Bangalore District Court
Represented By Its Proprietor vs S/O Late Murgesh on 1 February, 2022
0 Crl.A.No.1484/2018
1 Crl.A.No.1484/2018
KABC010217822018
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
Dated this the 01st day of February, 2022
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
Crl.A.No.1484/2018
Accused/ M/s Reflect Business Solutions
Appellant : Represented by its Proprietor
Sri.L Anantha Rao Jadav,
S/o Late Lakshman Rao Jadav,
Aged about 45 years,
R/at No.824/7, 6th 'D' Cross,
Prakash Nagar, Rajajinagar,
3rd Stage, Bengaluru-560021.
(by Sri.Hanumantha Raju C., Advocate)
-V/S-
Complainant/ Sri.M.Raju
Respondent: S/o Late Murgesh,
Aged about 52 years,
R/at No.19, 2nd Cross,
Mahalakshmipuram,
Bengaluru-560086.
(By Sri.B.S., Advocate)
2 Crl.A.No.1484/2018
JUDGMENT
This appeal is filed by the Appellant praying to set aside the judgment dated 07.07.2018 passed by the learned 20th ACMM, Bengaluru, in C.C.No.35261/2014 and prayed to acquit the accused in the said case.
2. The appellant of this appeal was the accused before the Trial Court. The respondent of this appeal was the complainant before the Trial court. The rank of the parties to this appeal will be hereinafter referred to with the same rank as assigned to them before the trial court for the sake of convenience.
3. The brief facts which leads to file this appeal in nutshell are as follows:
The complainant/respondent had filed private complaint before the trial court bearing PCR No.20173/2014 against the accused alleging the commission of offence punishable u/Sec.138 of N.I. Act. It is alleged in the private compliant before the trial court that the accused being a good friend of the complainant had availed financial assistance of Rs.5,00,000/- from the complainant to meet his requirements. Thereafter, he did not come forward to pay hand loan amount. When the complainant has insisted for payment, the accused had issued cheque bearing No.137295 dated 15.09.2014 for Rs.5,00,000/-, drawn on State Bank of Mysore, Gayathrinagar Branch, Bengaluru, in favour of the complainant for payment of loan amount. The complainant had presented the said cheque for realization as per the instruction of the accused.3 Crl.A.No.1484/2018
The said cheque was dishonoured on 05.11.2014 by the accused bank with endorsement "Account closed". Thereafter, the complainant had issued legal notice to the accused on 20.11.2014 through RPAD by informing about dishonour of cheque and demanding the payment of cheque amount. The said RPAD notice was served on the accused on 22.11.2014.
The accused had not paid the cheque amount and he gave evasive reply on 13.12.2014. Hence, the complainant has alleged before trial court that the accused had committed the offence punishable u/Sec.138 of N.I. Act.
4. After filing of the complaint, the trial court took cognizance for the offence punishable u/Sec.138 of N.I.Act against the accused. Thereafter the trial court has recorded the sworn statement of the complainant. The complainant had adduced his sworn statement as C.W.1 before the trial court. The trial court after perusing the private compliant, sworn statement of the complainant and the documents produced by him was pleased to registered criminal case against the accused in CC.No.35261/2014 for the offence punishable u/Sec. 138 of N.I. Act and issued summons to the accused.
5. The accused had appeared before the trial court after the service of summons and he was enlarged on bail. On appearance of the accused before the trial court, the trial court had recorded the plea of accused for the offence u/Sec.138 of N.I.Act. The accused pleaded not guilty and claimed to be tried. Hence, trial court has posted the matter for evidence of the complainant.
4 Crl.A.No.1484/20186. The complainant in order to prove the allegations made in the complaint had adduced the oral evidence as P.W.1. P.W.1 had produced 7 documents on behalf of the complainant and got them marked as Ex.P.1 to P.7. Thereafter, the trial court had recorded the statements of the accused u/Sec.313 of Cr.P.C. The accused has denied all the incriminating evidence appearing against him and he has chosen to lead his defence evidence. The proprietor of accused company has adduced his oral evidence as D.W.1. D.W.1 has produced 47 documents and got them marked as Ex.D.1 to D.47. Then the matter was posted by the trial court for arguments.
7. The trial court, after hearing the arguments and after perusing the oral and documentary evidence was pleased to pass the judgment dated 07.07.2018 by convicting the accused for the offence punishable u/Sec.138 of N.I. Act. The trial court has sentenced the accused to pay fine of Rs.7,00,000/- and in default of payment of fine amount he shall undergo simple imprisonment for four months. The trial court has directed to pay Rs.6,90,000/- out of the said amount as compensation to the complainant and to forfeit remaining Rs.10,000/- amount towards fine. The accused being aggrieved by the said judgment of the trial court has preferred this appeal.
8. Grounds of appeal in nutshell as urged in the appeal memorandum are as follows:-
5 Crl.A.No.1484/2018(a) The trial court has not appreciated the evidence and facts on record and mechanically passed the impugned judgment.
(b) The trial court has not considered the defence evidence of the accused that he never taken money from the complainant and he has not issued any cheque as alleged by the complainant for repayment of the said alleged loan amount.
(c) P.W.1 in the cross-examination has admitted that accused has given reply to his legal notice. The complainant has sent any rejoinder to the reply notice and thereby admitted the contention of the accused in the reply notice.
(d) P.W.1 in the cross-examination has admitted the filing of criminal complaint by the accused against him and others.
P.W.1 has admitted that he is no an income tax payee. The trial court has not considered the fact that the complainant has no financial capacity to lend Rs.5,00,000/- amount in cash to the accused.
(e) The complainant has not stated about his source of income. He has not produced any documents to show that he was having Rs.5,00,000/- cash with him to lend the same to the accused.
(f) The complainant has given his evidence in CC.No.5300/2010 pending on the file of 9 th ACMM, in the complaint filed by one Govindaraju. The complainant has also given his statement in Cr.No.60/2016 (CC.No.18408/2016) filed by on Govindaraju against the accused and Dakshayani. One 6 Crl.A.No.1484/2018 Rangaramaiah has also given his evidence and statement in the aforesaid two cases. one Girish Kumar has filed CC.No.35260/2014 against the accused. All the aforesaid persons have formed a group and they have conspired together and they are trying to make wrongful gain from the accused and with the said common intention they have filed different cases against the accused. The trial court has not considered the said fact.
(g) The accused has given complaint before the police stating that he had lost his signed cheque books and he had also written letter to his bank stating that he had lost his signed cheque books and not to honour the those cheque if those cheques are presented for encashment.
(h) The complainant is stranger to the accused and the alleged loan transaction was not took place between the complainant and the accused. There was no legally enforceable debt or liability by the accused towards the complainant. Inspite of it the court below has wrongly come to the conclusion that complainant has proved all the ingredients of Sec.138 of N.I.Act.
(i) The trial court is erred in conviting the accused for the offence punishable u/Sec.138 of N.I.Act. Even though the complainant has failed to discharge his initial burden of proving that the cheque in question was issued by the accused for discharge of legally enforceable debt.
(j) The trial court having considered the defence evidence adduced on behalf of the accused ought to have 7 Crl.A.No.1484/2018 arrived to the conclusion that no case is made out as against the appellant/ accused u/Sec.138 of N.I.Act.
On these among other grounds stated in the appeal memorandum, the appellant has prayed to set aside the order of the trial court.
9. After filing of the appeal, it is registered as Crl.A.No.1484/2018 and notice was issued to the respondent. After service of the notice, the respondent was appeared through his counsel. Thereafter, the lower court record was called for. After receipt of lower court record, the matter was posted for arguments.
10. Heard the arguments of the Learned counsel for the appellant and respondent. The learned counsel for the respondent has filed his written arguments. Perused the appeal memorandum, lower court records, written arguments and other materials on record.
11. Having done so, the following points will arise for my consideration:
(1) Whether the appellant proves that the trial court is erred in convicting the accused/appellant for the offence punishable u/s.138 of N.I.Act ?
(2) Whether the appellant proves that the interference of this court is required with the impugned judgment of the trial court?
(3) Whether the appeal filed by the appellant is deserves to be allowed?
(4) What order?8 Crl.A.No.1484/2018
12. My findings on the above points are as under:
(1) Point No.1 .. In the Negative
(2) Point No.2 .. In the Negative
(3) Point No. 3 .. In the Negative
(2) Point No.4 .. As per final order
for the following:
REASONS
13. Point No.1 to 3:- These three points are
interrelated to each other and as such, they are taken together for discussion to avoid repetition of facts.
14. The complainant had filed private complaint before the trial court u/Sec.200 of Cr.P.C. by alleging the commission of offence u/Sec.138 of N.I.Act by the accused. Since the complainant had alleged that the accused had committed the offence punishable u/Sec.138 of N.I.Act, it is for the complainant to prove all the essential ingredients of Sec.138 of N.I.Act. Hence, it is relevant to note down the provisions of Sec.138 of N.I.Act herein, in order to know its essential ingredients.
Sec.138 of N.I. Act provides as follows:
"Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to 9 Crl.A.No.1484/2018 be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque or with both. "
15. Thus from reading the aforesaid section, it is clear that the complainant has to prove the following essential ingredients for holding the accused guilty of offence under the said section.
(a) The cheque has been drawn by the accused on Bank account which is maintained by him with a particular Banker.
(b) The amount of money mentioned in the cheque is for discharging the legal liability either wholly or partially and
(c) The cheque is dishonoured or it is returned unpaid due to insufficiency of funds etc.,
16. In order to prove the allegations made in the complaint, the complainant had adduced his oral evidence as P.W.1 before the trial court. P.W.1 in his examination-in-chief filed by way of affidavit has stated that the accused being a good friend of him had availed financial assistance of Rs.5,00,000/- from him to meet his requirements. Thereafter, the accused did not come forward to pay hand loan amount. P.W.1 has further stated in his evidence that when he has insisted the accused for repayment of loan amount, the accused had issued cheque bearing No.137295 dated 15.09.2014 for Rs.5,00,000/-, drawn on State Bank of Mysore, 10 Crl.A.No.1484/2018 Gayathrinagar Branch, Bengaluru, in his favour for payment of loan amount. P.W.1 has further stated in his evidence that he had presented the said cheque for realization as per the instruction of the accused. The said cheque was dishonoured on 05.11.2014 by the accused bank with endorsement "Account closed". P.W.1 has further stated in his evidence that thereafter he had issued legal notice to the accused on 20.11.2014 through RPAD by informing about dishonour of cheque and demanding the payment of cheque amount. The said RPAD notice was served on the accused on 22.11.2014. The accused had not paid the cheque amount and he gave evasive reply on 13.12.2014. Hence, P.W.1 has stated that the accused had committed the offence punishable u/Sec.138 of N.I. Act.
17. P.W.1 apart from adducing his oral evidence has produced certain documents. He has produced the original cheque issued by the accused bearing No.137295 dated 15.09.2014 for Rs.5,00,000/-, drawn on State Bank of Mysore, Gayathrinagar Branch, Bengaluru at Ex.P.1. Ex.P.1(a) is the signature of the accused. Ex.P.2 is the bank endorsement. In Ex.P.2, it is mentioned that Ex.P.2 cheque is dishonoured due to "Account Closed". P.W.1 has produced the office copy of legal notice dated 20.11.2014 issued by him to the accused at Ex.P.3. Ex.P.4 is the postal receipt of the said legal notice. Ex.P.5 is the postal acknowledgement. Ex.P.6 is the reply notice dated 13.12.2014 and Ex.P.7 is the private complaint bearing PCR.No.20173/2014.
11 Crl.A.No.1484/201818. The accused has not disputed the fact that Ex.P.1 cheque is belonging to him and the said cheque was drawn by him on the account maintained by him in his bank. The accused has also not disputed his the signature on Ex.P.1 cheque. But accused in his reply notice produced at Ex.P.6 has contended that he had lost his cheque books on 28.06.2010 at about 11.00 p.m. when he was proceedings towards Townhall on Market Road along with his property documents and the complainant has misused one cheque leaf out of the missed cheque book and filed false complaint against him. Whether the accused has succeed in proving the said defence or not will be discussed in later paras. But the fact that Ex.P.1 cheque was presented by the complainant for encashment and the fact that the said cheque was with the complainant before its presentation and the fact that the said cheque belonging to the accused drawn on the accused maintained by him are sufficient to come to the conclusion that complainant became the holder within the meaning of Sec.8 of N.I.Act. Once a cheque is issued by the drawer, a presumption under Sec.118(a) r/w. S.139 of N.I.Act must follow.
Sec.118(a) of N.I.Act provides as follows:
"Until the contrary is proved, the following presumption shall be made
(a) That every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration."12 Crl.A.No.1484/2018
Sec.139 of N.I.Act provides as follows:
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Sec.138 for the discharge, in whole or in part, of any debt or other liability.
19. Thus, u/s.139 of N.I.Act, the initial presumption arises in favour of the complainant that the said cheque was issued for discharge of legally enforceable debt. Once the cheque is proved to be relating to the account of the accused and he admits the signature on the said cheque, then the initial presumption as contemplated u/Sec.139 of N.I.Act has to be raised by the court in favour of the complainant. Further u/Sec.118(a) of N.I.Act there is presumption that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted for consideration. Presumption u/Sec.118(a) and 139 of N.I.Act is a legal presumption and it is a mandatory presumption. The initial mandatory statutory presumption as provided u/Sec.118 r/w. S.139 of N.I.Act are in favour of the complainant.
20. In the recent decision of Hon'ble Supreme Court of India reported in (2021) 5 Supreme Court cases 283 :
2021 Online SC 75 (Kalamani Tex and another V/s P.Balasubramanian, rendered by Hon'ble three judges bench, the Hon'ble Supreme Court of India has discussed about the provisions of Sec.139 and 118 of N.I.Act. In the said judgment, the Hon'ble Supreme Court of India has held in Para No.13 while discussing the provisions of Sec.118 and 139 of 13 Crl.A.No.1484/2018 N.I.Act, that the statute mandates that once the signature of an accused on the cheque is established, then these "reverse onus" clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him.
21. Further in the aforesaid judgment, the Hon'ble Supreme Court of India in Para No.15 has observed that the presumption raised u/Sec.118 and 139 of N.I.Act are rebuttable in nature. A probable defence needs to be raised, which must meet the standard of "preponderance of probability", and not mere possibility. Further, a bare denial of passing of consideration would not aid the case of the accused. In Para No.17 of the judgment, the Hon'ble Supreme Court of India has held that even if the arguments raised by the appellants are taken at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated, because, legally, even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. In the aforesaid judgment, in Para No.14, the Hon'ble Supreme Court of India has held that when the accused has admitted his signature on the cheque and the deed, the trial court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. It is further observed that the trial court fell in error 14 Crl.A.No.1484/2018 when it called upon the respondent complainant to explain the circumstances under which the appellants were liable to pay. It is further observed that, such approach of the trial court was directly in the teeth of the established legal position and amounts to a patent error of law.
22. Thus from the aforesaid decision of Hon'ble Supreme Court of India in Kalamani Tex case, it is clear that once the accused admits his signature on the cheque, it can be presumed u/Sec.139 of N.I.Act that the cheque was issued for discharge of legally enforceable debt. The court cannot insist the complainant to explain the circumstances under which the accused is liable to pay the cheque amount.
23. Thus from the provisions of Sec.118(a) and Sec.139 of N.I.Act, it is clear that the court shall raise the legal presumption in favour of the complainant that he has received the cheques in question for discharge of legal liabilities and cheque was made and drawn for said purpose. This principles is also clearly held by the Hon'ble Supreme Court of India in Kalamani Tex case as discussed above. The burden is upon the accused to adduce satisfactory defence evidence to rebut the strong presumption as provided u/Sec.118 and Sec.139 of N.I.Act. Hence, the contention of the Learned counsel for the appellant in the grounds of appeal that that the burden is upon the complainant to prove his source of income to lend money to the accused and the burden is upon the complainant to prove the existence of legally enforceable debt cannot be acceptable one.
15 Crl.A.No.1484/201824. In order to rebut the presumption u/Sec.139 of N.I.Act, the accused had adduced his defence evidence before the trial court as D.W.1. D.W.1 in his examination-in-chief has admitted the fact that he was the proprietor of Reflect Business Solution. D.W.1 has further stated in his examination-in-chief that on 28.06.2010 around 10.00 a.m. when he was proceedings towards Townhall, Market Road for attending his personal work, he has lost a plastic pouch containing copy of his house property documents and signed cheque leaves (cheque book) of savings bank account having numbers 137281 to 137300. D.W.1 has further stated in his examination-in-chief that on the same day he had lodged complaint about the same to Halsur Gate police station and he has also given stop payment mandate to his bank through UCP. D.W.1 has further stated in his examination-in-chief that complainant is stranger to him and he has not obtained any amount from the complainant and he has not issued Ex.P.1 cheque to the complainant. D.W.1 has further stated in his examination-in-chief that the complainant by colluding with some third party has misused on of his signed cheque leaf which was lost by him and filed false complaint against him. This defence is also stated by the accused in his reply notice.
25. In the examination in chief of D.W.1 as well as Ex.P.6 reply notice, it is stated that accused had lost signed cheque book and property documents on 28.06.2010 at about 11.00 a.m. D.W.1 has further stated in his examination-in- chief that on 28.06.2010, he gave police complaint. But Ex.D.3 complaint given to Halsur police station is stated 16 Crl.A.No.1484/2018 26.08.2010. There is delay of more than two months in lodging the complaint. The accused in his all subsequent complaints and correspondence has stated that he had lost cheque leaves on 26.08.2010. But the accused had not made any efforts to give proper explanation for mistake if any occurred in Ex.P.6 and in his chief-examination about date of missing of cheque book. As such, I am of the opinion that the alleged date of missing of cheque book by the accused can be considered as 28.06.2010. If the said is considered, there is inordinate delay of two months in lodging the complaint and same is not properly explained by the complainant.
26. In Ex.D.3 complaint, it is mentioned that the accused had lost the signed cheque book of SB Account No.54010753280 and signed cheque book of current account No.64013913410 of Reflect Business Solution. But Ex.D.3, the serial number of cheque leaves which were found in the aforesaid two cheque books is not specifically mentioned. D.W.1 during the course of cross-examination has denied the suggestion put to him that he has not mentioned the cheque numbers in Ex.D.3 even though the same is not stated by him in Ex.D.3. In Ex.D.4 affidavit of the complainant, the cheque numbers which were lost by him is not mentioned. This fact is also admitted by D.W.1 in his cross-examination.
27. Ex.D.5 produced by the accused is the copy of the letter written by the accused to his banker on 26.08.2010. The said letter was sent through UCP. In Ex.D.5 also the accused has not mentioned the cheque numbers of cheque 17 Crl.A.No.1484/2018 leaves which were lost by him. D.W.1 in his cross-examination has also admitted this fact. Ex.D.8 is the representation given by the accused to Home Minister against one Lakshman dated 16.09.2010. In the said representation is also the said cheque numbers are not mentioned. The said Lakshman had filed PCR No.98/2010 (CC.No.31/2011) against the accused. Ex.D.18 is the certified copy of said private complaint. Ex.D.16 is the order sheet of the said private complaint. In the said complaint, the Lakshman had alleged that the cheque issued by the accused for discharge of loan amount of Rs.5,00,000/- taken from him was dishonoured by the accused bank on 03.09.2010. The bank endorsement shows that the said cheque was dishonoured by the accused on 03.09.2010 with shara "Insufficient Funds" in the account of the accused to honour the cheque.
28. According to the accused, Ex.D.5 stop payment mandate was issued by the accused to his bank through UCP on 26.08.2010. If really the accused had issued the said stop payment mandate to his bank on 26.08.2010, definitely the accused banker would have dishonoured the cheque presented by Lakshman with shara payment stop by the account holder. The accused has not produced any sufficient materials to show that Ex.D.5 letter was served upon his bank. What was the impediment for the accused to give the stop payment letter personally through his banker or to send it through RPAD is not explained by the accused. The accused has not examined his bank authorities to prove his contention that he had issued stop payment mandate to them as per 18 Crl.A.No.1484/2018 Ex.D.5 and requesting them not to honour the cheque leaves having specific serial numbers mentioned in his reply notice. Ex.P.1 cheque belonging to the accused and another cheque belonging to the accused presented by one Girish were dishonoured due to account closure and not on account of stop payment mandate issued by the accused. There are no sufficient materials on record except Ex.D.5 to show that the accused had issued stop payment mandate to his bank as per Ex.D.5 and it was communicated to his bank.
29. D.W.1 in his cross-examination has stated that along with cheque books he had lost the property documents of his houses situated in Laggere and Prakash Nagar. D.W.1 has stated that he had not issued any public notice in the newspaper about missing of cheque books and his property documents. D.W.1 in his cross-examination has stated that the police have not registered any case on the complaint filed by him. He has further stated in the cross-examination that he had enquired the police on several times about not registering the complaint. He has stated that the police have told him that the investigation of his complaint is under process. The accused has not made any efforts to get registered the case regarding missing of his cheque books and property documents on the basis of Ex.D.3 complaint.
30. Ex.D.15 is the private complaint lodged by accused against S.N.Lakshmana. It was filed on 11.11.2013. Whereas Lakshmana had filed private complaint against the accused in the year 2010 itself. The accused had got knowledge about filing of complaint by Lakshmana against him in the year 19 Crl.A.No.1484/2018 2010. The accused had given complaint against Lakshmana to Home Minister as per Ex.D.8 on 16.09.2010. Inspite of it, he had not lodge any complaint against Lakshmana immediately when he came to know that Lakshmana had lodged complaint against him about dishonour of the cheque belonging to him. There is delay of more than three years in filing PCR.No.23294/2013 by the accused against Lakshmana. In the said private complaint, the accused has stated that he gave complaint against Lakshmana to the Halsur Gate police station on 16.09.2010. But the accused has not produced any materials to prove the said fact. In Ex.D.15 also, the accused has not mentioned the cheque number of the cheque leaves alleged to have been lost by him on 26.08.2010.
31. For the first time in Ex.P.6 reply notice, the accused has mentioned the serial number of the cheque leaves which were alleged to have lost by him on 26.08.2010 as 137281 to 137300. Except the said document, the accused has not produced any other documents to prove that cheque leaves starting from numbers 137281 to 137300 were lost by him on 26.08.2010. He has not examined the bank authorities to prove that the cheque books having the aforesaid serial numbers were issued by the bank to the accused in the year 2010 and to prove that the accused had written letter to his banker stating that he had lost the said cheque books on 26.08.2010 and the accused had requested the bank not to honour the cheque leaves of the aforesaid serial numbers if they were presented.
20 Crl.A.No.1484/201832. In Ex.D.3 to D.5, the accused had stated that the cheque books of two different account i.e., one of savings bank account and one of current bank account were lost by him on 26.08.2010. Two cheque books of two different accounts would not contain the cheque leaves having same serial numbers as stated in Ex.P.6 reply notice. The serial number of another cheque book is not mentioned by the accused in Ex.D.3 to D.5. When the accused came to know that Lakshmana had presented the cheque bearing No.137288 belonging to him in the year 2010 itself which according to the accused was lost by him, what was the impediment for the accused to file complaint to the police to take proper action the said Lakshmana for misusing the cheque from the cheque book which was lost by him is not satisfactorily explained by the accused. Further the accused has also not explained the reasons for not giving stop payment mandate to his bank by mentioning the serial number of cheque leaves which were lost by him. The accused has not requested the police to seize other cheque leaves which were lost by him by mentioning the serial number of those cheques after he came to know about filing of private complaint by Lakshmana. If the accused would have lodged compliant by specifically mentioning the cheque numbers which were lost by him, the police would have register the complaint regarding missing of cheque leaves having particular cheque numbers and they would have made efforts to seize those cheque leaves either from Lakshmana or from the person who has found the cheque books which were alleged to have been lost by the accused. In Cr.No.375/2013, 21 Crl.A.No.1484/2018 the police have not seized the cheque books alleged to have been lost by the accused. If really the accused had lost the cheque leaves signed by him on 26.08.2010, he would have definitely mentioned the serial numbers of those cheques in his complaint given to the Halsur Gate police station as per Ex.D.3. The accused had failed to adduce any sufficient evidence to prove that Ex.P.1 cheque is one of the cheque alleged to have been lost by him on 26.08.2010. It seems that the accused for the first time has mentioned the cheque numbers in his reply notice issued as per Ex.P.6 to the legal notice of the complainant as an after thought with malafide intention of creating a defence in the case before the trial court that he had not issued the cheque to the complainant for discharge of loan amount or for discharge of any debt or legal liability.
33. Further according to the accused, on 26.08.2010 he had kept with him two cheque books of two different account number containing signed cheque leaves. The accused had not given any proper explanation for keeping signed cheque leaves with him. In Ex.D.3 or in his reply notice, the accused has not explained the reason why he had kept two cheque books of different account with signed cheque leaves with him. Ordinarily no person would keep 20 signed cheque leaves with him without any valid reasons. The contention of the accused that he had kept 20 signed cheque leaves with him in plastic bag on 26.08.2010 without any valid reasons cannot be acceptable from the point of view of ordinary prudent man also. In the absence of any special 22 Crl.A.No.1484/2018 reasons, the said contention of the accused cannot be acceptable one. The accused has taken similar defence in the private complaint filed by Girish and Lakshmana against him alleging the commission of offence punishable u/Sec.138 of N.I.Act. In the absence of proper explanation, the contention of accused that he had 20 blank signed cheques leaves with him and he has lost the same cannot be believed. Ex.D.1 complaint by the accused against the complainant Girish and Rangaramaiah was filed subsequent to filing of the private complaint by the complainant and Girish against the accused. Cr.No.152/2015 is yet to be investigated by the police. D.W.1 in the cross-examination has admitted that police have filed 'B' report in PCR.No.4731/2015. He has stated that he had filed objection to said 'B' report. The accused has not produced any materials to show that what order was passed on said 'B' report. Under these facts and circumstances, the allegation of the accused complainant had misused one of his signed cheque which was lost by him and filed false complaint against him cannot be acceptable one.
34. Various documents produced by the accused during the course of his defence evidence goes to show that the accused is in the habit of filing complaint against the persons who have filed case against him. The accused had filed PCR.No.23294/2013 against one Lakshmana who had filed cheque bounce case against him in the year 2010. One Girish Kumar had filed cheque bounce case against the accused in PCR.No.20176/2014. One Rangaramaiah had filed O.S.No.497/2015 against the accused for recovery of money.
23 Crl.A.No.1484/2018The complainant had also filed cheque bounce case before the trial court against the accused. The accused had filed complaint against all the aforesaid persons by alleging that they have misused his signed cheque leaves which were lost by him. But till today the police have not filed any charge sheet against any of the aforesaid persons including the complainant by alleging that they have misused the signed cheques of the accused which were lost by the accused. Further as stated earlier, from 26.08.2010 till today, the police have also not seized any cheque books or any signed cheque leaves belonging to the accused or the property documents alleged to have been lost by the accused on 26.08.2010.
35. D.W.1 in his cross-examination has admitted that CC.No.5300/2010 against him is still pending and in the said case complainant and Rangaramaiah have given evidence. Further Ex.D.45 shows that Cr.No.18048/2016 is also pending against the accused. In the said crime, charge sheet is also filed against the accused as per Ex.D.46 by K.P.Agrahara police. The said complaint was filed by one Govindaraju. It is the contention of the accused that said Govindaraju and complainant and other persons have conspired with each other and they have misused the signed cheque books lost by him to file various cases against him. But as it is discussed earlier, no charge sheet is filed against any persons in this regard. Further in the cross-examination of the complainant in Cc.No.5300/2010 as per Ex.D.41 conducted by the accused on 03.01.2015, the accused has not made any such suggestions to him and he has not put any suggestion stating that he by 24 Crl.A.No.1484/2018 conspiring with others has filed false case by misusing his signed blank cheque.
36. The aforesaid facts and circumstances discussed above, creates doubts about the very defence of the accused that Ex.P.1 cheque was lost by him on 26.08.2010 and it was misused by the complainant to file private complaint against him before the trial court. The said defence of the accused cannot be considered as probable defence to rebut the presumption u/Sec.118(a) and 139 of N.I.Act. The accused has failed to produce sufficient materials to prove that he had not issued Ex.P.1 cheque to the accused for discharge of his debt or legal liability and the said cheque was lost by him and it was misused by the complainant.
37. On the other hand, the complainant has adduced his oral evidence to discharge the burden of proving his contention that the accused had availed hand loan of Rs.5,00,000/- from his and accused had issued Ex.P.1 cheque for repayment of the said loan amount from the account maintained by him and the said cheque was presented by him and it was dishonoured on account of closure of account by the accused. Further the complainant has adduced his evidence to prove that he had issued statutory legal notice to the accused by intimating the fact of dishonour of cheque. Inspite of issuance of legal notice, the accused had not paid the cheque amount. Nowhere the accused has contended that he has paid the said cheque amount. Merely on the ground that the complainant is not an income tax assessee 25 Crl.A.No.1484/2018 and he has not disclosed the fact of lending of Rs.5,00,000/- cash to the I.T. authorities by filing I.T. returns, the case of the complainant cannot be disbelieved in view of legal presumption u/Sec.118(a) and 139 of N.I.Act. If the complainant has violated any provisions of I.T.Act, it is for the said authority to take proper legal action against the accused for violating any provisions of said act. The complainant in his cross-examination has also stated that he was having money with him which was saved by him for his daughters marriage. The complainant has proved all the essential ingredients of Sec.138 of N.I.Act. Further as it is stated earlier, the statutory legal presumption u/Sec.118(a) of N.I.Act that cheque was drawn by the accused for consideration amount and legal presumption u/Sec.139 of N.I.Act that cheque was issued for discharge of legally enforceable debt is in favour of the complainant. Even though the said presumption can be rebutted, the accused has failed to adduce any probable defence to rebut the said statutory presumption. As it is discussed by the trial court mere denial of the case of the complainant by the accused itself is not sufficient to rebut the said presumption. Further as it is discussed earlier, it is for the accused to prove that he had not issued the cheque for discharge of his legal liability. But as it is stated earlier, the accused has failed to adduce sufficient evidence to prove his defence.
38. Under these facts and circumstances, I am of the opinion that the trial court has rightly come to the conclusion that the accused has committed the offence punishable 26 Crl.A.No.1484/2018 u/Sec.138 of N.I.Act. The trial court has properly and judiciously discussed the case of the complainant and the accused and the oral and documentary evidence on record and has come to proper and legal conclusion that the accused had committed the offence punishable u/Sec.138 of N.I. Act. As such, I do not find any ground to interfere with the said finding of the trial court holding that the accused has committed the offence punishable u/Sec.138 of N.I. Act.
39. The trial court has sentenced the accused to pay fine of Rs.7,00,000/-. By considering the length of trial and date of issuance of cheque and the reasonable interest on the cheque amount. The complainant has not challenge the sentence imposed by the trial court. As per Sec.138 of N.I.Act, the learned Magistrate has got discretion to sentence the accused to undergo imprisonment for the period up to two years or to impose fine which may extend to twice the amount of the cheque or with both. The learned Magistrate by exercising his discretion has sentenced the accused only with fine of Rs.7,00,000/-. The discretion exercise by the learned Magistrate is also seems to be proper and judicious having considered the facts and circumstances of the case. As such, I do not find any grounds to interfere with the sentence passed by the trial court. As such, I am of the opinion that the impugned judgment of the trial court is deserves to confirmed and the appeal filed by the appellant is deserves to be dismissed. Accordingly, I answer Points No.1 to 3 in In Negative.
27 Crl.A.No.1484/201840. Point No.4:- In view of my findings on point No.1 to 3, I proceed to pass the following:
ORDER The Appeal filed by the appellant u/s.374(3) of Cr.P.C., is hereby dismissed.
The order passed by learned 20 th ACMM, Bengaluru, dated 07.07.2018 in C.C.No.35261/2014 is hereby confirmed.
Send back the lower court records along with copy of this order.
(Dictated to the Stenographer directly on computer, corrected and then pronounced by me in the open court on this the 01 st day of February, 2022).
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.28 Crl.A.No.1484/2018
Judgment pronounced in the open court (vide separate order) ORDER The Appeal filed by the appellant u/s.374(3) of Cr.P.C., is hereby dismissed.
The order passed by learned 20 th ACMM, Bengaluru, dated 07.07.2018 in C.C.No.35261/2014 is hereby confirmed.
Send back the lower court records along with copy of this order.
LII Addl. City Civil & Sessions Judge, Bangalore.