Bangalore District Court
Aged About 38 Years vs Aged About 66 Years on 3 February, 2022
0 Crl.A.No.2064/2018
1 Crl.A.No.2064/2018
KABC010285982018
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
.
Dated this the 3 day of February, 2022
rd
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
Crl.A.No.2064/2018
Accused/ Umashankar
Appellant : Aged about 38 years,
S/o Venkatappa H.P.,
R/at No.55, 3rd Floor,
'A' Block, No.203, Sukruthi
Simhadri Layout, Varadarajanagar,
Singasandra Village, Bengaluru-560097.
(By Sri.Madhu S., Advocate)
-V/S-
Complainant/ M.Narasimha Murthy
Respondent: Aged about 66 years,
S/o of Muninarasappa,
R/at No.99, Sasuveghatta Village,
Chikkabanavara Post, Bengaluru-560090.
(By Sri.C.R.S., Advocate)
JUDGMENT
This appeal is filed by the Appellant praying to set aside the judgment dated 14.09.2018 passed by the learned 20th 2 Crl.A.No.2064/2018 Addl. Small Causes Judge and 18 th ACMM, Bengaluru and M.A.C.T., (SCCH-22), Bengaluru in C.C.No.1900/2018 and prayed to acquit him in the said case.
2. The appellant of this appeal was the accused before the Trial Court. The respondent of this appeal was the complainant before the Trial court. The rank of the parties to this appeal will be hereinafter referred to with the same rank as assigned to them before the trial court for the sake of convenience.
3. The brief facts which leads to file this appeal in nutshell are as follows:
The complainant had filed private complaint before the trial court bearing PCR No.1895/2018 against the accused alleging the commission of offence punishable u/Sec.138 of N.I. Act. It is alleged in the private compliant before the trial court that the accused is the friend of complainant and he had borrowed hand loan of Rs.7,00,000/- from the complainant during 1 st week of August 2016 to meet out his family necessities and commitments. The accused had agreed to repay the said loan amount within 16 months or whenever demanded. Inspite of several oral request and demands by the complainant, the accused had failed to repay the hand loan amount. In the month of 1st week of January 2018, the accused had issued cheque bearing No.546191, dated 19.01.2018, drawn on Syndicate Bank, Gangamma Circle, Jalahalli, Bengaluru for a sum of Rs.7,00,000/- to the complainant. The complainant has presented the said cheque for encashment through his banker.3 Crl.A.No.2064/2018
The said cheque was dishonoured by the accused bank with endorsement "Payment stopped by the drawer". Thereafter, the complainant had issued legal notice to the accused on 24.02.2018 through RPAD by informing about dishonour of cheque and demanding the payment of cheque amount. The said RPAD notice was returned with shara intimation delivered on 01.03.2018. The accused had not paid the cheque amount.
Hence, the complainant has alleged before trial court that the accused had committed the offence punishable u/Sec.138 of N.I. Act.
4. After filing of the complaint, the trial court took cognizance for the offence punishable u/Sec.138 of N.I.Act against the accused. Thereafter the trial court has recorded the sworn statement of the complainant. The complainant had adduced his sworn statement as C.W.1 before the trial court. The trial court after perusing the private compliant, sworn statement of the complainant and the documents produced by him was pleased to registered criminal case against the accused in CC.No.1900/2018 for the offence punishable u/Sec. 138 of N.I. Act and issued summons to the accused.
5. The accused had appeared before the trial court after the service of summons and he was enlarged on bail. On appearance of the accused before the trial court, the trial court had recorded the plea of accused for the offence u/Sec.138 of N.I.Act. The accused pleaded not guilty and claimed to be tried. Hence, trial court has posted the matter for evidence of the complainant.
4 Crl.A.No.2064/20186. In order to prove the allegations made in the complaint, the complainant had adduced his oral evidence as P.W.1. P.W.1 had produced 5 documents and got them marked as Ex.P.1 to P.5. Thereafter, the trial court had recorded the statements of the accused u/Sec.313 of Cr.P.C. The accused has denied all the incriminating evidence appearing against him and he has chosen to lead his defence evidence. The accused had adduced his oral evidence as D.W.1. D.W.1 has produced 9 documents on his behalf and got them marked as Ex.D.1 and D.9. Then the matter was posted by the trial court for arguments.
7. The trial court, after hearing the arguments and after perusing the oral and documentary evidence was pleased to pass the judgment dated 14.09.2018 by convicting the accused for the offence punishable u/Sec.138 of N.I. Act. The trial court has sentenced the accused to undergo simple for a period of 6 months and to pay fine of Rs.7,00,000/- and in default of payment of fine amount he shall undergo simple imprisonment for 2 months. The trial court has directed to pay Rs.6,90,000/- out of the said fine amount as compensation to the complainant and to forfeit remaining Rs.10,000/- amount towards fine. The accused being aggrieved by the said judgment of the trial court has preferred this appeal.
8. Grounds of appeal in nutshell as urged in the appeal memorandum are as follows:-
(a) The trial court is erred in not considering the fact that the service of notice to the appellant is not sufficient. The respondent has given false address of the appellant before the 5 Crl.A.No.2064/2018 trial court. The trial court has not considered the present and permanent address of the appellant as stated in the Ex.D.3 to D.9.
(b) The trial court has failed to appreciate that the respondent has not complied the provisions of Sec.138, 139 and 142 of N.I.Act. The trial court erred in holding that appellant has admitted Ex.P.1 cheque and his signature on Ex.P.1 cheque. The appellant has lost the cheque in question and he has also given complaint to his banker regarding the same. The appellant has also complaint to Commissioner of police about the said fact.
(c) The learned Magistrate is erred in coming to the conclusion that the appellant has not produced the copy of complaint. Mere production of complaint does not amount to falsify the case of the accused. The trial court shall appreciate the material placed by both the parties on record. The trial court has erred in come to the conclusion that complainant had proved all necessary ingredients of Sec.138 of N.I.Act.
(d) The learned Magistrate erred in holding that in Ex.D.3, there is no mention about on which date and at what place and at what time the cheque was lost by the appellant. The learned Magistrate at one stretch has stated that accused has not produced complaint copy and at another stretch the learned Magistrate stated that there is no mention about details of loss of cheque in the complaint.
(e) The learned Magistrate failed to note that the complainant has not full-filled the ingredients of Sec.138 of 6 Crl.A.No.2064/2018 N.I.Act and he has not complied the statutory provisions mandated under the negotiable instrument act.
(f) The learned Magistrate failed to asses the evidence of appellant with regard to its mode of business and also failed to considered the documents produced by the appellant in 'D' series.
(g) The trial court has not properly appreciated the authorities produced by the counsel for the appellant even though they are very much applicable to the case of the appellant.
(h) The trial court has not considered the materials on record in proper perspective. The trial court acted unilaterally and arbitrarily. The impugned order of imposing fine on the appellant is unsustainable and appose to all canons of law.
(I) The impugned order of the trial court imposing fine and sentence is not maintainable either in law or on facts of the case. As such, it is liable to be set aside and accused is liable to be acquitted for the offence punishable u/Sec.138 of N.I.Act.
On these among other grounds stated in the appeal memorandum, the appellant has prayed to set aside the order of the trial court.
9. After filing of the appeal, it is registered as Crl.A.No.2064/2018 and notice was issued to the respondent. After service of the notice, the respondent was appeared through his counsel. Thereafter, the lower court record was 7 Crl.A.No.2064/2018 called for. After receipt of lower court record, the matter was posted for arguments.
10. Heard the arguments of the Learned counsel for the appellant and respondent. Perused the appeal memorandum, trial court records and other materials on record.
11. Having done so, the following points will arise for my consideration:
(1) Whether the appellant proves that the trial court is erred in convicting the accused/appellant for the offence punishable u/s.138 of N.I.Act ?
(2) Whether the appellant proves that the interference of this court is required with the impugned judgment of the trial court?
(3) Whether the appeal filed by the appellant is deserves to be allowed?
(4) What order?
12. My findings on the above points are as under:
(1) Point No.1 .. In the Negative
(2) Point No.2 .. Partly Affirmative
(3) Point No. 3 .. Partly Affirmative
(2) Point No.4 .. As per final order
for the following:
REASONS
13. Point No.1 to 3:- These three points are
interrelated to each other and as such, they are taken together for discussion to avoid repetition of facts.
8 Crl.A.No.2064/201814. The complainant had filed private complaint before the trial court u/Sec.200 of Cr.P.C. by alleging the commission of offence u/Sec.138 of N.I.Act by the accused. Since the complainant had alleged that the accused had committed the offence punishable u/Sec.138 of N.I.Act, it is for the complainant to prove all the essential ingredients of Sec.138 of N.I.Act. Hence, it is relevant to note down the provisions of Sec.138 of N.I.Act herein, in order to know its essential ingredients.
Sec.138 of N.I. Act provides as follows:
"Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque or with both. "
15. Thus from reading the aforesaid section, it is clear that the complainant has to prove the following essential ingredients for holding the accused guilty of offence under the said section.
9 Crl.A.No.2064/2018(a) The cheque has been drawn by the accused on Bank account which is maintained by him with a particular Banker.
(b) The amount of money mentioned in the cheque is for discharging the legal liability either wholly or partially and
(c) The cheque is dishonoured or it is returned unpaid due to insufficiency of funds etc.,
16. In order to prove the allegations made in the complaint, the complainant had adduced his oral evidence as P.W.1. P.W.1 in his examination-in-chief filed by way of affidavit has stated that the accused had availed hand loan of Rs.7,00,000/- from him during 1st week of August 2016 to meet out his family necessities and other commitments. P.W.1 has further stated in the examination-in-chief that the accused had assured to return the said amount within 16 months or whenever demanded. P.W.1 has further stated in the examination-in-chief that when he demanded to make repayment of hand loan amount, the accused had issued cheque bearing No.546191, dated 19.01.2018, drawn on Syndicate Bank, Gangamma Circle, Jalahalli, Bengaluru for sum of Rs.7,00,000/- in his favour. P.W.1 has further stated in the examination-in-chief that he had presented the said cheque for realization through his banker i.e., Vijaya Bank, Chikkabanavara, Bengaluru. The said cheque was returned with endorsement by the accused bank on 25.01.2018 on the ground that "Payment stopped by the drawer". P.W.1 has further stated in the examination-in-chief that on 24.02.2018 he had issued legal notice to the accused by RPAD and same 10 Crl.A.No.2064/2018 was returned with shara "Intimation delivered". P.W.1 has further stated in the examination-in-chief that the accused has not paid the cheque amount and thereby committed the offence punishable u/Sec.138 of the N.I.Act.
17. P.W.1 apart from adducing his oral evidence has produced certain documents. He has produced the original cheque issued by the accused bearing No.546191, dated 19.01.2018, drawn on Syndicate Bank, Gangamma Circle, Jalahalli, Bengaluru at Ex.P.1. Ex.P.1(a) is the signature of the accused. Ex.P.2 is the bank endorsement. In Ex.P.2, it is mentioned that Ex.P.1 cheque is dishonoured due to "Payment stopped by the drawer". P.W.1 has produced the office copy of legal notice dated 24.02.2018 issued by him to the accused at Ex.P.3. Ex.P.4 is the postal receipt of the said legal notice. Ex.P.5 is the unserved RPAD postal cover. It is mentioned on the said cover that intimation is delivered to the party.
18. During the course of cross-examination of P.W.1, the accused has not disputed the fact that Ex.P.1 cheque is belonging to him and it was drawn from the account maintained by him with his bank. Further the accused accused has not denied his signature on Ex.P.1 cheque. During the course of cross-examination of P.W.1, has taken the defence that the complainant has mis-utilized the cheque which was lost by the accused by filling the contents of the cheque. But D.W.1, during the course of his chief-examination has denied his signature on Ex.P.1 cheque. But D.W.1 in his cross- examination, has admitted that the signature on the cheque is 11 Crl.A.No.2064/2018 his signature and the amount in the cheque is in his handwriting. Further Ex.P.1 cheque is not returned by the accused banker on the ground of difference in signature of drawer. Further accused has also not made any efforts to get the opinion of handwriting experts about the signature found on Ex.P.1. As such, I am of the opinion that the accused has failed to prove that the signature found on Ex.P.1 is not his signature. As such, I do not find any merits in the contention of the appellant that the learned Magistrate is erred in coming to the conclusion that Ex.P.1(a) signature is the signature of the accused. The accused has failed to adduced sufficient evidence to prove that Ex.P.1(a) signature is not his signature and it is forged signature.
19. Since the complainant has proved before the trial court that Ex.P.1 cheque is belonging to him and the said cheque bears his signature and it was drawn from the bank account maintained by the accused and since the said cheque was presented by the complainant for encashment, I am of the opinion that the complainant will became the holder of the cheque within the meaning of Sec.8 of N.I.Act. Once a cheque is issued by the drawer, a presumption under Sec.118(a) r/w. S.139 of N.I.Act must follow.
Sec.118(a) of N.I.Act provides as follows:
"Until the contrary is proved, the following presumption shall be made
(a) That every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, endorsed, negotiated or transferred was 12 Crl.A.No.2064/2018 accepted, endorsed, negotiated or transferred for consideration."
Sec.139 of N.I.Act provides as follows:
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Sec.138 for the discharge, in whole or in part, of any debt or other liability.
20. Thus, u/s.139 of N.I.Act, the initial presumption arises in favour of the complainant that the said cheque was issued for discharge of legally enforceable debt. Once the cheque is proved to be relating to the account of the accused and he admits the signature on the said cheque, then the initial presumption as contemplated u/Sec.139 of N.I.Act has to be raised by the court in favour of the complainant. Further u/Sec.118(a) of N.I.Act there is presumption that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted for consideration. Presumption u/Sec.118(a) and 139 of N.I.Act is a legal presumption and it is a mandatory presumption. The initial mandatory statutory presumption as provided u/Sec.118 r/w. S.139 of N.I.Act are in favour of the complainant.
21. In the recent decision of Hon'ble Supreme Court of India reported in (2021) 5 Supreme Court cases 283 :
2021 Online SC 75 (Kalamani Tex and another V/s P.Balasubramanian, rendered by Hon'ble three judges bench, the Hon'ble Supreme Court of India has discussed 13 Crl.A.No.2064/2018 about the provisions of Sec.139 and 118 of N.I.Act. In the said judgment, the Hon'ble Supreme Court of India has held in Para No.13 while discussing the provisions of Sec.118 and 139 of N.I.Act, that the statute mandates that once the signature of an accused on the cheque is established, then these "reverse onus" clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him.
22. Further in the aforesaid judgment, the Hon'ble Supreme Court of India in Para No.15 has observed that the presumption raised u/Sec.118 and 139 of N.I.Act are rebuttable in nature. A probable defence needs to be raised, which must meet the standard of "preponderance of probability", and not mere possibility. Further, a bare denial of passing of consideration would not aid the case of the accused. In Para No.17 of the judgment, the Hon'ble Supreme Court of India has held that even if the arguments raised by the appellants are taken at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated, because, legally, even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. In the aforesaid judgment, in Para No.14, the Hon'ble Supreme Court of India has held that when the accused has admitted his signature on the cheque 14 Crl.A.No.2064/2018 and the deed, the trial court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. It is further observed that the trial court fell in error when it called upon the respondent complainant to explain the circumstances under which the appellants were liable to pay. It is further observed that, such approach of the trial court was directly in the teeth of the established legal position and amounts to a patent error of law.
23. Thus from the aforesaid decision of Hon'ble Supreme Court of India in Kalamani Tex case, it is clear that once the accused admits his signature on the cheque, it can be presumed u/Sec.139 of N.I.Act that the cheque was issued for discharge of legally enforceable debt. The court cannot insist the complainant to explain the circumstances under which the accused is liable to pay the cheque amount.
24. Thus from the provisions of Sec.118(a) and Sec.139 of N.I.Act, it is clear that the court shall raise presumption in favour of the complainant that he has received the cheque in question for discharge of legal liabilities and cheque was made and drawn for said purpose. This principles is also clearly held by the Hon'ble Supreme Court of India in Kalamani Tex case as discussed above. The burden is upon the accused to adduced satisfactory evidence to rebut the strong presumption as provided u/Sec.118 and Sec.139 of N.I.Act. Hence, the contention of the Learned counsel for the appellant that the burden is upon the complainant to prove his source of income to lend money to the accused and the 15 Crl.A.No.2064/2018 burden is upon the complainant to prove the existence of legally enforceable debt cannot be acceptable one.
25. In order to rebut the presumption u/Sec.139 of N.I.Act, the accused had adduced his defence evidence before the trial court as D.W.1. D.W.1 in his examination-in-chief has stated that he gave complaint to Syndicate Bank, Jalahalli, as per Ex.D.3. He has also stated in his examination-in-chief that when he went to lodge complaint about missing of cheque to Vidyaranyapura police station, they have not took his complaint and as such, he had sent the complaint to Police Commissioner through registered post and he has produced the postal receipt at Ex.P.5. D.W.1 in his examination-in-chief has admitted that the amount on Ex.P.1 cheque was written by him and he wrote the year on Ex.P.1 as 2016 and it was corrected as 2018. D.W.1 in his examination-in-chief has stated that Ex.P.1 cheque was lost by him when he was carrying the said cheque in order to give the same to Sundaram B.S.P. Carry Bag Home Finance Limited.
26. As it is rightly observed by the trial court, D.W.1 in his examination-in-chief has not specifically mentioned the date on which the accused was carrying Ex.P.1 cheque. Further D.W.1 has not specifically mentioned the place where he had lost Ex.P.1 cheque. D.W.1 in his examination-in-chief has not specifically mentioned the date on which he had went to Vidyaranyapura police station to lodge the complaint about missing of cheque. Further the accused has not produced any materials to show that on which date he went to Vidyaranyapura police station to lodge the complaint about 16 Crl.A.No.2064/2018 missing of cheque. During the course of cross-examination of D.W.1 also, the accused has not specifically suggested the date on which he had lost his cheque. But it was suggested that on 23.12.2016, accused gave stop payment mandate to his bank. The accused has also not suggested to P.W.1 during the course of cross-examination about the date on which he had gone to Vidyaranyapura police station to lodge the complaint about missing of cheque and on which date he had sent complaint of Commissioner of police about missing of cheque.
27. Ex.D.3 produced by the accused is dated 23.12.2016. But there is no bank endorsement to show that the said letter was received by the bank on 23.12.2016. Ex.D.3 is the stop payment mandate issued by the accused regarding cheque bearing No.290073546191 dated 23.12.2016. It is stated in the said letter that the accused while travelling had lost the said cheque and hence he had requested his banker not to honour the said cheque. In Ex.D.3 also the date on which the cheque was lost by the accused is not mentioned. There is over writing in the cheque number. Further the cheque amount is also seems to have been written later. In Ex.D.3, there is reference about cheque dated 23.12.2016. Whereas Ex.P.1 cheque is dated 19.01.2018. In Ex.D.3 there is no reference about accused carrying the said cheque in order to give it to Sundaram B.S.P. Carry Bag Home Finance Limited.
17 Crl.A.No.2064/201828. According to the accused, Ex.D.5 is the copy of complaint given by him to Commissioner of Police about missing of cheque on 27.06.2018. Whereas Ex.D.3 stop payment mandate was given by the accused on 23.12.2018. The accused has given complaint to the commissioner of police after lapse of two years from the date of giving of alleged stop payment mandate. The accused has not got marked complaint given by him to the commissioner of police about missing of cheque, in support of Ex.D.5 postal receipt. But xerox copy of one complaint given to Commissioner is found in the record. In the said complaint, it is mentioned that on 23.12.2016, he had lost cheque No.290073546191 and on the same day he had given complaint to the bank. It is also stated in the said complaint that one unknown person had called him on 23.06.2018 one unknown accused made phone call to him and called him and the said unknown person told him that he gave the said cheque to the complainant. It is further stated in the complaint that thereafter he went Jalavalli police station to lodge the complaint and police have not took his complaint.
29. Even though the said complaint given to Commissioner was not marked, from the said complaint it is clear that the accused had gone to Jalahalli police station after 26.03.2018 after he received the alleged call from unknown person. Thus it is clear that the accused has not made any attempt to lodge complaint to jurisdictional police about alleged missing of Ex.P.1 cheque by him immediately after he lost the same. In the chief-examination of D.W.1 also there is 18 Crl.A.No.2064/2018 no reference about lodiging of complaint immediately after he lost the cheque. But D.W.1 has stated that he went to Vidyaranyapura police station after police have arrested him in the case before the trial court. D.W.1 in his examination-in- chief has not deposed anything about unknown person calling him through phone on 23.06.2018 and stated about he giving missed cheque belonging to the accused to the complainant. Further D.W.1 has not deposed anything about he visiting Jalahalli police station as mentioned in complaint given to the Commissioner. What was the impediment for the accused to lodge the complaint immediately on the date when he had lost the cheque is not properly explained by the accused.
30. The accused has failed to adduce any sufficient evidence to prove that Ex.P.1 cheque was lost by him on particular date. The accused has not examined the bank authorities to prove his contention that when he gave stop payment mandate to his bank about missing of Ex.P.1 cheque. There are sufficient materials on record to accept the contention of the accused that he lost Ex.P.1 cheque and it was found by the complainant. The said defence of the accused cannot be acceptable one without any sufficient evidence to prove the said defence.
31. The accused has failed to adduce any sufficient materials on record to prove his contention that he was carrying Ex.P.1 to give it to Sundaram B.S.P. Carry Bag Home Finance Limited. The accused has not produced any documents to show that he has got business transactions with Sundaram B.S.P. Carry Bag Home Finance Limited and he was 19 Crl.A.No.2064/2018 due to the tune of Rs.7,00,000/- to said finance limited. D.W.1 in his cross-examination has stated that he was no impediment to lodge the complaint to the police on the date when he had lost the cheque. He has stated that he had no knowledge about giving the complaint to the police. But the said contention of the accused cannot be believed. When he had got knowledge about giving stop payment mandate to his banker not to honour Ex.P.1 cheque on the ground that it was missed by him, definitely he would have got knowledge about giving the police complaint regarding missing of cheque. D.W.1 in his cross-examination has stated that he has got document to show that on the said date he was going to Sundaram B.S.P. Carry Bag Home Finance Limited. D.W.1 in his cross-examination has stated that in Ex.D.4 bank statement there is no reference about transfer of money to said finance limited. But he has voluntarily stated that on the said date more than one transaction was took place and as such, there is mention about bulk transfer. But in order to prove the said contention the accused had not examined the bank authorities. He has not produced any documents to show that he has not paid Rs.7,00,000/- to said finance on 26.03.2016 or on subsequent dates. Ex.D.4 to D.7 produced by the accused are also not sufficient to prove the contention of the accused that he was due Rs.7,00,000/- to said finance and in order to pay the said amount he was carrying Ex.P.1 cheque. Further the accused has also not examined any persons of Sundaram Finance Limited to prove his contention that he had gave Ex.P.1 cheque amount to them after he lost Ex.P.1 cheque. Under these facts and circumstances, I am of the opinion that 20 Crl.A.No.2064/2018 the defence of the accused that he was carrying Ex.P.1 cheque in order to gave the same to Sundaram Finance Limited cannot be acceptable one.
32. The accused had failed to adduce sufficient believable evidence to prove his contention that he was carrying the said cheque to gave it to Sundaram B.S.P. Carry Bag Home Finance Limited and complainant had mis-utilized the said cheque and filed false complaint against him. For the discussions made above, the defence evidence adduced on behalf of the accused cannot be considered as probable evidence to rebut the presumption u/Sec.118(a) and 139 of N.I.Act. The accused has failed to prove his probable defence as stated in the his chief-examination and as put to P.W.1 during the course of cross-examination with sufficient oral and documentary evidence.
33. On the other hand, the complainant had adduced his oral evidence before the trial court and stated that the accused had borrowed hand loan of Rs.7,00,000/- from his during 1st week of August 2016 and he had paid the said amount by withdrawing the same from his bank account. The copy of pass book is also produced by the complainant. But the same is not got marked. P.W.1 in his cross-examination has stated that he has no impediment to produce his bank statement. But only on the ground that the complainant has not produced his bank statement, the entire case of the complainant cannot be disbelieved. As it is discussed earlier, as per the decision of Hon'ble Supreme Court of India in Kalamani Tex's case, it is for the accused to prove that he has 21 Crl.A.No.2064/2018 not issued the cheque for discharge of his legal liability and to prove how the cheque came in possession of the complainant. As it is discussed earlier, the accused has failed to prove that the cheque was not issued by him to the complainant for discharge of his legal liability of payment of hand loan and it was lost by him.
34. Further only on the ground that the complainant is not an income tax assessee and only on the ground that he has not mention the fact of lending of hand loan of Rs.7,00,000/- in cash to the accused to the income tax authorities, the case of the complainant cannot be disbelieved. It is for the income tax authorities to take proper legal action against the complainant for not intimating the same to them and for violation of any of the provision of income tax act. The appellant in the appeal memorandum has stated that there is alteration in the year in Ex.P.1 cheque. The said suggestion was put to P.W.1 during the course of cross-examination. The same was admitted by P.W.1, but he has stated that accused himself as done the same. He has also stated that the accused has put his signature regarding the correction. In Ex.P.1 the signature of accused is found in two places. Though the accused has denied his two signatures on Ex.P.1 cheque, as it is discussed earlier, the accused has failed to prove that the signature found on top of Ex.P.1 cheque below the date is not his signature. Further Ex.P.1 cheque was not dishonoured by the accused bank on the ground of any material alteration. The accused has failed to adduce sufficient evidence to prove that the complainant had 22 Crl.A.No.2064/2018 altered the year in Ex.P.1 cheque. Further u/Sec.20 of N.I.Act the holder of the cheque has authority to make or complete the blank cheque as a negotiable one. The accused has not initiated any criminal proceedings from 2018 onwards against the complainant by alleging the offence forgery and cheating. As such, I am of the opinion that the case of the complainant cannot be disbelieved on the ground of material alteration of the cheque as contended by the appellant.
35. The appellant has contended that the legal notice issued by the complainant is not served upon him and the complainant had intentionally given false address and he is residing in the address mentioned in Ex.D.1. Ex.D.1 is the gas bill payment receipt. The said bill is not in the name of accused. It is in the name of one Venkatesh H. The accused had not produced the gas book or the application submitted by him containing his address in support of Ex.D.1. Further the accused has not produced his Adhaar card to prove his correct address as on the date of issuance of legal notice. Ex.P.3 legal notice was served by the complainant through RPAD. RPAD cover was return with shara intimation delivered. But it is not returned with share insufficient or incorrect address. The accused has not produced any document to prove where exactly he was residing as on 24.02.2018. Ex.D.1 it cannot be considered as substantial document to accept the contention of the accused that he was not residing in the address mentioned in Ex.P.3 and P.5 documents. The accused has also not produced his bank pass book, voter ID card and other public documents to prove his correct address as on the date 23 Crl.A.No.2064/2018 of issuance of legal notice. Under these facts and circumstances, the contention of the accused that the legal notice was sent to wrong address cannot be acceptable one. In view of postal shara on Ex.P.5, presumption u/Sec.27 of General Clauses Act can be raised regarding proper service of legal notice. Further in view of the decision of Hon'ble Supreme Court of India reported in (2007) 6 SCC 555 (C.C.Alavi Haji V/s Palapetty Muhammed and another). The defence of the accused that no proper service of legal notice was done cannot be acceptable one.
36. The complainant has adduced sufficient evidence before the trial court to prove all the necessary ingredients of Sec.138 of N.I.Act. Further the statutory legal presumption u/Sec.118(a) and 139 of N.I.Act is in favour of the complainant. As it is discussed earlier, the accused has failed to adduce probable believable evidence to rebut the presumption u/Sec.118(a) and 139 of N.I.Act. As such, I am of the opinion that the trial court has rightly held that the complainant has proved his case and proved that the accused has committed the offence punishable u/Sec.138 of N.I.Act.
37. Under these facts and circumstances, I am of the opinion that from the oral evidence of P.W.1 and from the documentary evidence adduced on its behalf and from the legal presumption under Sec. 118(a) and 139 of N.I. Act, it can be come to the conclusion that the accused had issued Ex.P.1 cheque for discharge of his legal liability repayment of loan amount of Rs.7,00,000/- to the complainant. The accused had 24 Crl.A.No.2064/2018 failed to adduce any sufficient probable defence evidence to rebut the strong legal presumption under Sec.118(a) and 139 of N.I.Act. On the grounds urged by the learned counsel for the appellant, it cannot be come to the conclusion that the accused has rebutted the strong presumption existing in favour of the complainant under Sec.118(a) and 139 of N.I.Act.
38. Under these facts and circumstances, I am of the opinion that the trial court has rightly come to the conclusion that the accused has committed the offence punishable u/Sec.138 of N.I.Act. The trial court has properly and judiciously discussed the case of the complainant and the accused and the oral and documentary evidence on record and has come to proper and legal conclusion that the accused had committed the offence punishable u/Sec.138 of N.I. Act. As such, I do not find any ground to interfere with the said finding of the trial court by holding that the accused had committed the offence punishable u/Sec.138 of N.I. Act.
39. The trial court has sentenced the accused to undergo simple imprisonment for a period of 6 months and to pay fine of Rs.7,00,000/- and in default of payment of fine, the accused shall undergo simple imprisonment for the priod of two months. The complainant had not challenge the sentence imposed by the trial court. Whereas the accused has challenged the sentence of imprisonment and fine imposed by the trial court. U/Sec.138 of N.I.Act, the learned Magistrate has got discretionary power to sentence the accused to undergo imprisonment for the period up to two years or to 25 Crl.A.No.2064/2018 impose fine which may extend to twice the amount of the cheque or with both. The learned Magistrate by exercising his discretion has sentenced the accused to undergo simple imprisonment for 6 months and to pay fine of Rs.7,00,000/-. The discretion exercise by the learned Magistrate so far as imposition of fine is concerned seems to be proper and judicious having considered the facts and circumstances of the case. But so far as sentencing the accused to undergo imprisonment for the period of 6 months is concerned, I am of the opinion that interference of this court is required. By looking into the main object and intention of legislation in incorporating Sec.138 of N.I.Act and by looking into the facts and circumstances of the case before the trial court, I am of the opinion that the imposition of sentence of imprisonment passed by the trial court can be set aside and the accused may be sentence to pay fine of Rs.7,00,000/-. As such, I am of the opinion that the impugned judgment of the trial court is partly deserves to confirmed and the appeal filed by the appellant is partly deserves to be allowed. The appellant has failed to prove Point No.1. Accordingly, I answer Point No.1 in Negative. The appellant has partly proved Points No.2 and 3. Accordingly, I answer Points No.2 and 3 in partly Affirmative.
40. Point No.4:- In view of my findings on point No.1 to 3, I proceed to pass the following:
ORDER The Appeal filed by the appellant u/s.374(3) of Cr.P.C., is hereby partly allowed.26 Crl.A.No.2064/2018
The order passed by learned 20th Addl. Small Causes Judge and 18th ACMM, Bengaluru and M.A.C.T., (SCCH-22), Bengaluru, dated 14.09.2018 in C.C.No.1900/2018 is hereby partly confirmed and modified as follows:
" The accused is found guilty for the offence punishable u/Sec.138 of N.I.Act and hence, he is convicted under Section 255(2) of Cr.P.C.
The accused is hereby sentenced to pay fine of Rs.7,00,000/- for the above said offence. In default of payment of fine amount, the accused shall undergo simple imprisonment for a period of two months.
Further, it is held that, out of the fine deposited by the accused, the accused is also liable to pay the compensation amount of Rs.6,90,000/- to the complainant within three months from the date of this order and the remaining fine amount of Rs.10,000/- is to be confiscated to the state."
Send back the lower court records along with copy of this order.
(Dictated to the Stenographer directly on computer, corrected and then pronounced by me in the open court on this the 3 rd day of February, 2022).
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.
27 Crl.A.No.2064/2018Judgment pronounced in the open court (vide separate order) ORDER The Appeal filed by the appellant u/s.374(3) of Cr.P.C., is hereby partly allowed.
The order passed by learned 20th Addl. Small Causes Judge and 18th ACMM, Bengaluru and M.A.C.T., (SCCH-22), Bengaluru, dated 14.09.2018 in C.C.No.1900/2018 is hereby partly confirmed and modified as follows:
28 Crl.A.No.2064/2018" The accused is found guilty for the offence punishable u/Sec.138 of N.I.Act and hence, he is convicted under Section 255(2) of Cr.P.C.
The accused is hereby sentenced to pay fine of Rs.7,00,000/- for the above said offence. In default of payment of fine amount, the accused shall undergo simple imprisonment for a period of two months.
Further, it is held that, out of the fine deposited by the accused, the accused is also liable to pay the compensation amount of Rs.6,90,000/- to the complainant within three months from the date of this order and the remaining fine amount of Rs.10,000/- is to be confiscated to the state."
Send back the lower court records along with copy of this order.
LII Addl. City Civil & Sessions Judge, Bangalore.