Bangalore District Court
Mr. S.A Zubair vs S/O Late Syed Ali Akbar on 3 April, 2019
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 3rd day of April, 2019.
Crl. Appeal. No.25150/2018
Appellant/ Mr. S.A Zubair,
Accused:- S/o Late Syed Ali Akbar,
Aged about 40 years,
R/at No.13, 10th Cross, 6th Main,
A1-hilal Nagar, H.B.R Layout,
Bangalore-560043.
[By Sri. Syed Ahamad -Advocate]
V/s
Respondent/ S. Mohammed Jaan,
Complainant: S/o Jamal Ahmed,
Aged about 33 years,
R/at No.11, 2nd Floor,
Old Korcherpalaya 'B' Stree.
Shivajinagar, Bangalore-560051.
(By Sri.J.Abdul Hamad, Adv.)
2 Crl.Appeal.No.25150/2018
JUDGMENT
This Appeal is preferred by the Appellant U/Sec. 374 of Cr.P.C, being aggrieved by the Judgment of conviction passed by the XIVth Addl. CMM, Bangalore in CC.No.56330 of 2017, dtd.23.07.2018, convicting the appellant for the offences punishable U/Sec. 138 of NI Act, thereby sentencing him to pay fine of Rs.2,60,000/-, indefault to undergo simple imprisonment for five months and further directed to pay an amount of Rs.2,55,000/- to the Complainant as compensation U/Sec.357(1) of Cr.P.C., out of total fine of Rs.2,60,000/-.
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, the Appellant approached the Complainant with a proposal of he and his siblings having a property intended to be sold, the Respondent 3 Crl.Appeal.No.25150/2018 who was running a hotel business and who was intending to purchase the property, entered into an agreement of sale. The Respondent paid an amount of Rs.1,50,000/- to the Appellant in cash on 08.06.2016.
Further when the Appellant insisted for further advance of Rs.50,000/-, the Complainant again paid the said amount to the Appellant. The Appellant and his siblings rescinded from the contract due to some disputes raised by the second wife of late S.M. Nayazulla, wherein the Accused has undertaken to return the advance amount of Rs.2,00,000/- and also to pay damages of Rs.1,00,000/- to the Complainant.
Further it is contended that, towards refund of the said advance amount, the Accused has issued a cheque bearing No.726530 dtd.25.02.2017 for an amount of Rs.2,00,000/- drawn on the State Bank of Mysore, HBR Layout, Bengaluru, in his favour. On its presentation through his banker, State Bank of India, Pillanna Garden Branch, Bengaluru, the said cheque returned as un-encashed, with an endorsement "Funds 4 Crl.Appeal.No.25150/2018 Insufficient", by virtue of memo dtd.26.05.2017. On receipt of the said memo, the Respondent issued a legal notice to the Appellant on 01.06.2017. On completion of the stipulated period required under the statute, the Respondent was constrained to file a complaint against the Accused for the offences punishable U/Sec.138 N.I.Act.
3. On being satisfied, the Trial Court has issued summons U/Sec.204 of Cr.P.C. to the Appellant on 05.08.2017. The Appellant appeared before the Trial Court on 15.02.2018 and he was enlarged on bail. Plea of the Appellant was recorded by the Trial Court on 09.03.2018, wherein the Appellant claimed to be tried.
4. The Complainant inorder to prove his case got himself examined as P.W.1 and got marked seven documents as Ex.P.1 to Ex.P.7. Accused has cross examined PW.1 on 24.05.2018.
5 Crl.Appeal.No.25150/2018
5. On 25.05.2018 statement of the Appellant U/Sec. 313 of Cr.P.C. was recorded, wherein the Appellant got examined himself as DW.1 and got marked one document as Ex.D.1. Appellant was cross examined on behalf of the Complainant on 25.06.2018. The Trial Court heard both the sides and has recorded Judgment of Conviction against the Appellant. Hence, the Appellant is before this Court, being aggrieved by the said Judgment of conviction.
6. The Appellant has preferred the present Appeal by filing an application at I.A.No.1/18 U/Sec. 5 of Limitation Act, praying to condone the delay of 7- days in preferring this Appeal. On 01.09.2018, on hearing the Appellant and by relying the dictum laid down by the Hon'ble High Court of Karnataka in Crl. Petition No.6033/2014, keeping open the disposal of I.A.No.1/18-application for condonation of delay suspended the execution and operation of the Judgment under appeal for a period of 3-months. The 6 Crl.Appeal.No.25150/2018 Respondent appeared on 14.01.2019. Heard the Learned Counsel for the Appellant and the Respondent on I.A.No.1/18 as well as on main appeal.
7. The Appellant has preferred this appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has failed to consider that the cheque in question was taken under coercion and pressure and by misusing the authority of the police officials.
b) The Trial Court ought to have appreciated that the cheque in question is not issued towards the legally enforceable debt.
c) The Trial Court ought to have seen that the Accused was not liable to pay the amount of cheque and he has not issued the cheque on behalf of his siblings, the Accused is not vicariously liable for the debts of his siblings.7 Crl.Appeal.No.25150/2018
d) The Trial Court ought to have consider as to how the Complainant came in possession of the cheque in question.
e) The Trial Court has failed to appreciate both oral and documentary evidence led by the Complainant.
f) The Trial Court has brushed away the material admitted evidence on record, which is admitted by the Complainant himself in his cross examination and has wrongly come to a conclusion that, Complainant has satisfied all the ingredients of Sec.138 of N.I. Act and is entitled for the presumptions available U/Sec.118 and 139 of the said Act.
Thus, the Trial Court has erred in recording the Order of conviction, against the Accused, which is required to be setaside by reversing it.
8. Following points arise for my consideration;
1. Point No.1: Whether the Appellant makes out a case to condone the delay of 7-days in preferring the appeal, as sought for under I.A.No.1/18?
8 Crl.Appeal.No.25150/2018
2. Point No.2: Whether the Appellant /Accused show that the Order of Conviction and Sentence recorded by the Trial Court in C.C.No.56330/ 2017, dtd.23.07.2018, deserves to be setaside and thereby call for the interference of this Court?
3. What Order?
9. My finding on the above points are as under:
Point No.1 : In the Affirmative;
Point No 2 : In the Affirmative;
Point No.3: As per final order for the following :
REASONS
10. The rank of parties will be referred as they were before the Trial Court for the sake of convenience.
11. Point No.1:- I.A.No.1/18 is filed by the Appellant U/Sec.5 of the Limitation Act, praying to condone the delay of 7-days, in preferring this appeal. For the reasons sworn to by the Appellant in the affidavit accompanying the said application, contending that as he was sick, suffering from viral- fever, was not in a position to travel from 9 Crl.Appeal.No.25150/2018 Bommanahally to the residence of his counsel, delay is caused. The delay caused in preferring the appeal is a bonafide, unintentional and not deliberate one.
12. Looking to the nature of the proceedings, the seriousness of the offence involved in the case, the reasons shown in the affidavit accompanying I.A.No.1, I am of the opinion that, if the application filed by the Appellant, to condone the delay is rejected on technical grounds, I am afraid that it may amount to shutting the doors of justice to the deserving citizens, which may even amount to violation of principles of Natural Justice. Further right of Appellant, to prefer an appeal is a Statutory Right. If the application is allowed and the appeal is heard on merits, no loss or prejudice will be caused to either of the parties to the case. Hence, I am of the considered opinion that, the delay of 7-days caused in preferring the appeal, deserves to be condoned, in the interest of justice and equity and to achieve the ends of Justice. Hence, I answer point No.1 in the Affirmative.
10 Crl.Appeal.No.25150/2018
13. Point No.2: As per the averments of the Complainant in the complaint, it is seen that the Accused approached the Complainant with a proposal to sell his property along with his co-owners, wherein the Complainant was interested in purchasing the property. An agreement was entered inbetween them, as per the said agreement, Complainant paid an amount of Rs.1,50,000/- as an advance amount. Subsequently, again the Accused approached the Complainant and insisted for further payment of Rs.50,000/- for which Complainant has paid the said amount. In total Complainant has paid an amount of Rs.2,00,000/- to the Accused towards the earnest money. The Accused and the other co-owners rescinded the contract entered into inbetween, with the Complainant, whereby Accused has agreed to refund an amount of Rs.2,00,000/- taken as an earnest money along with Rs.1,00,000/- towards damages. It is the specific case of the Complainant that, Accused issued the cheque in question to the Complainant for 11 Crl.Appeal.No.25150/2018 discharge of the said earnest amount taken by him. On presentation of the said cheque by the Complainant through his banker, the same was dishonoured for want of sufficient funds in the account of the Accused. The Complainant issued the notice to the Accused. Failure on the part of the Accused to comply, the Complainant filed the present complaint alleging that the Accused has committed an offence U/Sec. 138 of N.I.Act.
14. The Trial Court on the basis of the records has issued summons to the Accused U/Sec.204 of Cr.P.C. on 05.08.2017. Issuance of summons is good in Law.
15. The Accused appeared before the Court below on 15.02.2018 and he was enlarged on bail. Plea of the Accused was recorded by the Trial Court on 09.03.2018. I have perused the contents of the plea carefully and found that the same is in accordance with law.
12 Crl.Appeal.No.25150/2018
16. The Learned Counsel for the Appellant/Accused contends that, the cheque in question is not issued by the Accused in favour of the Complainant, in the sense that cheque in question is not handed by the Accused to the Complainant, which is a very important ingredient of Sec.138 of N.I.Act inorder to attract the presumption available to the Complainant U/Sec 118 and 139 of the N.I Act. Further the Learned Counsel for the Appellant /Accused would submit that, cheque in question was got issued under coercion, issuance of cheques under coercion will not attract offences punishable U/Sec 138 of N.I. Act.
17. Inorder to scrutiny the said contention of the Learned Counsel for the Appellant/Accused it is necessary to go through the provision of Sec 138 of N.I. Act.
Sec. 138 of NI Act reads as under:-
"138. Dishonour of cheque for insufficiency, etc., of funds in the account:- Where any cheque drawn by a person on an account maintained by 13 Crl.Appeal.No.25150/2018 him with a banker for payment of any amount of money to another person from out of that account or other liability, is returned by the bank unpaid............."
As per Sec 138 of N.I Act the first and the foremost ingredient is that the cheque must have been drawn for a payment of money to another person for the discharge or partial discharge of any debt or other liability. It means that, one person has to give the cheque to another person, in other words the Accused must handover the cheque to the Complainant.
18. The Learned Counsel for the Appellant/Accused would contend that though the Complainant has stated in his Complainant at Para No.6 of the Complaint that, Accused has issued the cheque in question, the same reads as under:-
Complaint Para No.6 The Complainant further states that towards refund of the secured advance amount by the Accused person for himself and on behalf of his aforesaid brothers and sisters, issued a Cheque for Rs.2,00,000/-14 Crl.Appeal.No.25150/2018
(Rupees Two Lakhs Only) bearing No.726530, dated 25.02.2017, in favour of the Complainant which is drawn n State Bank of Mysore, HBR Layout Branch, Bangalore, towards discharged of the legal debt and the Complainant once again reposing full faith and confidence in the Accused received the same.
As well as, in the affidavit examination-in-chief at Para No.4 of the Complainant, he has reiterated the said facts, which reads as:
Evidence-Affidavit filed by the Complainant-Para No.4.
I further states that towards refund of the secured advance amount by the Accused person for himself and on behalf of his aforesaid brothers and sisters, issued a Cheque for Rs.2,00,000/- (Rupees Two Lakhs Only) which is bearing No.726530, dated 25.02.2017, in my favour and the same is drawn on State Bank of Mysore, HBR Layout Branch, Bangalore, towards discharged of the legal debt and once again reposing full faith and confidence in the Accused person I received the same.
Cheques is marked as Ex.P.2 and signature of Accused is marked as Ex.P.2(a).
But as per the cross examination of PW.1 at Page No. 6 and 7 which reads as under:-
15 Crl.Appeal.No.25150/2018Cross-examination of PW.1 Page Nos.6 and 7
"£À£ÀUÉ ºÀt PÉÆqÀ¢zÀÄÝzÀjAzÀ £Á£ÀÄ DgÉÆæAiÀÄ «gÀÄzÀÝ MAzÀÄ zÀÆgÀ£ÀÄß PÉ.f ºÀ½î ¥ÀÉÆð¸ï oÁuÉAiÀÄ°è PÉÆnÖzÉÝ JAzÀgÉ ¸Àj. C°è ¥ÉÇð¸ÀgÀÄ DgÉÆæAiÀÄ£ÀÄß PÀgÉzÀÄ «ZÁgÀuÉ ªÀiÁrzÀÝgÀÄ JAzÀgÉ ¸Àj. ¥ÉÇð¸ÀgÀÄ £À£Àß ºÁUÀÆ DgÉÆæAiÀÄ £ÀqÀÄªÉ ªÀiÁvÀÄPÀvÉ ªÀiÁr¹ gÁfà ªÀiÁrPÉƼÀÄîªÀAvÉ ºÉýzÀÝgÄÀ JAzÀgÉ ¸Àj. D ¸ÀªÀÄAiÀÄzÀ°è DgÉÆæAiÀÄÄ vÀ£ÀUÉ ¸Àé®à ¸ÀªÀÄAiÀiÁªÀPÁ±ÀªÀ£ÀÄß PÉÆqÀĪÀAvÉ PÉýPÉÆAr¢zÀÝgÀÄ JAzÀgÉ ¸Àj. DgÉÆæAiÀÄÄ vÀ£Àß ¨sÁUÀzÀ ºÀt 25,000/- gÀÆ¥Á¬ÄAiÀÄ£ÀÄß ¥ÉÇð¸ï oÁuÉUÉ vÀAzÀÄ PÉÆqÀ®Ä ªÀÄÄAzÁzÁUÀ £À£ÀUÉ 25000 gÀÆ¥Á¬ ¨ÉÃqÀ £Á£ÀÄ PÉÆlÖ ¸ÀA¥ÀÇtð ºÀtªÀ£ÀÄß PÉÆqÀ¨ÉÃPÉAzÀÄ £Á£ÀÄ ºÉýzÉÝ JAzÀgÉ ¸Àj. ¢£ÁAPÀ 02.03.2017 gÀAzÀÄ ¥ÉÇð¸ÀgÀÄ DgÉÆæAiÀÄ£ÀÄß §A¢ü¹ oÁuÉUÉ vÀAzÀÄ ¸ÀªÄÀ AiÀiÁªÀPÁ±À PÉÆlÖgÀÆ ºÀtªÀ£ÀÄß ¥ÁªÀw¸À°®è JAzÀÄ ¨ÉzÀj¹ DgÉÆæ¬ÄAzÀ MAzÀÄ CfðAiÀÄ£ÀÆß ¸ÀºÀ ¥ÀqÉ¢zÀÝgÀÄ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. £À£ÀUÉ ¸À£ÁªÀůÁè JA§ ºÉqïPÁ£ïìmÉç¯ïgÀªÀgÀÄ F ¥ÀæPÀgÀtzÀ°è ºÁdgÀÄ¥Àr¹zÀ ZÉPÀÌ£ÀÄß DgÀÉÆæ¬ÄAzÀ ¥ÀqÉzÀÄ PÉÆnÖzÀÝgÀÄ JAzÀgÉ ¸Àj. ¸ÀzÀj ZÉPÀÌ£ÀÄß ¸À£ÁªÀůÁègÀªÀgÀÄ £À£Àß ºÉÆÃmɯï£À°è £Á¤zÁÝUÀ vÀAzÀÄ PÉÆlÖzÀÝgÀÄ. ¸ÀzÀj ZÉPÀÄÌ ¨ÁèAPï ZÉPï DVvÀÄÛ JAzÀgÉ ¸ÀjAiÀÄ®è. EzÁzÀ £ÀAvÀgÀ ¥ÀÅ£ÀB ¥ÉÇð¸ÀgÀÄ £À£ÀߣÀÄß oÁuÉUÉ PÀgɬĹ £À£ÀUÉ 1,00,000/- gÀÆ¥Á¬ÄUÉ DgÉÆæAiÀÄ E£ÉÆßAzÀÄ ZÉPÀÌ£ÀÄß PÉÆr¹zÀÝgÀÄ JAzÀgÉ ¸Àj. ¢£ÁAPÀ 02.05.2017 gÀAzÀÄ DgÉÆæAiÀÄÄ £ÁåAiÀiÁ®AiÀÄ¢AzÀ DAn¹¥ÉÃlj ¨Éî£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ PÉf ºÀ½î ¥ÉÇð¸ï oÁuÉUÉ ºÁdgÁzÁUÀ £Á£ÀÆ ¸ÀºÀ C°è EzÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæAiÀÄ PÀÄlÄA§zÀ EvÀgÀ ¸ÀzÀ¸ÀågÀÄ ºÀtªÀ£ÀÄß PÉÆnÖzÀÄÝ DgÉÆæAiÀÄ «gÀÄzÀÝ ªÀiÁvÀæ £Á£ÀÄ F PÉøÀ£ÀÄß ºÁQzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. £Á£ÀÄ F ¥ÀæPÀgÀtzÀ°è ºÁdgÀÄr¹zÀ ZÉPÀÄÌ DgÉÆæAiÀÄÄ £À£ÀUÉ PÉÆlÖzÁÝVgÀ°®è JAzÀgÉ ¸ÀjAiÀÄ®è".
19. On careful perusal of the pleading of the Complainant and the evidence on record more specifically his cross examination, it can be said that, he had filed a complaint with the K.G. Halli Police Station, the Accused was brought to the Police Station and the police have insisted the Accused to settle the matter, the Accused sought for some time and the 16 Crl.Appeal.No.25150/2018 Accused was ready to pay his share of Rs.25,000/-. Further Pw.1 has clearly admitted in his cross examination that, the cheque was given to him by one Head Constable by name Sanaulla, when he was in his hotel. This shows that Accused has never tendered the cheque to the Complainant towards repayment of any amount, much-the less, towards the refund of the earnest money said to have been received by him.
20. The Trial Court has not at all considered the above evidence on record and has failed to appreciate the same in its Judgment to come to a conclusion that, the Complainant has satisfied all the ingredients of Sec 138 of N.I. Act and thus presumption U/Sec 139 of N.I. Act is available to the Complainant.
21. Further the Learned Counsel for the respondent has placed his reliance on the decision of the Hon'ble Apex Court in the case of P. Suresh Kumar V/s R. Shankar, reported in (2007) 4 SCC 752, wherein it is held that, cheque issued for discharged of a debt in the compromise taken place in 17 Crl.Appeal.No.25150/2018 the Police Station. No charge against the Complainant regarding commission of fraud, signature of cheque admitted. Plea of the Accused that he signed cheque under threat, is not acceptable. In this particular case, there was no any material evidence on record to show that cheque was issued by the Accused to the Complainant in the Police Station, on the contrary, there was material on record to show that cheque was issued in pursuance of the compromise entered into by the Complainant and the Accused, in the Police Station, which will not lead to causing any coercion or undue influence on the Accused to issue the cheque. Thus, the plea of the Accused that, he has issued the cheque under coercion, was turned down.
22. But in the present set of facts, though the Accused admitted his signature on the cheque, issuance of cheque by the Accused is admitted, cheque in question belonging to Accused is admitted, but issuance of cheque by the Accused to the Complainant is denied. Further PW.1 has admitted in his cross 18 Crl.Appeal.No.25150/2018 examination that, cheque of the Accused was given to him by the Head Constable of K.G. Halli P.S, under the background of his filing a petition with the K.G.Halli Police. On such material evidence one cannot rule out that the cheque in question is not issued under coercion, stress, undue influence, etc., as well as the cheque in question is not issued for legally recoverable debt.
23. The object of introducing Sec 138 of N.I. Act in the Negotiable Instrument Act 1881, is to enhance the acceptability of the cheques in the settlement of liabilities. The drawer of cheques is made liable to prosecution on dishonor of cheque with safeguard to prevent harassment to honest cheque bearer. The object of the provision is to facilitate smooth function of any transaction between the drawer and the bearer. The provision proves out to be very helpful and indeed necessary as there were several cases of frauds and it was high time that people were made to realize the seriousness of issuing a cheque as 19 Crl.Appeal.No.25150/2018 a financial instrument. Dishonor of a cheque not only causes incalculable loss, injury and inconvenience to the payee, but also brings a huge setback to the credibility of business transactions involved therein.
24. By taking the said object of incorporating such provision in the statue, we cannot strengthen such transactions of issuance of a cheque by the Accused to the Complainant through the intermediation of the police authorities. Such transaction is out of the realm of the spirit and the object of the said provision of Law. Hence, such transaction are to be discouraged else, it will lead to mockery of Justice.
25. Though the Trial Court was well guided by the decisions of the Hon'ble Apex Court, which it has referred in its Judgment at Page No.9, which reads as:-
Page No.9 "..........In the ruling rendered by Hon'ble Apex Court in the case of Rangappa V/s Mohan reported in AIR 2010 (SC) 1898 by relying on several rulings rendered by the Hon'ble Apex Court 20 Crl.Appeal.No.25150/2018 including the case of Krishna Janardhan Bhat V/s Dattathraya G. Hegde reported in AIR 2008 (SC) 1325, it was held that " Existence of legally recoverable debt or liability is a matter of presumption U/Sec 139 of NIA Act". The Hon'ble Apex Court disapproved the principle laid down in Krishna Janardhan Bhat's case that "Initial burden of proving existence of the liability lies upon the Complainant". In the case of Sri. B.H. Lakshminarayana V/s Smt. Girijamma reported in 2010 (4) KCCR 2637, it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further as provided U/Sec 118 of N.I. Act, it is to be presumed that the cheque in question was issued for consideration on the date found therein. As well as at Page No.13 of the Judgment, which reads as :-
Page No.13 "This view is also supported with the decision of the Hon'ble Apex Court reported in (2006) 3 SCC (Crl.) 30 - (Tamilnad Mercantile Bank Ltd., V/s M/s Subaiah Gas Agency and others), ILR 2009 (2) 1633 (Kumar Exports V/s Sharma Carpets), AIR 2008 (SC ) 1325 (Krishna Janardhan Bhat V/s Dattathraya G. Hegde) 2013 SAR (CRI) 373-(Vijay V/s Laxman and another) and AIR 2010 (SC) 1898-
(Rangappa V/s Mohan). Now the question that would arise is whether the Accused has rebutted the statutory presumptions available in favour of the Complainant".
Thus, by keeping the dictum of law laid down by Hon'ble Apex Court and Hon'ble High Court of 21 Crl.Appeal.No.25150/2018 Karnataka in the above decisions, it can be seen that, primarily it is for the Complainant to prove all the ingredients of Sec.138 of N.I. Act, if the Complainant proves the same, he will be entitle to avail the presumptions enshrined in Sec.139 and 118 of the said Act. Then onus will shift on to the Accused to disprove the same as rebut the presumption. But in the present case, when the Complainant himself by admitting that cheque in question was received by him, through the Head Constable of K.G.Halli P.S., when he was in his hotel, it goes to show that Accused has not tendered the cheque to the Complainant which consequently, ends into the presumption that no authorization is given to the Complainant by the Accused to present the cheque, which is a very important ingredient of Sec.138 of N.I.Act. Thus, primarily the Complainant has failed to prove the ingredient of tendering of cheque by the Accused to him, under such circumstances, Complainant is not entitle for any presumption available U/Sec.139 as well as 118 of the 22 Crl.Appeal.No.25150/2018 said Act. Thus, the Court below has failed to appreciate the relevant material evidence and to apply the present set of facts to the provision of law. Thus, has erred in coming to a wrong conclusion that, Complainant has proved that the cheque said to have been issued by the Accused is for legally recoverable debt, which is against the mandate and provisions of Law. This is a material defect, which leads to the root of the case, which cannot be cured. Hence, I am constrained to interfere with the order of Conviction recorded by the Court below. I am conscious that order of Conviction recorded on the basis of non-application of the material evidence on record, is required to be reversed.
Thus, for the above said reasons, I answer point No 2 in the AFFIRMATIVE.
26. Point No 3: For the aforesaid reasons, I proceed to pass the following;
23 Crl.Appeal.No.25150/2018
ORDER:
Appeal preferred by the Appellant U/Sec 374 of CrPC., is hereby ALLOWED.
Acting U/Sec 386(b) of Cr.P.C., Order of Conviction recorded by the Trial Court against the Accused punishable U/Sec 138 of NI Act, inrespect of the Cheque bearing No. 726530 dated.25.02.2017 for the sum of Rs.2,00,000/-, marked as Ex.P.2, is Setaside.
In the consequences, the Accused is hereby Acquitted.
Having due regards, parties are hereby directed to meet their own costs.
Trial Court is hereby directed to disburse the Security Deposit Amount of Rs.40,000/-,deposited by the Appellant/ Accused on 12.09.2018, as per the orders of this Court, to the Appellant/Accused by way of Court cheque, on his proper identification.
Transmit consigned records to the Trial Court alongwith True copy of this Judgment, forthwith, without causing any 24 Crl.Appeal.No.25150/2018 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 3rd day of April, 2019.) [Abdul-Rahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)