Bangalore District Court
Accused: C. Nazirulla Sheriff vs C. Nazirulla Sheriff on 17 May, 2021
IN THE COURT OF LXXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, MAYOHALL UNIT, BANGALURU. (CCH.74)
PRESENT:
Sri.Yamanappa Bammanagi, B.A., LL.B., (Spl.,)
LXXIII Addl.City Civil & Sessions Judge,
Mayohall Unit, Bangaluru.
Dated this the 17th day of May, 2021.
Crl. Appeal No.25111/2019
Appellant/
Accused: C. Nazirulla Sheriff,
Proprietor of Al
Qutub Exporters,
Aged about 79 years,
R/at.No.53, 1st Floor,
Anjaneyaswamy Street,
Benson Town post,
Bangalore46.
(By Sri.K.S.Rahul Cariappa - Adv.)
V/S
Respondent/
Complainant: Abdul Sadiq,
Proprietor of Limra
Crockery Business,
Aged about 39 years,
R/at No.7, Dharmaraj
Koil Street, Shivajinagar,
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Crl.A. No.25111/2019
Bangalore01.
(By Sri.G.R.Chandrashekar - Adv.)
JUDGMENT
Being aggrieved by the common judgment and sentence, passed by the learned XIV ACMM, Bangaluru, in CC No.53842/2018, CC No.53843/2018 & CC No.53844/2018, dated 26.03.2019, convicting the appellant for the offence punishable under Section 138 of N.I.Act, sentencing him to pay fine of Rs.18,05,000/ in each case, in default of payment of fine amount, the accused shall undergo simple imprisonment for 6 months in each case. Further ordered that, out of total fine amount of Rs.18,05,000/ in each case, a sum of Rs.18,00,000/ shall be paid to the complainant as a compensation in each case and Rs.5,000/ in each case, is ordered to be remitted to the state, being aggrieved by the said order, the appellant is before this court, challenging the legality and correctness of judgment and sentence of trial 3 Crl.A. No.25111/2019 court, in separate Appeal Nos.25111/2019, 25112/2019 & 25113/2019.
2. Brief facts of the case:
It is the case of the appellant that, the present respondent has filed complaint against the present appellant u/S 200 of Cr.P.C. for the offence punishable u/S 138 of the N.I. Act. It is alleged in the complaint that, the accused and his son Mr.Yousuf Sharief are close family friend of the complainant for the last several years. The accused is Proprietor of AL Qutub Exports business, supplying the building construction materials. Thus, the accused was under
need of money for purchasing the building construction materials to construct a star hotel in "Malawi" a country situated at Southeastern Africa. Hence, the accused had approached the complainant and borrowed sum of Rs.45,00,000/ from the complainant with assurance that he will repay the same in the month of January and February 4 Crl.A. No.25111/2019 2018. For the said loan the accused had issued 3 different post dated cheques dated 29.01.2018, 1.2.2018 & 5.2.2018, drawn on Syndicate Bank, Saunders Road, Frazer Town, Bangaluru, for sum of Rs.15,00,000/ each towards discharge of liability, with assurance that cheques would be honoured on presentation. As per the assurance of the accused the complainant has presented the cheque bearing No.077426, dated 5.2.2018, through his banker Indian Bank, Commercial Street Branch, Bangaluru, on 5.2.2018 for encashment. But, said cheque was returned with a bank endorsement "Funds Insufficient" on 6.2.2018. Thereafter, the complainant brought the notice of the accused and requested him to pay the cheque amount, but, the accused did not heed the request of the complainant, hence complainant got issued legal notice on 16.2.2018 through RPAD to the accused calling upon him to pay cheque amount, same was served on the accused on 19.2.2018, the accused has issued common reply to the 5 Crl.A. No.25111/2019 notices. Thus, the accused has issued the cheque in question towards discharge of liability in favour of the complainant without maintaining sufficient amount in the bank account.
Hence, accused has committed offence punishable u/S 138 of N.I. Act. The present appeal challenging the common judgment in respect of CC No.53842/2018 in respect of cheque bearing No.077426, dated 5.2.2018, for sum of Rs.15,00,000/.
3. On being satisfied with the material placed before it, the trial court has taken cognizance for the offence punishable u/S 138 of the N.I. Act, issued summons u/S 204 of Cr.P.C. In pursuance of the summons, the accused has appeared before the trial court, the trial court enlarged the accused on bail, thereafter, plea was recorded, the accused pleaded not guilty and claimed to be tried.
4. In order to prove his case the complainant was examined as C.W.1 and got marked Ex.P.1 to P.6, statement 6 Crl.A. No.25111/2019 of accused was recorded U/sec. 313 of Cr.P.C., the learned counsel for the accused has crossexamined CW1. Thereafter, the accused was examined himself as D.W.1 and D.W.1 was cross examined by the learned counsel for complainant. After hearing the argument of the learned counsel for the complainant and accused, the trial court has recorded the order of conviction, convicting the appellant/ accused for the offence punishable u/S 138 of the N.I. Act, with default clause. Being aggrieved by the said judgment and order of conviction, the accused is before this court, challenging the correctness and legality of the said judgment and sentence on the following: "GROUNDS I. The trial court failed to appreciate oral and documentary evidence produced before it and passed impugned judgment which is not sustainable under the law and facts and liable to be set aside.
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Crl.A. No.25111/2019 II. The trial court failed to appreciate the evidence of appellant independently and failed to appreciate the fact that the complainant being acquainted with the accused as this accused has taken defence that the complainant is stranger and taken defence that the accused had transaction with one Mir Riyaz, cheques in question are issued to the said Mir Riyaz, which is being misused by the respondent/complainant because the respondent had several transaction with the said Mir Riyaz as it could be seen from the bank statement of the complainant at Ex.P.3 and P.4 from the year 2015
16. III. The trial court failed to consider that the respondent paid alleged amount by taking from various account and produced bank statement Ex.P.3 and P.4. But, entries in Ex.P.3 and P.4 are 8 Crl.A. No.25111/2019 pertaining for the year 2012, 2013 & 2014. This fact has not been considered by the trial court.
IV. Further entries in Ex.P.3 and P.4 reflects transaction of the complainant with said Mir Riyaz and the complainant did not choose to examine the said Mir Riyaz.
Thus, Ex.P.3 and P.4 produced by the complainant are sufficient to hold that the accused has rebutted the presumption.
V. The trial court failed to consider the fact that the complainant failed to prove the transaction between the complainant and the accused for sum of Rs.45,00,000/.
VI. The trial court failed to appreciate the fact that the
respondent is income tax assessee, but, respondent did not produced IT returns.
VII. The trial court failed to
appreciate the fact that the
respondent failed to prove the
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existence of legally recoverable debt. Thus, the impugned judgment is not sustainable under the law and facts and liable to be set aside. With this, the appellant prayed for allowing the appeal.
5. On admitting the appeal, this court has passed the order, on the application filed by the appellant u/S 389 (1) of Cr.P.C., and suspended the operation and execution of the trial court order and issued notice to the respondent. The respondent appeared through counsel and received TCR, heard argument on both side.
6. After appearance of the respondent, the appellant has filed application u/S 391 of Cr.P.C. seeking permission to lead additional evidence and same was allowed on 22.6.2020 and permitted the appellant to lead the evidence. Appellant led his evidence as D.W.1 and got marked Ex.D.1 Original Passbook of appellant. D.W.1 was crossexamined by the learned counsel for the complainant. 10
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7. I have perused impugned judgment and order of the trial court, reappreciated oral and documentary evidence, led by both the parties before the trial court, considered material placed before the court, considered the arguments of the learned counsel for the appellant and respondent, the counsel for the parties have filed their written argument.
8. In support of his argument the learned counsel for the respondent relied on the decisions reported in ILR 2019 KAR 493 in case of Sri.Yogesh Poojari v/s Sri.K.Shankar Bhat, ILR 2018 KAR 5431 in case of Sri.S.M.Nataraj v/s B.M.Prakash & AIR 2019 SC 1876 in case of Rohitbhai Jivanlal Patel v/s State of Gujarath and another. On perusal of the same, the points that would arise for my consideration are as follows:
1. Whether complainant proves that he has discharged initial burden to have a benefit u/S 139 of the N.I. Act?
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2. Whether complainant proves the existence of legally recoverable debt and his financial capacity and accused has issued cheque towards discharge of legally recoverable debt?
3. Whether accused proves that he has rebutted the presumption on preponderance of probabilities?
4. Whether the appellant/accused made out grounds to show that the order of conviction and sentence recorded by the trial court, in C.C. No.53842/2018, dated 26.03.2019, is deserves to be setaside and call for the interference of this court?
5. What order?
9. My answer to the above points are as follows: Point No.1: In the Affirmative, Point No.2: In the Affirmative, Point No.3: In the Negative, Point No.4: In the Negative, Point No.5: As per final order, for the following: 12 Crl.A. No.25111/2019 REASONS
10. POINT Nos.1 & 2: These two points are interconnected to each other, in order to avoid repetition, I proposed to answer these two points commonly. The rank of the parties is referred as they were referred before the trial court.
In order to prove his case, the complainant is examined as C.W.1 and got marked Ex.P.1 to P.6. C.W.1 deposed before the court by filing affidavit in lieu of sworn statement and same is treated as evidence of complainant, by reiterating the averments of the complaint. C.W.1 deposed before the court that, the accused and his son Mr.Yousuf Sharief are close family friends of the complainant for the last several years, the accused is Proprietor of AL Qutub Exports business, supplying building construction materials and he was under
need of money for purchasing the construction materials to construct a star hotel in "Malawi", country situated at 13 Crl.A. No.25111/2019 Southeastern Africa, hence accused had approached the complainant and requested for financial help of Rs.45,00,000/ and assured that he will repay the same in the month of January and February 2018, for the said loan the accused had issued 3 post dated cheques for sum of Rs.15,00,000/ each, the said cheques were presented for encashment, same are returned with a endorsement "Funds Insufficient", thereafter, the complainant has issued legal notice to the accused separately for each cheques, said notices have been served on the accused and accused issued common reply notice. Even after receipt of notice the accused failed to pay cheques amount, hence, the complainant has filed complaints separately for each 3 cheques and each cases bears CC No.53842/2018, 53843/2018 & 53844/2018, the trial court has passed the common judgment and sentence and convicted the accused for the offence punishable u/S 138 of N.I. Act and the present 14 Crl.A. No.25111/2019 appellant has challenged the common judgment by filing separate appeals.
11. In support of his oral evidence, accused has produced as many as 6 documents, which have been marked at Ex.P.1 to Ex.P.6 in CC No.53842/2018. Ex.P.1 is the original cheque issued by the accused in the name of complainant for sum of Rs.15,00,000/, Ex.P.1(a) is the signature of the accused appeared on Ex.P.1, Ex.P.2 is the Bank endorsement issued by the Syndicate Bank showing the reasons for dishonour of cheque, Ex.P.3 is the legal notice issued by the complainant through Advocate to the accused by RPAD, Ex.P.4 and Ex.P.5 are the postal receipts and Ex.P.6 is the RPAD cover returned with a shara 'No such person'.
12. On being satisfied with the above documents, the trial court has issued summons to the accused U/sec.204 of Cr.P.C. Hence, this court finds no error in the trial court order. In pursuance of the summons, the accused appeared 15 Crl.A. No.25111/2019 through counsel and plea was recorded by reading substances of accusation, in the language known to the accused.
13. On perusal of the oral and documentary evidence led by the complainant and accused, it is clear that, the accused has taken defence that there was no transaction between the accused and complainant, the accused had transaction with one Mir Riyaz, and had taken loan of Rs.1,00,000/ from the said Mr.Mir Riyaz and issued 3 blank signed cheque for the said loan in favour of the said Mir Riyaz. Further taken defence that the complainant was also having transaction with said Mir Riyaz, by colluding with said Mir Riyaz the complainant has taken 3 cheques from the said Riyaz and presented the same for encashment, same are dishonoured. Thus, accused has misused the cheques taken from the Mir Riyaz, there was no legally recoverable debt. Thus, the complainant failed to prove the existence of legally recoverable debt.
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14. I have perused carefully oral and documentary evidence led by the complainant and accused and material placed before this court and defence taken by the accused. On perusal of the same, it is clear that, the issuance of cheque and signature on the cheque is not in dispute. The only disputed fact is that the cheques in question were issued by the accused to one Mir Riyaz for repayment of loan of Rs.1,00,000/ taken by the accused from the said Mir Riyaz and the complainant was also having transaction with the said Mir Riyaz. The complainant has colluded with said Mir Riyaz and taken cheques from the said Mir Riyaz issued by the accused and misused by the complainant by presenting them for encashment.
15. That apart, it is the case of the accused that Mir Riyaz has given 3 cheques belongs to the accused to the complainant without his knowledge. Admittedly, no action has taken by the accused against the said Mir Riyaz for giving 17 Crl.A. No.25111/2019 the cheques to the complainant. Thus, it is clear that, if the accused really issued the cheques in favour of Mir Riyaz and said Mir Riyaz has given cheques belongs to the accused to the complainant, then what prevents the accused to initiate the action against the said Mir Riyaz and further what prevent the accused to submit the requisition to the concerned bank for stop payment when he came to know about the misuse of cheques by the Mir Riyaz as admitted by the accused in the crossexamination dated 21.2.2019, at page3, in 2nd para, after 5 lines from top, which reads thus:
"ಈ ಪಪಕರಣದಲಲ ಹಹಜರರಪಡಸದ ಚಚಕರಕಗಳಗಚ ಸಸಬಸಧಸದಸತಚ ಮಮರ ರಯಹಜ ರವರ ವರರದದ ನಹನರ ಯಹವವದಚಮ ಕಹನನನರ ಕಪಮವನರನ ತಚಗಚದರಕಚನಸಡರರವವದಲಲ."
16. Further it is clear that, the transaction in respect of which the accused has taken loan of Rs.45,00,000/ from the complainant is admitted by the accused in the cross 18 Crl.A. No.25111/2019 examination dated 21.2.2019, at page4, from 1 st line, which reads thus:
"ನನನ ಮತರತ ನನನ ಮಗ ಯನಸಫ ಷರಮಫ ಸಚಮರಕಚನಸಡರ ಸಸತಆಫಪಕಹದ ಮಹಲವ ಎಸಬಲಲ ಸಹಸರ ಹಚನಮಟಚಲ ನರನ ಕಟರಸತತದಚದಮವಚ ಎಸದರಚ ಸರ. ಅದನರನ 2005 ರಲಲ ಕಟಸಡ ಪಹಪರಸಬಸದರದ ಇನನನ ಕಚಲವವ ಪಪಣರಗಚನಸಡಲಲ."
17. Now it is relevant to note here the evidence of D.W.1. In the crossexamination D.W.1 has clearly admitted that the cheque in question is belongs to him and signature on it is belongs to the accused. Further the accused after admitting the transaction extracted supra he also admits the 3 cheques and his signature on the cheques in the cross examination dated 21.2.2019, page4, after 6 lines from top, which reads thus:
"ಫಯಹರದದಹರರರ ಈ ಪಪಕರಣದಲಲ ಹಹಗನ ಉಳದ ಎರಡರ ಪಪಕರಣದಲಲ ಹಹಜರರಪಡಸದ ಮನರರ ಚಚಕರಕಗಳಳ ನನಗಚ ಸಚಮರದರದ ಅದರಲಲರರವ ಸಹಯರ ನನನದಚಮ ಆಗರರತತದಚ."
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18. When issuance of cheque Ex.P.1 and signature on it is not in dispute, then the complainant is entitle to have shelter U/sec.118 and 139 of the N.I. Act as held in the decision reported in (2010) 11 SCC 441 in case of Rangappa v/s Sri.Mohan. The Hon'ble Apex Court has held thus:
"Once issuance of cheque and signature thereon are admitted, the presumption of legally enforceable debt in favour of the holder of the cheque arises. It is for the accused to rebut the said presumption.
Though accused need not adduced his own evidence and can rely upon the materials submitted by the complainant. However, mere statement of the accused may not be sufficient to rebut the said presumption."
19. It is specific defence of the accused that he has issued blank cheque to the Mir Riyaz. Issuance of blank 20 Crl.A. No.25111/2019 cheque to the Mir Riyaz by the accused has not been proved, atleast on basis of preponderance of probability. Under such circumstances, the complainant is a holder of cheque and possessor of the cheque in question as per Section 8 of the N.I. Act. Section 8 of the N.I. Act, reads thus:
"8. "Holder". The "holder" of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto.
Where the note, bill or cheque is lost or destroyed, its holder is the person so entitled at the time of such loss or destruction."
20. Further it is relevant to extract Section 9 of the N.I. Act, which reads thus:
"9. "Holder in due course". "Holder in due course" means any person who for consideration 21 Crl.A. No.25111/2019 become the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if payable to order, before the amount mentioned in it become payable, and without having sufficient cause to believe that any defect existed in the title of person from whom he derived his title."
21. In the absence of material before the court with regard to issuance of cheque to Mir Riyaz by the accused, the complainant who is holder of cheque is entitled to have a benefit u/S 8 of the N.I. Act. Further in the absence of the material with regard to issuance of cheque to Mir Riyaz, the complainant is also entitled to have a shelter u/S 118 of the N.I. Act. Further the defence of the accused that he has issued blank cheques is not sustainable in view of the provision u/S 20 of the N.I. Act. That apart, I have carefully perused the crossexamination of C.W.1 by the accused, it is 22 Crl.A. No.25111/2019 clear that, nothing has been elicited from the cross of C.W.1 to disbelieve the case of the complainant and nothing has been elicited by the accused in the crossexamination of C.W.1 to hold that the accused has rebutted the presumption available to the complainant.
22. I have gone through the bank statements of the complainant and passbook produced by the appellant in the evidence led by him before this appellate court marked at Ex.D.1. On perusal of the same, it is clear that, the findings of the trial court is based on the material evidence placed before it.
23. So, on perusal of the oral and documentary evidence of the complainant and accused it is clear that it is a fit case to avail the provision of Section 118 and 139 of the N.I. Act. Further accused has taken contention that he has issued blank cheques and same have been misused by the complainant by filing the false complaint. When the issuance 23 Crl.A. No.25111/2019 of cheques is admitted, then accused cannot escape from the liability by saying that he has issued blank cheques and complainant has misused the same, unless cogent evidence placed before the court about the misuse of the blank cheques. I have perused the cross of the complainant, nothing has been elicited from the cross of C.W.1 to disbelieve the case of the complainant. Now it is relevant to extract Section 20 & 118 of the N.I. Act, which reads thus:
"20. Inchoate stamped instruments.__ Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India] and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any 24 Crl.A. No.25111/2019 amount specified therein and not exceeding the amount covered by the stamp. The person signing shall be liable upon such instrument, in the capacity in which he signed the same to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder:
"118. Presumption as to negotiable instruments. Until the contrary is proved, the following presumptions shall be made:
(a) of considerationthat every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;25
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(b) as to datethat every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptancethat every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transferthat every transfer of a negotiable instrument was made before its maturity;
(e) as to order of indorsements that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamps that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due coursethat the holder of a negotiable instrument is a holder in due course;
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Crl.A. No.25111/2019 Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence of fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."
24. On reappreciation of oral and documentary evidence, it is clear that, the accused failed to rebut the presumption available to the complainant u/S 139 of N.I. Act. Further on documents produced by the complainant and on considering the admitted fact in the crossexamination of D.W.1 it can be safely held that the complainant has discharged his initial duty and proved the existence of legally recoverable debt and the accused has issued the cheques in question towards discharge of his liability. Thus, there is no 27 Crl.A. No.25111/2019 material placed by the accused to hold that the accused has rebutted the presumption and on perusal of the admitted facts, there is no question of misusing of cheques issued by the accused. Hence, presumption u/S 139 and 118 of the N.I. Act remained unrebutted.
25. On careful scrutiny of oral and documentary evidence, it is clear that except mere denial of the evidence of C.W.1 and the documents produced by the complainant there is no specific denial and no specific case has been made out by the accused to rebut the presumption u/S 139 and 118 of the N.I. Act. So, on perusal of the material placed before the court, perusal of judgment of the trial court, I am of the opinion that trial court committed no error in recording of conviction.
26. I have perused the documentary and oral evidence, led by both the parties and material placed before the court, it is clear that, trial court has recorded the plea by 28 Crl.A. No.25111/2019 framing accusation made against the accused and read over to the accused in the language known to him, accused not plead guilty and claimed to be tried. Further it is clear from the records of the trial court that trial court has recorded the statement of accused u/S 313 of Cr.P.C. I have carefully perused the documentary as well as oral evidence and I have reappreciated the same. On perusal of the same I am of the opinion that, trial court has rightly come to conclusion that, the appellant/accused has committed offence u/S. 138 of the N.I. Act. Hence, I answer points No.1 and 2 in the Affirmative.
27. POINT Nos.3 & 4: These two points are interconnected to each other, in order to avoid repetition, I proposed to answer these two points commonly. The defence of the accused is that he has taken loan of Rs.1,00,000/ from one Mir Riyaz and in order to repay the said amount, the accused has issued 3 blank signed cheques to the said Mir 29 Crl.A. No.25111/2019 Riyaz and said Mir Riyaz has colluded with complainant and given 3 cheques to the complainant and complainant has misused the said cheques by filing false complaint. Ofcourse, the accused has produced Ex.D.1 before the appellate court and led his evidence. I have perused Ex.D.1 produced by the appellant. I have perused Ex.D.1 Original Syndicate Bank Passbook stands in the name of accused, which reflects the entries of transaction from the date 26.10.2012 to 30.5.2013. As per chiefexamination of D.W.1/accused it is specific case of the accused that he had transaction with one Mir Riyaz and in the year 2015 he has taken loan of Rs.1,00,000/ from the said Mir Riyaz. For the security of the said loan, the accused has issued 3 blank signed cheques to the said Mir Riyaz and the complainant has colluded with said Mir Riyaz and taken said cheques from the said Mir Riyaz and filed this false case. To substantiate this defence the appellant/accused has led his evidence before this appellate court with 30 Crl.A. No.25111/2019 permission and produced Ex.D.1 Original Passbook. Ex.D.1 does not reflects the transaction between the accused and said Mir Riyaz for the period of 2015 and onwards. It reflects only the transaction between the said Mir Riyaz and the accused in respect of the period from 26.10.2012 to 30.5.2013. Thus, Ex.D.1 does not helps the accused to rebut the presumption with reference to defence taken by the accused in his evidence.
28. Thus, there is no material before the court to show that the accused had taken loan of Rs.1,00,000/ from one Mir Riyaz and in order to repay the same he had issued 3 cheques to the said Mir Riyaz. Thus, accused failed to prove the defence of transaction between the Mir Riyaz and him, atleast on basis of preponderance of probabilities. Except Ex.D.1 there is no material before the court with regard to transaction between the accused and Mir Riyaz. 31
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29. That apart, when it is specific case of the accused that he has a transaction with Mir Riyaz and issued cheques in question to the Mir Riyaz, then what prevents the accused to take necessary action even after receiving the legal notice from the complainant. The accused has admitted that even after receiving the notice from the complainant he has not taken any action against the said Mir Riyaz for misuse of cheques by giving the same to the complainant. It is relevant to extract cross of D.W.1 dated 21.2.2019, page4, at last lines, which reads thus:
"ಫಯಹರದದಹರರಸದ ನಚನಮಟಮಸರ ಬಸದನಸತರ ನಹನರ ಮಮರ ರಯಹಜ ರವರಗಚ ನನನ ಚಚಕಕನ ಕರರತರ ?ಯಹವವದಚಮ ವಚಹರಣಚಯನರನ ಮಹಡಲಲ."
30. That apart, when defence of the accused that Mir Riyaz has given the cheques to the accused and accused has misused the cheques, then what prevents the accused to examine the said Mir Riyaz in order to rebut the presumption available to the complainant. On perusal of the oral evidence 32 Crl.A. No.25111/2019 extracted supra and on perusal of Ex.D.1 discussed supra it is clear that the accused failed to rebut the presumption available to the complainant.
31. I have gone through the reasonings given by the trial court for awarding the compensation u/s 357 of Cr.P.C. On going through the same, it is clear that trial court has considered the facts and circumstances of the case and awarded the compensation to the complainant. On perusal of the observation made, reasoning assigned by the trial court, for awarding the compensation, I am of the opinion that the trial court has awarded the compensation in accordance with the principle laid down by the Hon'ble Apex Court in the decision reported in (1988) 4 SCC 551 in case of Hari Singh v/s Sukbhir Singh.
The lordships have held that; power given to the court to direct for payment of compensation is intended to do something for the victim. The provision was held to be a step 33 Crl.A. No.25111/2019 forward in our criminal justice system. The lordships have made the observation in the said decision at para No.10, which reads thus;
"It empowers the court to award compensation to victim while passing judgment of conviction, in addition to conviction, the court may order the accused to pay some amount by way of compensation to the victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not a ancillary to other sentence but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with a constructive approach to crimes. It is indeed a step forward 34 Crl.A. No.25111/2019 in our criminal justice system. We therefore, recommend to all courts to exercise this power liberally, so as to meet the ends of justice in a better way."
32. Further I relied on the decision reported in 2005 (1) KLT 478 in case of General Auto Sales v/s Vijayalakshmi, in the said decision the lordship have held that even blank cheque issued for discharge of liability or as a security, under such circumstances also the liability subsists and same is presented to the bank for encashment, the person who had drawn the cheque cannot escape from the liability fixed u/s 138 of N.I. Act.
33. Hence, on going through all the circumstances of the case, I am of the opinion that, the trial court has considered the admitted facts and oral and documentary evidence, led by both the parties, with reference to fact in dispute. Hence, I hold that the trial court rightly hold the 35 Crl.A. No.25111/2019 guilty of the accused of offence punishable u/S 138 of N.I. Act. Thus, the accused failed to rebut the presumption available to the complainant atleast on basis of preponderance of probabilities. With these reasons, the conviction order, recorded by the trial court is confirmed, and does not warranted the interference of this court. Hence, I answer points No.3 and 4 in the Negative.
34. POINT No.5: In view of the discussion made on point Nos.1 to 4, I proceed to pass the following: ORDER Acting u/S 386 of Cr.P.C.
the appeal preferred by the appellant/accused is hereby dismissed.
Consequently, the judgment and order of conviction and sentence, dated 26032019, passed by learned XIV ACMM, Mayohall Unit, Bangaluru, in CC 36 Crl.A. No.25111/2019 No.53842/2018, (common judgment passed in CC No.53842, 53843 & 53844/2018), is hereby confirmed.
The suspension order, dated 26.04.2019, passed by this court, on the application filed u/S 389 of Cr.P.C. stands canceled.
No order as to costs.
Office is directed to send TCR to the trial court with copy of the judgment.
(Dictated to the Stenographer, on computer, after computerization, corrected and pronounced by me in the Open Court, this the 17th day of May, 2021) (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, B'luru.(CCH74)