Bangalore District Court
Mr. Hemantha Kumar vs S/O Late Ramappa Kotyan on 11 January, 2021
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 11th day of January, 2021.
Crl. Appeal. No.25028/2020
Appellant/ Mr. Hemantha Kumar,
Accused: S/o Late Ramappa Kotyan,
About about 42 years,
R/at 1 64 35 Mathruchaya 1st Cross,
Panjimogaru,
Mangalore575013.
[By Sri. Gangadhara D.C
Advocate]
V/s
Respondent/ Axis Bank Ltd.,
Complainant: Branch Office at, 4th Floor,
Building No.8, Sona Towers,
32 'E' Cross, 4th Block,
Jayanagar,
Opp: Sanjaya Gandhi Hospital,
Bengaluru5600041.
(By Smt. J. RajaniAdvocate)
2 Crl.Appeal.No.25028/2020
JUDGMENT
This Appeal is preferred by the Appellant U/Sec. 374 (3) of Cr.P.C., being aggrieved by the Judgment and Order passed by the XXXIV ACMM, Mayohall Unit, Bengaluru, in CC. No.54859 of 2015, dtd.04.01.2020, convicting the Appellant/Accused for the offence punishable U/Sec. 138 of NI Act, thereby sentencing him to pay a fine of Rs.3,30,000/. And directed to pay an amount of Rs.3,25,000/ to the Complainant as compensation U/Sec. 357(1) of Cr.P.C., out of the said fine amount. In default to pay the fine, he shall undergo Simple Imprisonment for a period of three months.
2. The Brief facts leading to filing of the present appeal are:
The present Respondent filed a Complaint U/Sec.200 of Cr.P.C., against the present Appellant, alleging that, it is a Banking Company registered under the Banking Regulation Act, having its Branch 3 Crl.Appeal.No.25028/2020 Office at 4th Floor, Building No.8, Sona Towers, 4 th Block, Jayanagar, Bengaluru. In the course of its financial services, it has introduced a car loan facility for the benefit of its customers. The Accused had applied for the car loan and the same was sanctioned under the loan account No. AUR00770046587 and the Accused had agreed to abide by the terms and conditions of the repayment.
Towards repayment of the part payment/outstanding amount of the loan, the
Accused issued a Cheque assuring that, the same will be honoured on its presentation. On presentation of the said Cheque, the same has been returned unencashed with an endorsement 'Funds Insufficient' on 20.08.2015. Notice was issued to the Appellant by the Respondent through its Counsel on 30.08.2015, the same was received by the Appellant.
After completion of the stipulated period, since the Appellant/Accused did not pay the amount covered under the said Cheque, the Respondent was constrained to file the present Complaint, before the Trial Court.
4 Crl.Appeal.No.25028/20203. On the basis of the preliminary evidence led by the Respondent/Complainant, the Trial Court has issued summons to the Appellant/Accused U/Sec.204 of Cr.P.C., on 20.10.2015. The Appellant/Accused appeared before the Trial Court on 02.02.2018 and he was enlarged on bail. Plea/Substance of Accusation was read over to the Accused/Appellant on 08.03.2018.
4. The Respondent/Complainant got examined its Power of Attorney Holder/Law Officer as PW.1 and got marked six documents as Ex.P.1 to Ex.P.6. PW.1 was cross examined on behalf of the Appellant/Accused on 27.08.2019 and 30.09.2019. Ex.D.1 and Ex.D.2 were marked on confrontation to PW.1.
Statement of Accused/Appellant was recorded U/Sec. 313 of Cr.P.C., on 17.10.2019.
5. Thereafter, after hearing both the sides, on 04.01.2020 the Trial Court has recorded the Order of Conviction against the Appellant/Accused. Being 5 Crl.Appeal.No.25028/2020 aggrieved by the same, the Appellant/Accused is before this Court, in Appeal.
6. On filing the appeal, initially the sentence was suspended for a period of three months by this Court on 30.01.2020. TCR were secured on 28.02.2020. Respondent appeared on 28.02.2020. Heard the Learned Counsels for the Appellant and the Respondent, respectively, on the appeal.
The Learned Counsel for the Appellant has placed his reliance on five decisions reported in,
1) Basalingappa V/s Mudibasappa (Supreme Court of India) in Crl.A.No.639/2019; 2) M/s. Total Finaelf India limited V/s Smt. Rashmi Parnami on 3 May, 2019 (Delhi High Court) in Cr.A.No.1239/2011;
3) Kiran Finance Company V/S. Sukhdev Kishan on 3 October, 2005 (PunjabHigh Court); (4) Niraj V/s Ramesh Pratap Singh @ Raju Singh on 23 July, 2012 (Delhi High Court) in Crl.L.P.No.354/2012; and
5)S.P.Chengalvaraya Naidu V/s. Jagannath on 27 October, 1993 (Supreme Court of India).
6 Crl.Appeal.No.25028/2020Percontra, the Learned Counsel for the Respondent has filed its written arguments on 24.09.2020 and memo on 22.12.2020.
I have carefully gone through the written arguments submitted on behalf of the Respondent/Complainant.
7. The Appellant has preferred this appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has not at all considered the material evidence on record like Ex.D.1 and Ex.D.2;
b) The Trial Court has failed to fully believe the version of the Complainant/Respondent. So also, the Trial Court has failed to observe that the transaction of purchase of car was inbetween the Appellant/ Accused and the Axis Bank Ltd., RAC Branch, Mangalore, and not with the present Complainant;
c) The Trial Court has failed to consider that, the burden of proof in criminal cases on the Accused is not so strong as on the prosecution and ought to have held that, evidence led on behalf of the Accused is sufficient to acquit him;
d) The Trial Court has failed to consider that, the Cheque in question was issued by the Appellant/ 7 Crl.Appeal.No.25028/2020 Accused as security to the Axis Bank, RAC Branch, Mangalore, towards the car loan obtained from the said branch;
e) The Trial Court has failed to consider that, the Respondent has misused the Cheque in question and has filed a false case;
f) The Trial Court has failed to consider that, the notice Ex.P.4 is not served on the Appellant/ Accused.
Hence, prayed to allow the said appeal.
8. 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 Respondent/ Complainant proves that, the Accused had issued chequeEx.P.2 to it, towards repayment of the car loan?
3. Whether the Appellant/Accused shows that, he has not issued the ChequeEx.P.2 infavour of the Respondent/ Complainant?
8 Crl.Appeal.No.25028/20204. Whether the Appellant/ Accused shows on the basis of preponderance of probabilities that there exist, no recoverable debt, as against issuance of the Cheque Ex.P.2?
5. Whether the Appellant/ Accused shows that, the Cheque Ex.P.2 is misused by the Respondent/ Complainant and has filed the present Complaint before the Trial Court?
6. Whether the Appellant/Accused shows that noticeEx.P.4 is not served on him and the same is not inaccordance with Law?
7. Whether the Appellant/Accused shows that the Order of Conviction and Sentence recorded by the Trial Court in C.C.No.54859/2015, dtd.04.01.2019, deserves to be setaside, and thereby call for the interference of this Court?
8. What Order?
9. 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 Affirmative;
Point No 4 : In the Affirmative;
Point No 5 : In the Affirmative;9 Crl.Appeal.No.25028/2020
Point No 6 : Partly in the Affirmative; Point No 7 : In the Affirmative;
Point No.8 : As per final order for the following :
REASONS
10. POINT No.1: The rank of the parties will be referred as they were before the Trial Court.
As per the averments of the Complainant in the complaint, wherein it is contended that, the Accused availed car loan and inorder to repay the said loan amount, he has issued the ChequeEx.P.2. On presentation of the said Cheque, the same has been returned unencashed with an endorsement 'Funds Insufficient', as per Ex.P.3 memo. Legal notice was issued to the Accused through its Counsel on 31.08.2015 as per Ex.P.4, by RPAD as per Ex.P.5 Postal Receipt, which was served on the Accused as per Ex.P.6Postal acknowledgement.
On the basis of the preliminary evidence, the Trial Court has issued summons to the Accused on 20.10.2015. On perusal of the said orders, I do not find any error, in it.
10 Crl.Appeal.No.25028/202011. The Accused has appeared before the Trial Court on 02.02.2018 and he was enlarged on bail. The Trial Court has recorded Plea/Substance of Accusation of the Accused on 08.03.2018. I have perused the substance of Accusation recorded by the Trial Court. I do not find any error, in it.
12. On careful perusal of the evidence led by the Complainant, it is the case of the Complainant that, Accused has issued Ex.P.2 Cheque towards the repayment of the loan amount and on its presentation, the same has returned unencashed with an endorsement 'Funds Insufficient' as per Ex.P.3. Notice was issued to the Accused as per Ex.P.4 by RPAD which was served on him as per Ex.P.6Postal acknowledgement.
13. The defence taken up by the Accused in the crossexamination of PW.1, that,
a) he had availed car loan facility from the Axis Bank, RAC Branch, Mangalore;
11 Crl.Appeal.No.25028/2020b) as on 28.01.2016 an amount of Rs.74,663/ was an outstanding balance towards the repayment of the said car loan amount;
c) Ex.P.2 blank Cheque was issued infavour of the Axis Bank, RAC Branch, Mangalore;
d) after dishonour of the Cheque Ex.P.2 he has paid five installments;
e) the Complainant Bank has misused the Cheque Ex.P.2 and has filed the present Complaint.
14. When the Accused admits that, he has issued the Cheque Ex.P.2, he admits that Ex.P.2 belongs to him and the signature found on Ex.P.2 is his signature, as the same is not disputed by the Accused.
15. Thus, as per the documentary evidence produced by the Complainant as per Ex.P2 to Ex.P6 and on the basis of the Defence taken up by the Accused, it can be said that the Complainant has initially proved that, the Cheque Ex.P2 belongs to the Accused and the signature on the said Cheque is of the Accused. And on presenting the said cheque, 12 Crl.Appeal.No.25028/2020 the same has returned unencashed as per Ex.P3, for which it had issued legal notice as per Ex.P4, which was served upon the Accused as per Ex.P6postal acknowledgement.
16. On viewing the amount of oral evidence with Ex.P.2 to Ex.P.6, which will suffice the Complainant to have benefit of presumption available U/Sec.138, 139 of N.I. Act. 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 of Rangappa V/s Mohan, 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".
Now it is for the Accused to rebut the said presumption available to the Complainant U/Sec.139 of N.I.Act.
13 Crl.Appeal.No.25028/2020 Hence, I answer POINT NO.1 IN THE
AFFIRMATIVE.
17. POINT Nos. 2 TO 5:
All these four points are interlinked with each other, so they are taken for joint discussion inorder to avoid repeatation and to have brevity in the discussion.
As per the defence of the Accused, the Accused firstly contends that, Cheque Ex.P.2 is not issued to the Complainant, as he had a transaction of availing the car loan facility from the Axis Bank, RAC Branch, Mangalore, and not with the Complainant.
17.1. Availing of car loan by the Accused is not in dispute, but availing of car loan by the Accused with the Complainant is disputed.
17.2. The Learned Counsel for the Appellant/ Accused would contend that, the Accused has never issued any Cheque to the Complainant 14 Crl.Appeal.No.25028/2020 Bank, but he had issued the said Cheque to the Axis Bank, RAC Branch, Mangalore, towards security of the car loan availed by him.
17.3. On careful perusal of the Complaint filed by the Complainant, it is seen that, the said Complaint is filed by the Axis Bank Limited, Branch Office at 4th Floor, Building No.8, Sona Towers, 32 "E", Cross, 4th Block, Jayanagar, Opposite to Sanjay Gandhi Hospital, Bengaluru. Further as per Para No.4 of the said Complaint, it is averred that, Accused had availed the loan facility and towards repayment of part payment/outstanding amount, he has issued the ChequeEx.P.2.
17.4. The Complainant has not produced any document to show that, the Accused has availed loan facility with it, as contended in Para No.4 of the Complaint.
17.5. Further PW.1 has admitted that, the Complainant has not produced any document to 15 Crl.Appeal.No.25028/2020 show that, the Accused has availed the loan facility from it.
Coming to the ocular evidence on this point, crossexamination of PW.1, at Page No.2, Para No.2 and Page No.3, Para No.1, which read as under;
"ಕರರ ಸಲ ಕಕಟಟಗ ಹಜರರ ಮಡದ ದಖಲಯನರ ನ ನನಯಲಯಕಕ ಕಕಟಟರರವದಲಲ.
ಆಪಧತರರದ ಪಡದರಕಕರಡ 34 ಚಕ ಗಳನರ ನ
ನನಯಲಯಕಕ ಹಜರರ ಮಡರರವದಲಲ. ಚಕ
ಗಳನರನ ವಪಸರಸ ಕಕಡರವರತ ಆಪಧತರರ ನಮ ಮ
ಕರಪನಗ ಬರದಗ ಅದನರ ನ ಬನ ರ ಕ ಗ ಹಕಲಗದ
ಎರದರ ನನನ ಮದಲನ ಅಧಕರ ತಳಸದರರ ಎರದರ
ಗಕತತಲಲ. ಈ ಪಪಕರಣದಲ ಆಪಧತರರದ 23 ಚಕ ಗಳನರ ನ ಪಡದರಕಕರಡರ ಈ ಪ ಪಕರಣದಲ ಆ ಚಕ ನರ ನ ಹಜರರ ಮಡಲಗದ ಎರದರ ಸರಯಲಲ, ಆದರ ಆ ಚಕಗಳರ ಏನದವ ಎರದರ ನನಗ ಗಕತತಲಲ.
ಈ ಪಪಕರಣದ ಸಲದ ಮದಲ ದನದರದಲಕ
ಒದಗಸರರವ ದಖಲಗಳನರ ನ ಹಜರರ ಮಡಲರ
ತಕರದರ ಇಲಲ. ನಪ2 ಚಕಕಕಟಟಗ ಖಲ ಚಕ
ಆಗತರತ ಎರದರ ನನಗ ಗಕತತಲಲ. ಚಕನರ ನ ಬರಯಲರ
ಬಬರ ಬಬರ ರಬತಯ ಪಬನ ಗಳನರನ
ಉಪಯಯಬಗಸದರ ಮತರತ ಇರಕ ನಲ ವನತನಸ ಇದ.
ನಪ2 ಚಕ ನರ ನ ಕಕಬರಹ ತಜಜರ ಅಭಪಪಯಕಕ
ಕಳಹಸಕಕಡಲರ ಯವದಬ ತಕರದರ ಇಲಲ. ಸಕಗ
ಒರದರ ದಖಲಯನರ ನ ದ
ತಕಬರಸಲಗದರ
ಅಪಧತರರ ಎಷರ ಟ ಹಣ ಕಕಡಬಬಕಗದ ಎರದರ
ಅವರ ಕರಪನ ಕಕಟಟ ನಕಬಟಸಎರದರ ಒಪಪರರತತರ. ಅದನರ ನ ನಡ1 ಎರದರ ಗರರರತಸಲಯತರ."
As per this evidence, PW.1 admits that, no documents have been produced to strengthen the contention that, Accused has availed the loan from it 16 Crl.Appeal.No.25028/2020 and further PW.1 contends that, documents availed for loan transaction is not produced in this case.
The Learned Counsel for the Appellant would contend that, inorder to show that Accused has availed loan with the Complainant, the Complainant ought to have produced the said documents, when the Accused has denied the fact of availing the loan from it. And further would contend that, with holding of such vital documents inorder to gain advantage amounts to playing fraud on the Court as well as on the opposite party and has placed his reliance on the decision of the Hon'ble Apex Court, in the case of S.P.Chengalvaraya Naidu V/s Jagannath, reported in 1994 (1) SCC 1, wherein it is observed that;
"A Litigant, who approaches the Court, is bound to produce all the documents executed by him, which are relevant to the litigation. If he withholds a vital document inorder to gain advantage on the other side, then he would be guilty of playing fraud on the Court as well as on the opposite party".17 Crl.Appeal.No.25028/2020
17.6. As per the crossexamination of PW.1, at Page No.3, Para No.4, Ex.D.1 is confronted to PW.1. As per Ex.D.1, it is seen that, the loan is availed by the Accused from the Axis Bank, RAC Branch, Mangalore.
Further as per the crossexamination of PW.1, at Page No.5, Line Nos.8 & 9, Ex.D.2 is confronted to PW.1. As per Ex.D.2, it is seen that, the loan is availed by the Accused from the Axis Bank, RAC Branch, Mangalore.
Further as per the ocular evidence, more specifically, crossexamination of PW.1, at Page No.3, Para No.4, wherein PW.1 contends that, he is not aware about the loan transaction availed by the Accused, but the said loan transaction is availed at their Mangalore Branch.
As per the above said documentary evidence, more specifically, Ex.D.1 and Ex.D.2 and oral evidence, referred to supra, it can be concluded that, the Accused had availed the car loan facility from the Axis Bank, at Mangalore Branch, and not with the Complainant.
18 Crl.Appeal.No.25028/202017.7. Further the Learned Counsel for the Respondent would contend that, the Complainant Branch is a Corporate office of Axis Bank, so it has presented the said Cheque on behalf of its Mangalore Branch.
As per the averments of the complaint and the evidence led by the Complainant through PW.1, it would suggest that, the chequeEx.P2, is issued by the Accused to the Complainant.
Inorder to considered the said fact, the Complainant has to show that, either there was a privity of contract inbetween it and the Accused; or it is a holder, or it is a holder indue course, as provided Sec 9 of the Negotiable Instruments Act.
On careful perusal of the averments of the Complaint, nowhere the Complainant has stated that, either it is a holder in due course of Ex.P.2 Cheque; or Ex.P.2 Cheque is presented by it on behalf of Axis Bank, Mangalore Branch, as a corporate Branch. In the absence of any specific averments to this effect, as well as in the absence of any evidence to this effect, it is hard to believe that either the Complainant Bank is a holder in due 19 Crl.Appeal.No.25028/2020 course withregard to Ex.P.2 Cheque, as the ingredient of Sec. 9 of N.I. Act, is not fulfilled; or the Complainant Bank is a Corporate Branch, as contended by the Learned Counsel for the Respondent.
17.8. Though the Trial Court has observed the said facts while discussing at Page No.6, Line Nos.8 to 11 of its Judgment, but has failed to take note of it and to give its findings on the said fact.
18. The second line of defence putforth by the Accused is that, there was no any existing recoverable debt, as on the date of the cheque.
18.1. Firstly, the Accused denies that, he has issued the cheque to the Complainant, the said aspect is discussed in length supra.
18.2. Secondly, the Accused contends that, he had issued the chequeEx.P2 to the Axis Bank, RAC Branch, Mangalore, as security, for availing car loan facility. But the Accused has not putforth any evidence to the effect that, he has issued Ex.P2 20 Crl.Appeal.No.25028/2020 Cheque to the Axis Bank, RAC Branch, Mangalore, as security.
18.3. But the Accused has got confronted two documents to PW.1 and the said documents marked at Ex.D1 and Ex.D2. On perusal of the said documents, it can be said that, the total overdue amount towards the loan amount sanctioned to the Accused by the Axis Bank, RAC Branch, Mangalore, as on 28.01.2016 is Rs.74,663/. This is as per Ex.D1.
18.4. Coming to the ocular evidence, on this point, more specifically, cross examination of PW.1, Page No.3, Para No.4, Line No.1, which reads as under: "ಜನವರ 2016 ರವರಗ ರಕ.74,663 ಬಕ ಇರರತತದ . ...."
As per this evidence, PW.1 admits that, as on January 2016 the outstanding balance of the loan amount is Rs.74,663/.
18.5. Though the Trial Court has discussed this aspect in its Judgment at Page No.6, but has 21 Crl.Appeal.No.25028/2020 failed to considered the same, in connection with Ex.D1, which is already placed on record. But the Trial Court has opined that, though there is an admission from the side of the PW.1, withregard outstanding balance of Rs.74,663/, but there is no any material on record. Ex.D1 is the document, which is generated by the Axis Bank, RAC Branch, Mangalore, and the said document is sufficient to hold the field. The Trial Court has missed the same, to the consider.
18.6. As per Ex.D2, more specifically, entry as per Sl.No.158, date of transaction is 21.08.2015, wherein Cheque No.433437, Receipt No.1111, for Rs.1,73,829/, is shown. Further on careful perusal of the said document, it is seen that, the Accused has made payments of five installments after September 2015. The said fact is also admitted by the PW.1 in his crossexamination at Page No.5, Line Nos.9 and 10, which reads as under: " .... ಆಗಸಟ 2015 ರಲ ಚಕಅಮನನವಗತರ.
ಸಪಟರಬರ 2015 ರರದ ನರತರ ಒಟರ ಟ 5 ಕರತರಗಳಲ ಆಪಧತರರ ಪವತ ಮಡದರರದರ ಸರ. ...."
22 Crl.Appeal.No.25028/2020As per this evidence, PW.1 admits that, ChequeEx.P2 as returned unencashed in August 2015 and after September2015, five installments have been paid by the Accused.
18.7. This aspect is also discussed by the Trial Court in its Judgment at Page No.7, but has failed to link the said aspect with the other two aspects, as referred supra relating to Ex.D1 and relating to nonexistence of the privity of contract inbetween the Accused and the Complainant.
18.8. The Trial Court though observed in its Judgment that Ex.D1 and Ex.D2 are marked on confrontation to PW.1, but has failed to appreciate the said documents, in the line of the defence taken by the Accused. It is a material irregularity, which can be regularized by this Court, on appreciating the said documents, in the line of the defence taken up by the Accused.
18.9. Thus on the basis of the evidence both ocular and documentary on record, it can be 23 Crl.Appeal.No.25028/2020 the Cheque Ex.P.2 infavour of the Complainant, as contended by it.
Hence, I am constrained to answer POINT NO.2 IN THE NEGATIVE, and POINT NO.3 IN THE AFFIRMATIVE.
19. The third line of defence taken up by the Accused is that, he has paid 40 installments, out of 60installments has agreed by him, to the Axis Bank, RAC Branch, Mangalore.
The said fact has also remained admitted from the side of the Complainant through PW.1, as per the crossexamination of PW.1 at Page No.4, Para No.1, Line Nos.2 and 3, which reads as under: " ..... ಆಪಧತರರ ಒಟರ ಟ 40 ಕರತರಗಳನರ ನ ದ ಕಟಟದರ ಉಳದ 20 ಕರತರಗಳರ ಬಕ ಇರರತತದ.
...."
As per this evidence, PW.1 admits that, Accused has paid 40installments and 20 installments are yet to be paid by the Accused.
As per Ex.D2, the admitted document from the side of the PW.1, as the same is marked on 24 Crl.Appeal.No.25028/2020 confrontation speaks that, the installment amount is Rs.6,583/ and if the said installment amount is taken in to consideration, then the outstanding amount will be Rs.1,31,660/, which is lessthan the Cheque amount, as the cheque is Rs.1,73,829/.
20. The Learned Counsel for the Appellant would contend that, the Trial Court has failed to consider the aspect of the ingredient of Sec. 138 of N.I. Act, dealing with legally enforceable debt and has placed his reliance on below mentioned decisions;
a) of the Hon'ble Apex Court, in the case of Basalingappa V/s Mudibasappa, (Crl.Appeal No.636/2019 date of decision: 09.04.2019), wherein it is observed that, "It is a settled position of law that when an Accused has to rebut the presumption U/Sec. 139, the standard of proof for doing so is that of preponderance of probabilities. If the Accused is able to raise a probable defence which creates doubt about the existence of legally enforceable debt or liability, the prosecution can fail. The Accused 25 Crl.Appeal.No.25028/2020 can relay on the materials submitted by the Complainant inorder to raise such a defence and it is conceivable debt in some cases, the Accused may not need to adduce evidence of his/her own".
b) of the Hon'ble High Court of Delhi, in the case of M/s. Total Finaelf India Limited V/s Rashmi Parnami, (Crl.Appeal No.1239/2011, date of decision: 03.05.2013), wherein it is observed that, "To establish that the Cheque in question were given incosideration of existing debt or liability, the burden is heavily upon the Complainant to prove the same. The Complainant / Appellant did not elaborate as to how much debt or liability was there on any specific date prompting the Respondent to issue the Cheque in question."
c) of the Hon'ble High Court of Punjab & Haryana, in the case of Kiran Finance Company V/s Sukhdev, reported in 2006 Crl.L.J. 766, wherein it is observed that, 26 Crl.Appeal.No.25028/2020 "It is the bounden duty of the Complainant to establish its case by giving specific date and time regarding the payment of installment of debt or liability by the Respondent, inorder to show that the claim of the Complainant was not time barred, when the Cheque was issued. When the Complainant contends that, he is a partner of the Company, then he has to prove the said fact by cogent evidence.
Crimincal Complaint or appeal filed on behalf of a company by the Appellant who is not proved to be a partner of a registered company/firm is held to be not maintainable."
d) of the Hon'ble High Court of Delhi, in the case of Neeraj V/s Ramesh Pratap Singh, @ Raju Singh, (Crl.L.P.354/2012, date of decision:
23.07.2012), wherein it is observed that, "The Appellate Court has the power to review and reappreciate the entire evidence on record".
21. Applying the above prepositions of law to the instant case at hand and on taking into consideration, the materials available on record, it can be said that, the Accused has shown Firstly 27 Crl.Appeal.No.25028/2020 that, there was no privity of contract inbetween him and the Complainant; Secondly, Complainant is the neither the holder or holder indue course of Ex.P2 Cheque; Thirdly, the cheque was issued by the Accused to the Axis Bank, RAC Branch, Mangalore towards repayment of the car loan facility availed by him and most important fourthly, that as on the date of the Cheque i.e., 03.08.2015, outstanding balance towards the said loan amount was not to the tune of Rs.1,73,829/, as shown in Ex.P2Cheque, which leads to rebut the presumption available U/Sec 138 of NI Act, relating to existence of legally recoverable debt.
Thus, the Accused has rebutted the initial presumption available to the Complainant withregard to the existence of legally recoverable debt for issuance of ChequeEx.P.2.
Hence, I answer POINT NO.4 IN THE AFFIRMATIVE.
22. The fourth contention takenup by the Learned Counsel for the Appellant that, the loan account of the Accused with the Axis Bank, RAC Branch, Mangalore, stands closed and the Appellant 28 Crl.Appeal.No.25028/2020 has produced copy of the Statement of carloan Account pertaining to the Accused, maintained by the Axis Bank, RAC Branch, Mangalore, alongwith the memo dtd.17.10.2019.
22.1. On perusal of the memo dtd.17.10.2019 which is annexed with the Statement of Accounts, which is found in the Trial Court record at Page No.87 and 88, it is seen that, the status of the loan account of Hemanth Kumar No.AUR007700460587, stands closed.
22.2. On production of the said document, neither there is whisper or challenge from the side of the Complainant withregard to the facts stated in the said document annexed with the said memo. Though the said document is on record, the Trial Court ought to have taken noteoff it, but the same has remained unnoticed.
23. Thus, on considering the below mentioned facts brought on record by the Accused, viz., 29 Crl.Appeal.No.25028/2020
a) Availing of car loan by the Accused from the Axis Bank, RAC Branch, Mangalore;
b) Issuance of ChequeEx.P.2 by the Accused infavour of the Axis Bank, RAC Branch, Mangalore;
c) Payment of loan amount in the form of installments by the Accused to the Axis Bank, RAC Branch, Mangalore;
d) Nonexistence of privity of contract inbetween the Accused and the Complainant;
e) Failure on the part of the Complainant to prove issuance of ChequeEx.P.2 by the Accused to it or that the Complainant is either holder or holder in due course of the ChequeEx.P.2;
f) The outstanding balance due as on 28.01.2016 as per Ex.D.1 is Rs.74,663/;
g) The payment of five installments after Sept. 2015.
All these circumstances goes to show that, the ChequeEx.P.2 has been misused by the Complainant. Thus, the Appellant/ Accused has on the basis of the preponderance of probabilities shown that the ChequeEx.P.2 is being misused by the Axis Bank, Jayanagar Branch, Bangalore.
30 Crl.Appeal.No.25028/2020Hence, I answer POINT NO.5 IN THE
AFFIRMATIVE.
24. POINT NO.6:
The Learned Counsel for the Appellant would contend that the Appellant has not received the notice issued on behalf of the Respondent as per Ex.P.4. And the signature found on Ex.P.6 is not that of the Appellant.
24.1. On careful perusal of the address of the Appellant shown by the Respondent on Ex.P.4 and Ex.P.6 with that of the address mentioned by the Appellant in the Appeal Memo, it appears the address is one and the same.
24.2. 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.
24.3. Applying the said specific presumption to the instant case at hand, when the Appellant has not challenged about the correctness of his residential address shown in Ex.P.4Notice and Ex.P.6postal acknowledgement. And when Ex.P.4notice is sent to 31 Crl.Appeal.No.25028/2020 the Appellant by RPAD, under such circumstances, it is deemed to have been served or that the addressee shown in Ex.P.6 acknowledgement is deemed to have the knowledge of the notice, unless the contrary is proved. In the present case, the Appellant has not placed any material in contrary to the material available on record like Ex.P.4 and Ex.P.6. Thus, notice issued by the Respondent under Ex.P.4 is deemed to have been served upon the Appellant, as per Ex.P.6. 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.
25. The second line of contention of the Learned Counsel for the Appellant that, when there is no privity of contract inbetween the Complainant and the Accused, issuance of notice by the Complainant to the Accused demanding to pay the amount covered under the ChequeEx.P2, is uncalled for.
25.1. As discussed supra, the Accused has shown that, he had issued Cheque to the Axis Bank, 32 Crl.Appeal.No.25028/2020 RAC Branch, Mangalore, and not to the Complainant , but the Complainant on presenting the Cheque got issued the notice as per Ex.P.4. When there is neither any privity of contract inbetween the Complainant and the Accused nor it is the case of the Complainant that, it has represented the Axis Bank, RAC Branch, Mangalore, then under such circumstances, issuance of demand notice as per Ex.P4 by the Complainant, is uncalled for. I find force in the submission of the Learned Counsel for the Appellant.
Thus, the Appellant has failed to show that, noticeEx.P.4 is not served upon him, but has succeed to show that, the demand notice issued by the Complainant, is not as per Law.
Hence, I answer POINT NO.6 PARTLY IN THE AFFIRMATIVE.
26. POINT NO.7:
The facts at Sl.Nos. (a) to (g) at Para No.23 of this Judgment, observed supra is not considered by the Trial Court. On the other hand, the Trial Court has failed to appreciate Ex.D.1 and Ex.D.2, in its 33 Crl.Appeal.No.25028/2020 proper prospects, considering the attending circumstances and situations, on hand. The findings given by the Trial Court that the Complainant is entitle for the benefit of presumption U/Sec. 139 of N.I. Act., is incorrect.
27. On the basis of the divergent contentions taken up by the Complainant in the Complaint withregard to the reason for issuance of Cheque Ex.P.2, by the Accused; coupled with nonproduction of the material documents by the Complainant to prove that, it had extended the loan facility to the Accused and the Accused has issued Ex.P.2 Cheque, inorder to repay the said loan amount, will falsify the stand of the Complainant, withregard to existence of legally recoverable debt, required for issuance of ChequeEx.P.2.
27.1. Hence, under such circumstances, the presumption available to the Complainant U/Sec. 139 of N.I. Act, gets rebutted.
34 Crl.Appeal.No.25028/202027.2. Thus, the Complainant is not entitle for the benefit of presumption available U/Sec. 139 of N.I. Act.
28. The Trial Court has failed to consider all the aspects referred to above. Hence, the Trial Court has committed an error in appreciating the material evidence placed on record, which suggest that, the Complainant has failed to prove that the Accused has issued ChequeEx.P.2 in its favour, towards repayment of the loan amount due. The Accused has brought certain materials on record, to rebut the presumption available U/Sec. 139 of N.I. Act, on the basis of preponderance of probability. The order of conviction recorded by the Trial Court is perverse to Law. Hence, I am constrained to interfere with the findings recorded by the Trial Court, resulting in conviction of the Accused.
29. Necessarily the prosecution fails. The order of conviction passed by the Trial Court, therefore requires to be setaside and the Accused is 35 Crl.Appeal.No.25028/2020 required to be acquitted for the offence punishable U/Sec. 138 of N.I. Act.
Hence, for the above reasons I answer POINT No.7 IN THE AFFIRMATIVE.
30. POINT NO.8:
For having answered Point Nos.1, 3 to 5 and 7, in the Affirmative, Point Nos.2 in the Negative and Point No.6 Partly in the Affirmative, I proceed to pass the following:
ORDER:
Acting U/Sec. 386 (b) (i) of Cr.P.C., the Appeal preferred by the Appellant U/Sec 374 of Cr.P.C., is hereby ALLOWED.
In the consequences, the order of conviction recorded by the XXXIVth ACMM, Bengaluru, in C.C.No.54859/2015 dtd.04.01.2019, is hereby Setaside and thereby Appellant/Accused is acquitted for the offence punishable U/Sec. 138 of N.I. Act.
Bail Bond stands, cancelled.36 Crl.Appeal.No.25028/2020
Having due regards, parties are hereby directed to meet their own costs.
In case, if the Accused has deposited the amount, as directed U/Sec. 148 of N.I. Act, the same may be dealt with as per Law U/Sec. 143 of the said Act.
Transmit consigned records to the Trial Court alongwith True copy of this Judgment, forthwith, without causing any delay by securing acknowledgment without fail, inorder to ensure delivery of records.
- (Dictated to the Judgment Writer 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 11th of January, 2021.) [AbdulRahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)