Bangalore District Court
Mr.Vinod Kumar vs Mrs. N.A. Nirmala on 21 August, 2020
1
Crl.Apl.No.768/2017
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE (CCH 70)
Present: Sri. Gururaj Somakkalavar, M.A.,LL.B.,
LXIX Additional City Civil and
Sessions Judge, Bengaluru.
Dated this the 21 th day of August, 2020
Crl. Appeal No.768/2017
Appellant : MR.VINOD KUMAR
S/o Late Mr. Krishnareddy,
Aged about 48 years,
No.8, 1st Cross, B.Y. Narayanareddy
Layout, Horamavu Main Road,
Bengaluru - 560 043.
[By Sri.R.S.Manjunatha, Advocate]
V/s
Respondent : MRS. N.A. NIRMALA
W/o Mr.N.A. Bhojaraj, Aged about 38 years, R/at No.64, Railway Parallel Road, Kumar Park West, Bengaluru - 560 020.
Rep by her G.P.A. Holder MR. GOPAL KRISHNA H.V. S/o Mr. Venkatanarasaiah, Aged about 43 years, No.26, 1st Main, Ashirvad Colony, Horamavu Main Road, Banasawadi, Bengaluru - 560 043.
(By Sri.B.T.L, Advocate) 2 Crl.Apl.No.768/2017 : J UD GM E N T :
Appellant/accused has assailed the legality and correctness of his conviction to the offence punishable U/Sec.138 of N.I.Act and his sentence to pay fine amount of Rs.65,50,000/- and in default shall under go simple imprisonment for 1 year for the said offence through impugned common judgment and order of sentence dated 26.04.2017 in C.C.No.4513, 4512 and 4510/2017, on the file of XV Additional Chief Metropolitan Magistrate, Bengaluru City.
The parties are referred to their original ranks.
2. Essential material facts lead to this appeal succinctly is as follow:-
Respondent/complainant, who will be herein after referred as 'complainant' launched criminal prosecution against accused for the offence punishable U/Sec.138 of N.I. Act through his private complaint maintained U/Sec.200 of Code of Criminal Procedure with support of allegation that Ex.P.1 cheque for Rs.25,00,000/- bearing No.176524 dated 18.5.2012, drawn at Vijaya Bank, HBR Layout Branch, Bengaluru issued by accused to discharge his debt returned dishonoured on the ground of 'funds insufficient`as per Ex.P.5. the bank issued Bank Endorsement. Ex.P6. Accordingly the complainant got issued legal notice and calling upon the accused to pay the amount and despite of service of notice the accused failed to 3 Crl.Apl.No.768/2017 pay the cheque amount and thereby accused committed the alleged offence. The Trial Court after taking cognizance on the complaint of complainant and examination of available materials, including complaint and sworn statement of complainant and other materials registered a case in C.C.No.4513/2017 against accused for the offence punishable U/Sec.138 of N.I.Act. Accused appeared before trial court through his counsel. He was supplied with copies of papers and its supporting materials. Substance of accusation was read over and explained to the accused. Accused pleaded not guilty and claimed to be tried. Complainant to bring home above guilt of accused, examined GPA holder as PW.1 and got marked 13 documents exhibited as Ex.P.1 to P.13 and the accused is examined as DW.1 and got marked 4 documents at Ex.D.1 to D4 in CC No. 4513/2017, Likewise GPA Holder of complainant is examined as PW.1 and marked 13 documents at Ex.P.1 to 13 in CC No. 4512/2017 and GPA Holder of complainant is also examined as PW.1 and marked 9 documents in CC No. 4510/2017. The accused was examined U/Sec.313 of Code of Criminal Procedure. He denied all incriminating evidence appeared against him. The trial court after hearing arguments of learned counsels and examination of available materials, found accused guilty for the above offence with aforementioned finding on the points addressed for decision making in the impugned judgment and believed the existence of above version of complainant through impugned judgment and accordingly 4 Crl.Apl.No.768/2017 sentenced accused in the above manner through impugned order of sentence.
3. Feeling aggrieved and dissatisfied with the above nature of verdict of court below, accused has preferred instant appeal. Accused in his appeal memo, while reiterating above noted material events taken place prior to complaint and subsequent to complaint, specifically contended that the trial court has not properly considered the oral and documentary evidence lead by the appellant towards rebuttal of the respondent evidence while passing the judgment and erroneously allowed the case of the respondent, hence, the order of conviction of the accused passed by the trial court is not sustainalbe in the eye of law and same is liable to be set aside. Even though the respondent raised the question of law at earliest point of time at the time of cross-examination of PW.1 about non- taking permission for filling of the complint through Power of Attorney holder u/sec 302 of Cr.PC, the trial court has not considered the said aspect of question of law and eroneously passed the judgment by convicting the accused/appellant, which is not valid and not in accordance with law. The respondent approached the trial court on the agreement dated 21.10.2011 Ex.P9. The respondent has disputed about the execution of the said agreement and also pleaded the said agreement was created and manipulated for the purpose of the case of unjust enrichment. The respondent has not lead evidence of witnesses to Ex.P9 to 5 Crl.Apl.No.768/2017 prove disputed Ex.P9 agreement. Without considering the said evidential aspect, and without considering the insertions and over writing in the said Ex.P9 and also not compared with undisputed specimen hand writing of the appellant as per Ex.D4, the trial has wrongly presumed the execution of the Ex.P9 and erroneously passed the impugned judgment. Hence, it is necessary for interference of this Hon'ble court for reappreciation of documentary and oral evidence placed on record and set aside the impugned judgment. The trial court has not considered the defense taken by the appellant to disprove the Ex.P9 and trial court has also failed considering the aspect of burden of proof lies on the respondent to prove the execution of the document Ex.P9 and its contents known to the executant, when the executant denies about the execution of the document. The respondent has filed the WS in OS No. 5346/2011 which is confronted in the cross-examination of PW 1 wherein it is specifically admitted by the respondent that the property sold to the complainant and property of Sumithra is entirely distinct and separate. The complainant failed to prove the transaction was held for a sum of Rs. 1,15,00,000/- and the said amoutn was paid to the appellant in the said transaction. The appellant has taken the defense by denying the issuance of cheques and execution of alleged agreement Ex.P.9 in the reply notice Ex.P.6 and also taken defense in the cross-examination and as well as by leading evidence of DW.1. The trial court erroneously presumed about execution of alleged Ex.P.9 and its contents without 6 Crl.Apl.No.768/2017 any corroboration evidence and wrongly passed judgment by convicting the appellant, which is not accordance with law and interference of this Hon'ble court is required and impugned judgment is liable to be set aside.
4. Further the appellant has taken defense that, the matter was settled for total sum of Rs.50,00,000/- at the police station and at the time Rs.30,00,000/- was paid by cash, which is admitted by the respondent. Further for balance sum of Rs.20,00,000/- the respondent insisted the appellant to give signed blank cheque and signed blank papers and assured that each cheques will be presented for Rs.5,00,000/- only and also assured to return the blank signed paper and agreed to return all the original documents relating to prperty and also agreed to execute registered cancelation of Sale Deed after clearance of the balance amount. The said defense has not been considered by the trial court and even though there was no legally existence of liability, the trial court has wrongly presumed and passed impugned judgment which is liable to be set- aside. The respondent has failed to prove that, she has source of income and payment capacity of Rs.1,15,00,000/- in the said site transaction with appellant. In Ex.P8 it is specifically held the respondent purchasing the property out of her own income and savings. However, the respondent has not furnisheed any documentary and oral evidence to show her payment capacity and source of income. The appellant has taken the defense by denying the issuance of 7 Crl.Apl.No.768/2017 cheque and execution of alleged agrement Ex.P9 in the reply notice Ex.P6 and also taken defense in the cross examination and as well as by leading evidence of DW.1, the trail court has not considered validity of defense of the accused and disproveness of the complainant in respect of execution of alleged Ex.P9 and misuse of the cheque. The trial court ought to have considered the manipulation, insertion and creation of Ex.P.9 agreement and also hand written on cheques in respect of amount in lettter, words and date and the ink used for signature.The respondent has not disputed about intertions, manipulations made in Ex.P9 and also not disputed about Ex.D.4. Further the accued requested with complainant for return of cheques and return of blank signed papers and original documents and requested to execute registered cancelation of Sale Deed in several times. The said aspect is clearly deposed in evidence DW.1. The trial court has failed to consider the acts of the respondent is suspicious one and also failed to consider defense of the accused and failed to considered the non existence of legally existence of payment liability. With these amongst other grounds the appellant prays to set aside the impugned judgment and acquit her as per law. The Appellant has produced the certified copy of the impugned judgment.
5. Heard the arguments and perused the record and citations relied by the counsels. The counsel for the appellant relied on the following citations;-
8Crl.Apl.No.768/2017
1. LAWS(SC) 2013) 936
2. Judgment of the Hon'be Supreme Court of India in Cr.Appeal No.73/2007 dated 28.01.2015
3. (2010) 10 Supreme Court cases 512
4. (2005) 2 Supreme Court cases 217
5. (1999) 2 Supreme Court cases 573
6. (2009) 2 Supreme Court cases 513
7. (2010) 11 Supreme Court cases 441
8. (2013) 3 Supreme Court cases 86
9. (1999) 3 Supreme Court cases 573
10. (2006) 6 Supreme Court cases 39
11. 2004 Crl.LJ. 2050
12. AIR 1987 SC 1321 The counsel for the respondent relied on the following citations;-
1. Praveen Singh v/s State of U.P. and anr- reported in 2011 CRL.L.J.1127
2. Darshan Lal v/s Arjun Singh-reported in 2004 CRL.L.J.1723
3. A.C. Narayan v/s State of Maharashtra and Another-(2014) 11 S.C.C. 790
4. Rohitbhai Jivanlal Patel v/s State of Gujarat and Anr-AIR 2019 SC 1876
6. In the light of challenge of impugned judgment by accused and above noted materials, following points fall 9 Crl.Apl.No.768/2017 for decision making of this court:-
1. Whether the complainant has proved that the accused has committed the offence punishable u/sec.138 of NI Act.?
2. Whether the impugned judgment and order of sentence passed by the learned Magistrate is proper and correct?
3. What order?
7. This court upon re-appreciation of available materials in the file with reference to prevailing law of land, give finding to the above points as follow:-
POINT NO.1 In affirmative
POINT NO.2 In affirmative
POINT NO.3 As per final order, on the
following;
: R E A SON S :
8. POINT NO.1 AND 2 : I have perused the appeal memo, the private complaint, order sheet, impugned judgment and other materials available on record. The Respondent/complainant filed the private complaint against the accused. After considering the materials the learned Magistrate took cognizance and registered the case against the accused, the Accused appeared through his counsel and opposed the complaint. After full pledged trial the trial court convicted the accused in the above manner. Being aggrieved by the judgment of conviction the appellant has filed this appeal.
10Crl.Apl.No.768/2017
9. The appeal No.768/2017, 769/2017 and 770/2017 are filed on 3 different cheques and three criminal cases were registered in CC No. 4510/2017 (Crl.A.No. 768/2017) CC No. 4513/2017 (Crl.A.No. 769/2017) CC No. 4512/2017 (Crl.A.No. 770/2017. Here in this appeal the documents produced at CC No. 4513/2017 are referred.
10. On careful perusal of the impugned judgment, it depicts that the complainant has filed the complaint against the accused for the offence u/sec.138 of NI Act. It is the case of the complainant that the accused by making false representation had sold the property bearing, site numbers 12, 13 and 14, Khatha No.123 situated at Ashirwad Colony, 3rd Cross, Horamavu Village, Ramamurthy Nagar, Bengalru East Taluk, now BBMP Limits, measuring 5,504 sq ft, when the complainant after registration of the Sale Deed, went to the spot to take the physical possession of the property, she came to know that property had been already sold to some other person by the mother of the accused. Earlier alienation was not within the knowledge of the complainant. The complainant inquired with the accused with regard to the fraudulent Sale Deed, the accused admitted his mistake and assured to repay a sum of Rs.1,15,00,000/- to the respondent. Accused entered into agreement dated 21.10.2011. Accused admitted his liability and paid a sum of Rs.30.00 lakhs by way of Cash and paid a sum of Rs.20.00 lakhs by way of cheque bearing no.176523, dated 25.11.2011, therefore out of 11 Crl.Apl.No.768/2017 Rs.1,15,00,000/- accused paid sum of Rs. 50 lakhs and for balance amount of Rs.65,00,000/- impugned cheques for a sum of Rs.20,00,000/- each and cheque for a sum of Rs.25.00 lakhs drawn on Vijaya Bank, HBR Layout, Bengaluru has been issued in favor of the complainant. Further all the cheques have been presented through Canara Bank, Seshadripuram Branch, Bengaluru. However, cheque have been returned unpaid for the reason 'funds insufficient' Demand notice was issued on 08.06.2012. Said notice was duly served upon the accused. Despite service of notice, replied to the notice but not complied with the payments sought in the notice. Hence the complainant constrained to file the complaint.
11. To prove the case the GPA holder of the complainant got examined himself as PW.1 in each and every case and marked Ex.P.1 to 13 and Ex.D.1 to D4 in CC No. 4513/2017, Ex.P.1 to P. 13 in CC No. 4512/2017 and Ex.P.1 to P.9 in CC No. 4510/2017 and Subsequently 313 statement is recorded and the accused led evidence as DW.1 and marked Ex.D.1 to D4 in CC No. 4513/2017.
12. Since the accused has challenged the conviction order of the trial court, the evidence is to be re appreciated in this appeal. The complainant has to discharge initial burden and prove the liability by the accused. As per the case of the complainant the accused fraudulently misrepresenting the complainant has sold the property in 12 Crl.Apl.No.768/2017 question and realizing the mistake committed by the accused agreed to repay the said amount of Rs.1,15,00,000/- and a sum of Rs.50 lakhs was paid by the accused and for the balance amount of Rs. 65 lakhs the impugned cheques were issued to the complainant. Since those got dishonored the complainant demanded to return the amount as agreed upon. To discharge the said liability the accused has issued the impugned cheque which got dishonored.
13. To substantiate the fact the complainant produced impugned cheques dated 18.5.2012, bank endorsement to show that the cheques got dishonored, demand notices dated 2.6.2012, reply notice dated 29.6.2012 issued by the accused at Ex.P.6, absolute Sale Deed dated 21.2.2011 at Ex.P.8, Agreement dated 21.10.2011 at Ex.P.9, Gift Deed dated 14.2.2011 at Ex.P.14 and GPA at Ex.P.12. On perusal of the material placed before this court GPA holder of the complainant examined himself as PW.1 and he is subjected to cross examination by the counsel for the accused. The complainant to substantiate his case relied upon Ex.P.8, the Sale Deed dated 21.2.2011. the entire case of the complainant revolves around 2 documents mainly the Sale Deed dated 21.2.201 at Ex.P.81 and the Agreement dated 21.10.2011 produced at Ex.P.9 wherein in Ex.P.8 the accused sold property in question through registered Sale Deed and in Ex.P. 9 the accused admitting the mistake had entered into an Agreement with the complainant to repay 13 Crl.Apl.No.768/2017 the entire consideration amount along with interest amounting to Rs. 1,15,00,000/- and in pursuance of that he has issued 4 cheques one among them got honored and 3 other cheques were dishonored. The said dishonored cheques are the subject matter of the present cases. It is the case of the complainant that the accused has sold the property in question fraudulently to the complainant and when the complainant approached the disputed property there is a obstruction by third party. On an inquiry it is found that the mother of the accused has already sold the property to one Suryanarayana Rao in the year 1999. When the said fact was questioned by the complainant the accused has admitted the mistake and entered into an Agreement dated 21.10.2011 and during the execution of the document the accused has paid Rs. 50 lakhs, Rs. 30 lakhs in cash and Rs.20 lakhs in cheque. Same was acknowledged by the complainant. The complainant has produced Ex.P.9 the agreement entered between the complainant and the accused, however the accused contends that the said document is forged and fabricated and the complainant obtained signature on blank paper putting the accused under threat using force in Police Station. Apart from this the complainant has produced Ex.P.8 Sale Deed and to substantiate the fact regarding dishonor of cheque the complainant has also produced bank endorsement which indicates that the cheques dishonored for the reason of funds insufficient. He also produced legal notice demanding to repay the said agreed 14 Crl.Apl.No.768/2017 amount, he also produced Ex.P.6 the reply notice wherein the accused has denied the entire claim of the complainant. From the records as rightly pointed out by the trial court there are some facts which are not in dispute. Mainly the execution of Sale Deed by the accused in favor of complainant as per Ex.P.8 and also there is no dispute regarding execution of Gift Deed in favor of the accused by his mother on 4.2.2011 and also there is no dispute regarding payments of Rs. 50 lakks, 20 lakhs by way of cheque bearing No. 176523 date 21.10.2011 and payment of Rs. 30 lakhs by way of cash to the complainant. These facts prove the fact that there is a transaction between the complainant and the accused in respect of sale of property. However there are different stands in respect of the property in question which are discussed later part of order. There is no dispute with regard to execution of 4 cheques and same is admitted by the accused. However the accused contends that those cheques are issued with understanding that the said cheques will be presented only for Rs. 5 lakhs each cheque. The documents produced by the complainant substantially prove the fact that there is a sale of property and there is also Agreement to repay the amount which can be ascertained from the repayment of amount of Rs.50 lakhs by the accused to the complainant. At this point the complainant claims that there is due of Rs.65 lakhs, however the accused contends that he has already paid entire amount and there is no due to that extent. These documents clearly establish the fact that there exists 15 Crl.Apl.No.768/2017 liability as contended by the complainant.
14. Now coming to the evidence of PW.1. during the cross-examination of PW. 1 It was suggested that in Ex.P.8 there is a mention that Rs. 30 lakhs was paid through cheque and remaining amount will be paid through cash and as per the said Ex.P.9 there is no amount due to be paid by the accused. The relevant part is to be observed that during the cross-examination of DW.1 dated 17.3.2017 it is specifically admitted by the accused as follows;
"It is true to suggest that in pursuance of Ex.P.3 I have issued 4 cheques in favor of the complainant. It is true to suggest that out of 4 cheques one cheque for a sum of Rs. 20 lakhs had been encashed" (document referred as Ex.P.3 is the Agreement dated 21.10.2011 the original is produced and marked as Ex.p.3 in CC No.4512/2017 which is Ex.P.8 in this case)
15. From the evidence it is clear that in pursuance of Ex.P.8 the accused has issued 4 impugned cheques, out of which one cheque of Rs. 20 lakhs got honored and 3 cheques were dishonored. These evidence clearly establish the fact that there exists the liability as claimed by the complainant. It is necessary to mention here that if the accused is agreed upon to repay Rs. 50 lakhs which clearly establish the fact that the accused has executed property by mistake or otherwise to which he is ready to cancel and 16 Crl.Apl.No.768/2017 repay the amount. Otherwise there is no question of return of Rs.50 lakhs by the accused to the complainant. It is further necessary to observe that the cheque of Rs. 20 lakhs got honored which was issued on 25.11.2011 and the other 3 cheques issued subsequently to 25.11.2011 i.e. 18.2.2011, 18.4.2012 and 18.5.2012. If there is no liability as contended by the accused the accused ought to have taken initiation to stop the payment of those cheques. It also reveals from the records that the accused has not taken any initiation to cancel the Sale Deed on payment of the said entire amount. The accused contends that the document at Ex.P.9 is forged and fabricated, but on perusal of the documents which is also confronted during the cross- examination has admitted the fact that the signature on that document is of the accused only. Apart from the bare statement that the document is forged, there is no material placed to show that the document is created. But he has specifically contended that he has executed the said document under force by the complainant. By that the execution of document is not in denial.
16. Another important aspect to be considered that if really the cheques in question issued for a sum of Rs.5 lakhs each what is the necessary to the accused to issue 3 disputed cheques when the cheque of Rs. 20 lakhs is already honored, by that Rs. 30 lakhs paid through cash and Rs. 20 lakhs paid through cheques. The entire amount is paid as per the claim of the complainant. Under the 17 Crl.Apl.No.768/2017 circumstances there is no question of issuance of 4 cheques including 3 disputed cheques. This contradiction more probablize the case of the complainant. The execution of Ex.P.8 is not in dispute and also the issuance of 4 cheques in pursuance of Ex.P.9 which probablize the case of the complainant that there exists the liability by the accused.
17. The another important aspect is that the accused has not denied the fact that the impugned cheques belongs to his account and by virtue of that he has admitted the chequea and he has also not denied the signature on the said impugned cheque. Since the accused has admitted the cheque and signature on the impugned cheque the presumption u/sec 139 comes infavour of the complainant. It is worth to note the ratio laid down by Hon'ble Apex Court in Rangappa v/s Sri. Mohan (2010) 11 SCC 441 it is held that "Once the cheques relates to the account of the accused and he excepts and admits the signature on the said cheque, then initial presumption as contemplated u/sec 139 of Negotiable Instruments Act has to be raised by the court infavour of the complainant. The presumption refereed to sec 139 of NI Act is a mandatory presumption and not a general presumption, that the accused is entitled to rebut the said presumption. In the light of the above ratio lay down by the 18 Crl.Apl.No.768/2017 Hon'ble Apex Court it is clear that when the drawer has admitted the issuance of cheque as well as signature present therein, the presumption envisaged u/sec 118 r/w 139 of NI Act would operate in favour of the complainant. The said provisions lays down special rule of evidence applicable to Negotiable Instruments. The presumption is one of law and there under court shall presume that the instrument was endorsed for consideration. So in the obscene of contrary evidence on behalf of accused, the presumption u/sec 118 and 139 of NI Act goes in favour of the complainant. Here in the present case also the accused has not disputed the cheque as well as signature on the same and by virtue of that he has admitted the impugned cheque belongs to his account and also admitted his signature on the said cheque. Hence the presumption u/sec 139 in the light of the ratio laid down by the Hon'ble Apex Court presumption u/sec 139 of NI Act has to be raised in favour of the complainant.
18. It is pertinent to mention that in respect of legally enforceable debt also the presumption u/sec 139 of NI Act favours the complainant. Once the complainant discharged 19 Crl.Apl.No.768/2017 his initial burden with sufficient material that there exist legally recoverable debt, the presumption u/sec 139 comes in rescue of the complainant. Again it is worth to note the observation of the Hon'ble Apex Court in the above stated authority i.e. Rangappa v/s Sri.Mohan. The Hon'ble Apex Court held that;
"The presumption mandated by sec 139 includes a presumption that there exist legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise defense wherein the existence of legally enforceable debt or liability can be contested. However, herein, they can be do doubt that there is an initial presumption which favours the respondent/complainant."
19. On careful perusal of the entire material placed on behalf of complainant corroborated with oral and documentary evidence, it is clear that the complainant has complied with the ingredients of sec 138 of NI Act and also proved that there exist legally recoverable debt and discharged her initial burden, by virtue of that and in the light of the ratio laid down by Hon'ble Apex Court in respect of the Presumption U/sec 139 of NI Act in respect of existence of liability also comes infavour of complainant. Hence it can be held that in the present case, the complainant has discharge her initial burden, and proved 20 Crl.Apl.No.768/2017 that there exist liability towards complainant by the accused and the accused has issued cheque to discharge the same.
20. The accused has challenged his conviction u/sec. 138 of NI Act in this appeal. Since the complainant discharged initial burden and proved his case the accused has to rebut the presumption which favors the complainant, since the said presumption u/sec 139 of NI Act is rebuttable presumption, now we have to see whether the accused is able to rebut the presumption through oral and documentary evidence or any other circumstantial evidence.
21. Here it is necessary to appreciate the nature of defense and standard of proof by the accused. As per the settled position of law the prosecution in general and the complainant in the particular is required to prove his case beyond all reasonable doubts. The standard of proof to disprove the case of the complainant by the accused is not the same standard of proof as required to prove the case of the complainant. In other words the complainant is required to prove his case beyond all reasonable doubt and the accused is required to disprove the case of the complainant by setting up a probable defense to disbelieve the case of the complainant. In this regard this court wants to rely upon the decision and the principle laid down by the Hon`ble Supreme Court in Kumar Exports vs. Sharma Carpets reported in ILR 2009 KAR 1633 wherein it is held that ;
21Crl.Apl.No.768/2017 Presumptions under Sections 118 and 139 - How to be rebutted - Standard of proof required for rebuttal - HELD , Rebuttal does not require proof beyond reasonable doubt - Something probable has to be brought on record - Burden of proof can be shifted back to the complainant by producing convincing circumstantial evidence - Therefore the said presumptions arising under Sections 118 and 139 case to operate - To rebut said presumptions accused can also rely upon presumptions under Evidence Act, 1872 Section 114 (common course of natural events, human conduct and public and private business) - Evidence Act, 1872 - Section 114 - Presumptions of fact under.
22. The above observation is again upheld by the Hon`ble Apex Court in a case of Rangappa vs. Mohana reported in AIR 2010 SC 1898 through its larger bench, wherein their Lordships observed that;
"It must be remembered that the offence made punishable by section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario the test of proportionality should guide the construction and 22 Crl.Apl.No.768/2017 interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually imposed an evidentiary burden and not a persuasive burden. Keeping this in view it is a settled position that when an accused has to rebut the presumption under section 139 the standard of proof for doing so is that of a preponderance of probabilities. Therefore if the accused is able to raise a probable defense which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defense and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
23. It is also clarified by the Hon'ble Apex Court what is the nature of defense or explanation by the accused to rebut the presumption. It is observed by the Hon'ble Apex Court that;
"what is required to be established by the accused in order to rebut the presumption is different from each case under the given circumstances. But the facts remains that a mere plausible explanation is not expected from the accused and it must be more than plausible 23 Crl.Apl.No.768/2017 explanation by way of rebuttal evidence. In other words, the defense raised by way of rebuttal evidence must be probable and capable of being accepted by the court"
24. Having observed the nature of defense it is also relevant to mention the life of the mandatory presumption. As observed by the Hon'ble Apex Court in Kumar Exports v/s Sharma Carpets, "the mandatory presumption will live exist and survive and shall end only when the contrary is proved by the accused, that is to say the cheque was not issued for consideration and in discharge of any debt or liability, in other words onus shifts on the accused to rebut the said mandatory presumption raised in favour of the complainant".
25. Now the accused took all possible stands and defenses including technical and circumstantial, it has to be observed that the whether the accused is able to put up probable defense to disprove the case of the complainant and also rebut the presumption envisaged u/sec 139 of NI Act.
26. The counsel for the appellant addressed argument on behalf of the appellant. It is argued that the complainant i.e. GPA holder has no authority to file the complaint. Since there is no specific authorization by the complainant to the 24 Crl.Apl.No.768/2017 GPA holder to conduct the case and moreover the GPA holder has no personal knowledge with regard to the transaction that will bar the GPA holder to adduce evidence or conduct the case, hence the complaint itself is not maintainable. To substantiate the contention the counsel for the complainant has relied on the observation of the Hon`ble Apex Court in 2014 (1)) SCC 790 and 2015 SCC
206. It is further argued that much of the facts were happened before the execution of GPA. It is further argued that the complainant has not produced any document to show that the sale consideration is for Rs. 1,15,00,000/- , the complainant has not produced any document in that regard, apart from bare statement. The agreed amount is only Rs. 30, 27,000/-. the accused has paid Rs. 30 lakhs by cash and one cheque of Rs. 20 lakhs which got honored and by virtue of that total amount of Rs. 50 lakhs were paid to the complainant and there is no due as claimed by the complainant. It is further argued that Ex.P.9 is forged and fabricated document. There is a gap of 8 months from the execution of Sale Deed. That the facts in that regard is completely contrary in complaint and Ex.P.8 and 9. The said aspect is disputed in Ex.P.6 reply notice. The complainant has not proved the execution of Ex.P.9 as no witnesses were examined to Ex.P.9. that substantially prove that there is no execution of Ex.P.9. Further it is also argued that the complainant has to prove the execution of impugned cheques. On perusal of the said Ex.P.9 there is a manual written which was tampered by the complainant.
25Crl.Apl.No.768/2017 Further it is also argued that the complainant has received the signature on the blank paper and same is misused. The said documents produced by the complainant are obtained by the complainant under threat and pressure from the police. It is admitted by the complainant that the police complaint lodged by the complainant against the accused. This fact substantiate that the said documents were obtained under police influence using threat. Further it is also argued that as per Ex.P.9 Rs. 50 lakhs were paid, but in Ex.P.9 the amount mentioned is Rs. 1,15,00,000/- to be paid, that itself shows that there is a manipulation of document. Even considering for the sake argument, the amount would be Rs. 85 lakhs. Further it is also argued that 4 cheques were issued for Rs. 5 lakhs each, but the complainant misusing the same he filled up one cheque for Rs. 20 lakhs which got honored and remaining 3 chequues were misused by the complainant. In Ex.P.9 there is a hand writing in page 4 mentioning the cheque number and amount, if there is an agreement between the complainant and the accused why there is a mention of said cheques in hand writing. the fact clearly establish that there is a manipulation and the documents are forged and created. Further it is also argued that the complainant has failed to establish the fact there exists liability. Under such circumstance there is no question of raising presumption u/sec. 139 of NI Act. Further it is also argued that when the sale consideration is for Rs. 30,27,000/-, how the accused is liable to pay Rs. 1,15,00,000. it is mentioned in 26 Crl.Apl.No.768/2017 Ex.P.9 that the accused has to return Rs.1,15,00,000 including sale consideration and development charges. But in Ex.P.8 there is no mention of development charge itself. That itself sufficient to hold that the said document is manipulated. The complainant has not proved that the accused received Rs.1,15,00,000. On these grounds the counsel for appellant argued that the order of the trial court is based on presumption and assumption without appreciating the oral and documentary evidence. Hence the order of the trial court is to be set aside and the present appellant be acquitted for the offence u/sec 138 of NI Act.
27. The counsel for the respondent filed written argument and also addressed oral argument by supporting the judgment of the trial court and sought for the dismissal of the appeal. It is further argued that the fact regarding sale of property is not in dispute. The said site was sold to the complainant through registered Sale Deed , on an inquiry it is found that the said site was already sold to one Suryanarayana Rao in the year 1999, the khatha in respect of property in question was not changed. Subsequently the mother of accused gifted the property to the accused . The Sale Deed was executed in favor of the complainant on 21.10.2011. it is found that the property is already sold to some other person. The accused to rectify the same has executed Ex.P.3 i.e. Ex.P.8 in this case i.e. agreement dated 21.10.2011 and paid Rs. 30 lakhs and in pursuance of that issued 4 cheques. The first cheque got honored and other 3 cheques got dishonored for the reason funds insufficient.
27Crl.Apl.No.768/2017 Subsequently the ingredients of sec. 138 of N. I Act were complied and criminal proceeding initiated against the accused. It is argued that if the amount of Rs.30 lakhs is paid through cash and one cheque is for Rs.20 lakhs, there is no question of issuance of other cheques. The accused has not made any attempt till today to get back the cheques. It is also argued if the entire amount is paid by the accused there is no attempt made by the accused to cancel the Sale Deed executed by him in favor of complainant. It is further argued that during the cross-examination the transaction is specifically admitted by the accused as DW.1. The defense in the cross-examination of PW.1 and the contentions in reply are contrary to each other. It is also argued that the case involves not only the offences u/sec. 138 of NI Act but also includes cheating and moral turpitude. The trial court after appreciating the material placed before it has properly appreciated the oral and documentary evidence and convicted the accused. Hence the appeal may be dismissed.
28. Now it has to be seen the defense of the accused which is put up through cross examination of P.W.1 and evidence of D.W.1 and the documents relied by the accused and it has to be observed whether the said defense is probable or not and the accused is entitled for acquittal for the offence u/sec 138 of N.I Act. It is the case 28 Crl.Apl.No.768/2017 of the accused that he never executed the Agreement as alleged by the complainant. Accused disputed for having agreed to pay a sum of Rs.1,15,00,000/-, as per the accused he has received sale consideration of Rs. 30,27,000/- and has agreed to repay a sum of RS. 50 lakhs. He has paid Rs.30 lakhs by way of cash and one cheque of 20 lakhs got honored and the entire amount is paid as agreed by him. The complainant putting the accused under threat has obtained the Agreement and four signed blank cheques. It was agreed upon that the said cheques were to be filled for a sum of Rs. 5 lakhs only. But the complainant misused the said cheques and filled for total amounting for Rs.65 lakhs. It is also contended by the accused that the property sold to Sri Suryanarayana Rao is different from the property sold to the complainant. But due to pressure accused agreed to repay Rs.50 lakhs. Inspite of payment of entire amount the complainant has not executed cancellation of Sale Deed. As stated above the entire case of the complainant revolves around two documents mainly the execution of Sale Deed dated 21.2.2011 and the agreement dated 21.10.2011. Now it has to be seen that all the possible defences put up by the accused are probable enough to believe the version of the accused.It is necessary to go through the squeal of facts and circumstance between the accused and the complainant. First and foremost thing to be observed here that whether the property is different or same, secondly whether the 29 Crl.Apl.No.768/2017 accused entered into agreement as per Ex.P.8. It is contended by the accused that the property sold to the complainant and the property sold to Suryanarayana Rao are two different properties. The accused put up his theory that there are two different properties. The very interesting part here is that if the properties sold are two different properties, what is the necessity for him to repay the said entire amount of Rs. 50 lakhs as contended by himself. If really the property in question was not sold then why the questions regarding execution of Ex.P.8 were put to PW.1. The cross-examination of PW.1 is entirely in the line of execution of Ex.P.8 i.e. Sale Deed. On the one hand the accused contends that there is a delivery of possession of property they sold, on the other hand he contended that the property sold to complainant and another party are two different properties and there is no whisper in the cross- examination of PW.1 in that regard. It is specifically cross examined by the counsel for the accused to PW.1 that after obtaining the legal opinion there is execution of Ex.P.8 and on execution of Ex.P.8 the possession of the property was handed over to the complainant. If really the accused has sold different property, there is no question of him to elicit answers in respect of execution of Ex.P.8 which relates to the property sold by him to complainant. However the theory of execution of 2 different properties has no baring on the case of the complainant and the theory is completely contradicts the case of the accused. Whether the property is 30 Crl.Apl.No.768/2017 the same property or different property, there is a understanding that the amount to be refunded to the complainant and more over once he is agreed to repay either Rs.50 lakhs or other amount, the selling of different property has no baring on the case of the complainant. As rightly pointed out by the trial court, on perusal of the pleadings in OS No.5346/2011 filed by Sumithra w/o Suryanarayana Rao it is clear that the schedule property of the suit and the property at Ex.P.8 are one and the same. It is quite evident and clear that the property sold to complainant and Sumithra is one and the same.
29. Another important aspect is that by producing the plaint, WS and judgment of the OS case, the accused has virtually admitted the case of the complainant. It is clear from the records that the property sold to Suryanarayana Rao is the property sold to the complainant. It is corroborated by the fact that the accused ready to repay the amount as admitted by himself i.e. Rs.50 lakhs. Once he admits that he is ready to pay the sale consideration and the amount he is admitting that by mistake or otherwise he has sold the same property to the complainant and to make it correct he has repaid the said amount, otherwise there is no necessity for him to repay the said Rs.50 lakhs as claimed by himself. If the transaction is genuine and correct there is no question of him for the repayment. However he has contended that under police pressure the complainant obtained the said cheques. If the transaction is genuine enough there is no question of refund of amount and the 31 Crl.Apl.No.768/2017 complainant demanding the said amount. By this it is clear that the property in question are one and the same. The accused just to mislead the case has taken up such defense.
30. Now coming to the 2 nd aspect it is not disputed by the accused that he has executed Ex.P.8 and by virtue of that he has sold the properly to the complainant. Both these aspects it is very much clearity that there is a transaction in respect of the property and the accused has sold the property to the complainant for sale consideration. Now coming to the consideration the complainant contends that there is a payment of Rs.1,15,00,000 , however the accused contends that it is Rs.30,27,000/-. It is specifically argued by the accused that the sale consideration amount was repaid byway of cash. Further the Rs.20 lakhs was paid to the complainant in addition to the sale consideration. It is further contended the complainant has not produced document to show that there is payment of Rs.1,15,00,000/-. But on perusal of the record and as admitted by the accused himself he has paid Rs.50 lakhs to the complainant. If there is no agreement as contended by the accused, there is no necessity for the accused to repay Rs.50 lakhs to the complainant. That leads to infer that there is agreement to repay amount as contended by complainant.
31. The another important aspect is that the accused has taken up as many as defenses as possible in the 32 Crl.Apl.No.768/2017 present case including the manipulation of document, properties are different and many other defences. But none of the defenses or contentions find place in Ex.P.6 reply notice. The said reply notice is a very vital piece of evidence, wherein the accused got first opportunity to put up his defense and discard the case of the complainant. But on perusal of Ex.P.6 there is no whisper in respect of the defences raised herein. Hence it can be held that the accused has lost the first opportunity to rebut the case of the complainant. The non mentioning and not taking up the contentions in the reply will only made to infer that the real facts are diluted and the defenses are after thought.
32. The another circumstance which goes against the accused is that the accused contends that the cheques were issued with understanding that the amount of Rs. 5 lakhs is only to be filled in. But the complainant misused the same and filled amount as claimed by him and by virtue of that he has misused those cheques. It is pertinent to note that the cheque for Rs.20 lakhs got honored on 25.11.2011. The other 3 cheques were issued subsequently. There is no impediment for the accused to stop the payment of those cheques. There is sufficient time and opportunity to the accused to intimate the bank to withhold the cheque till 18.5.2012. But no attempt were made by the accused to collect those cheques on payment of entire consideration amount and also there is no initiation of action against the complainant for mis using the cheques. As rightly observed by the trial court, if there is 33 Crl.Apl.No.768/2017 understanding that the complainant has to present the cheque for Rs.5 lakhs each, the accused could have written the figure of the disputed cheques for Rs.5 lakhs by himself. It is also pertinent to note that if the cheuqes in question were only for Rs.5 lakhs, the accused could have issued only one cheque for Rs. 20 lakhs rather than 4 cheques for Rs.5 lakh each. These circumstance lead to infer that the cheques in question were issued to discharge the liability as claimed by the complainant.
33. Now coming to Ex.P.9 the original is produced in CC No. 4512/2017 as per Ex.P.3. As per the case of the accused he has not executed Ex.P.9 the agreement dated 21.10.2011, the said document was obtained by the complainant under police pressure threatening the accused and he has obtained the signature on blank bond paper and same is mis used by the complainant. It is also argued that the complainant has not proved execution Ex.9 and no witnesses are examined to prove Ex.P.9. the first and foremost thing is that the accused has not disputed the signature on the document. During cross-examination he admitted that the signature found on Ex.P.9 is of the accused. Considering these facts mainly the cross- examination of DW.1, in the cross-examination dated 17.3.2017 it is specifically admitted that his mother has gifted the property in question on 14 .2.2011 and within one week of execution of Ex.P.11 the Gift Deed property was sold to complainant. It is also admitted that the property 34 Crl.Apl.No.768/2017 shown in Gift Deed is sold to the complainant. The relevant part of the cross-examination is extracted as follows;
"The signature on Ex.P.3 was confronted to witness. The witness admits the signature found in Ex.P.3 as pertains to him. Witness volunteers that when he signed Ex.P.3 it was blank. It is true to suggest that in pursuace of Ex.P.3 I have issued 4 cheques in favor of the complainant. It is true to suggest that out of 4 cheques one for Rs. 20 lakhs has been encashed."
Further it is also elicited from the cross-examination of PW 1 that on the information furnished by the accused his counsel issued Ex.P.6 reply notice. He is aware of the contents of reply notice. He has specifically admitted that in Ex.P.6 it is not stated that Ex.P.3 (Ex.P.8) was signed blank and alsongwith Ex.P.3 cheques have been misused. He has specifically during cross-examination dated 3.4.2017 admitted that he has not initiated legal action for the misuse of blank stamp paper and he has not taken any action for using force to get into agreement and it is also admitted since on 25.11.2011 the amount of Rs.20 lakhs was reached to the complainant he has not requested the bank to stop other cheques. From the entire evidence, it is clear that in pursuance of Ex.P.3(Ex.P.9) he has issued 4 cheques. By virtue of this it is clear that the accused has executed Ex.P.3 (Ex.P.9) and in pursuance of that he has issued 4 cheques, out of which one got honored and 3 got 35 Crl.Apl.No.768/2017 dishonored. The accused has not substantiated the fact that Ex.P. 9 is manipulated. As rightly pointed out by the trial court if the said document is manipulated and obtained the signature of the accused in the blank bond paper, in that event it was not necessary for the complainant to make the handwriting with regard to cheque in question in page No.4. It is the only thread for the accused to contend that there is a manipulation of Ex.P.9. But apart from this there are number of factors manly the cheque dated 25.11.2011 for sum of Rs.20 lakhs got honored and the subsequent cheques dated 18.2.2012, 18.4.2012, 18.5.2012 are dishonored which are issued subsequent to 25.11.2011. If there is a manipulation of the document as contended by the accused, then why only the first cheque got honored. Further more it is important to note that the accused has not disputed the issuance of 4 cheques, but only disputed the fact that the cheques to be presented for Rs.5 lakhs each . The accused has not produced piece of evidence to show that he has initiated action for the manipulation and creation of Ex.P.9. nothing prevented the accused to take action against the complainant and the official for creating the document and using force to obtain his signature. Apart from the bare statement nothing is produced to prove the fact that the document is created by the complainant. These circumstance establish the fact that there is execution of Ex.P.9 and the accused has admitted to repay Rs. 1,15,00,000 in pursuance of agreement dated 21.10.2011 and hence there is no cancellation of Sale Deed.
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35. Further more the accused has not attempted to get the cancel the Sale Deed as he admitted that the original documents are with the complainant itself. If really the documents are manipulated and the entire amount is paid by the accused what prevented him to get the original documents back and to get the Sale Deed canceled, but nothing has been done by the accused, which goes completely against him to infer that there is agreement to repayment of the said amount and there is a recital in Ex.P.9 that on payment of entire amount the Sale Deed will be canceled. This is sufficient to hold that the accused is liable to pay the said amount and he has issued those cheques for discharge of the same and hence there is no cancellation of sale deed.
36. Now coming to the another aspect it is the contention of the accused that the GPA holder has no authority to file the complaint and adduce evidence on behalf of the complainant. Hence the complaint itself is not maintainable. Firstly the GPA holder of the complainant has produced copy of GPA wherein authority is given to the GPA holder to conduct the case. However it is contended by the accused that there is no reason assigned for which purpose the said GPA is given. But on perusal of GPA, it is very much clear that to take all the legal steps including filing of complaint, adducing of evidence etc. the GPA is given. By virtue of that the GPA holder of complainant has filed a complaint and led evidence. However the accused 37 Crl.Apl.No.768/2017 contends that the permission is not sought by the GPA holder to conduct the case. But as rightly pointed by the trial court the said fact is not questioned at the initial stage, but at the fag end the said aspect is raised. Hence there is implied permission to conduct the case. As rightly pointed by the trial court the accused all along has not raised the said issue. But after conclusion of the trial the said question is raised. Moreover on perusal of the GPA it is very much clear that the complainant has given power to conduct the case. Moreover during the cross-examination of PW. 1 i.e. GPA holder he specifically deposed that he is very much aware of the transaction and he was present at the time of talks of the transaction. He has personal knowledge with regard to the transaction. Considering this aspect the grounds raised by the accused hold no water.
37. Another point raised by the accused is that the complainant has no source of income to arrange Rs. 1,15,00,000/-. Admittedly there is no document produced by the complainant. But it is to be observed that the accused has refunded Rs.50 lakhs and issued cheque for Rs.65 lakhs which clearly establish that there is a sale consideration of Rs.1,15,00,000/-, to the said transaction. It is relevant to mention that the issuance of cheque also follows the legal liability that the cause shown for the issuance of cheque and failure to recollect the said cheques by he accused leads to infer that there is a liability of Rs.1,15,00,000/-, however on perusal of evidence of PW.1 38 Crl.Apl.No.768/2017 the accused himself has suggested that the complainant is running business of printing in Rajajinagar, they are doing business under the name and style of of 'Print Tools Corporation` and the complainant and her husband hold the ownership. It is deposed by PW. 1 that the business of said company were conducted by complainant and her husband. This suggestion itself leads to infer that the complainant is the owner of the company and she holds sufficient means to pay the consideration amount. The point questioning the financial capacity of the complainant holds no water.
38. On culmination of entire facts, circumstance and the material placed both oral and documentary evidence it is very much clear that the accused has repaid Rs.50 lakhs as claimed by him and there is a clear admission that there is a transaction between the complainant and the accused. If there is only consideration of Rs. 30,27,000/- and agreed to pay Rs.50 lakhs out of which Rs.30 lakhs paid by cash and Rs.20 lakhs by cheque, what made the accused to issue the other 3 cheques. The theory of presentation of cheques only for Rs.5 lakh is not substantiated by any material, rather the defense is not probable enough, as because if there is a due of only Rs.20 lakhs the accused would have issued only one cheque rather than issuing 4 cheques. As discussed above there is no defense raised by the accused in the reply regarding manipulation of document and regarding property sold to the complainant is a different 39 Crl.Apl.No.768/2017 property. If property sold are different, why the accused paid Rs.50 lakhs to the complainant that raises the doubt in the mind of the court regarding the real facts of the case. If the accused paid Rs.50 lakhs to the complainant that clearly proves the fact that the accused has sold the property to the complainant by mistake or by representing false, to make good he is repaying the entire amount. That itself proves the intention of the accused that he is not bonafide in his conduct. All the facts and circumstance proves that there exist the liability and to discharge the same the accused issued the impugned cheques. Hence the defense put by the accused are not probable enough to believe the version of the accused. The stand of the accused in itself contradictory to each other which will not probabilise his defense and there is no plausible explanation, which comes as a defense in favor of accused.
39. On perusal of the entire material both oral and documentary evidence before this court, the complainant has proved there exist liability and the accused has issued the said cheque to discharge the liability. The complainant has discharged her initial burden, but on perusal of the cross examination of complainant and other evidence relied by the accused, the accused has not put up any probable defense to rebut the presumption u/sec 139 of NI Act which favours the complainant.
40. On culmination of entire facts, the accused fails to rebut 40 Crl.Apl.No.768/2017 the fact that he has not received any amount from the complainant. The accused completely denied the transaction between both, which creates the doubt in the mind of the court. As stated above the accused failed to rebut the presumption as well as the case of the complainant, through oral and documentary evidence and also through circumstantial evidence. This court hold that the complainant has proved his case. The trial court appropriately and correctly with proper perspective appreciated all above noted materials, which placed by complainant and drawn the presumption in favor of the complainant. Though accused in his appeal memo urged many ground, but he has not pointed out how trial court committed error in appreciating any of the available materials. All the contentions of accused in his appeal memo do not hold water. The trial court with application of sound judicial approach and mind, properly believed the existence of version of complainant. There are no grounds whatsoever to discard the finding and element decision of trial court through impugned judgment. This court does not find any amount of irregularity and error either in appreciating evidence or in convicting accused for the above offence. Therefore, impugned judgment and order of sentence of trial court is perfectly correct and in accordance with law and this court does not found anything which call for interference of this court. Accordingly, these points are answered in the affirmative.
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41. POINT NO.3; In the light of my finding on point No.1 and 2 this court proceeds to pass the following;
OR D E R Appeal filed by the Appellant is hereby dismissed.
Impugned judgment and order of sentence of trial court passed in Common Judgment in C.C.No.4513/2017, 4512/2017 and 4510/2017, on the file of XV ACMM, Bengaluru dated 26.04.2017 is hereby confirmed.
Send copy of this judgment alongwith TCR to the trial court for needful.
(Dictated to the J.W., script thereof is corrected, signed and pronounced by me in open court on this the 21 st day of August, 2020) (Gururaj Somakkalavar) LXIX Addl.C.C. & Sessions Judge, Bengaluru.