Karnataka High Court
Dhananjay S/O Pandurang Deshpande vs Revanasiddayya on 30 August, 2017
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COU RT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 30 T H DAY OF AUGUST 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL REVISIO N PETITION NO .100208/2016
BETWEEN:
DHANANJAY S/O PANDURANG DESHPANDE
AGE: 54 YEARS
OCC. BUS INESS & AGRICULTURE
R/O VITHOBA DEVI GALLI, KHANAPU R
DT. BELAGAVI
... PETITIONER
(BY SRI VITTHAL S TELI, ADVOCA TE.)
AND:
REVANASIDDAYYA
S/O SHIVAPU TRAY YA TIGADIHIREMA TH
AGE: 55 YEARS , OCC: BUSINESS
R/O HOSAMANI GALLI, KHANAPUR
TAL. KHANAPUR, BELGAVI-02
... RESPONDENT
(BY SRI T.M.NADAF, ADVOCA TE.)
THIS CRIMINAL REVIS ION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C.,
SEEKING TO CALL FOR THE PAPERS PENDING ON THE FILE
OF PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGIS TRATE
FIRS T CLASS, KHANAPUR, IN C.C.NO.148 OF 2012,
JUDGMENT DA TED 23.07.2015, A ND CRIMINAL A PPEAL
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NO.110 OF 2015, JUDGMENT DATED 01.07.2016, O N THE
FILE OF HON'BLE I ADDL. SESSIONS JUDGE, BELAGAVI AND
EXAMINE THE LEGALITY AND PROPRIETY OF THE CASE AND
SET ASIDE THE JUDGMENT AND ORDER AND ACQUIT THE
REVISION PETITIO NER, ETC.,.
THIS PETITION COMING ON FOR HEARING ON
INTERLOCU TORY APPLICA TION, TH IS DAY, THE COURT
MADE THE FOLLO WING:
ORDER
This is the revision petition filed by the petitioner- accused under Section 397 read with section 401 of Cr.P.C., challenging the judgment and order of conviction dated 23.7.2015, passed by the Prl. Civil Judge and JMFC, Khanapur, in C.C.No.148/2012, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, so also challenged the judgment and order of the first appellate Court passed in Crl.A.No.110/2015 dated 1.7.2016, passed by the I Addl. Sessions Judge, Belagavi, dismissing the appeal, confirming the judgment and order of conviction passed by the trial Court.
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2. Brief facts of the case as pleaded by the revision petitioner-accused in the petition, that a private complaint was filed against the petitioner herein by the respondent, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act' for short). The allegation against the revision petitioner is that the respondent paid a hand loan of `9,80,000/- to the revision petitioner as he requested for his necessity in the month of November 2011 and told that he will return the said amount within one month. Thereafter the respondent requested the revision petitioner to return the same after one month. But the revision petitioner failed to do the same. It is further stated that on several times respondent requested the petitioner herein to repay the said amount, but the petitioner postponed and lastly on 31.12.2011 the revision petitioner gave a cheque in favour of the respondent bearing No.312630 amounting to `9,80,000/- drawn on the State Bank of India, 4 Khanapur branch. The respondent presented the cheque for realization through his banker i.e., Karnataka Vikas Grameen Bank, Khanapur Branch. The said cheque was dishonoured on 3.1.2012 and returned with bank memo/endorsement that 'insufficient funds' in the account. The respondent issued legal notice to the revision petitioner on 7.1.2012 calling upon the revision petitioner to pay the amount. The revision petitioner replied to the said notice and later the respondent filed a private complaint against the revision petitioner on 31.1.2012. The revision petitioner appeared through his counsel, plea was recorded, after evidence and cross- examination, the respondent closed his side, arguments were heard and the Court below finds that the revision petitioner committed the offence punishable under Section 138 of the Act. Accordingly the trial Court convicted the accused.
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3. Being aggrieved by the judgment and order of conviction passed by the trial Court, the revision petitioner-accused preferred an appeal before the first appellate Court. The appeal also came to be dismissed. Hence the revision petitioner-accused herein challenged the judgment and order of the Courts below on the grounds as mentioned in the revision petition at ground No.1 to 9.
4. Heard the arguments of the learned counsel appearing for the revision petitioner-accused so also the arguments of the learned counsel appearing for the respondent-complainant.
5. Learned counsel appearing for the revision petitioner made submission that it is the case of the complainant that he has advanced huge amount of `9,80,000/-, except the alleged cheque, there is no other document to evidence the said advance of the loan. He also made submission that though the respondent-complainant claims that he is the income 6 tax assessee, he has not produced any documents before the Court to evidence the fact that the said transaction is reflected in the income tax returns filed by him.
6. Learned counsel made submission that the respondent-complainant himself has produced Ex.P.6 and looking to the said document it goes to falsify the case of the respondent-complainant, because it is the case of the complainant that the revision petitioner issued the cheque on 31.12.2011 whereas looking to the document at Ex.P.6, it shows that the cheque came to be presented on 30.12.2011 itself. Therefore the contention of the learned counsel for the petitioner is that can it be possible to present the cheque one day earlier from the date of issuance of the said cheque. Learned counsel further made submission that looking to the cross-examination of PW.1, he has admitted that he is having documents to show the transaction between the complainant and the accused person, but 7 even though he has not produced those documents before the Court, adverse inference will have to be drawn against the case of the respondent-complainant as per the provisions of the Indian Evidence Act.
7. Learned counsel further made the submission that even looking to the oral evidence of PW.1, it will not inspire confidence in the mind of the Court that such a transaction has taken place in between the accused and the complainant. Learned counsel submitted that it is the specific defence of the accused person that when the accused was travelling in the bus, he lost the cheque book which was carried by him and in those cheque leaves some of them were signed and some of them were blank. Taking undue advantage of the lost cheque book, the complainant filed the present case. Hence the learned counsel made submission that regarding the lost cheque the revision petitioner-accused produced satisfactory material before the trial Court, even then the trial Court has not 8 at all considered all these aspects of the matter and wrongly read the evidence, wrongly proceeded to hold that the revision petitioner-accused is guilty of the offence punishable under Section 138 of the Act and accordingly he was convicted by the trial Court.
8. Learned counsel submitted that when the judgment and order of conviction was challenged before the first appellate Court, it simply endorsed its view to that of the trial Court. Hence the learned counsel submitted that the judgment and order of conviction passed by the trial Court which is confirmed by the first appellate Court are not in accordance with the material placed before the Court. Hence he submitted that the judgment and order of conviction is not at all sustainable. It is the illegality committed and also misreading the evidence, committed by the Court below in coming to such conclusion.
9. Learned counsel made the submission that though it is the oral evidence of the respondent- 9 complainant that he has sold the gold, collected amount, paid the said amount to the revision petitioner-accused, even for that also he has not produced any documents to support the said contention. Hence he submitted that though there is a presumption initially in favour of the complainant, as per Section 118 and 139 of the Act, but the said presumptions are rebuttable and looking to the evidence placed by the revision petitioner-accused, he clearly rebutted the presumption which was initially raised in favour of the complainant. Hence he submitted that the revision petitioner established his defence which was ought to have been accepted by the Court below and ought to have dismissed the complaint filed by the complainant.
10. In support of his contention the learned counsel appearing for the revision petitioner-accused also relied upon the following decisions filed along with the memo dated 22.8.2017.
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i) 2013(3) SCC 86, case of Vijay vs. Laxman and another; ii) (2013)1 SCC 327, case of Reverend Mother Marykutty vs. Reni C Kottaram and another; iii) (2014)2 SCC 236, case of John K. Abraham vs. Simon C. Abraham and another; iv) 2013(3) KCCR 1940, case of Smt.Lakshmi Subramanya vs. Sri B.V.Nagesh; v) Crl.A.No.2789/2009, case of Thippeswamy vs. Gopalashetty; vi) 2009(2) KCCR 1273, case of P.Satyanarayana vs. C.H.Jayathertha; vii) AIR 1961 SC 1316(1), case of Kundan Lal Rallaram vs. Custodian, Evacuee Property, Bombay; viii) AIR 2006 SC 3366, case of M.S.Narayana Memon @ Mani vs. State of Kerala and another; ix) 2015(4) K.L.J. 118 (SC), case of K.Subramani vs. K.Damodara Naidu; x) Crl.R.P.No.2605/2010, case of Shankargouda vs. Kishan Rao. 11
In support of his contentions, learned counsel for the petitioner relied upon three more decisions, which are filed along with the memo dated 23.08.2017 and drew attention of this Court to the relevant paragraphs in the said decisions.
i. 2012 (3) KCCR 2057 in the case of Veerayya vs. G.K.Madivalar. ii. 2008 CJ (Karnataka) 525 in the case of Shiva Murthy vs. Amruthraj. iii. 2015 CJ (Karnataka) 175 in the case of Hanumanthappa Hanchinmane vs. Agasanakatte A Basavarajappa.
11. Per contra, learned counsel appearing for the respondent-complainant during the course of his arguments made submission that, when the revision petitioner-accused admitted signature on the instrument and when it is not his case that the complainant committed theft of the instrument and he come into possession of the instrument by such illegal 12 means, then in that case presumption under Section 118 and 139 of the Act are made applicable to the case of the complainant.
12. Learned counsel further made submission that so far as the defence of the accused is concerned, it is not consistent, it is not one defence, he goes on changing the defence; it is the case of the accused that when he was traveling in the bus from Khanapur to Belagavi, he has lost his cheque book; another defence is that somebody committed theft of the cheque book from his house and another defence is that the complainant somehow came into possession of the instrument which the accused has lost, on the basis of which he has filed the complaint. Hence the learned counsel for the complainant made submission that raising some plausible explanation is not sufficient, it must be supported by sufficient and cogent reasons which are worthy of acceptance. He submitted that in this case looking to the evidence of the revision 13 petitioner-accused he has not at all based any worth believable material so far as defence is concerned. Regarding the document Ex.P.6 is concerned, the learned counsel submitted that by mistake the date is mentioned as 30 instead of 31 and in this connection the learned counsel drawn attention of the Court to the judgment of the first appellate Court and the discussion made by the first appellate Court and it was accepted by the first appellate Court itself that it was by mistake the date is mentioned as 30 instead of 31.
13. Learned counsel submitted that only because of such one document Ex.D.6, the entire case of the complainant cannot be brushed aside. All the materials placed on record will have to be appreciated together. Hence he submitted that looking to the oral evidence, pleadings in the private complaint and the documents produced in the case, all going to establish the case of the complainant and the Court below disbelieved the defence of the accused person. In this connection so 14 far as the factual aspect is concerned, there are concurrent findings of both the Courts below. Hence he submitted that no illegality has been committed by the Courts below. Regarding the income tax Act is concerned, learned counsel made the submission that though there may be a provision that the transaction above value of `20,000/- must be by documentary proof and he also made the submission that there may be requirement to mention about the transaction in the income tax returns, but if he has not complied with the same, then the complainant is responsible for any action taken by the Income Tax Department in that regard. Learned counsel for the complainant also referring to Section 269SS of the Income Tax Act made the submission that, this provision goes to show that after a particular date 30.6.1984 no person shall receive or accept the amount more than `20,000/- otherwise than by account by way of cheque. Therefore he made the submission that this provision is made 15 applicable to the revision petitioner accused and not to the complainant.
14. He also made the submission that so far as the initial presumption under section 118 and 139 of the Act is concerned, the accused person has not at all placed material to rebut the said presumption. Therefore both the Courts below have taken all these aspects into consideration and rightly come to the conclusion in disbelieving the defence of the accused person and rightly convicted the accused. Hence the learned counsel submitted that there is no illegality committed in passing such order by the Courts below nor there is any perverse and capricious view taken by the Courts below. There are no justifiable and valid grounds for this Court to interfere with the judgment of the Courts below in this revision petition.
15. In support of his contention, learned counsel for the respondent-complainant also relied upon the judgment of this Court in the case of M.Suresh Babu 16 vs. Smt.Geetha Suresh, repor ted in 2014(5) Kar.L.J. 83 and drawn attention of this Court to the relevant paragraph No.10 of the said judgment. Hence he submitted to dismiss the revision petition confirming the judgment and order of the Courts below.
16. I have perused the grounds made out in the revision petition, judgment and order of conviction passed by the trial Court, judgment and order of the first appellate Court in the criminal appeal, so also, the oral evidence of P.Ws.1 & 2 and D.W.1, the documents produced by both sides before the trial Court.
17. The case of the respondent/complainant is that the petitioner/accused and the complainant are having close acquaintance, known to each other and the petitioner herein approached the complainant for financial assistance of Rs.9,80,000/-. Accordingly, on 20.11.2011, the complainant advanced Rs.9,80,000/- and the accused promised to return the said amount 17 within one month and inspite of repeated request, as the revision petitioner did not make the payment, legal notice issued and in spite of the legal notice, as the petitioner has not paid the amount, the respondent/complainant approached the trial Court by filing the private complaint. Regarding this aspect, the respondent produced the cheque Ex.P-1, which is dated 31.12.2011 and he has also produced the bank endorsement Ex.P-2, wherein it is stated that it was dishonored as the funds were insufficient. Let me examine the evidence led by both the parties in support of their contention. Sofar as the cheque Ex.P-1 is concerned, looking to the oral evidence of D.W.1, in the cross-examination he has clearly admitted that the signature on the said instrument is his signature; on page No.4 of his deposition it is stated that Ex.P-1 was shown to the witness and the witness admitted the signature as per Ex.P-1(a) is his signature. 18
18. When the signature on the instrument is admitted, then the presumption under Section 118 of the Act comes into play that it is for consideration. Of course, the said presumption is rebuttable presumption and it is for the accused to rebut the said presumption by placing cogent and acceptable defence.
19. The defence of the accused is that he has lost the cheque book while traveling from Khanapur to Belgaum in conveyance. Now the question is whether the accused established the probable defence, in this connection, I have perused the material, it is not his consistent defence throughout the proceedings, though he contended that he lost the cheque book in the bus while he was traveling from Khanapur to Belgaum, but in the reply notice he took the contention that somebody committed theft of the cheque book from his house. In the oral evidence, he has admitted that in his reply notice sent he has mentioned that he kept the cheque book in the trunk in his house and the cheque 19 book was stolen. So he has taken three defence in connection with the loss of his cheque book. Therefore, it can be said that there is no consistent defence, at one breath he contended that it lost while travelling, in another breath he contended that somebody committed theft of the cheque book from his house and there is no specific allegation that it is the complainant, who committed the theft of the cheque book.
20. When that is so, it is the accused person, who has to establish that how the complainant came into the possession or custody of the instrument Ex.P.1. Even with regard to the same, there is no proper explanation on the side of the accused person even for the loss of the cheque book.
21. I have carefully gone through the entire documents. It is stated at one place that it is the cheque book containing 25 leaves, in his oral evidence he has deposed that the cheque book is containing 24 20 leaves, so even with regard to the number of leaves in the cheque book, there is no consistency. When that is so, on the basis of such evidence, it cannot be said that there is a plausible explanation from the defence side and that plausible explanation is to be established with the help of cogent and acceptable material during the course of trial by way of oral and the documentary evidence. Hence, Courts below have rightly held that the defence regarding the loss of the cheque book is not satisfactorily established by the accused.
22. Apart from that, the conduct of the accused is very important in appreciating his defence. When it is his case that he has lost his cheque book containing 24 or 25 leaves, he was supposed to lodge the complaint immediately and take further steps in the matter, but looking to the proceedings here, when the reply notice was sent to the accused person through the complainant advocate, then he sent stop payment instruction and it is also his case that he gave the 21 complaint before the Police, but no such material has been produced before the Court to show his immediate conduct and whatever the action he has taken regarding the loss of the cheque book, it is after the lapse of considerable period of time i.e., after one year, because the loan transaction is of the year 2011 and the steps said to have been taken in the year 2012. Therefore, it also gives an impression that only with an intention to evade the payment of the cheque amount, he has taken steps subsequently to show that he has lost the cheque book. Therefore, this contention is also important in appreciating his defence.
23. Another contention of the accused person that regarding loss of the cheque book, there are no documents except Ex.P-1 for advancing the loan and it is contended by the learned counsel for the petitioner that how can the complainant advance such a huge amount i.e., Rs.9,80,000/-, orally, without having any documents, that too, by way of cash. In this 22 connection, it is also his contention that for advancing such huge amount the provision of Income Tax Act, more particularly, Section 269-SS is also not followed. In this connection, let me refer to the oral evidence of the parties.
24. Coming to the evidence of P.W.1, during the course of cross-examination on page No.6 of the deposition, the complainant P.W.1 has deposed that the relationship between himself and the accused is good, he is going to the house of the accused and the accused is coming to his house and he know the accused person since many years and the witness also deposed that as the accused is known to the complainant since from many years, the complainant is treated as one of the family member of the accused family, for this suggestion P.W.1 said Yes. The further evidence on page No.7 of the deposition of P.W.1 deposed that for having advanced the loan of Rs.9,80,000/- to the accused person there are no 23 agreements, but as there were many transactions in between the accused and himself and on every occasion he gave the amount to the accused. P.W.1 further deposed that he advanced Rs.9,80,000/- on trust. But he deposed he does not remember whether he has shown this loan transaction of Rs.9,80,000/- in his Income Tax return or not. He denied the further suggestion that on 20.11.2011 he has not at all advanced Rs.9,80,000/- to the accused person and he is deposing falsely.
25. Now coming to the evidence of D.W.1 in this regard, in the cross-examination on page No.3 of the deposition, he admitted as true that in connection with the land, the proceedings are pending before the Court and also before the KAT. The evidence is important because as the cases were pending before the Court in connection with the said land, the accused was need of money, it was admitted as true by the witness. Next he deposed that even till date the said proceedings were 24 not at all disposed of. In paragraph No.3 of page No.3, the witness deposed that he know the complainant since 10 years, he admitted the suggestion that the relationship between himself and the complainant is good since from the beginning. So these portion of the evidence goes to show that the relationship between the complainant and the accused person was very faithful and there were no sort of any differences, they known to each other since 10 years and even earlier also many transactions took place between them.
26. Looking to all these materials and as deposed by the complainant that, because of the faith and confidence in the accused person, he advanced loan by way of cash without any further document. This explanation offered by the complainant is reasonable and acceptable in view of the evidence placed on record.
27. So far as the provision under the Income Tax Act, section 269SS is to the effect that, "no person 25 shall take or accept f rom any other person (herein ref erred to as the depositor), any loan or deposit or any specif ied sum, other wise than by an account payee cheque or account payee bank dr af t or use of electronic clear ing system through a bank account, if , - (a) the amount of such loan or deposit or specif ied sum or the aggregate amount of such loan, deposit and specif ied sum; or (b) on the date of taking or accepting such loan or deposit or specif ied sum, any loan or deposit or specif ied sum taken or accepted earlier by such person from the depositor is remaining unpaid (whether repayment has fallen due or not), the amount or the aggregate amount remaining unpaid; or (c) the amount or the aggregate amount ref erred to in clause (a) together with the amount or the aggregate amount ref erred to in clause (b), is twenty thousand rupees or more".
28. So looking to this provision also, as it is rightly submitted by the learned counsel for the respondent-complainant that according to this 26 provision a duty is cast on the part of the accused person herein in this case that even if the complainant come forward to give such a huge amount by way of cash, he could have insisted to give the amount by way of account payee cheque or the bank draft, which was not done in this case. Therefore the accused person only on this basis cannot complain against the complainant that he violated the provisions of the Income Tax Act, more particularly section 269SS of the said provision. Apart from that, even if it is assumed that the complainant advanced such a huge amount in cash without getting any other document or he violated some of the provisions of the Income Tax Act, it is also for the Income Tax Department to initiate action against the complainant. So only on that basis the entire material placed by the complainant both by way of oral and documentary evidence cannot be thrown out by the Court of law.
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29. As per Section 3 of the Indian Evidence Act, the principle for appreciation of the evidence placed on record, the Court has to see the entire material. The cumulative effect is to be appreciated and not in isolation by here and there. Therefore the contention of the learned counsel appearing for the petitioner- accused that the documents were not obtained, it was a cash transaction, it is in violation of some of the provisions of the Income Tax Act and on that basis the case of the complainant is to be disbelieved cannot be accepted by this Court.
30. It is true as per the document Ex.P.6 produced by the complainant it shows that, the cheque was issued on 30.12.2011 itself. But for this there is an explanation by the accused and in his pleadings also it is mentioned the date of cheque is 31.12.2011. When that is so, through oversight if the date is mentioned in Ex.P.6 as 30.12.2011, only on that basis 28 the other materials cannot be disbelieved. It is to be appreciated along with other materials.
31. Apart from that, so far as payment of money is concerned, the complainant has examined PW.2 one of the witnesses. Looking to his oral evidence, he deposed that on the date i.e., on 20.11.2011 the accused person came to the house of the complainant to demand the amount. The evidence of this PW.2 also goes to show, in his presence the complainant gave cash of `9,80,000/- to the accused person. Even his evidence is to the effect that on the day i.e., on 31.12.2011 i.e., the date of issuance of the cheque, it is his evidence that the complainant called him to his house stating that the accused has come and he wanted to issue the cheque in favour of the complainant. So he went to the house of the complainant, in his presence the accused person issued the cheque. When such evidence is there through the mouth of PW.2, looking to the cross- 29 examination of this PW.2 also, though it is a lengthy cross-examination, nothing has been elicited from his mouth on the side of the defence so as to disbelieve his contention that on both the dates i.e., on the date of advancement of money by the complainant to the accused person, and on the date when the accused gave the cheque to the complainant, on both the dates he was present. It inspires confidence of the Court about the evidence of PW.2. Therefore the evidence of the complainant is also supported by the evidence of independent witness regarding the transaction and issuance of the cheque. Even in his oral evidence also PW.2 deposed that the cheque was given on 31.12.2011. When such material is also placed by way of oral evidence that too by way of independent witness, this also comes to the help of the complainant in proving that the cheque was really issued on 31.12.2011 and not on 30.12.2011.
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32. Apart from that, it is only a stray admission and only on that basis the entire case cannot be disbelieved. As I have already observed above, appreciating the entire material, the cumulative effect is to be appreciated. Not only that, this is a revision petition. The scope is limited. This Court cannot appreciate the oral evidence of the parties just like the first appellate Court. The first appellate Court is the Court of law and facts and before this Court, having limited jurisdiction, unless and until it is established by the revision petitioner-accused that there is a patent and grave illegality in the judgments of the Courts below, while appreciating the oral and documentary evidence, this Court cannot interfere and to that extent this Court can consider the evidence of the parties afresh. Otherwise the concurrent findings of the Courts below regarding the factual aspects of the matter is having its own importance in the matter. 31
33. Regarding the presumption even under Section 139 of the Act, though the earlier view was that there is no presumption that whenever the cheque is issued, the cheque is for discharge of the existing debt and this was the view of the Division Bench of the Hon'ble Apex Court in Krishna Dattatraya's case, but subsequently in the year 2010, the full bench of the Hon'ble Apex Court in Rangappa vs. Sri Mohan, repor ted in 2010(11) SCC 441, took the view that whenever the accused admits his signature and issuance of the instrument, it is to be presumed that it is in discharge of the existing debt. Unless the said presumption is rebutted by the accused through proper evidence, the said presumption will prevail.
34. I have also carefully gone through the citations relied upon by the learned counsel appearing for the petitioner-accused, referred to above. I have also gone through the principles enunciated under the said decisions. The principles cannot be disputed. The 32 decisions are depending upon the factual situation in those cases. But looking to the facts and circumstances involved in the case on hand, about which I have already made discussion and the facts and circumstances in the reported decisions relied upon by the learned counsel for the petitioner-accused, they are not coming to the aid and assistance of the case of the petitioner-accused.
35. Learned counsel for the respondent- complainant also relied upon one decision regarding conduct of the petitioner-accused that, when it is his case that he has lost the cheque book, his immediate conduct would be, he should have approached the police by lodging a complaint and if the police have not taken any action in the said matter, he should have approached the Court at the earliest point of time invoking Section 200 of Cr.P.C., by filing a private complaint. So this decision reported in 2014(5) Kar.L.J., 83 and relevant paragraph No.10 is aptly 33 made applicable to the case on hand. I have also considered the conduct of the accused person immediately after the loss of the cheque book. Considering the entire materials even the factum of loss of cheque book, containing cheque leaves is also not satisfactorily established by the respondent. In the absence of such proof, the initial presumption under Section 118 and 139 of the Act, does not get disturbed which is raised in favour of the complainant.
36. Perusing the judgment and order of the Courts below, both the Courts extensively considered the material both oral and documentary and rightly comes to the conclusion in holding that he petitioner- accused herein is guilty of the offence punishable under Section 138 of the Act. I do not find any illegality in the judgments of the Courts below nor there is any perverse or capricious view taken by such Court. So there are no justifiable and valid grounds for this Court interfering with the judgment of the Courts 34 below either to modify the said judgment or to set aside the said judgments. There is no merit. Accordingly the petition is hereby rejected.
The amount of five lakh rupees which is said to have been deposited by the petitioner-accused, the respondent-complainant is permitted to withdraw the same.
SD/-
JUDGE Mrk/-BSR