Karnataka High Court
M/S Maruthi Finance Enterprises vs Sri G Narendra Kumar on 24 March, 2023
Author: P.N.Desai
Bench: P.N.Desai
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CRL.A No. 408 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE P.N.DESAI
CRIMINAL APPEAL NO. 408 OF 2010
BETWEEN:
M/S MARUTHI FINANCE ENTERPRISES
REP. BY ITS GPA HOLDER
SRI. N G MAHESH
S/O GURUDEVARU
NO.27, OBBAIAH LANE,
AKKIPET, BANGALORE-560 053.
PRESENTLY HAVING OFFICE AT
NO.3445, 1ST FLOOR,
SERVICE ROAD, RPC LAYOUT,
(BESIDE BUNTS SANGH)
VIJAYANAGAR, 2ND STAGE
BANGALORE-560 040.
...APPELLANT
(BY SRI. H V SUBRAMANYA., ADVOCATE)
Digitally signed by AND:
NAGARATHNA M
Location: HIGH SRI G. NARENDRA KUMAR
COURT OF
KARNATAKA S/O LATE D. GOPAL
HAVING BUSINESS AT
M/S. RAGHAVENDRA WINES,
NO.5, 1ST FLOOR,
AMBICA SHOPPING COMPLEX,
VIVEKANAGAR POST,
VANNARPET MAIN ROAD,
BANGALORE-560 047.
...RESPONDENT
(BY SRI. N. JAGADISH BALIGA.,ADVOCATE)
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CRL.A No. 408 of 2010
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
26.2.2010 PASSED BY THE XV ADDL. CMM., BANGALORE CITY
IN C.C.NO.23627/2005 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF N.I.ACT.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal arises out of the judgment of acquittal dated 26.02.2010 passed by the learned XV Additional Chief Metropolitan Magistrate, Bangalore City in CC.No.23627/2005, wherein the accused was acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I.Act'). Aggrieved by the same, this appeal is filed.
2. The appellant was the complainant and the respondent was accused before the trial court. They will be referred as per their respective ranks held before the trial court for the sake of convenience in this appeal.
3. The complainant lodged the complaint stating that the accused was regular customer of the complainant. The accused and his mother jointly approached the complainant and borrowed the amount for business purpose on 03.12.2002. The -3- CRL.A No. 408 of 2010 amount borrowed by the accused is Rs.3,00,000/- through bearer cheque. They agreed to repay the said amount with interest at the rate of 21% per annum. They sought the finance for their business purpose and executed the promissory note, consideration receipt and towards repayment of loan amount, the accused had issued cheque bearing No.017560 Dated 10.11.2004 for a sum of Rs.3,00,000/- in favour of the complainant drawn on Sri. Sudha Co-operative Bank Limited, Seshadripuram Branch, Bangalore. When the same was presented to the Bank by the complainant, it was returned with an endorsement "ACCOUNT CLOSED". Then, complainant issued legal notice-Ex-P12, calling upon the accused to pay the amount as stated in the cheque. In spite of receipt of the notice, the accused failed to pay the amount. Hence, complaint was lodged.
4. Before the trial court, the complainant got examined one Sri. N.G. Mahesh, G.P.A. Holder of the appellant as PW.1 and got marked as many as 26 documents as per Exs.P1 to P26. The accused examined the Manager of Canara Bank as DW.1 and examined himself as DW.2 and got marked two documents as Exs.D1 and D1a. After hearing the -4- CRL.A No. 408 of 2010 arguments, the trial court acquitted the accused for the offence punishable under Section 138 of the N.I. Act. Aggrieved by the same, this appeal is filed.
5. Heard Sri. H.V.Subramanya, learned counsel for the appellant and Sri. N. Jagadish Baliga, learned counsel for the respondent.
6. Learned counsel for the appellant argued that the impugned order passed by the learned ACMM is not in accordance with law and needs to be set aside. He further submits that the learned Magistrate has not appreciated the evidence and not considered the admission in the cross- examination of DW.1. The learned Magistrate has not considered the documents produced by the complainant which clearly shows that the accused and his mother have borrowed loan from the complainant. He has also produced the Ledger Account Books-Ex.P25a, which shows the entry of payment. The contention of the respondent that he has executed 50 blank cheques, has no basis at all. In view of the contradictory evidence in his examination-in-chief and cross-examination, the respondent has not taken any action or initiated any steps, if at -5- CRL.A No. 408 of 2010 all such blank cheques were issued. The learned ACMM failed to consider presumption arising in favour of the complainant under Sections 118 and 139 of the N.I.Act and held that the respondent has rebutted the presumption by leading defence evidence. This shows that the judgment passed by the learned ACMM is erroneous and has resulted in miscarriage of justice. On the other hand, even on the On demand promissory note and consideration receipt, the cheque number is mentioned, which is issued by the complainant to the accused by way of cheque (bearer cheque). Ex.P25a shows that the said amount was credited to the account of the accused. When the loan amount was paid by way of cheque, which was encashed by the respondent and as the said cheque was bearer cheque, the defence has no merits. The finding of the learned ACMM that the complainant has failed to prove his initial burden with regard to legally recoverable debt or liability is not tenable and on the other hand, such finding is arbitrary. With this main argument, he prays for allowing the appeal by setting aside the judgment of acquittal and convict the accused according to law.
7. In support of his argument, learned counsel for the appellant relied on the judgment of the Hon'ble Supreme Court -6- CRL.A No. 408 of 2010 in the case of BIR SINGH vs. MUKESH KUMAR reported in (2019) 4 SCC 197 regarding presumption of law under Section 139 of the N.I.Act.
8. Learned counsel also relied on the decision of the Hon'ble Supreme Court in the case of RANGAPPA vs. SRI MOHAN reported in (2010) 11 SCC 441, regarding presumption that there exists a legally enforceable debt or liability.
9. Learned counsel also relied on another decision in the case of SRIPATI SINGH (SINCE DECEASED) THROUGH HIS SON GAURAV SINGH v. STATE OF JHARKHAND AND ANR. reported in AIR 2021 SC 5732, wherein the Hon'ble Supreme Court has considered that if in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified time frame and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same and presumption arises. -7- CRL.A No. 408 of 2010
With these contentions, he has prayed to allow the appeal.
10. Per-contra, learned counsel for the respondent argued that the trial Court has considered the evidence in proper prospective and the accused has examined the Manager of Canara Bank as DW.1, who has stated that Ex.D1-Cheque have been encashed but further he stated that he cannot say who had encashed the said Ex.D1-cheque amount and has also stated that the signature found on the back side of Ex.D1, whether it belongs to the accused or one Ravi/Mahesh. Learned counsel drew the attention of this Court to Ex.D1 and also to cheque, which is bearer cheque and it was also signed by one Ravi/Mahesh. It is also brought in the evidence that they are employees of complainant and no amount was in fact given to the accused. The learned counsel argued that in other cases, between same parties, said Mahesh and Ravi were examined. Learned counsel stated that without giving any amount, simply taking the signatures on the blank paper will not help the complainant to prove the transaction. In fact, there is no evidence to show that actually cash was handed -8- CRL.A No. 408 of 2010 over to the accused. On the other hand, the cheque was given in the hand of the employee of the complainant and no amount was given to the accused. Therefore, the question of raising presumption in favour of the complainant does not arise. Learned counsel also argued that the learned ACMM has rightly observed that there is no material to show that amount of Rs.3,00,000/- was borrowed and Rs.2,40,000/- was paid. No signatures of either the accused or his mother were taken. No documents are produced to substantiate the same. On the other hand, cross-examination of PW.1 shows defence of the accused that the signatures were taken on blank papers and cheque and no amount was actually handed over. The accused has also taken same defence in the reply notice. Therefore, the defence of the accused probabilize his defence and the learned ACMM has rightly drawn adverse inference under Section 114 of the Indian Evidence Act against the complainant and the evidence of PW.1 itself shows that the complainant-Firm has misused the cheque and filed a false complaint. Though there was transaction between the complainant and accused for several years with several crores of rupees, the cheque was misused by the complainant. Hence, the accused has replied -9- CRL.A No. 408 of 2010 properly. It is not for the first time that the accused is transacting with the complainant. Without giving any amount, taking signature for the interest amount, mentioning the cheque amount and issuing in the hand of employee, the complainant has misused the same and filed this case. Therefore, learned counsel argued that the judgment of the learned ACMM cannot be said as either perverse or illegal and this Court being Appellate Court, will not interfere, unless the finding of acquittal is perverse and not based on proper appreciation of evidence on record. Therefore, learned counsel argued that in view of the evidence before the Court, the appeal deserves to be dismissed.
11. In support of his contention, learned counsel for the respondent relied on the decision of the Hon'ble Supreme Court in the case of K.PRAKASHAN vs. P.K.SURENDERAN reported in 2008 (1) SCC 258, at paragraph No.15, wherein it is held that even if there are two views possible, the appellate court will not take a different view, if the view of the trial Court appears to be possible one. Therefore, the complainant has failed to prove his initial burden. The question of rebutting does not arise. Hence, he prays for dismissal of the appeal.
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CRL.A No. 408 of 2010
12. I have perused the records of the case and evidence.
13. The complainant in order to prove his case got examined one Sri. N.G. Mahesh, GPA of appellant as PW-1. He has deposed in his evidence regarding the transaction by appellant/complainant with the respondent/accused. He has stated about accused and his mother having expressed their willingness to take financial assistance again for the purpose of their wine shop business and the accused have borrowed a loan of Rs.3,00,000/-. He has also stated regarding issuance of said amount through bearer cheque. He has further deposed about execution of On demand promissory note and Consideration receipt. He has also stated that the cheque number finds place in those documents. Both the accused and his mother have borrowed the amount. The said entry is forthcoming in the ledger account book which is produced at Ex-P25a. He has stated regarding issuance of cheque by this accused and dishonour of cheque. He has stated about issuance of legal notice demanding the said amount, but the accused failed to repay the amount. In support of his oral evidence, the complainant has produced said cheque, the endorsement
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CRL.A No. 408 of 2010issued by the bank regarding dishonour of cheque, issuance of legal notice, postal receipts, postal acknowledgment, the ledger account books and other documents which are marked at Ex-P1 to Ex-P26.
14. Though he was cross examined at length, but there is nothing in his cross examination so as to disbelieve his evidence. His oral evidence is corroborated by the documentary evidence produced. Simply making suggestions which are denied by the complainant will not help the accused in any way. Further, in view of sections 118 and 139 of N.I. Act, there is statutory presumption in favour of the complainant. Therefore, the oral and documentary evidence coupled with the presumption under N.I. Act shows that the complainant has discharged his initial burden. Once the complainant discharges his initial burden, the burden shifts on the accused to rebut the presumption. The accused can rebut the presumption by two ways. One by way of cross examining the complainant and show before the Court that the complainant's evidence cannot be believed. The second way is by way of leading his defence evidence. The defence evidence must show that the defence of the accused is probable defence. Then again, the onus shifts on
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CRL.A No. 408 of 2010the complainant. In the light of this, I have perused the evidence of the accused.
15. The accused got examined himself as DW-2. In the cross examination, DW- 2 G. Narendra Kumar has admitted that they are doing wine business and he is the owner of Bhavani Wines. He looks after the day-to-day affairs. He has also admitted that there is financial transaction between the complainant and themselves since long. He has also admitted that other cheque bounce cases were filed against him and his mother. In his examination-in-chief, he has stated that the complainant has taken 34 blank cheques. But in his reply notice-Ex-P17, he has stated that 29 cheques were given. He has admitted Ex-D1a is his signature. He has studied upto SSLC and he can read and write English language. He has admitted his signature on promissory note receipt and loan application at Ex-P19a, 20a, 21a and he denies his mother's signature at Ex-P19 to Ex-P21. He has also admitted that Ex- P10 cheque bears his signature at Ex-P10a. He has stated that though the complainant has not given money, he did not take any steps against them. He has stated he is having bank account at Sudha Cooperative Bank, Seshadripuram Branch
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CRL.A No. 408 of 2010and Malleshwaram Branch and he has not closed one account at Majestic Branch and he has not closed the account at Seshadripuram Branch. He has also admitted that he has not lodged any complaint against the complainant to the police for misusing said cheque or he has given stop payment letter for not to honour said cheques. No steps were taken by him.
16. On perusing the entire evidence of the accused, it is evident in his reply notice, he has admitted about number of times the loan borrowed by him from the complainant and according to him, the complainant is in possession of 50 blank cheques and according to him, most of the loans till the year 2001 were cleared and the complainant used to return on demand promissory note and consideration receipt, but the cheques were with the complainant. Again, in para 7 of the reply notice, the accused has stated that he had sustained loss in the business and he could not repay the amount in respect of loans received by him in the year 2001 and again he states, to the balance amount and the interest, the complainant had calculated interest and made it as principal amount and obtained signatures in the loan application, On Demand Promissory Note and Consideration receipt. The open cheques
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CRL.A No. 408 of 2010was also got signed by the accused and no payments were made. Again in his examination-in-chief, the accused gives a new version stating that in the month of June 2002, he was in requirement of some amount to renew the license. So he approached the complainant for grant of the loan and again the complainant asked him to fill the loan application as usual and took the signature on the backside of the cheque and he only signed on the backside of the cheque. The complainant ought to have paid the amount, but he failed to pay the amount. This defence is not correct as he had admitted that he is still due the amount and in the year 2001, he has executed those documents. But he states in the year 2002, he was in need of loan, again he approached the complainant. But no steps were taken till 2004 if no amount was paid till the legal notice came to be issued by the complainant in the year 2005. If at all the complainant has taken the signature on the backside of the cheque leaf in the year 2002 and not given him the amount, there was no necessity for him to keep quiet till the year 2005. It is not for the first time, the accused is making transaction with the complainant. On the other hand, since the time of his father, they were taking loan from the complainant and
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CRL.A No. 408 of 2010executing the documents. For several decades, they have taken loan. According to the accused, it is transaction of several crores all together. If he has stopped going to the complainant in the year 2002, then there was no necessity for the complainant to file the case in the year 2005 by using said cheques Ex-P10. No explanation is forthcoming and his evidence is also not that some person from the complainant has taken that cheques and got encashed the bearer cheque and not given money to him. It is not his defence also. Nothing is stated in this regard in the complaint. Therefore, if the entire evidence of the complainant and the accused are considered, in the light of these principles stated by the Hon'ble Supreme Court as stated earlier, the accused has failed to make probable defence. Of-course, the proof by the accused is not a proof beyond reasonable doubt as in criminal case, but it is proof based on preponderance of probabilities.
17. The finding of the learned Trial court at para 12 by referring to the argument of the accused counsel that what prevented the accused to pay the loan amount through bearer cheque itself is doubtful, is not correct. This observation or reasoning is not correct. It is for the parties to give the amount
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CRL.A No. 408 of 2010on bearer cheques or by cross cheques. It is for the person who receive the same, if he wants account payee cheque, he may request for account payee cheque. PW-1 has denied that signature appearing on the backside of the cheque at Ex-D1a is of one Ravi. So the observation of the ACMM regarding signature of other persons on backside of the cheque leaf again is also not tenable. It is for the accused to rebut such presumption. The complainant has also produced ledger extract i.e., Form No.5. There are entries regarding principal amount received by the accused. Then there are several entries at Ex-25a which shows the accused was due after said transaction and the said entry in the ledger book which is produced, if compared with the examination-in-chief and the contents of the complaint clearly shows the balance amount is due by the accused.
18. Learned counsel for the appellant has relied on the decision of the Hon'ble Supreme Court in Rangappa v. Sri. Mohan reported in (2010) 11 SCC 441 wherein at para 26, 29 and 30 while distinguishing the observations made by the Hon'ble Supreme Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde reported in (2008) 4 SCC 54 held that
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CRL.A No. 408 of 2010the presumption mandated under section 139 of N.I. Act indeed include existence of a legally enforceable debt or liability. The Court held that it is open to the accused to raise defence, wherein existence of legally enforceable debt can be considered and it is held at para Nos.26, 29 and 30 as under:-
"26. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.
29. Coming back to the facts in the present case, we are in agreement with the High Court's view that the accused did not raise a probable defence. As noted earlier, the defence of the loss of a blank cheque was taken up belatedly and the accused had mentioned a different date in the 'stop payment' instructions to his bank. Furthermore, the instructions to 'stop payment' had not even mentioned that the cheque had been lost. A perusal of the trial record also shows that the accused appeared to be aware of the fact that the cheque was with the complainant. Furthermore,
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the very fact that the accused had failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version. Apart from not raising a probable defence, the appellant-accused was not able to contest the existence of a legally enforceable debt or liability.
30. The fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the complainant having spent his own money for the same purpose. As per the record of the case, there was a slight discrepancy in the complainant's version, in so far as it was not clear whether the accused had asked for a hand loan to meet the construction-related expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complaint discloses the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his money was used for the construction-expenses. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant."
19. Further, the Hon'ble Supreme Court in a decision in the case of Sripati Singh(since deceased) Through his Son Gaurav Singh v. State of Jharkhand and Another reported in AIR 2021 Supreme Court 5732 at para 16 stated that even the cheque issued as security pursuant to a financial
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CRL.A No. 408 of 2010transaction cannot be considered as a worthless piece of paper under every circumstances and it is held at para 16 as under:-
16. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance.
'Security' in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow."
20. Further, the Hon'ble Supreme Court in the case of BIR SINGH vs. MUKESH KUMAR reported in (2019) 4 SCC 197 regarding presumption of law under Section 139 of the N.I.Act. relied on paragraph Nos.6, 33, 34, 35, 36, 38 to 40, which reads as under:
"6. The object of Section 138 of the Negotiable Instruments Act is to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable
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instruments including cheques in financial transactions. The penal provision of Section 138 of the Negotiable Instruments Act is intended to be a deterrent to callous issuance of negotiable instruments such as cheques without serious intention to honour the promise implicit in the issuance of the same.
33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
35. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative.
36. 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
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the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
38. In the absence of any finding that the cheque in question was not signed by the respondent- accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant- complainant, it may reasonably be presumed that the cheque was filled in by the appellant- complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent-accused of the charge under Section 138 of the Negotiable Instruments Act.
39. In our considered opinion, the High Court patently erred in holding that the burden was on the appellant-complainant to prove that he had advanced the loan and the blank signed cheque was given to him in repayment of the same. The finding of the High Court that the case of the appellant-complainant became highly doubtful or not beyond reasonable doubt is patently erroneous for the reasons discussed above.
40. The appeals are allowed. The judgment and order of the High Court is set aside. The conviction of the respondent under Section 138 of the Negotiable Instruments Act is confirmed. However, the respondent-accused is sentenced only to fine, which is enhanced to Rs.16 lakhs and shall be paid as compensation to the appellant- complainant. The fine shall be deposited in the Trial Court within eight weeks from the date, failing which the sentence of imprisonment of one year as imposed by the Trial Court shall revive. There shall be no order as to costs."
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CRL.A No. 408 of 2010The Hon'ble Supreme Court in the above paragraphs in detail discussed about appreciation of evidence in N.I.Act cases and even the Court has held that even a blank cheque leaf, voluntarily signed and handed over towards some payment, would attract presumption under Section 139 of the N.I.Act.
21. The principles stated in the above decisions supports the complainant's case and evidence on record.
22. Learned counsel for the respondent relied on the judgment of the Hon'ble Supreme Court in K. Prakashan v. P.K. Surenderan reported in (2008) 1 Supreme Court Cases 258, wherein the Hon'ble Supreme Court held that if two views are possible, the appellate court should not reverse the judgment of acquittal merely because other view is possible. There is no quarrel about the proposition laid down by the Hon'ble Supreme Court. The Hon'ble Supreme Court has reiterated the said principles in number of its subsequent judgments.
23. In view of the discussions made above and the evidence on record, if the reasoning of the trial court are considered, then in my considered view, the judgment of the
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CRL.A No. 408 of 2010trial court suffers from illegality, infirmity and non- consideration of evidence on record. Therefore, the judgment relied by respondent is not applicable to the respondent/accused case in view of facts and evidence in this case.
24. Therefore, considering these principles stated in the above referred judgments, if the evidence on record is considered, then, in my considered view, the complainant has proved his case by producing the oral and documentary evidence such as promissory note, loan application, bank endorsement, cheque, signature, ledger account book and relevant entry of the pass book that he has discharged his initial burden. The burden is shifted upon the accused, but the accused has given defence which does not probabalise the defence of the accused. Therefore, the doubt raised in the mind of the trial court about the encashment of Ex-D1 is without any evidence. The trial court stated that there are number of contradictions in the evidence of PW-1 without stating what are those contradictions and held that the evidence of PW-1 and documents produced by the complainant cannot be believable and it cannot be acceptable, without assigning any reasons why
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CRL.A No. 408 of 2010they are not believable and why they are not acceptable. In respect of decisions relied by the complainant, the learned ACMM has stated that the principles in the said judgment are not applicable, but, how they are not applicable is not stated by trial court.
25. Therefore, on entire reading of the evidence and keeping in view the principles regarding appreciation of evidence, in my considered view, the judgment of the trial court acquitting the accused is perverse, illegal and not based on proper appreciation of evidence. Therefore, the same is liable to be set-aside. This matter is pending for more than a decade. In view of the earlier business transaction by the accused with the complainant, in my considered view, the respondent accused require some leniency in imposing punishment. Therefore, the appeal deserves to be allowed.
Accordingly, I pass the following:
ORDER
1. The appeal filed under section 378(4) Cr.P.C.
stands allowed-in-part.
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CRL.A No. 408 of 2010
2. The judgment of acquittal dated 26.02.2010 passed by learned XV Addl. CMM, Bengaluru in C.C.No.23627/2005 is hereby set-aside.
3. The respondent-accused is convicted for the offence punishable under section 138 of N.I. Act and he is sentenced to pay a fine of Rs.3,05,000/-. Out of fine amount, a sum of Rs.3.00 lakhs(Rupees Three Lakhs only) shall be paid to the appellant- complainant as compensation and remaining Rs.5,000/- shall be credited to the Government Treasury as the cost of litigation. In default of payment of fine, the respondent/accused shall undergo simple imprisonment for a period of six months.
4. The said compensation of Rs.3.00 lakhs shall be paid by the respondent/accused to the appellant/ complainant within a period of 10 weeks from the date of receipt of certified copy of this judgment.
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CRL.A No. 408 of 2010
5. Office is directed to send back the records to the trial court.
6. No order as to costs.
Sd/-
JUDGE SMJ/DR/MN/-