Bangalore District Court
/ Accused : 1 M/S.Somanu Batteries vs / : Mr.Prashanth Rao on 21 January, 2023
1
Crl.A. No.635/2021
KABC010209382021
IN THE COURT OF THE LXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-62)
Dated this the 21 st day of January, 2023
PRESENT :-
Sri R.RAVI, B.Sc., LL.B.,
LXI Addl. City Civil & Sessions Judge,
Bangalore, (CCH-62)
Criminal Appeal No.635 /2021
Appellant / Accused : 1 M/s.Somanu Batteries
Rep. by Mr.Venugopal
Office at No.933, Uttarahalli
Kengeri Road
Rajarajeshwarinagar
Bengaluru-560 098.
2 Mr.Venugopal
M/s.Somanu Batteries
Office at No.933, Uttarahalli
Kengeri Road
Rajarajeshwarinagar
Bengaluru-560 098.
(By Sri.S.B., Advocate)
V/s.
2
Crl.A. No.635/2021
Respondent / : Mr.Prashanth Rao
Complainant S/o.Late Surya Prakash Arkal
Rao
Aged about 48 years
R/a.No.25/1, 4th Main
M.S.Ramaiah City
JP Nagar
Benglauru.
(By Sri.H.S.S., Advocate)
JUDGMENT
This is an Appeal one filed by the appellants under section 374(3) of Cr.P.C., against the judgment dated 30.07.2021 one passed by the learned SCCH-8 & XII Addl. Chief Metropolitan Magistrate, Bangalore C.C. No.1160/2019 wherein the learned Magistrate has convicted the accused for an offence punishable under Section 138 of N.I. Act.
2. The case of the appellants is that there is no any transaction between the appellants and the respondent and the appellants are not liable to pay any amount towards the disputed cheque and respondent has not disclosed his source of income to extent Rs.10 lakhs and respondent has not produced any documents before the Trail Court to show the financial capacity to lend the money as such the trial court has failed to appreciate the above said facts and there is no truth and no merit in the allegations made in the complaint.
3Crl.A. No.635/2021
3. After filing of the above appeal the notice was issued to the respondent and the respondent appeared through his counsel and thereafter the matter was posted for arguments.
4. And I have heard the arguments of both sides and perused the entire materials placed on record and the points that would arise for my consideration are as below;
1. Whether the appellants proves that there was no any existing liability between them & the respondent as on the date of issue of cheque in question?
2. Whether the appellants have rebutted the presumption drawn under Section 139 of N.I. Act?
3. Whether the judgment passed by the trial court is erroneous and calls for interference by this court?
4. What Order?
5. And my answers to the points are as below;
Point No.1 to 3 : In the negative Point No.4 : As per the final order for the following:
R E A S ON S
6. Point No.1 to 3:- Since these points are inter- related then in order to avoid repetition of facts the said points are taken up together for discussion.
4Crl.A. No.635/2021
7. On perusal of the materials it is found that the respondent/complainant has filed a complaint before the trial court alleging that at the request of the accused the complainant & his wife had lent a sum of Rs.20 Lakhs for improvement of his business and to meet his family necessities and the accused proposed to repay the same within a period of two years and even after several requests made by the complainant the appellant had not bothered to repay the same as promised and when the husband of the respondent/complainant demanded for repayment the accused had a cheque for Rs.10 Lakhs drawn on Bank of India and when the complainant presented the said cheque with his banker for collection the same returned dishonoured with an endorsement 'Payment Stopped by Drawer' and the respondent/complainant informed the same to the accused/appellant and got complainant got issued legal notice dt.25.01.2019 calling upon him to repay the cheque amount and though the said notice was duly served on the accused still the accused has neither replied nor paid the cheque amount and hence the respondent/complainant got filed above C.C. No.1160/2019 before the said Court for the offence punishable under Section 138 of N.I. Act.
8. In order to prove the above facts the respondent/complainant got himself examined as PW-1 & got 5 Crl.A. No.635/2021 marked documents at Ex.P.1 to Ex.P.12, wherein it clearly corroborated the above facts that the complainant & his wife had lent a sum of Rs.20 Lakhs for improvement of his business and to meet his family necessities and the accused proposed to repay the same within a period of two years and even after several requests made by the complainant the appellant had not bothered to repay the same as promised and when the husband of the respondent/complainant demanded for repayment the accused had a cheque for Rs.10 Lakhs drawn on Bank of India and when the complainant presented the said cheque with his banker for collection the same returned dishonoured with an endorsement 'Payment Stopped by Drawer' and the respondent/complainant informed the same to the accused/appellant and got issued legal notice dt.25.01.2019 calling upon him to repay the cheque amount and though the said notice was duly served on the accused still the accused has not at all paid the cheque amount and got filed the above cheque bounce case against the appellant/accused.
9. And since the accused has not at all denied the issuance of the cheque in question & so also the signature on it and since the accused has neither taken any probable defence nor proved it by any cogent rebuttal evidence then the trial Court has convicted the accused/appellant for the offence punishable under Section 138 of NI Act and ordered 6 Crl.A. No.635/2021 him to pay fine of Rs.11,05,000/- & in default sentenced to under go S.I. for six months.
10. And though the appellant has allegedly contending that the respondent had no financial capacity to pay the alleged hand loan amount of Rs.10 Lakhs is concerned the same do not hold any water as first of all during the recording of the plea itself the appellant has not at all stated his alleged defence and when that is so in a ruling of AIR 2014 SC 2528 it has been clearly held that 'Accused cannot simply say I am innocent or I plead not guilty'.
11. And though the appellant has allegedly contending that there is no any transaction in between the him and the respondent/complainant and the alleged cheque has been misused by the respondent/complainant is concerned, the same do not hold any water as contrary to the above facts the appellant/accused himself at page No.6 of the cross- examination of the respondent/complainant/PW-1 himself has clearly suggested & admitted that 'During the month of April 2017 the complainant's wife has filed a cheque bounce case in C.C. No.517/2019 and he has filed the present case for recovery of Rs.10 Lakhs and the said amount has been given to the present case appellant/accused through a cheque and not by way of cash' & since the appellant/accused during the recording of 7 Crl.A. No.635/2021 the plea and so also during the recording of the statement under Section 313 of Cr.P.C., has admitted the issuance of the cheque in question and also the signature on it '& since the rulings of AIR 2018 SC 3601 & (2021) 5 SCC 283 it has been further held that 'Neither issuance of cheque by the accused nor his signature there on is disputed by the accused then presumption exists of a legally enforceable debt or liability under Section 139 of N.I. Act' then it has to be held that the appellant/accused has issued the cheque in question in favour of the respondent/complainant for discharge of the legally enforceable debt or liability as envisaged under section 139 of N.I. Act.
12. And though the appellant/accused has further contended that the respondent/complainant has not at all produced any documents to show his financial capacity to lend the alleged cheque amount of Ex.P.1 is concerned, the same once again do not hold any water as admittedly the appellant/accused has not at all set up his alleged defense while giving his reply notice and when that is so in a recent ruling of Tedehi Singh V/s. Narayanadas Mahanth 2022 (2) KLJ 214 the Hon'ble Supreme Court of India has clearly held that 'It cannot be expected by a complainant to initially lead evidence to show that he had financial 8 Crl.A. No.635/2021 capacity unless such case was set up by the accused in the reply notice'.
13. And even though the appellant/accused has further contended that he had given the alleged cheque to one Auditor by name Nagesh Shastry and the same has been got misused by the complainant/respondent is concerned, the same once again do not hold any water as contrary to the above fact the appellant/accused/DW-1 at page No.5 of his cross-examination has clearly admitted that 'He has neither given any notice to the said Nagesh Shastry to return his cheques not even given any police complaint against the said Nagesh Shastry' & further admitted at page No.5 & 6 of his cross-examination that 'He has no documents to show that during the year 2017 he had sought a loan of Rs.5 Lakhs from the said Nagesh Shastry' & further admitted at page No.6 of his cross-examination that 'He has not at all produced any documents to show that he has obtained Rs.5 Lakhs from the said Nagesh Shastry & so also not at all produced any documents for having repaid the same', which is rather fatal to the case of the appellant/accused as in a ruling of AIR 2019 SC 1876 the Hon'ble Supreme Court of India has further held that 'The accused has to prove the issuance of the cheques in favour of his friends and its misuse by the complainant 9 Crl.A. No.635/2021 and also to show reasonable probability of existence of transaction with his friend by cogent evidence'.
14. And more over since in another ruling of 2021 (1) KLR 378 (SC) the Hon'ble Supreme Court of India has further held that 'Presumption under Section 139 of N.I. Act - A presumption is raised that the holder of the cheque received the cheque for the discharge in whole or in part or any debt or other liability - To rebut this presumption facts must be adduced by the accused which are in a preponderance of probability and then must be proved' and since as per the above dictums the appellant/accused has not at all raised any probable defence and proved the same with cogent material evidence then it has to be held in unequivocal terms that the appellant has not at all rebutted the presumption drawn under Section 139 of N.I. Act & further failed to prove that there was no existing liability as on the date of issuance of cheque between him and the respondent.
15. And lastly though the appellant/accused has further taken up a plea in this appeal that the alleged cheque has been got filled & misused by the complainant/respondent, the same once again do not hold any water as in a recent ruling of AIR 2019 SC 2446 the Hon'ble Apex Court of India has clearly held that 'The 10 Crl.A. No.635/2021 complainant can fill up amount or particulars in a blank cheque' & even in another ruling of ILR 2018 KAR page 4775 our Hon'ble High Court of Karnataka has clearly held that "A undated cheque can be treated as a bill of exchange and date on which cheque was drawn is to be reckoned and issue of blank cheque will authorize a person to fill-up that document under Section 20 of the N.I. Act. The holder in due course can fill up the cheque and present the same for encashment" .
16. So in view of the above discussion made above, I am of the opinion that since the appellants have failed to prove that there was no any existing liability in between them & the respondent as on the date of issue of cheque in question and further failed to rebut the presumption drawn & one attached to the above cheque in question as per Section 139 of NI Act and since the respondent by leading the oral evidence of himself at PW-1 & further producing the documentary evidence at Ex.P.1 to Ex.P.12 has clearly proved that he had the financial capacity to lend the cheque amounts of Rs.10 Lakhs and accordingly the same was paid to the accused and to discharge the same the accused has issued the cheque in question for the above amount and on presentation of the same the said cheque the same came to be dishonoured as 'Payment stopped by Drawer' and since nothing worthwhile has been elicited in the cross-
11Crl.A. No.635/2021 examination of the the said PW-1 to rebut his oral & documentary evidence and since the appellant has neither produced any cogent material evidence with regard to his probable defense nor made out any cogent grounds to set aside the judgment of the trial court then it has to be held that the judgment and conviction order one passed by the trial court against the appellant/accused that he has committed the offence punishable under Section 138 of NI Act is not at all erroneous & thus does not call for my interference and accordingly I have answered the said Point No.1 to 3 in negative.
17. Point No.4:- In view of the discussion made on above point No.1 to 3, I proceed to pass the following:-
ORDER The appeal preferred by the appellant/accused under Sec.374(3) of Cr.P.C is hereby dismissed.
AND
Consequently, the judgment
and conviction order passed by the
trial Court in C.C. No.1160/2019
dated 30.07.2021 under the appeal
is hereby confirmed.
12
Crl.A. No.635/2021
Send back the trial court
record with the copy of this
judgment to the Court below
forthwith.
(Dictated to the stenographer on the computer, corrected and then pronounced by me in the open Court on this the 21st day of January, 2023).
(R.RAVI) LXI Addl. City Civil & Sessions Judge, Bangalore City.
R Digitally signed
by R RAVI
Date: 2023.01.23
RAVI 17:43:05 +0530
13
Crl.A. No.635/2021
21.01.2023
APP-SB
Res-HSS
Judgment pronounced in the Open
Court (vide separate order)
O R DE R
The appeal preferred by the
appellant/accused under Sec.374(3)
of Cr.P.C is hereby dismissed.
AND
14
Crl.A. No.635/2021
Consequently, the judgment and
conviction order passed by the trial
Court in C.C. No.1160/2019 dated
30.07.2021 under the appeal is
hereby confirmed.
Send back the trial court record
with the copy of this judgment to the
Court below forthwith.
LXI Addl. City Civil & Sessions Judge,
Bengaluru City.
15
Crl.A. No.635/2021
as contrary to the above facts the said complainant/PW-1 at page No.4 of his cross-examination has clearly further that 'During the month of November 2012 he had paid two cheques for an amount of Rs.22 Lakhs to the accused' and further admitted at page No.2 of his cross -examination has clearly admitted that 'during the month of November 2011 he and the accused have entered into a contract for purchase of the house of accused for a sum of Rs.73 Lakhs & after one month registered sale deed has taken place'.
9. And since the above material admissions of complainant/PW-1 clearly shows that the appellant/accused has sold his house property for a sum of Rs.73 lakhs & since the complainant/respondent has not at all placed any cogent materials to prove that the appellant/accused had any necessity to borrow the alleged hand loan of Rs.20,000/- from the complainant and since it is the specific defense of the appellant that the cheque in question was issued for the security of the plastering work & since the complainant/PW-1 at page No.4 of his cross-examination has clearly admitted that 'it is true to suggest that at the time of the said agreement plastering work was not completed behind the back of the said house' then it has to be held in unequivocal 16 Crl.A. No.635/2021 terms that the cheque in question was issued for the security of the above said plastering work.
10. And even otherwise since contrary to his oral & documentary evidence, the complainant/respondent/PW-1 at page No.3 of his cross-examination has clearly admitted that 'he has not at all given any amount as a loan' & further admitted at page No.4 of his cross-examination has clearly admitted that he is an income tax assessee, but he has not at all shown the amount of the cheque in question i.e., Rs.20,000/- in his income tax returns' then an adverse inference has to be drawn against the complainant that there was no any existing liability against the accused as on the date of issue of the alleged cheque in question. On this point in a ruling of 2016 (1) DCR 147 one relied on by the appellant it has been clearly held that 'NI Act - 138 & 139 -
Income tax return - if alleged loan has not shown in the income tax return an adverse inference could be drawn against the complainant'.
11. On the other hand though the appellant/accused has not at all led his defence evidence, the same is not at all fatal to his case as the appellant/accused has successfully raised a probable defense and elicited the same in the cross- examination of the complainant/PW-1 & when that is so as 17 Crl.A. No.635/2021 per Section 58 of the Indian Evidence Act the admitted facts need not be further proved by the appellant.
12. So in view of the discussion made above I am of the opinion that since the above material admissions of the complainant/PW-1 i.e., 'the accused has sold his house for a sum of Rs.73 Lakhs and the accused has not at all taken any loan' rather rebutted the presumption one attached to Section 138 of the N.I. Act and since the complainant has not at all proved that the cheque in question was issued towards the any existing liability and since in a ruling of 2008 (3) KCCR 1569 one relied on by the appellant out Hon'ble High Court of Karnataka has clearly held that 'NI Act - Section 138 - Cheque given as a collateral security - accused placing materials to substantiate the plea - burden on the complaint to prove that the cheque was issued towards the amount and not as a collateral security - complainant not proving it - plea of the accused shall be accepted' then it has to be held in unequivocal terms that there was no any existing liability on the accused as on the date of issue of the cheque in question in favour of the complainant & moreover since in another ruling of 2016 (1) TCR 507 one relied on by the appellant it has been clearly held that 'Since the complainant had failed to prove that cheque in question had been issued in discharge of legally enforceable liability, the order of acquittal does 18 Crl.A. No.635/2021 not suffer from any error or infirmity' then it has to be once again held the judgment passed by the trial Court in convicting the appellant is erroneous and thus call for my interference and accordingly, I have answered the above point No.1 to 3 in the affirmative.