Bangalore District Court
Mr. Ramesh K. R vs Father'S Name Not Known on 18 January, 2022
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 18th day of January, 2022.
Crl. Appeal. No.25049/2021
Appellant/ Mr. Ramesh K. R,
Accused:- Father's name not known
to the Complainant,
Aged major,
R/at No.374, Kodathi,
Karmelaram Post,
Kodathi Village,
Bengaluru-560 035.
Permanent & Correct Address:
Sri. K. R Ramesh,
S/o Ramachandraiah,
Aged about 49 years,
R/at No.236/10,
Kodathi Village,
Carmelaram Post, Sarjapura Road,
Varthur Hobli,
Bengaluru-560 035.
[By CRC Law Chambers -Advocate]
V/s
2 Crl.Appeal.No.25049/2021
Respondent/ Sri. Ashok R. B Singh,
Complainant: Aged about 51 years,
S/o. Late Sri. Ram Bilas Singh,
R/at G-204,
Nagarjuna Green Woods,
Kabisanahalli,
Bangalore-560103.
(By Sri. Karan Joseph -Adv.)
JUDGMENT
This Appeal is preferred by the Appellant/ Accused U/Sec. 374(3) of Cr.P.C., being aggrieved by the Judgment of conviction passed by the Addl. Small Causes Judge and XXIII Addl. CMM, Member M.A.C.T., Bangalore, in CC.No.51637 of 2017, dtd. 01.03.2021, convicting the Appellant for the offence punishable U/Sec. 138 of NI Act, thereby sentencing him to undergo Imprisonment of Six months and to pay fine of Rs.5,000/-. In default of payment of fine, to undergo Simple Imprisonment for a period of 30 days. Further directed to pay an amount of Rs.30,00,000/- to the Complainant as compensation, under Sec.357 of Cr.P.C within 2 months. Indefault, to pay the said compensation, the same can be recovered U/Sec 421 of CrPC.
3 Crl.Appeal.No.25049/20212. The Brief facts leading to filing of the present appeal are:
The Respondent filed a Complaint U/Sec.200 of Cr.P.C. against the Appellant alleging that, the Appellant is known to him and due to acquaintance he has approached him in the month of July 2016 requesting to pay hand loan of Rs.5,00,000/-. As per the said request he has paid Rs.5,00,000/- to the appellant on 12/07/2016. Thereafter again the appellant requested for the hand loan of Rs.29,50,000/-, which is paid by him. In all the appellant has received hand loan of Rs.34,50,000/- towards principal alone. On repeated request at the default of the appellant in repaying the said loan, he issued a cheque bearing No.057595 dtd:
18/08/2016 drawn on the Federal Bank, Kodathi Gate Branch, Bengaluru for the sum of Rs.25,00,000/-. The appellant requested not to present the said cheque before November 2016 and assured to issue another cheque towards the balance payment along with interest compound shortly. Upon the assurance, he presented the said cheque on 15/11/2016 through his Banker HDFC Bank, Old 4 Crl.Appeal.No.25049/2021 Airport Branch, Bengaluru. But the said cheque has returned unencashed with an endorsement "Insufficient Funds" on 18/11/2016. He got issued a legal notice datd 14/12/2016 to the appellant throug his counsel, by RPAD. The said notice has returned with an endorsements "Door Lock" and "Unclaimed , hence returned to sender".
The Appellant has neither replied nor complied the said notice. On completion of stipulated period, he was constrained to file a Complaint against the Appellant.
3. On being satisfied, the Trial Court has issued summons to the appellant/accused U/Sec.204 of Cr.P.C. on 03/03/2017. The Appellant has appeared before the Trial Court on 09/10/2019 and he was enlarged on bail. Substance of Accusation of the Appellant/Accused was recorded by the Trial Court on 09/10/2019, wherein the Appellant/Accused pleads not guilty and claims to be tried.
4. The Complainant inorder to prove his case got himself examined as P.W.1 and got marked 06- 5 Crl.Appeal.No.25049/2021 documents as Ex.P.1 to Ex.P.6. PW.1 was cross examined on behalf of the Accused/ Appellant on 03/01/2020, 24/01/2020, 04/03/2020 and 19/02/2021.
Trial Court has recorded the Statement of Appellant/Accused U/Sec. 313 Cr.P.C. on 20/01/2020. Appellant/Accused got himself examined as D.W-1 and got marked two documents as Ex.D.1 and Ex.D.2. DW.1 was cross examined on behalf of the Complainant/ Respondent on 04/01/2021.
5. The Trial Court on hearing both the sides has recorded Judgment of Conviction against the Appellant on 01/03/2021. Hence, the Appellant is before this Court, being aggrieved by the said Judgment of conviction.
6. On filing this appeal by the Appellant/Accused, this Court has suspended the sentence, under appeal initially for a period three months, on 30.03.2021. Notice of the Appeal memo and I.A.No.1/2021 was issued to the Respondent and TCR were called for. Respondent set-in his 6 Crl.Appeal.No.25049/2021 appearance on 09/08/2021. TCR were secured on 09/08/2021.
7. Heard the Learned Counsels for the Appellant/Accused and the Respondent/ Complainant, respectively.
The Learned Counsel for the Appellant/Accused has placed his reliance on 12 decisions namely 1) 2018 0 Supreme (Guj) 1207; 2) (2008) 2 Supreme Court Cases (Cri) 166; 3) 2014 AIR SCW 2158; 4) (2015) Supreme Court Cases 99; 5) 2009 Cri.L.J 2777; 6) AIR 2019 Supreme Court 1983; 7) LAWS(BOM) 2015, 439; 8) LAWS(MAD) 2-01192) 743,
9) LAW FIDER DOC ID# 1689121; 10) LAW FIDER DOC ID# 1568038; 11) ILR 2008 KAR 4629; & 12) LAWS (APH) 2006 7 112.
8. The Appellant has preferred the appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has gravelly erred in convicting the Appellant for the offence punishable U/Sec. 138 of N.I. Act, which is manifestly erroneous and opposed to the facts and circumstances of the case;7 Crl.Appeal.No.25049/2021
b) The Trial Court has miserably failed to appreciate the oral and documentary evidence on record, in a proper and perspective manner;
c) The Trial Court has failed to consider that, the Cheque in question was given by the Accused to the Complainant, to transfer the difference amount under the sale transaction taken place under Ex.D1, to his account through RTGS;
d) The Trial Court has failed to consider that, there was a transaction of sale in between the Complainant and the sister of the Accused, wherein the Complainant had undertaken to pay difference amount in between the actual consideration amount and the notified consideration amount, to the account of the Accused;
e) The Trial Court has failed to consider that Notice Ex.P3 is not been served upon the Accused.
f) The Trial Court has failed to arrive at a conclusion that, the Complainant has discharged his initial burden to avail the benefit of presumption, but the Accused has not rebutted the said presumption;
g) The Trial Court has failed to consider the documents produced by the Appellant at Ex.D1 & Ex.D2.
Hence, prayed to allow the said appeal.
8 Crl.Appeal.No.25049/20219. Following points arise for my consideration;
1. Whether the Respondent/ Complainant is entitle for the benefit of presumption available U/Sec. 139 of N.I. Act?
2. Whether the Appellant/ Accused proves on the basis of preponderance of probabilities that he had issued the Cheque/Ex.P1, enabling the Complainant to transfer the difference amount under the sale transaction, to his account through RTGS?
3. Whether the Appellant/ Accused proves on the basis of preponderance of probabilities that, he has not received the Notice-ExP3?
4. Whether the Trial Court has rightly held that, Appellant/ Accused has failed to rebut the presumption available U/Sec. 139 of N.I. Act?
5. Whether the Appellant/ Accused shows that the Order of Conviction and Sentence recorded by the Trial Court in CC.No.51637 of 2017, dtd.01.03.2021, deserves to be setaside, and thereby call for the interference of this Court?
6. What Order?
9 Crl.Appeal.No.25049/202110. My finding on the above points are as under:
Point No.1 : In the Affirmative;
Point No.2 : In the Negative;
Point No.3 : In the Negative;
Point No.4 : In the Affirmative;
Point No.5 : In the Negative;
Point No.6 : As per final order for
the following :
REASONS
11. The rank of parties will be referred to, as they were before the Trial Court.
12. POINT NO. 1:-
The Complainant has filed a Complaint U/Sec. 200 of Cr.P.C. alleging that, the Accused has approached him, with a request to give hand loan to him. Accordingly he has paid total hand loan of Rs.29,50,000/-. In order to repay the said part hand loan amount, the Accused has issued the Cheque/Ex.P1. On presentation of the present Cheque the same has returned with an endorsement "Insufficient Funds", as per Ex.P2. The Complainant got issued Legal Notice to the Accused dated 14/12/2016 as per Ex.P3, through RPAD as per 10 Crl.Appeal.No.25049/2021 Postal Receipt Ex.P4. But the same has been returned with an endorsement 'Unclaimed', as per Postal Returned Envelope -Ex.P5.
13. On the basis of the said documents and the preliminary evidence led by the Complainant, the Trial Court has issued summons to the Accused on 03/03/2017 U/Sec.204 of Cr.P.C. I do not find any error in the said order of the Trial Court.
14. The Accused has appeared before the Trial Court on 09/10/2019 and he was enlarged on bail. Substance of Accusation/Plea was recorded on 09/10/2019. I have gone through the contents of the substance of Accusation/Plea recorded by the Trial Court. I do not find any fault, in the Plea/Substance of Accusation, recorded by the Trial Court.
15. Coming to the ocular evidence, on the point of issuance of the Cheque - Ex.P.1, more specifically,
a) cross-examination of DW.1, at Page No.7, Para No.3, Line Nos.1 to 3, which reads as under;
"ಪಿರ್ಯಾದಿದಾರರಿಗೆ ಕೊಟ್ಟಿರುವಂತಹ ಚೆಕ್ಕು ನಿಪಿ-1 ರಂತಿರುವ ಚೆಕ್ಕು ಆಗಿರುತ್ತದೆ ಮತ್ತು ಅದರಲ್ಲಿರುವ ಸರಿಯು 11 Crl.Appeal.No.25049/2021 ನನ್ನದು ಆಗಿರುತ್ತದೆ. ಸಾಕ್ಷಿಯು ನನ್ನದು ಎಂದು ಗುರುತಿಸಿರುವ ಸಹಿಯನ್ನು ಈಗಾಗಲೇ ನಿಪಿ-1 ಎ ಎಂದು ಗುರುತಿಸಲಾಗಿರುತ್ತದೆ. ....."
As per this evidence, the Accused/DW.1 admits that the Cheque-ExP1 belongs to him and the signature found on the said Cheque also belongs to him.
16. As per the above ocular evidence, more specifically the admission given by the Accused, it can be said that, the Accused has admitted that the Cheque-Ex,P1 belongs to him and the signature found on it, also belongs to him.
17. Thus the Complainant has proved the initial burden casted upon him U/Sec.138 of N.I. Act, to show that, the Cheque - Ex.P.1 belongs to Accused and the signature on the said Cheque, is that of the Accused.
18. On viewing the amount of oral evidence with Ex.P.1 to Ex.P.5, which will suffice the Complainant to have benefit of presumption available U/Sec.138, 139 of N.I. Act.
12 Crl.Appeal.No.25049/202118.01. As per the trite principle of law, dealing with the presumption U/Sec.138 & 139 of N.I.Act and as per the dictum laid down by the Hon'ble Apex Court in the case of K. Subramani V/s K. Damodara Naidu, reported in 2014 (12) SCALE 677, as well as in the case reported in (2010) 11 SCC 441, wherein it is held that, "Presumption U/Sec.139 of N.I.Act accrues to the benefit of the Complainant, unless the Accused rebut that presumption".
18.02. Now it is for the Accused to rebut the said presumption, available to the Complainant U/Sec.139 of N.I.Act.
Hence, I answer POINT NO.1 IN THE
AFFIRMATIVE.
19. POINT NO.2:
The main defence takenup by the Accused is that, he has issued the Cheque Ex.P1 to the Complainant, inorder to facilitated him to transfer the difference amount, under the Sale Deed Ex.D1 (actual consideration amount of Rs.95,00,000/- and 13 Crl.Appeal.No.25049/2021 consideration shown under Ex.D1 is Rs.68,22,750/-; and difference amount is Rs.21,77,250/-), to his account by RTGS. But the Complainant has misused the said Cheque and has presented the Complaint. This line of defence can be seen as per the cross- examination of DW.1, Page No.7, Para No.3, Line Nos.3 to 6, which reads as under:-
"... ಸಾಕ್ಷಿ ಸ್ವತಃ ನಾನು ಕೊಟ್ಟಂತಹ ಚೆಕ್ಕಿನಲ್ಲಿ ಏನು ಬರವಣೆಗೆಯನ್ನು ಬರೆದಿರುವುದಿಲ್ಲ ಎಂದು ನುಡಿದಿರುತ್ತಾರೆ. ಯಾವ ಕಾರಣಕ್ಕಾಗಿ ಚೆಕ್ಕನ್ನು ಕೊಟ್ಟೀರುತ್ತೀರಿ ಎಂದರೆ ಉಳಿಕೆ ಹಣವನ್ನು ನನ್ನ ಬ್ಯಾಂಕ್ ಖಾತೆಗೆ ವರ್ಗಾವಣೆ ಮಾಡಲು ಚೆಕ್ಕನು ಕೇಳಿದ್ದರಿಂದ ಕೊಟ್ಟಿರುತ್ತೇನೆ. ....."
19.01. The Accused has produced the copy of the absolute Sale Deed dtd.26.08.2016 at Ex.D1. On careful perusal of the said document, it is seen that;
a) the said Sale Deed is entered into inbetween Smt. K R Ravikumari, as vendor; and 1) Ashok R B Singh- Complainant and 2) Mrs. Smitha Singh, as purchasers.
b) the sale consideration amount is mentioned as Rs.68,22,750/-, which is paid as per the modes mentioned in clause No.1 of the said document;
14 Crl.Appeal.No.25049/2021c) there is recital that, the vendor has delivered physical possession and enjoyment of the property shown, as the Suit Schedule Property, to the purchasers; and
d) the Sale Deed is dtd.26.08.2016 and the payments made under the said Sale Deed towards consideration amount is dtd.20.06.2016, 11.06.2016, 24.08.2016, 24.08.2016, 26.08.2016, 26.08.2016. But the Cheque Ex.P1 is dtd.18.08.2016.
19.02. Firstly, the Accused has contended that, the consideration amount was fixed at Rs.95,00,000/-.
Coming to ocular evidence, on this point, more specifically, cross-examination of PW.1, at Page No.9, Para No.6, Line Nos.7 and 8, which reads as under:-
"..... ಕ್ರಯಪತ್ರ ನೋಂದಣೆ ಆಗುವುದಕ್ಕಿಂತ ಮೊದಲು ಒಂದು ಕ್ರಯದ ಕರಾರುಪತ್ರ ಆಗಿರುತ್ತದೆ. ....."
As per this evidence, Complainant PW.1 admits that, the total consideration amount of the Site purchased by him is Rs.95,00,000/-.
15 Crl.Appeal.No.25049/2021So the fact of determination of total consideration amount as Rs.95,00,000/-, is proved by the Accused.
19.03. Secondly, the Accused contends that, the Complainant had agreed to pay the difference amount to his account.
19.03.01.Though the Accused has contended so, but he has not placed any material on record to show that, either the Complainant has agreed to pay the difference amount to the vendor under Ex.D1, through him; or the parties to the Sale Deed -Ex.D1 have agreed or consented that, the difference shall be paid by the purchasers to the vendor byway of transfer through the account of the Accused.
19.04.01.Firstly, the Accused is not the party to the Sale Deed -Ex.D1, either as a witness or as a consenting party;
19.04.02.Secondly, there is no material on record placed by the Accused to show that, apart from Ex.D1 - Sale Deed, there is a document 16 Crl.Appeal.No.25049/2021 suggesting such agreement inbetween the parties to the Sale Deed -Ex.D1, wherein the Complainant has agreed to pay the difference sale consideration amount;
19.04.03.Thirdly, the difference sale consideration amount if worked out comes to Rs.21,77,250/-, but whereas the amount shown under the Cheque Ex.P1 is Rs.25,00,000/-.
19.04.04.Fourthly, if the defence of the Accused is presumed to be gospel truth, then he would have given a cancelled Cheque and not a signed blank Cheque, inorder to facilitated the details of his account, so that, the Complainant can have a bank transfer through RTGS to his account. But it is not so. This can be seen as per the cross- examination of DW.1, at Page No.7, Para No.3, Line Nos.6 to 9, which reads as under:-
"... ಈಗ ನನಗೆ ತೋರಿಸುತ್ತಿರುವಂತಹ ನಿಪಿ-1 ರಂತಿರುವ ಚೆಕ್ಕು cancelled ಚೆಕ್ಕು ಆಗಿರುವುದಿಲ್ಲ ಎಂದರೆ ಸರಿ. ಸಾಕ್ಷಿ ಸ್ವತಃ ಪಿರ್ಯಾದುದಾರರು ಚೆಕ್ಕನ್ನು ಕ್ಯಾನ್ಸಲ್ ಮಾಡುವುದು ಬೇಡ ಕೇವಲ ಸಹಿ ಮಾಡಿಕೊಡು ಎಂದು ಹೇಳಿದ್ದರಿಂದ ಚೆಕ್ಕನ್ನು ಕೊಟ್ಟಿರುತ್ತೇನೆ ಎಂದು ನುಡಿದಿರುತ್ತಾರೆ. . ...."17 Crl.Appeal.No.25049/2021
19.05. Fifthly, the Complaint contends that, he has paid the amounts inpart to the Accused on several occasions.
19.05.01.The Complainant has produced the bank statement at Ex.P6. On careful perusal of this Bank statement it is seen that, the below mentioned amounts have been transferred to the account of the Accused from the account of the Complainant on the dates mentioned therein, viz., on 27.07.2016 Rs.2,00,000/-
on 04.08.2016 Rs.3,00,000/-
on 11.08.2016 Rs.5,00,000/-
on 12.08.2016 Rs.6,00,000/-
on 12.08.2016 Rs.4,00,000/-
on 18.08.2016 Rs.1,00,000/-
on 18.08.2016 Rs. 50,000/-
after 18.08.2016 Rs.5,00,000/-
on 12.04.2018 Rs.5,00,000/-
19.05.02.So as per this it is seen that, the Complainant has transferred totally an amount of Rs.21,50,000/- and after 18.08.2016 there is a transfer of Rs.5,00,000/-. So as on the date of the Cheque there is a transaction of transfer of Rs.21,50,000/- from the account of the Complainant to the account of the Accused.
18 Crl.Appeal.No.25049/202119.05.03.Further the Learned Counsel for the Appellant would contend that, the Cheque- Ex.P1 was given as security before paying the amount of Rs.29,50,000/-. So ason the date of issuance of Cheque there was no any existing liability. Therefore the debt shown by the Complainant is not an enforceable debt. He has placed his reliance on the below mentioned decisions viz.,
a) of the Hon'ble High Court of Punjab and Hariyana, in the case of M. L Aggarwal Hosiery Pvt., Ltd., V/s M/s Shivani Enterprises and Anr., reported in 2020 (3) R.C.R (Criminal )359, wherein it is observed in Para No.12, as under:-
"12. Thus, in view of the totality of the circumstances and the settled position of law, the case attempted to be built by the complainant, appears to be suffering from fatal infirmities so much so that it goes directly to the root of the case and shakes the very edifice on which the case of the complainant rests. It is also relevant to mention here that the criminal conviction entails enigmatic and stigmatic exposures and experiences and thus it becomes of paramount importance to demand evidence of unimpeachable character and of unambiguous nature."19 Crl.Appeal.No.25049/2021
b) of the Hon'ble High Court of Karnatka, in the case of Yeshwanth Kumar V/s Shanth Kumar, in Criminal Appeal No.939 of 2010 D/d 07.08.2018, wherein it is observed in Para No.14, as under:-
"14. Therefore, when the accused/ complainant himself is unable to show the source of income and capacity to pay and date of issuance of cheque throw suspicion and cloud in the evidence of the complainant. It is not possible to accept the evidence of the complainant that there is any legally recoverable debt payable by the accused and he had issued the cheque to discharge the amount to the complainant."
c) of the Hon'ble High Court of Karnatka, in the case of Shiva Murty V/s Amruthraj, reported in ILR 2008 Kar 4629, wherein it is observed in Para Nos.29 and 30, as under:-
"29. In the case of John K. John Vs. Tom Varghese & Another (2007 AIR SCW 6736), the Honble Supreme Court while considering the appeal against an order of acquittal, on a complaint under Section 138 of the N.I.Act has observed that the conduct of the complainant should be that of a prudent man. It has observed in para-10 thus;
"why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant 20 Crl.Appeal.No.25049/2021 question which could be posed in the matter It was open to the High Court to draw its own conclusion therein. Not only no document had been executed even no interest had been charged."
Thus, the circumstances of not charging any interest was also considered as the relevant circumstance to find out as to whether the existence of the debt has been proved or not. In the case on hand also, not only no document has been executed even, no interest has been charged. No explanation is forthcoming from the complainant as to why interest was not charged on Rs.75,000/- alleged to have been lent by him for a period of nearly 10 months. No prudent man, in my considered view, would lend substantial amount of Rs.75,000/ - without charging interest. Admittedly, provisions of Section 269 SS of Income Tax Act has not been followed, as, it is not the case of the complainant that, the loan of Rs.75,000/- was advanced by means of Account Payee cheque.
30. Having regard to the evidence on record, I am of the considered view that the complainant has not established nor proved the existence of legally enforceable debt, against the accused appellant. The Courts below more particularly, the Appellate Court before whom the additional documents were produced has not directed itself in this regard to find out as to whether the complainant has proved the existence of legally enforceable debt. Both the Trial Court and the Appellate Court have mainly proceeded to consider the conduct of the accused. In my considered view, before considering the conduct of the accused to find out as to whether or not he 21 Crl.Appeal.No.25049/2021 has been able to rebut the statutory presumption available under Section 139, the Courts ought to have considered as to whether the complainant has proved the existence of legally enforceable debt. It is only after satisfying that the complainant has proved existence of legally enforceable debt or liability, the Courts could have proceeded to draw presumption under Section 139 of the N.I Act and thereafter find out as to whether or not the accused has rebutted the said presumption."
d) of the Hon'ble Apex Court, in the case of Anss Rajashekar V/s Augustus Jeba Anath, reported in AIR 2019 SC 942, wherein it is observed in Para Nos.10 and 13, as under:-
"10. Section 139 of the Act mandates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received it, in discharge, in whole or in part, of a debt, or liability. The expression "unless the contrary is proved" indicates that the presumption under Section 139 of the Act is rebuttable. Terming this as an example of a "reverse onus clause" the three Judge Bench of this Court in Rangappa (supra) held that in determining whether the presumption has been rebutted, the test of proportionality must guide the determination. The standard of proof for rebuttal of the presumption under Section 139 of the Act is guided by a preponderance of probabilities. This Court held thus:22 Crl.Appeal.No.25049/2021
"28 In the absence of compelling justifications, reverse onus clauses usually impose 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 `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
13. Besides what has been set out above, an important facet in the matter was that the complainant failed to establish the source of funds which he is alleged to have utilized for the disbursal of the loan of Rs.15 lakhs to the appellant. During the course of his cross-examination the complainant deposed that earlier, the appellant had furnished two cheques, one of ICICI Bank for Rs.5 lakhs and another of Canara Bank for Rs.10 lakhs which he had presented. The complainant admitted that he had not mentioned anything about the accused having issued these two cheques in his complaint. Nothing was stated by the complainant in regard to the fate of the earlier two cheques which were allegedly issued by the appellant. The non-disclosure of the facts pertaining to the earlier two cheques, and the steps, if any, taken for recovery was again a 23 Crl.Appeal.No.25049/2021 material consideration which indicated that there was a doubt in regard to the transaction."
19.05.04.Further the Learned Counsel for the Appellant would contend that, Cheque -Ex.P1 was not issued towards discharge of burden. He has placed his reliance on the decision of the Hon'ble High Court of Madras, in the case of R. B Ramakrishnan V/s A Meena, reported in Laws (MAD) 2011 2 743, wherein it is observed in Para No.19, as under:-
"19. Then here is the case wherein the complainant failed to discharge his burden whereas the accused duly discharged burden cast upon him to raise a defence on one hand that the cheque issued under different circumstances and on other hand that it is for time barred debt and for more amount than actually due to the complainant viewing from any angle the both Courts below have misrebly failed to properly consider the defence raised on the side of the accused arrived at perverse finding that the accused was due to pay Rs.12,00,000/- to the complainant and the cheque was issued for due repayment of the same. Such a finding rendered by the trial is as discussed above by not properly considering the admission made by PW1 24 Crl.Appeal.No.25049/2021 in witness box. Both the Courts below have simply arrived at conclusion in favour of the complainant by invoking the presumption without going into other material factors and the finding of the Courts below suffer from legal and perpetual infirmity and which warrants interference by this Court."
19.05.05.Coming to the ocular evidence on this point, more specifically, cross-examination of PW.1, at Page No.8, Para No.5, Line Nos.16 onwards, which reads as under:-
"... ನಾನು ಆರೋಪಿಗೆ ಹಣವನ್ನು ಕೊಟ್ಟಿರುವ ಕುರಿತಂತೆ ಭದ್ರತೆಗೆ ಯಾವುದೇ ದಾಖಲೆಗಳನ್ನು ಮತ್ತು ಪತ್ರವನ್ನು ಪಡೆದುಕೊಡಿರುವುದಿಲ್ಲ. ಸಾಕ್ಷಿ ಸ್ವತಃ ಆರೋಪಿಯು ರೂ.25,00,000-00 ಗಳಿಗೆ ಚೆಕ್ಕನ್ನು ಕೊಟ್ಟ ನಂತರ ಅದರ ಆಧಾರದ ಮೇಲೆ ಉಳಿದ ಹಣವನ್ನು ಸಹ ಆರೋಪಿಗೆ ಕೊಟ್ಟಿರುತ್ತೇವೆ ಎಂದು ನುಡಿದಿರುತ್ತಾರೆ. ಆರೋಪಿಯು ನನಗೆ ಚೆಕ್ಕನ್ನು ಕೊಟ್ಟ ನಂತರದಲ್ಲಿ ನಾನು ಅವರ ಬ್ಯಾಂಕ್ ಖಗತೆಗೆ ಹಣವನ್ನು ವರ್ಗಾವಣೆ ಮಾಡಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿ. ಯಾವ ಆದಾರದ ಮೇಲೆ ಅಷ್ಟು ದೊಡ್ಡ ಮೊತ್ತದ ಹಣವನ್ನು ಆರೋಪಿಗೆ ಕೊಟ್ಟಿರುತ್ತೀರಿ ಎಂದರೆಅ ವರು ನನಗೆ ರೂ.25,00,000-00 ಚೆಕ್ಕನು ಬರೆದುಕೊಟಿದ್ದರಿಂದ ಅದರ ಆದಾರದ ಮೇಲೆ ಹಣವನ್ನು ಕೊಟ್ಟಿರುತ್ತೇನೆ. ಆರೋಪಿಯ ಹಣಕಾಸಿನ ಸ್ಥಿತಿಗತಿಯ ಕುರಿತಂತೆ ನಾನು ವಿಚಾರಣೆ ಮಾಡಿರುತ್ತೇನೆ. ನಾನು ಕೇವಲ ಚೆಕ್ಕಿನ ಆದಾರದ ಮೇಲೆ ಹಣವನ್ನು ಕೊಟ್ಟಿದ್ದು ಯಾವುದೇ ದಾಖಲೆಗಳನ್ನು ಪಡೆದುಕೊಂಡಿರುವುದಿಲ್ಲ."
As per this evidence, the Complainant /PW.1 contends that, after getting the Cheque he has transferred the amount.
25 Crl.Appeal.No.25049/202119.05.06.This peace of evidence is to be viewed in support of the bank statement-Ex.P6 which says that, upto 18.08.2016 he had paid Rs.21,50,000/- and after 18.08.2016 i.e., after receipt of the Cheque he has paid Rs.5,00,000/-.
19.05.07.Thus, the contention of the Learned Counsel for the Appellant that there is no enforceable debt and the burden is not discharged, holds no water, inview of documentary evidence in the form of Ex.P6- Bank statement.
19.05.08.So the Accused has failed to show that, there was no any transaction inbetween him and the Complainant; and he has issued the Cheque to facilitated the Complainant to transfer the difference consideration amount to his account, to be paid to the vendor, under Ex.D1- Sale Deed.
19.06. Sixthly, when the Accused contends that, he had issued the Cheque -Ex.P1 under the transaction taken place under Ex.D1- Sale Deed, then he would have led the ocular evidence of his sister, who is the vendor under the Sale Deed -Ex.D1, to prove 26 Crl.Appeal.No.25049/2021 the fact that, the Complainant has undertaken to pay the balance consideration amount to her by transferring the said amount to his account through RTGS. But the Accused has failed to relied such rebuttal, cogent and believable evidence, to support his defence.
Thus, under such circumstances, the Accused has failed to prove his defence on the basis of preponderance of probabilities that, he had issued the Cheque/Ex.P1, enabling the Complainant to transfer the difference amount under the Sale transaction taken place under ExD1-Sale-deed, to his account through RTGS.
Hence, I answer POINT NO.2 IN THE
NEGATIVE.
20. POINT NO 3:
Another defence taken up by the Appellant is that, he has not received the Notice-ExP3, issued by the Complainant by RPAD, to him.
The Complainant has produced Legal Notice at ExP3; three Postal receipt at ExP4; and Returned Postal Envelop at ExP5. As per these documents, it is seen that, the Notice-ExP3 is issued to the 27 Crl.Appeal.No.25049/2021 Accused/Appellant on his address, which reads as, 'House No.374, Kodathi, Karmelaram Post, Kodthi Village, Bengaluru-560 035'.
20.01. The Learned Counsel for the Appellant would contend that, the Notice-ExP3 is not received by the Accused, so offence is not completed within the meaning of Sec.138(b) of NI Act. He has placed his reliance on the decision of the Hon'ble High Court of Gujarat at Ahmedabad, in the case of Chandulal Keshavlal Modi and Ors., V/s Vijasinh Ratansinh Chavda and Ors.,, reported in 2018 0 Supreme (Guj) 1207, wherein it is observed in Para No.12, as under:-
"12. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondent accused of the charges leveled against him. This Court finds that the findings recorded by learned trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by learned court below and hence finds no reasons to interfere with the same."28 Crl.Appeal.No.25049/2021
20.02. The Accused has produced his Aadhar card at at Ex.D2. As per the said document, the address of the Accused is shown as, 'S/o P Ramachandraiah, 236/10, KARMEL RAM, Kodathi, Carmelaram, Bengaluru, Karnataka, 560035'.
As per the ocular evidence of the Accused, the Accused has admitted that, he had constested the election for Vidhanasabha. This can be seen, as per the cross-examination of DW.1, at Page No.8 Para No.4, Line Nos.9 to 12, which reads as under:-
"... ನಾನು ವಿಧಾನ ಸಭೆ ಚುನಾವಣೆಯಲ್ಲಿ ಸ್ವರ್ದಿಸಿದಾಗ ಸಲ್ಲಿಸಿಂದತಹ ಆಸ್ತಿ ಫೋಷಣೆ ಪ್ರಮಾಣಪತ್ರದಲ್ಲಿ ನನಗೆ ಮತ್ತೊಂದು ವಾಸದ ಕಟ್ಟದ ನಂ.114 ನನ್ನ ಹೆಸರಿನಲ್ಲಿ ಇರುತ್ತದೆ ಎಂದು ಘೋಷಣೆ ಮಾಡಿಕೊಂಡಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ."
20.03. Considering the above ocular evidence and documentary evidence, it can be said that, there is difference in mentioning the house number, the house number is mentioned as 374 instead of 236/10, but the name of the vicinity is mentioned correctly.
20.04. As per the decision of the Hon'ble Apex Court, in the case of N Parameshwaran 29 Crl.Appeal.No.25049/2021 Unni Vs G Kannan and Anr, reported in (2017) 5 SCC 737, wherein it is held that, "Notice sent by Payee by Registered Post to the correct address of the drawer of the cheque. Postal authorities acknowledge service of notice. As per Sec 27 of General Clauses Act, service is deemed service.
Drawer entitled to rebut that presumption, but in absence of rebuttal, requirement of Sec 138 proviso (b) would stand complied with."So there exist a presumption of issuance of notice and receipt of it, unless contrary is proved.
20.05. As per Sec. 27 of the General Clauses Act, which gives rise to a presumption that, service of notice is presumed to be affected, when it is sent to the correct address, by registered post.
20.06. Applying the said specific presumption to the instant case at hand, when the Complainant has shown that, the Notice-ExP3 is sent to the Accused, on his address, as found in it, under such circumstances, it is deemed that the Notice- ExP3 has been served to the Accused/addressee shown in Ex.P5- Returned Postal Envelope, which 30 Crl.Appeal.No.25049/2021 leads to presume/deem that the Accused is having the knowledge of the notice, unless the contrary is proved.
20.07. And when the Accused has challenged about receipt of the said Notice-ExP3, then the Accused has to show that, either the said Notice was issued to an incorrect address; or he was not residing on the address shown on Ex.P3 & Ex.P5, at the relevant point of time, which is within the knowledge of the Complainant, at the time of issuing the said notice.
20.08. Thus, notice issued by the Complainant under Ex.P.3 is deemed to have been served upon the Accused, as per Ex.P.5- Returned Postal Envelope. I find force to my above view as per the decision of the Hon'ble Apex Court in the case of C.C. Alavi Haji V/s Palapetty Muhammad & Another, reported in (2007) 6 SCC 555.
20.09. Thus, the Appellant/Accused has failed to show on the basis of preponderance of 31 Crl.Appeal.No.25049/2021 probabilities that, the Notice-ExP3 issued to him, is not served upon him.
Hence, I answer POINT NO.3 IN THE
NEGATIVE.
21. POINT NO 4:-
21.01. Further the Learned Counsel for the Appellant would contend that, the Complainant has to prove the fact of giving the handloan to the Accused, beyond all reasonable doubt. And the Accused has to lead the rebuttal evidence, on the basis of preponderance of probabilities. He has placed his reliance on the decisions viz.,
a) of the Hon'ble Apex Court, in the case of Krishna Janardhan Bhat V/s Dattatraya G. Hegde, reported in (2008) 2 SCC (cri) 166, wherein it is observed in Para No.23, as under:-
"23. Before embarking upon the legal issues, we may analyse the deposition of PW- 1 Complainant. He was a resident of village Goddalmane. Appellant is a resident of village Kekkar. As he was running an industry at Hubli, he sometimes resided in Hubli also. They were said to be friends. He asked him to give a loan of Rs. 1.5 lakhs in the first week of June, 1998 and the amount was handed over to him on 14th June, 1998.32 Crl.Appeal.No.25049/2021
It was allegedly agreed that on the appellants failure to repay the said loan within one month, 15% interest would be charged. No document was executed; no pronote was executed; no receipt was obtained. Appellant is said to have come to his house suo moto on 20.07.1998 and handed over the cheque which was sent to Varada Grameen Bank for collection whereupon notice had been issued. Despite the fact that he was aware that a dispute had been raised in regard to the writings in the cheque, the same was not proved. Merely, the cheque was tendered and it was marked as an exhibit. The cheque appears to have been issued as a proprietor of a business concern."
b) of the Hon'ble Apex Court, in the case of John K Abraham V/s Simon C Abraham and Anr., reported in 2014 AIR SCW 2158, wherein it is observed in Para No.10, as under:-
"10. Keeping the said statutory requirements in mind, when we examine the facts as admitted by the respondent- complainant, as rightly concluded by the learned trial Judge, the respondent was not even aware of the date when substantial amount of Rs.1,50,000/- was advanced by him to the appellant, that he was not sure as to who wrote the cheque, that he was not even aware when exactly and where exactly the transaction took place for which the cheque came to be issued by the appellant. Apart from the 33 Crl.Appeal.No.25049/2021 said serious lacuna in the evidence of the complainant, he further admitted as PW.1 by stating once in the course of the cross- examination that the cheque was in the handwriting of the accused and the very next moment taking a diametrically opposite stand that it is not in the handwriting of the accused and that it was written by the complainant himself, by further reiterating that the amount in words was written by him. We find that the various defects in the evidence of respondent, as noted by the trial Court, which we have set out in paragraph 7 of the judgment, were simply brushed aside by the High Court without assigning any valid reason. Such a serious lacuna in the evidence of the complainant, which strikes at the root of a complaint under Section 138, having been noted by the learned trial Judge, which factor was failed to be examined by the High Court while reversing the judgment of the trial Court, in our considered opinion would vitiate the ultimate conclusion reached by it. In effect, the conclusion of the learned Judge of the High Court would amount to a perverse one and, therefore, the said judgment of the High Court cannot be sustained."
c) of the Hon'ble Apex Court, in the case of Basalingappa V/s Mudibasappa, reported in 34 Crl.Appeal.No.25049/2021 (2019) 5 SCC 418, wherein it is observed in Para No.25, as under:-
"25. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-
25.01. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.02. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.03. To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.04. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
25.05. It is not necessary for the accused to come in the witness box to support his defence."35 Crl.Appeal.No.25049/2021
21.01.01. The Complainant has produced the Bank Statement marked as ExP6. As per this statement, the entries found in the said Statement reveals that, upto 18.08.2016 the Complainant has transferred an amount of Rs.21,50,000/- to the account of the Accused. And thereafter after 18.08.2016 there is an entry suggesting transfer of Rs.5,00,000/- from the account of the Complainant to the account of the Accused. So also, there is an entry dtd.12.04.2018, suggesting transfer of Rs.5,00,000/- from the Complainant to the account of the Accused.
This documentary evidence- entries in the Bank Statement-Ex.P6, are neither denied by the Accused, nor he has countered the said entries, either contending or placing the materials on record that, such entries have taken place inrespect of any other transaction inbetween him and the Complainant.
21.01.02.Thus, in the presence of the materials evidence in the form of Ex.P6 and in the absence of any rebuttal evidence from the side of the Accused, it can be concluded that, the Complainant has proved giving of the handloan to the Accused, 36 Crl.Appeal.No.25049/2021 attracting the presumption U/Sec.138 and 139 of NI Act, but the Accused has failed to discharge his burden to rebut the said presumption.
22. The Learned Counsel for the Appellant would place a two fold contention that, firstly, the Complainant has not proved the source of income, in the sense capacity of the Complainant to pay the amount; and secondly, that the Complainant has not shown that such payments have been disclosed by him in this income-tax returns. He has placed his reliance, on three decisions viz.,
a) of the Hon'ble Apex Court, in the case of K. Subramani V/s K. Damodara Naidu, reported in (2015) 1 SCC 99, wherein it is observed in Para No.9, as under:-
"9. In the present case the complainant and the accused were working as Lecturers in a Government college at the relevant time and the alleged loan of Rs.14 lakhs is claimed to have been paid by cash and it is disputed. Both of them were governed by the Government Servants' Conduct Rules which prescribes the mode of lending and borrowing. There is nothing on record to show that the prescribed mode was followed. The source claimed by the complainant is savings from his salary and an amount of Rs.5 lakhs 37 Crl.Appeal.No.25049/2021 derived by him from sale of site No.45 belonging to him. Neither in the complaint nor in the chief-examination of the complainant, there is any averment with regard to the sale price of site No.45. The concerned sale deed was also not produced. Though the complainant was an income-tax assessee he had admitted in his evidence that he had not shown the sale of site No.45 in his income-tax return. On the contrary the complainant has admitted in his evidence that in the year 1997 he had obtained a loan of Rs.1,49,205/- from L.I.C. It is pertinent to note that the alleged loan of Rs.14 lakhs is claimed to have been disbursed in the year 1997 to the accused. Further the complainant did not produce bank statement to substantiate his claim. The trial court took into account the testimony of the wife of the complaint in another criminal case arising under Section 138 of the N.I. Act in which she has stated that the present appellant/accused had not taken any loan from her husband. On a consideration of entire oral and documentary evidence the trial court came to the conclusion that the complainant had no source of income to lend a sum of Rs.14 lakhs to the accused and he failed to prove that there is legally recoverable debt payable by the accused to him."
b) of the Hon'ble High Court of Bombay, in the case of Sanjay Mishra V/s Ms. Kanishka Kapoor @ Nikki and Anr., reported in 2019 Cri.
38 Crl.Appeal.No.25049/2021L. J 3777, wherein it is observed in Para No.13, as under:-
"13. In the present case, there is a categorical admission that the amount allegedly advanced by the applicant was entirely a cash amount and that the amount was "unaccounted". He admitted not only that the same was not disclosed in the Income Tax Return at the relevant time but till recording of evidence in the year it was not disclosed in the Income Tax Return. By no stretch of imagination it can be stated that liability to repay unaccounted cash amount is a legally enforceable liability within the meaning of explanation to section 138 of the said Act. The alleged debt cannot be said to be a legally recoverable debt."
c) of the Hon'ble High Court of Bombay, in the case of Rajendra Pangam V/s Paresh B Naik and Ors., reported in LAWS (Bom) 2015 4 39, wherein it is observed in Para No.14, as under:-
"14. The learned Magistrate has then went upon considering the effect of Section 269-SS of the Income Tax Act, 1961, in order to hold that advance of Rs.75,000/- was in violation of said provision. The learned Magistrate has placed reliance on the decisions of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat (supra) and SandeepShirodkar (supra). In the case of Krishna Janardhan Bhat (supra), the Hon'ble Supreme Court has found that the High Court 39 Crl.Appeal.No.25049/2021 had not drawn any inference as to probability of the complainant's advancing Rs.1,50,000/- on mere asking, and that too without keeping any documentary proof. The purported story that the appellant (original accused) gave the cheque, knowing fully well that he is not having sufficient funds, was difficult to believe. The Hon'ble Court further found that the Court's below had failed to notice that ordinarily in terms of Section 269-SS of the Income Tax, any advance of amount more than Rs.20,000/- had to be made by an account payee cheque only. The judgment in the case of Krishna Janardhan Bhat (supra), has been considered by the Hon'ble Supreme Court in a three Judges bench decision in the case of Rangappa(supra). The observation in the case of Krishna Janardhan Bhat above, to the extent of nature of presumption under Sec.139 were not approved. However, the Hon'ble Apex Court held in paragraph 26, that this does not in anyway case doubt on the correctness of the decision in that matter (Krishan Janardhan Bhat) since it was based on the specific facts and circumstances in that case. Thus, the observations and findings based on Sec.269-SS of the Income Tax Act in the case of Krishna Janardhan Bhat are not affected by the later decision in the case of Rangappa."
22.01. At the cost of repeatation, the Complainant has produced his Bank Statement at Ex.P6, the entries in the said statement will depict 40 Crl.Appeal.No.25049/2021 the transfer of money from his account from the account of the Accused.
22.02. In the presence of such cogent evidence like Bank Statement-Ex.P6, no further evidence to prove source of income or to prove the capacity of the Complainant to pay the amount, is required.
22.03. Secondly, when the transfer of money is done through the respective accounts of the Complainant and the Accused, then under such circumstances, it is not necessary for the Complainant to place the IT returns, to prove the fact of transaction taken place inbetween him and the Accused.
22.04. As per the decision of the Hon'ble Apex Court, in the case of M S Narayana Menon Alias Mani Vs State of Kerala & Another, reported in (2006) 6 SCC 39; in the case of wherein it is held that;
"Initial burden is on the Accused to rebut the presumption U/Sec 118(a) 41 Crl.Appeal.No.25049/2021 and 139, as to the issuance of cheque for consideration and discharge of debt, by raising probable defence. If the accused discharges the said burden, the onus thereafter shifts on to the complainant to prove his case.
Burden of proof on accused is not heavy. Accused need not disprove the prosecution case in its entirety. Accused can discharge the burden on the basis of preponderance of probabilities through direct or circumstantial evidence."
22.05. Applying the above principles of law to the instant case at hand, it is seen that, in the present case though the Accused has questioned the financial capacity of the Complainant to lend money, but on producing Ex.P6 -Bank Statement, the Complainant has proved the main fact of transferring of money from his account to the account of the Accused.
So under these circumstances, though the financial capacity of the Complainant is questioned by the Accused, but the same is not supported with probable defence. Hence, the said stand of the Accused is not acceptable.
42 Crl.Appeal.No.25049/202123. Under these circumstances, the Accused /Appellant should have led some cogent evidence to show that,
a) the parties to the Sale Deed-Ex.D1, more specifically, the Complainant had agreed to pay the difference consideration amount to the vendor under Ex.D1 by transferring the said money to his account;
b) inorder to facilitated such transfer of money, he has issued the Cheque -Ex.P1; and
c) Ex.P1- Cheque was issued by him without cancelling it.
Unless the Accused leads cogent evidence to this effect, the defence of the Accused will not become probable, but it will be merely a palpable defence, which will not be sufficient to discharge his duty to rebut the presumption available U/Sec. 139 of the N.I. Act, to the Complainant.
24. Thus, as per the above oral and documentary evidence, it can be said that, the Accused has taken various stands in his defence. On looking to the line of defences and the various contentions taken up by the Accused in his defence, 43 Crl.Appeal.No.25049/2021 the version of the Accused is not inspiring the confidence of this Court. Hence, the contention of the Appellant/Accused cannot be accepted at all.
25. Considering the inconsistent contentions raised by the Accused in the cross examination of PW1 and on leading evidence as DW1, it can be said that, the stands taken up by the Accused, is not fortified with cogent evidence, on the basis of preponderance of probabilities, inorder to rebut the presumption available to the Complainant, U/Sec 139 of NI Act. So, in the absence of material evidence, the different and distinct stands, taken up by the Accused persons, cannot be accepted at all.
26. Thus, the presumption available to the Complainant U/Sec. 139 of N.I. Act, has remained unrebutted, from the side of the Appellant/Accused. Hence, presumption available to the Complainant U/Sec.139 of N.I.Act stands unrebutted. I have gone through the Judgment of the Trial Court, rightly the Trial Court has concluded that the Accused has failed to rebut the presumption available to the Complainant U/Sec.139 of N.I.Act.
44 Crl.Appeal.No.25049/2021HENCE, I ANSWER POINT NOS. 4 IN THE AFFIRMATIVE.
27. POINT NO 5:
Under these circumstances, there is no any hurdle to derive the presumption available to the holder of the cheque U/Sec.118 as well as U/Sec. 139 of N.I.Act. I find force to my above opinion as per the decision of the Hon'ble Apex Court in the case of Hiten Pidalal V.s Bratindranath Banergi reported in 2001 Crl.L.J. 4647 (Supreme Court) as well as in the case of M.S.Narayan Menon @ Mani V/s State of Kerala and Another reported in 2006 SAR.Crl.616 and in the case of Krishna Janardhan Bhat V/s Dattatreya G. Hegde reported in (2008)2 SCC Crl. 166. Rightly, the Trial Court has considered all these aspect and there is no any fault on the part of the Trial Court. I do not find any force in the submission of the learned counsel for the Appellant.
28. Further 313 Statement is recorded by the Trial Court on 20.01.2020, it covers the entire incriminating substance, brought on record by way of 45 Crl.Appeal.No.25049/2021 evidence, against the Accused. The Trial Court has examined the Accused U/Sec. 313 of Cr.P.C. I have gone through the statement of the Accused recorded by the Trial Court U/Sec. 313 of Cr.P.C., and reply given by him, to the said questions, in the statement. I do not find any fault in the statement of the Accused, recorded by Trial Court U/Sec 313 of Cr.P.C.
29. I have carefully gone through the reasonings given by the Trial Court, while awarding compensation to the Complainant U/Sec.357(1)(b) of Cr.P.C. I do not find any error or material irregularity in the said findings.
30. Further inorder to conclude, the Hon'ble High Court of Kerala has held in General Auto Sales Vs Vijayalakshmi, reported in 2005(1) KLT 478, in Paragraph No 8 thereof, that:
"Even if a blank signed cheque has been given towards liability or even as security, then the liability subsists and quantified, if the cheque is filled up and presented to the Bank, the person who had drawn the cheque, cannot avoid the 46 Crl.Appeal.No.25049/2021 criminal liability under Section 138 of NI Act".
30.01. Further the Hon'ble Apex Court has held in Rangappa Vs Sri Mohan, reported in (2010) 11 SCC 441, that;
"Once issuance of cheque and signature thereon are admitted, presumption of a legally enforceable debt infavour of the holder of the cheque arises. It is for the Accused to rebut the said presumption, though Accused need not adduce his own evidence and can rely upon the material submitted by the Complainant. However, mere statement of the Accused may not be sufficient to rebut the said presumption".
31. In this case there was really presumption available infavour of the Complainant in terms of Section 138 & 139 of Negotiable Instruments Act, against the Accused has failed to discharged his burden, to rebut the said presumption.
32. The Trial Court has considered all the aspects, the grounds taken up by the Accused, as defence. The Order of the Trial Court in awarding 47 Crl.Appeal.No.25049/2021 compensation to the Complainant, is also well- reasoned.
33. When no fault is committed by the Trial Court, in coming to the conclusion, convicting the Accused for the offence punishable U/Sec 138 of NI Act, interference to that effect, by this Court does not arise at all.
34. Thus, I am declined to interfere with the findings recorded by the Trial Court.
35. Necessarily the prosecution succeeds. The conviction is therefore confirmed, as the Accused is found guilty of the offence punishable under Section 138 of Negotiable Instruments Act. The Accused is hereby directed to pay an amount of compensation, as ordered by the Trial Court.
Hence, for the above reasons I am constrained to answer POINT NO.5 IN THE NEGATIVE.
48 Crl.Appeal.No.25049/202136. POINT NO. 6:
For having answered Point Nos.1 and 4 in the Affirmative; Point Nos.2, 3 & 5 in the Negative, I proceed to pass the following:
ORDER Acting U/Sec.386 of Cr.P.C., the Appeal preferred by the Appellant/Accused is hereby Dismissed.
In the consequences, the order of conviction passed by the Learned Addl. Small Causes Judge and XXIII Addl. CMM, Member MACT, Bengaluru in C.C.No.51637/2017 dtd.01.03.2021, recording conviction of the Accused, is hereby confirmed.
The order of suspension passed by this Court U/Sec.389 of Cr.P.C. stands revoked.
The Trial Court shall execute its order, as per law.
No order as to costs.
In case, if the Appellant/Accused has deposited the amount, as directed U/Sec. 148 of N.I. Act, the same may be dealt 49 Crl.Appeal.No.25049/2021 with, as per Law U/Sec. 143 of the said Act.
Remit the TCR to the Trial Court, on obtaining necessary acknowledgement, from it, alongwith the copy of this Judgment.
(Dictated to the Stenographer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me, in the open court on this the 18th day of January, 2022.) [Abdul-Rahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)