
Convention on Human rights -
Art.6(2).
...."
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i) So far the principles rendered in the head note (B)
in above third decision i.e., Krishna Janardhana Bhat's
case, since they are on merits, the same will be taken note
off, while considering the grounds on merits.
ii) So, far the rests of the principles in the above
decisions, it is well settled proposition of law that the
statutory presumptions under Sections 118 and 139 of the
NI Act are in favour of the complainant and to draw the
said presumptions, the complainant has to let in prima
facie evidence with regard to existence of legally
recoverable debt and on such evidence on record, it is the
accused who is required to bring in the cogent and
corroborative piece of evidence to rebut it.
iii) Mere denial of existence of legally recoverable debt
by the accused will not serve his purpose and if the
accused succeeds in letting in the cogent and corroborative
piece of evidence, then, the onus shifts on the complainant
to prove his case that the disputed cheques were issued
towards the discharge of legally recoverable debt.
iv) In this regard, it is necessary to go through the
decisions reported in;
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Crl.A.No.22/2017 & 23/2017
1) AIR 2018 SUPREME COURT 3601 (between
T.P.Murugan (Dead) by their LRs. V. Bojan V. Posa Nandhi
R. by their PA Holder, T.P. Murugan v. Bojan in Criminal
Appeal Nos.950 - 951 of 2018 arising out of SLP (Crl.)
Nos.10111 - 10112 of 2014 decided on 31.07.2018 before
their Lordships Rohinton Fali Nariman and Ms.Indu
Malhotra, JJ.) wherein the Hon'ble Apex Court has
observed that;
Negotiable Instruments Act (26
of 1881) Ss 118, 138, 139 -
..............
2.7 The respondent contended
that the signed blank Promissory
Note was issued by him in favour of
N.R.R. Finances Investments Pvt.
Ltd. under a hire-purchase
agreement for purchasing a lorry on
loan basis. The said Promissory note
was not issued in favour of the
appellant-complainants. The
Promissory Note was filled up by
DW.2 Mahesh, an employee or
N.R.R. Investments, after the
signatures of the respondents were
obtained on the same.
..........
8. We have heard Senior Counsel
for both parties, and perused the
record. Under Section 139 of the NI
Act, once a cheque has been signed
and issued in favour of the holder,
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Crl.A.No.22/2017 & 23/2017
there is statutory presumption that
it is issued in discharge of a legally
enforceable debt or liability. This
presumption is a rebuttable one, if
the issuer of the cheque is able to
discharge the burden that it was
issued for some other purpose like
security for a loan.
9. The appellants have proved
their case by overwhelming evidence
to establish that the two cheques
were issued towards the discharge
of an existing liability and legally
enforceable debt. The respondent
having admitted that the cheques
and Pronote were signed by him, the
presumption under Section 139
would operate. The respondent
failed to rebut the presumption by
adducing any cogent or credible
evidence. Hence, his defence is
rejected.
.........."
2) 2018 Supreme Court Cases 165 : 2018 SCC
OnLine SC 651 (between Kishan Rao V. Shankargouda in
Criminal Appeal No.803 of 2018 decided on 02.07.2018
before their Lordships Dr.A.K.Sikri and Ashok Bhushan,
JJ.) wherein the Hon'ble Apex Court has observed that;
"A. Debt, Financial and
Monetary Laws - Negotiable
Instruments Act, 1881 -
................
.............
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20. This Court held that the
accused may adduce evidence to
rebut the presumption, but mere
denial regarding existence of debt
shall not serve any purpose. The
following was held in para 20:
(Sharma Carpets, SCC p. 520)
"20. ..... The accused may
adduce direct evidence to prove that
the note in question was not
supported by consideration and that
there was no debt or liability to be
discharged by him. However, the
Court need not insist in every case
that the accused should disprove
the non-existence of consideration
and debt by leading direct evidence
because the existence of negative
evidence is neither possible nor
contemplated. At the same time, it is
clear that bare denial of the passing
of the consideration and existence of
debt, apparently would not serve the
purpose of the accused. Something
which is probable has to be brought
on record 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 their non-existence was so
probable that a prudent man would
under the circumstances of the case,
act upon the plea that they did not
exist. ..."
21. In the present case, the Trial
Court as well as the Appellate Court
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Crl.A.No.22/2017 & 23/2017
having found that cheque contained
the signatures of the accused and it
was given to the appellant to present
in the Bank, the presumption under
Section 139 was rightly raised which
was not rebutted by the accused.
The accused had not led any
evidence to rebut the aforesaid
presumption. The accused even did
not come in the witness box to
support his case. In the reply to the
notice which was given by the
appellant, the accused took the
defence that the cheque was stolen
by the appellant. The said defence
was rejected by the Trial Court after
considering the evidence on record
with regard to which no contrary
view has also been expressed by the
High Court.
22. Another Judgment which
needs to be looked into is Rangappa
v. Sri Mohan. A three-Judge Bench
of this Court had occasion to
examine the presumption Under
Section 139 of the 1881 Act. This
Court in the aforesaid case has held
that in the event the accused is able
to raise a probable defence which
creates doubt with regard to the
existence of a debt or liability, the
presumption may fail. Following was
laid down in paras 26 and 27: (SCC
pp.453-54)
..............."
3) AIR 2019 SUPREME COURT 1876 (between
Rohitbhai Jivanlal Patel v. State of Gujarat and another in
27
Crl.A.No.22/2017 & 23/2017
Criminal Appeal No.508 of 2019 arising out of SLP (Crl.)
No.1883 of 2018 decided on 15.03.2019 before their
Lordships Abhay Manohar Sapre and Dinesh Maheshwari,
JJ.) wherein the Hon'ble Apex Court has held that;
"(A) Negotiable instruments Act
(26 of 1881), Ss.138, 139 -
.............
..............
14. So far the question of
existence of basic ingredients for
drawing of presumption Under
Sections 118 and 139 the NI Act is
concerned, apparent it is that the
accused appellant could not deny his
signature on the cheques in question
that had been drawn in favour of the
complainant on a bank account
maintained by the accused for a sum
of Rs. 3 lakhs each. The said chques
were presented to the Bank
concerned within the period of their
validity and were returned unpaid
for the reason of either the balance
being insufficient or the account
being closed. All the basic
ingredients of Section 138 as also of
Sections 118 and 139 are apparent
on the face of the record. The Trial
Court had also consciously taken
note of these facts and had drawn
the requisite presumption.
Therefore, it is required to be
presumed that the cheques in
question were drawn for
consideration and the holder of the
cheques i.e., the complainant
28
Crl.A.No.22/2017 & 23/2017
received the same in discharge of an
existing debt. The onus, therefore,
shifts on the accused - appellant to
establish a probable defence so as to
rebut such a presumption.
.................
16. On the aspects relating to
preponderance of probabilities, the
accused has to bring on record such
facts and such circumstances which
may lead the Court to conclude
either that the consideration did not
exist or that its non-existence was
so probable that prudent man
would, under the circumstances of
the case, act upon the plea that the
consideration did not exist. This
Court has, time and again,
emphasized that though there may
not be sufficient negative evidence
which could be brought on record by
the accused to discharge his
burden, yet mere denial would not
fulfill the requirements of rebuttal
as envisaged Under Section 118 and
139 of the NI Act. This Court stated
the principles in the case of Kumar
Exports (AIR 2009 SC 1518, Para11)
(supra) as follows:
"20. The accused in a trial Under
Section 138 of the Act has two
options. He can either show that
consideration and debt did not exist
or that under the particular
circumstances of the case the non-
existence of consideration and debt
is so probable that a prudent man
ought to suppose that no
consideration and debt existed. To
29
Crl.A.No.22/2017 & 23/2017
rebut the statutory presumptions
an accused is not expected to prove
his defence beyond reasonable doubt
as is expected of the complainant in
a criminal trial. The accused may
adduce direct evidence to prove that
the note in question was not
supported by consideration and that
there was no debt or liability to be
discharged by him. However, the
court need not insist in every case
that the accused should disprove the
non-existence of consideration and
debt by leading direct evidence
because the existence of negative
evidence is neither possible nor
contemplated. At the same time, it
is clear that bare denial of the
passing of the consideration and
existence of debt, apparently would
not serve the purpose of the accused.
Something which is probable has to
be brought on record 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 their non-
existence was so probable that a
prudent man would under the
circumstances of the case, act upon
the plea that they did not exist.
Apart from adducing direct evidence
to prove that the note in question
was not supported by consideration
or that he had not incurred any debt
or liability, the accused may also rely
upon circumstantial evidence and if
30
Crl.A.No.22/2017 & 23/2017
the circumstances so relied upon are
compelling, the burden may like wise
shift again on to the complainant.
The accused may also rely upon
presumptions of fact, for instance,
those mentioned in Section 114 of
the Evidence Act to rebut the
presumptions arising under
Sections118 and 139.
................
17. In the case at hand, even
after purportedly drawing the
presumption under Section 139 of
the NI Act, the trial Court proceeded
to question the want of evidence on
the part of the complainant as
regards the source of funds for
advancing loan to the accused and
want of examination of relevant
witnesses who allegedly extended
him money for advancing it to the
accused. This approach of the trial
Court had been at variance with the
principles of presumption in law.
After such presumption, the onus
shifted to the accused and unless
the accused had discharged the
onus by bringing on record such
facts and circumstances as to show
the preponderance of probabilities
tilting in his favour, any doubt on
the complainant's case could not
have been raised for want of
evidence regarding the source of
funds for advancing loan to the
accused-appellant. The aspect
relevant for consideration had been
as to whether the accused-appellant
has brought on record such
facts/material/circumstances which
31
Crl.A.No.22/2017 & 23/2017
could be of a reasonably probable
defence.
18. In order to discharge his
burden, the accused put forward the
defence that in fact, he had the
monetary transaction with the said
Shri Jagdishbhai and not with the
complainant. In view of such a plea
of the accused-appellant, the
question for consideration is as to
whether the accused-appellant has
shown a reasonable probability of
existence of any transaction with
Shri Jagdishbhai? In this regard,
significant it is to notice that apart
from making certain suggestions in
the Cross-examination, the accused-
appellant has not adduced any
documentary evidence to satisfy
even primarily that they had been
some monetary transaction of
himself with Shri Jagdishbhai. Of
course, one of the allegations of the
appellant is that the said stamp
paper was given to Shri Jagdishbhai
and another factor relied upon is
that Shri Jagdishbhai had signed on
the stamp paper in question and not
the complainant.
.........."
i) So, in view of the principles rendered in the above
decisions, the accused is expected to 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 their non-existence was so probable that a
32
Crl.A.No.22/2017 & 23/2017
prudent man would under the circumstances of the case,
act upon the plea that they did not exist.
e) The other decision relied on by the counsel for the
accused before the trial Court is the decision reported in
ILR 2008 KAR 4629 (between Shiva Murthy vs
Amrutharaj in Criminal Revision Petition No.1507/2005
dated 27th day of July, 2008 before his Lordship
K.N.Keshavanarayan, J.) wherein he has relied on the
observations of the Hon'ble High Court of Karnataka that;
"NEGOTIABLE INSTRUMENTS
ACT, 1881 - ....... - Non-
consideration of - Existence of
legally enforceable debt - Failure of
the complainant to prove -
Presumption drawn merely on the
basis of the conduct of the accused
- Legality of - HELD, ...... Before
considering the conduct of the
accused to find out as to whether or
not he has been able to rebut the
Statutory Presumption available
under Section 139, the courts ought
to have considered as to whether the
complainant has proved the
existence of legally enforceable debt.
It is only after satisfying that the
complainant has proved existence of
legally enforceable debt or liability,
the Courts could have proceeded to
draw presumption under Section 139
of the NI Act and thereafter find out
as to whether or not the accused has
33
Crl.A.No.22/2017 & 23/2017
rebutted the said presumption -
Judgment of conviction and
sentence are liable to be set-aside -
Accused is acquitted.
....."
i) The above principles are on merits of the case and
will be taken note off, while considering the grounds on
merits.
19. In the above back ground, if the grounds urged
by the accused in support of his present appeal are taken
note off, the connected grounds he has urged are;
a) The trial Court has placed much reliance upon the
evidence of PW-1 when his evidence is totally unbelievable,
unacceptable, uncorroborated and throws great doubt
upon his credibility and responsibility which is contrary to
law and established principles of appreciation of evidence.
b) The trial Court has erred and failed to see that
issuance of cheque is not at all admitted fact and therefore,
without corroborating the evidence of PW-1 and in the
special circumstances of this case for want of
corroboration, ought to have rejected the unbelievable
story of PW-1 and ought to have acquitted him.
34
Crl.A.No.22/2017 & 23/2017
20. As noted above, to prove his case, the
complainant with his oral evidence, has relied on the pay
slips, disputed cheques, the return memos, legal notices,
postal receipts, postal acknowledgements, the Annual
Statement, the Total Office Expenditure and the Annexure
of the consultancy belongs to the accused i.e., VPRO
Engineering Consultancy.
21. In his chief evidence, the complainant has
reiterated his aversions. In his cross examination also he
stood on his case. He has denied suggestions on behalf of
the accused putting forth his defence.
22. As noted above, it is the defence of the accused
that 4 cheque leaves were missing from his cheque book;
the disputed 3 cheques in these cases are amongst those
missing cheque leaves.
23. As noted above, the accused has disputed his
alleged signatures over the disputed cheques and they were
subjected to handwriting expert who gave his report that
the person who wrote the admitted/standard signatures
also wrote the disputed/questioned signatures i.e., the
signatures over the disputed cheques.
35
Crl.A.No.22/2017 & 23/2017
24. As noted above, for the reasons best known to
him, the accused did not subject the handwriting expert for
cross examination and elicited nothing to discard his
report. Thus, the complainant is successful in establishing
his aversions that the disputed cheques are signed by the
accused and admittedly, those cheques belong to the bank
account of the accused.
25. There is no dispute between the parties that they
are known to each other and it is evident on record that
both of them are Civil Engineers and were co-leagues for
sometimes.
26. It is an admitted fact that the above stated VPRO
Engineering Consultancy belongs to the accused. It is the
aversion of the complainant that he worked for the accused
in the above consultancy and the same is denied by the
accused.
27. To establish the said fact, the complainant apart
from his oral evidence has relied on Ex.P-8 to 10/P-10 to
12 i.e., the Annual Statement, the Total Office Expenditure
and the Annexure of the consultancy belongs to the
accused i.e., VPRO Engineering Consultancy at Ex.P-10
36
Crl.A.No.22/2017 & 23/2017
to 12 in the second case of which the certified copies at
Ex.P-8 to 10 in the first case.
28. The accused has contended that the above
documents are created documents. But, as rightly
observed by the trial Court, they are on the letter heads of
the above said VPRO Engineering Consultancy of the
accused and signed by the accused.
29. Of course, the accused has disputed his alleged
signatures over the above documents, but they were also
subjected to the handwriting expert who gave the same
opinion in the second case also that the person who wrote
the admitted/standard signatures also wrote the
disputed/questioned signatures i.e., the signatures over
the disputed cheques and the disputed documents at Ex.P-
10 to 12 i.e., the originals of the Annual Statement, the
Total Office Expenditure and the Annexure of the above
said VPRO Engineering Consultancy belongs to the
accused.
30. In Ex.P-9/P-11 i.e., the Total Office Expenditure
for the period August-2007 to March-2010, demonstrates
that;
37
Crl.A.No.22/2017 & 23/2017
Sl.No. Description Reference Amount
a Mr. Ravi - VPRO Asper Bank Rs.5,50,000/-
Statement
b Mr.Sudeep - RITES (12.5% on Project Rs.25,00,000/-
Value) Govt.
Womens' First
Grade College,
Ramanagar
c Mr.Raju - MLA, (10% on Project Rs.20,00,000/-
Ramanagar. Value) Govt.
Women's First
Grade College,
Ramanagar
31. The first name in the above statement i.e.,
Mr.Ravi is none other than the complainant. Hence, the
complainant is successful in letting the prima facie
evidence in support of his version that he worked for the
accused and the accused was liable to pay the amount to
him towards service charges and other expenses and
towards the payment of the same, the accused had issued
the disputed cheques.
32. Thus, the complainant is entitled for the
presumptions under Sections 118 and 139 of the NI Act
and now, the accused is required to let in cogent and
38
Crl.A.No.22/2017 & 23/2017
credible evidence in support of his defence to rebut the
above statutory presumptions.
33. As noted above, to prove his defence, the accused
with his oral evidence has relied on the copies of his reply,
the police complaint and the public notice in the news
paper.
34. In his oral evidence, the accused stood on his
defence. It is in his reply notice dated 25.07.2010 at Ex.D-
1 in the first case at para No.2 that;
"2. My client submits that ..... My
client is astonished to know how
your client has come in possession of
the said cheque from the cheque
book of my client when he has not
given him any cheque. Now only, he
has found some four cheque leaves
missing from his cheque book.
...."
35. It is in E Sanje news paper dated 29.07.2010 at
Ex.D-3/D-1 i.e.,the public notice that;
" LOST
My client ...... has a current
Account No.106600301000084 in
Vijaya Bank, Sanjayanagar,
Bangalore - 94. Now he has found
that cheque numbers 140134 to
140137 both inclusive are missing
from his cheque book. In this regard
39
Crl.A.No.22/2017 & 23/2017
he has informed the concerned Bank
also. Hence, ...."
36. It is in the police complaint dated 25.07.2010
i.e., Ex.D-4 in the first case that;
"......
My client, ......has a current
Account No.106600301000084 in
Vijaya Bank, Sanjayanagar,
Bangalore - 94. Now he has found
that cheque numbers 140134 to
140137 both inclusive are missing
from his cheque book. In this regard
he has informed the concerned
Bank also. Hence, ......
....."
37. So, the contents of both the public notice in the
news paper at Ex.D-3 in the first case which is Ex.D-1 in
the second case and the police complaint at Ex.D-4 in the
first case are one and the same and admittedly, the
accused has not produced any document to substantiate
his contention with regard to the alleged information to the
concerned Bank.
38. It is in the letter dated 02.07.2012 at Ex.D-5 in
the first case and Ex.D-6 in the second case that;
"......
40
Crl.A.No.22/2017 & 23/2017
Sub: Regarding Complaint about
"Theft & forging of our cheques by
Mr.A.V.Ravi.
Ref: Our complaint dated
11.07.2010 & 25.07.2010
In this regard I gave a complaint
on 11 July 2010 and my Advocate
gave a complaint on 25 July 2010.
till date we have not heard for nor
any action seen. .......
I am sending this registered
letter. Please give us the reply.
......"
39. Prima facie, the 2nd complaint referred in the
above letter at Ex.D-5/D-6 is nothing but the complaint at
Ex.D-4, but there is no reference in the said complaint
about the alleged "theft & forging of the cheques by
Mr.A.V.Ravi" (stated in the subject of the letter at Ex.D-5)
i.e., none other than the complainant herein.
40. The complaint he gave dated 11.07.2010
mentioned in the reference at Ex.D-5/D-6 is at Ex.D-6 in
the second case and it is there in the said complaint that;
".....
Sub: Theft, Forging, etc., of our
cheques.
Ref: Our complaint dated
25.07.2010.
41
Crl.A.No.22/2017 & 23/2017
Please refer to our complaint
dated 25th July 2010, ....
Now I have come to know one by
name Mr.A.V.Ravi, who was posing
as a friend of mine and was coming
to our office in the times of his
distress and we thought he was
assisting us has stolen these
cheques and has forged and
attempted to encash the same.
My Bankers, .....
......"
41. There is no mention about the alleged theft,
forgery and visit of the complainant to the office of the
accused in any other documents predated to the above
document at Ex.D-5. The alleged visit of the complainant to
the office of the accused, except in the above document at
Ex.D-5, it finds no place in any other document or even in
the chief evidence of the accused or at least suggestion in
that regard to the complainant in his cross examination.
42. It is in the reply notice dated 03.08.2010 at
Ex.D-2 in the second case at para No.2 that;
".....
2. My client submits that .... My
client submits that he has not
issued those cheques at any time to
your client. Now my client finds on
verification of his cheque book, that
the lost cheque leaves for which he
42
Crl.A.No.22/2017 & 23/2017
has given complaint to the Bank and
also to the Police, is now being
traced to your client....."
43. So, the recitals in both the reply notices in both
the cases are one and the same.
44. Now, it is pertinent to see the events
chronologically, to appreciate the defence of the accused as
to when he came to know the alleged missing of 4 cheque
leaves from his cheque book and the alleged theft and
forgery by the complainant.
45. As per the above noted evidence on record, it is
the case of the accused that he came to know about the
missing of the cheque leaves only when he received the
legal notice issued by the accused.
46. It is evident on record that;
a) The complainant has issued the legal notice on
17.07.2010/Ex.P-7 in the first case and on
29.07.2010/Ex.P-8 in the second case.
b) The accused has issued his reply on
25.07.2010/Ex.D-1 in the first case and on
03.08.2010/EX.D-2 in the second case.
43
Crl.A.No.22/2017 & 23/2017
c) The Postal Acknowledgement/Ex.P-9 in the second
case shows that the receiver has signed it on 31/7. But
there is no date of receipt by the receiver in the Postal
Acknowledgement/Ex.P-6 in the first case.
d) Hence, even from the date of legal notice in the
first case, the knowledge of the accused is taken into
consideration, then he was knowing about the missing of
the cheque leaves on 25.07.2010 itself.
e) So, the other documents in the chronological order
are;
i) The police complaint dated 25.07.2010 i.e., Ex.D-4
in the first case.
ii) The public notice at E Sanje news paper dated
29.07.2010 at Ex.D-3/D-1.
iii) The complaint by the accused dated 11.11.2010
at Ex.D-5 in the second case.
iv) The letter dated 02.07.2012 at Ex.D-5/D-6.
47. But, as noted above, since 25.07.2010 till
11.11.2010, no where in the earlier documents i.e., in the
police complaint dated 25.07.2010 i.e., issued on the same
date, the public notice dated 29.07.2010 i.e., issued within
44
Crl.A.No.22/2017 & 23/2017
4 days from the date of knowledge, the reply notice in the
second case issued on 03.08.2010 i.e. issued within 9 days
from the date of knowledge, there is no whisper with regard
to alleged theft and fraud or at least the possession of the
alleged missing cheques with the complainant.
48. At this stage, it is also important to note that
there is no explanation given by the accused with regard to
the cheque No.140135 i.e. the second cheque in the series
of the alleged missing cheques.
49. Moreover, as rightly observed by the trial Court
the bank account to which the disputed cheques belong is
a current account and the accused has had been doing the
consultancy business and thereby this Court can take
judicial notice that the alleged missing of cheques if any
would have been come to the knowledge of the accused
immediately on his day to day business.
50. Apart from that, it is also pertinent to note that
the accused has not produced his bank account statement
extract of his current account whereby the entries would
have been with regard to the encashment/payment
through the other cheques in the series of the alleged
45
Crl.A.No.22/2017 & 23/2017
missing cheques to establish the date of knowledge i.e. he
came to know about the missing of cheques only on receipt
of demand notice
51. Hence, prima facie, the accused has failed to put
forth his defence that the disputed cheques were missing,
the complainant has stolen those cheques, forged the same
and has come up with these false complaints and thereby
failed to prove that the evidence of the complainant is
unbelievable and not corroborated which is contrary to law
and the established principles of appreciation of evidence.
Accordingly, these grounds hold no water.
52. The other connected grounds urged by the
accused in support of his present appeals are that on going
through the entire record the following grounds were
found;
i) No appreciation of evidence.
ii) Debt of liability not established.
iii) No cogent evidence for due of such huge amount.
iv) Alleged charges not proved.
46
Crl.A.No.22/2017 & 23/2017
v) If the Ex.P-1 was drawn by the accused without
accepting liability of another in writing, it would not attract
Section 138 of the NI Act.
vi) No witness produced to prove existing debt or
liability.
vii) No supporting material evidence were produced.
But the trial Court failed to appreciate these facts on
defence side even though the complainant has admitted
the facts during the trial.
53. As discussed above, the complainant has let in
the prima facie evidence in support of his aversions and
thus, entitled for the statutory presumptions under
Sections 118 and 139 of the NI Act.
54. On the other hand, the accused has failed to let
in the probable defence and to establish his such a
probable defence with cogent and corroborative evidence,
thus failed to rebut the statutory presumptions under
Sections 118 and 139 of the NI Act which are in favour of
the complainant. Hence, these grounds are also not
sustainable.
47
Crl.A.No.22/2017 & 23/2017
55. The one more ground urged by the accused is
that the cheques in question and the signature and
contents of the cheques are not at all admitted by him. He
came to know about the misuse of the cheques only when
he received the demand notice.
56. But, as observed above, the accused did not
disclose about the alleged misuse of so missing cheques by
the complainant in his own documents of the immediate
dates of his knowledge and thereby a doubt arises in the
mind of a reasonably prudent man that the alleged theft
and forgery stated in his compliant dated 11.11.2010 is an
after thought. Hence, this ground is also not acceptable.
57. The other ground urged by the accused is that
the complainant has managed to obtain the suitable shara
colluding with the postal official and he came to know
about the case only when he received the summons from
the Court and till then he was kept in dark, otherwise he
might have taken steps against the complainant to secure
his cheques and accordingly, he has given complaint before
the Sanjayanagara police and also to the Bank Authorities
48
Crl.A.No.22/2017 & 23/2017
and also paper publication through his advocate which are
not appreciated by the trial Court.
58. But, as noted above, he himself has produced the
reply notices issued in both the cases. Hence, he cannot
say that he came to know about the case only on receipt of
summons by the trial Court. Accordingly, this ground also
holds no water.
59. The one more ground urged by the accused is
that right from the beginning of the trial Court was in
hurry to conclude the trial and failed to give sufficient
opportunity to him to prove his case effectively.
60. But the trial Court records in both the cases
clearly demonstrate that sufficient opportunities were given
to the accused to put forth his case. Admittedly the
accused entered into the witness box and led his
independent evidence by producing the documents as well.
Hence, this ground is also not acceptable.
61. The other connected grounds urged by the
accused are that;
a) He had never issued the cheque in question to
respondent towards any liability. Even though the
49
Crl.A.No.22/2017 & 23/2017
respondent has failed to prove the legally enforceable debt,
the trial Court has failed to appreciate the same on the
defence side which clearly establishes that the entire
judgment is one sided.
b) The trial Court has failed to appreciate that the no
documentary evidence is produced to ensure that the
complainant worked with his projects and that he is due in
a sum of Rs.4,01,341/- to the complainant.
c) The trial Court has committed grave error in not
exercising the judicial mind in appreciating the evidence
placed on record according to the well established judicial
pronouncement.
d) The judgment of the trial Court is based on
inadmissible documents and in admissible evidence and
has placed opinion on the imaginary grounds and surmises
and the same is liable to be set aside.
e) The impugned judgment is totally contrary and
opposed to law, facts and probabilities.
f) The judgments of conviction and sentence passed
in both the cases are totally perverse, illegal, unlawful and
50
Crl.A.No.22/2017 & 23/2017
bad in law and contrary to facts, materials and evidence
placed on record and as such are liable to be set aside.
62. As noted above, the accused has failed to put
forth the probable defence and to let in the cogent and
corroborative evidence in support of his such a defence. On
the other hand, the complainant is successful in letting in
the prima facie evidence in support of his aversions and he
is entitled for the statutory presumptions under Sections
118 and 139 of the NI Act. On the other hand, the accused
has failed to rebut the said presumption.
63. Thus, no fault could be find with the findings of
the trial Court which is supported by the reasons keeping
in mind the facts of the case and the well settled
proposition of laws in the adjudication of the cases of the
offence under Section 138 of the NI Act. Accordingly, these
grounds are not acceptable.
64. As the accused has failed to prove his grounds in
support of these appeals, point No.1 is answered in
negative in both the cases. Consequently, there is no need
to interfere with the impugned judgments. Therefore, point
No.2 is also answered in negative in both the cases.
51
Crl.A.No.22/2017 & 23/2017
65. POINT No.3:- In view of the findings of this Court
on points Nos.1 and 2 in negative, the following order.
ORDER
The present Criminal Appeals filed by the appellant under Section 374(3) Cr.P.C. are hereby dismissed. In the result, the Judgments of conviction and sentences passed by XXVI ACMM (SCCH-9), Bengaluru, in CC.No.39163/2010 and in CC.No.43604/2010, both dated 29.11.2016 are hereby confirmed. Send back the TCRs in both the cases along with the copy of this judgment forthwith to the trial Court.
The original of this judgment shall be kept in Criminal Appeal No.22/2017 and the copy thereof in Criminal Appeal No.23/2017.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 3rd day of November 2020).
(K. KATHYAYANI ), LXVI Addl.CC & SJ, Bengaluru. 52 Crl.A.No.22/2017 & 23/2017 counsels for both the parties are absent.
The Order is pronounced in the open Court (vide separate Order).
ORDER The present Criminal Appeals filed by the appellant under Section 374(3) Cr.P.C. are hereby dismissed.
In the result, the Judgments of conviction and sentences passed by XXVI ACMM (SCCH-9), Bengaluru, in CC.No.39163/2010 and in CC.No.43604/2010, both dated 29.11.2016 are hereby confirmed.
Send back the TCRs in both the cases along with the copy of this judgment forthwith to the trial Court.
The original of this judgment shall be kept in Criminal Appeal No.22/2017 and the copy thereof in Criminal Appeal No.23/2017.
LXVI Addl.CC & SJ, Bangalore.
1 Crl.A.No.22/2017 & 23/2017