Bangalore District Court
/ Accused: N.S.Machander vs / N.Thukaram on 9 October, 2018
IN THE COURT OF THE LXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-62)
Dated this the 09th day of October, 2018
PRESENT :- SRI.S.A.CHIKKORDE, M.A.,LL.M.,
LXI Addl. City Civil & Sessions Judge,
Bangalore City.
Crl.A.No. 415/2014
Appellant / Accused: N.S.Machander,
S/o N.Shankar Rao,
Aged about 53 years,
R/at No.32/1, 1st Floor,
Fruit Street, Shivajinagar,
Bengaluru - 560 042.
Also at:
N. Shankar Rao,
Ladies Tailor,
Shop No.9, No.95/1,
Silver Plaza,
Ibrahim Sahib Street,
Bengaluru - 560 001.
(By Sri.M.B.R Advocate)
.V/s.
Respondent / N.Thukaram,
Complainant: S/o.Late V. Narayanarao,
Aged about 47 years
R/a.No.13, Darjipet,
Rangaswamy Temple
Street Cross,
Bengaluru - 560 053.
2 Crl.A.No.415/2014
JUDGMENT
The appellant/accused has preferred this appeal under Sec.374(1)(a) praying for setting aside the judgment of conviction and sentence passed by the learned XXI ACMM, Bangalore in C.C. No.47990/2010 dtd:05.04.2014.
2. The parties are referred as per their ranks in the court below.
3. The facts leading to the appeal are as under:
The Respondent has filed a private complaint against the appellant under section 138 of N.I. Act alleging that the appellant had borrowed a sum of Rs.12,00,000/- as hand loan in the month of September 2009 for his financial assistance and assured that the same will be returned in 9 months, believing his words, the complainant had extended his helping hand and gave a sum of Rs.12,00,000/- to the accused. On the same day the accused issued a post dated cheque for the same amount bearing NO.008495 drawn on Guardian Sahakara Bank Niyamitha, Bangalore dt.10.6.10. But the accused had failed to repay the same as time stipualted. On repeated request made by the complainant the accused had given an assurance the amount will be paid in further three months of time, he had also requested the complainant to present the post dated cheque in the month of September 2010. Subsequently, the cheque as presented for encashment at Bhavasara Kshtriya Co-operative Bank Ltd., Bangalore and same was returned with an endorsement as "Insufficient Funds" on 8.9.2010. The respondent got issued legal notice as contemplated under Section 138 of N.I. Act on 3 Crl.A.No.415/2014 22.9.2010 demanding the cheque amount the notice issued by RPAD and UCP was received by the accused on 23.9.2010 and the accused had replied to the said notice on 30.9.10 with untenable allegations and did not pay the amount.
Hence, the respondent has filed the complaint before the trial court and upon hearing the trial court by its judgment dt.5.4.14 was pleased to convict the appellant for the offence punishable under Section 138 of N.I. Act.
4. After filling of the complaint, the Court below took cognizance of the offence and registered the case against the accused. In response to the summons, the accused entered appearance through counsel. The Court below recorded the plea of the accused wherein the accused pleaded not guilty and claimed for trial.
5. The complaint to prove its case examined himself as PW-1 and got marked in all fourteen documents at Ex.P.1 to Ex.P.14 and closed his side evidence. The statement of the accused was recorded under Section 313 of Cr.P.C. wherein the accused denied the incriminating evidence appearing against him. To rebut the case of the complainant the accused got examined himself as DW-1 and also adduced the evidence of one Arjun Putane as DW-2 in all got marked two documents at Ex.D.1 and Ex.D.2. Hence, after hearing both the sides the Court below came to the conclusion that the accused committed the offence under Section 138 of N.I. Act and convicted the appellant/accused under Section 255(2) of 4 Crl.A.No.415/2014 Cr.P.C. and sentenced to pay fine of Rs.12,20,000/-, in default to suffer S.I. for nine months and if the fine amount is recovered from the accused an amount of Rs.12,10,000/- shall be paid as compensation to the complainant under Section 357 of Cr.P.C., and amount of Rs.10,000/- was ordered to be adjusted to the state Exchequer.
6. Being aggrieved by the said judgment dt.5.4.2014 the appellant herein came up before this appeal assailing the propriety and correctness of the judgment on the following grounds:
7. The impugned judgment passed by the trial court is not maintainable either under law or facts and same is liable be set aside, consequently the appellant has to be acquitted by this court for the offence punishable under Section1 38 of N.I. Act. The trial court has failed to appreciate the oral and documentary evidence on record in a proper and perspective manner and erred in come to the conclusion that the appellant has committed the offence under Section 138 of N.I. Act. The learned Trial Court has failed to note that the respondent has alleged to have paid a sum of Rs.12,00,000/- hard cash to the appellant without executing loan agreement from the appellant. It is pertinent to note that no prudent person would pay hard cash of Rs.12,00,000/- without executing any documents. This important aspect has not at all appreciated by the trial court while passing the judgment. The trial court has failed to note that the date, contents and 5 Crl.A.No.415/2014 signature in Ex.P.1 cheque are in different hand writing and different ink used and ought to have held that the Ex.P.1 cheque had been tampered by PW-1 complainant. The respondent had lied before the trial court about the payment made by him to the appellant. The whole transaction between the appellant and the respondent is doubt full. No amount has been paid by the respondent to the appellant in the month of Septembers 2009 as alleged by the respondent. The trial court in a Mechanical manner passed the erroneous judgment against the appellant which is not sustainable under the law. The learned Magistrate failed to note that the respondent has not mentioned the exact date on which he has paid the money to the appellant. Even on this ground also the trial court ought to have acquitted the appellant. The learned Magistrate failed to note that the respondent has not examined one Chandrashekar Gowda and Prashanth who were alleged to have present at the time of exchange of money. The said Chandrashekar Gowda and Prashanth are the material witnesses in the case. The non-examination of the witness in the case is fatal to the case of the respondent. The learned Magistrate failed to note and to give importance to the documents produced by the appellant i.e. Ex.D.1 and Ex.D.2. Ex.D.1 clearly shows that the appellant has surrendered his cheque book in the month of April 2009 and to that effect the document was produced and the bank manager has also given letter and same has been marked in the case. Even on this ground also the learned Magistrate ought to have acquitted the appellant. The Learned 6 Crl.A.No.415/2014 Magistrate failed to give importance to DW-1 and DW-2. The learned Magistrate has not appreciated the oral and documentary evidence produced by the appellant. The appellant has successfully rebutted the presumption envisaged under Section 139 of N.I. Act with cogent and reliable evidence. The Learned Magistrate failed to note that there is no disbursement of cash by the respondent and there is no iota of evidence for disbursement of such a huge amount. The respondent is not truthful and he is not fair before the trial court. The respondent has admitted in his cross-examination that " 2002£Éà ¸Á°£À°è £Á£ÀÄ DgÉÆæUÀ 2,00,000/- ºÀtªÀ£ÀÄß £Á£ÀÄ DgÉÆæUÉ PÉÆnÖzÀÄÝ ¸ÀzÀj ºÀtªÀ£ÀÄß £À£ÀUÉ DgÉÆæ ªÀÄgÀÄ¥ÁªÀw ªÀiÁqÀrgÀÄvÁÛgÉ." Even on this ground also the Learned Magistrate ought to have acquitted the appellant. Here only one transaction has been taken place between the appellant and the respondent and the appellant has settled the transaction. The learned Magistrate failed to note that it is the duty of the complainant to prove that the accused has issued the cheque and the cheque amount was given for a debt or liability and it is legally enforceable. But the complainant miserably failed to prove that there was an existing debt and which was enforceable by law. On the contrary in the cross-examination of PW-1 it is proved beyond doubt that there was no debt as claimed by the complainant and the debt is not legally enforceable on the accused or the accused is not legally liable to pay any debt or money to the complaint. There was no transaction in the year 2009-10. In the cross-examination the complainant was not in a position to prove that the cheque 7 Crl.A.No.415/2014 was of 2010 and that the same was given to the accuse din the year 2009. On the contrary the accused proved that the cheque was of 2002 and was given for taking hand loan of Rs.2,00,000/- in 2002 and which he repaid in the year 2009. The learned Magistrate failed to note that the complainant alleged to have taken hand loan of Rs.4,00,000/- from one of his friend Mr.Chandrashekar Gowda but he has not been examined before the trial court. The learned Magistrate failed to note that one Arjun Putane has been examine don behalf of the appellant and he has deposed that he has seen the appellant given back the money to the respondent. The Magistrate has not at all given any importance to the evidence of DW-2 and has not whispered anything about the said witness. Even on this ground also the Learned Magistrate ought to have acquitted the appellant. The appellant has rebutted the evidence of respondent by examining himself and also examining DW-2. The evidence of appellant and DW- 2 falsifies the evidence of the respondent. The sentence passed by the learned trial judge is harsh and interference of this court is very much required in the case. The learned Magistrate failed to note that the respondent himself taken loan from bank. When such being the case the question of disbursement of hand loan to the third parties does not arise at all. Even on this ground also the Hon'ble Magistrate ought to have acquitted the appellant. The learned Magistrate failed to note that the respondent has not shown the disbursement of such a huge amount in the IT returns produced by him in the case. If there was really any disbursement of money to the 8 Crl.A.No.415/2014 appellant definitely the respondent would have shown the said disbursement in the I.T. returns. Even on this ground also the learned Magistrate ought to have acquitted the appellant. The learned Magistrate failed to given importance to the bank statement produced by the appellant and same has been marked as Ex.D.2. Wherein the connected cheque leaves of Ex.P.1 were used in the year 2002 itself. This shows the alleged cheque was issued by the appellant in the year 2002 itself but not in the year 2009 as claimed by the respondent. The Ex.D.1 completely falsifies the evidence of the respondent. The learned Magistrate ought to have given benefit of doubt to the appellant. The learned Magistrate failed to note that in order to draw presumption under Section 118 R/w. 139 burden lies on the complainant to show
(i) that he had the requisite funds for advancing the sum of money/loan in question to accused, (ii) that the issuance of cheque by the accused in support of repayment of money advance was true and (iii) that the accused was bound to make payment as agreed while issuing cheque in favour of the complainant. In this case the respondent has not complied the aforesaid prerequisites. The appellant is relying the judgment of the Supreme Court reported in (204) 2 SCC 236 in the case of John K Abraham V/s. Simon C Abraham and another. The learned Magistrate has not all considered the citations produced by the appellant. He has only referred the citation produced by the respondent and the approach of the learned Magistrate is against to the sound principles of 9 Crl.A.No.415/2014 judicial precedent. Even otherwise the impugned judgment and order is illegal unjust and improper. Hence, this appeal.
8. LCR called for.
9. Heard the arguments from both side and also perused the entire papers and material available on record and as well as perused the written arguments filed by counsel for both parties.
10. The learned Advocate for appellant has relied on following citations;
1. (2014) 2 Supreme Court Cases 236 in a case between John K Abraham V/s. Simon C Abraham @ Another
2. Crl.A. No.1326/13 between T.R.Palaniswamy V/s. hariharan
3. LAWS (SC) 2013 2 21 between Vijay V/s. Laxman
4. LAWS(BOM) 2012 8 168 between Shobha V.s. Gajanan
5. LAWS (KAR) 2010 1 52 between B.Girish V/s. S.Ramaiah
6. LAWS (BOM) 2010 s 71 between M.Ibrahim V/s. Stae of Goa
7. LAWS (BOM) 2007 12 46 between Vinay Parulekar V/s. Pramod Meshram
8. (2007) 5 SCC 264 between Kamal S V/s.
Vidhyadharan M.J.Another 10 Crl.A.No.415/2014
9. (2010) 11 Supreme Court Cases 441 between Rangappa V/s. Sri Mohan
10. LAWS (KAR) 2012 10 101 between Lakshmi Subramanya V/s. B.V.Nagesh
11. Crl.A. No.2402/2014 between K.Subramani V/s. K.Damaodara Niadu
12. Crl.A. No.743/2010 between Mr.B.Shivaram V/s. Mr.M.V.Venkatesh
13. 2010 (1) KCCR 212 (B.P.Venkateshulu V/s. K.P.Mani Nair)
14. 2010 (1) KCCR 437 between (G.Premdas V/s. Venkataramana)
15. 2004 Cr.L.J. 2812 between Abdul Rahim V/s. UPK Mohammed Haneefa
16. 2008 (4) KCCR 2477 between Shivamurthy V/s. Amrutharaj
17. ILR 2009 KAR 172 between A.Vishwanath Pai V/s. Sri Vivekananda S bhat
18. ILR 2009 KAR 2331 between B.Indiramma V/s. Sri Eshwar
19. 2010 (5) KCCR 3397 between S.Thimmappa V/s. L.S.Prakash
20. AIR 2009 (NOC) 2327 (BOM) between Sanjay Mishra V/s. Kanishka Kapoor @ Nikki and Another
11. The following points arise for my consideration.
1. Whether the judgment of conviction under this appeal passed by the court 11 Crl.A.No.415/2014 below is erroneous, illegal and suffers from any infirmity and thereby interference by this court is required?
2. What order?
12. My findings on the above points are as under:
Point No.1 : In the Negative, Point No.2 : As per the final order for the following:
REASONS
13. Point No.1:- On going through the entire papers and materials available on record, it reveals that, respondent/complainant filed complaint against present appellant/accused U/s.200 of Cr.P.C. for the offence punishable U/s.138 of N.I. Act for bouncing the alleged cheque for Rs.12,00,000/- at Ex.P.1 for the reason "funds insufficient" and Trial Court based on the evidence of PW.1 and documentary evidence at Ex.P.1 to Ex.P.14, and also the defence evidence of the accused as Dw.1 and his witness Arjun Putane as DW-2 also the documents at Ex.D.1 and Ex.D.2, disposed of the above case by convicting accused for the offence punishable U/s. 138 of N.I. Act and sentenced him to pay fine of Rs.12,20,000/- and also ordered that, in default of payment of fine amount he shall under go S.I. for a period of nine months. It is also ordered that out of the total said fine amount, an amount of Rs.12,10,000/- is ordered to be paid to the complainant by way of compensation under Section 357 of Cr.P.C., and remaining balance of Rs.10,000/-
12 Crl.A.No.415/2014shall be remitted to as fine to the state. Being aggrieved by the said judgment of conviction and sentence, appellant has preferred this appeal, in view of the grounds set out in the appeal as referred in the supra.
14. Keeping in view of the grounds set out in the appeal memo by the appellant before this court, it is to be seen whether the evidence of Pw.1 and documentary evidence at Ex.P.1 to Ex.P.14 would suffice to probablise the case of respondent/ complainant and on the contrary, accused is able to probablise his defence and as well as to rebut the evidence of PW-1 and above material available on record including the presumption in respect of the disputed cheque at Ex.P.1 as contemplated under Section 138, 118 R/w. Section 139 of N.I. Act. Not only by relying on the version of PW.1 elicited during his cross-examination but also by virtue of his rebuttal evidence, as Dw.1 and his witness as DW-2 and documents at Ex.D.1 and Ex.D.2 are concern and as well as his additional evidence adduced before this court as AW.1 on 16.11.2017 and got marked two documents as Ex.A1 and Ex.A2 as per the direction given by Hon'ble High court of Karnataka, Bangalore in Crl.P.No.1679/2017 dated 16.10.2017. Therefore in view of the above documentary evidence available on record and also in order to ascertain credibility of the evidence of DW-1 and also his additional evidence adduced before this court as AW-1, in the light of version of PW-1 elicited in his cross-examination by the 13 Crl.A.No.415/2014 learned counsel for the accused before the trial court, relied by him in support of his above said defence.
On going through the entire evidence of PW-1 more particularly, the version of Pw.1 elicited by the learned counsel for the accused, it clearly reveals in the light of the submission made by the learned counsel for the accused. It is clear that, defence of the accused in respect of the alleged offence is concerned, is that of total denial of the case of the complainant in toto on the ground that, disputed cheque in question is misused by complainant.
15. It is also clear from the version of PW-1 elicited in his cross-examination elicited by the learned counsel for the accused in the beginning itself that during and prior to the year 2009, complainant had an acquaintance with the accused since complainant and accused were doing tailoring business. It is also pertinent to note that as could be seen from the entire evidence of PW-1 and also on the other hand the evidence of DW-1 and 2 since they were knowing to each other for more than 15-20 years prior to alleged issuance of disputed cheque at Ex.P.1, there were earlier financial transactions between them to small quantum of the amount which is not in dispute and earlier to filing of this complaint by the respondent complainant there was a cordial relationship between both the parties. It is also pertinent to note that as could be seen from the suggestions made by the learned counsel for the accused during the cross-
14 Crl.A.No.415/2014examination of PW-1 apart from the above defense of the accused it is also disputed by the accused with regard to the economic competency of the complainant to lend the alleged amount of Rs.12,00,000/- in the alleged month of September 2009 and also on the ground that accused had earlier borrowed amount of Rs.2,00,000/- from complainant on different occasions in bits during the year 2002 and towards security purpose for the repayment of said amount he had issued two cheques bearing No.008495 of Guardian Sahakara Bank Niyamitha on 31.8.2002 and another cheque bearing No.110976 on 5.4.2003 of the said bank and those said two cheques were given by him to the complainant were blank cheques and also he had executed on demand promissory note in favour of the complainant on 31.8.2002 and on repayment of Rs.2,00,000/- by him complainant was required to return said two cheques and on demand promissory note to him and also on the ground that since he had paid entire amount of Rs.2,00,000/- together with interest during September 2008 and there are no dues from him to the complainant but inspite of that complainant failed to return the said two cheques and promissory note telling him that he misplaced those documents and if he traces he will return the same but later he started avoiding the accused and also on the ground that complainant with his dishonoest intention misused the cheque in question with an intention to file this false case and harass him, and also at the time when he returned the money to the complainant, his frined one Arjun Putane was with him and thereby he denied 15 Crl.A.No.415/2014 the allegation of the complainant that he obtained amount of Rs.12,00,000/- from complainant at any point of time and that the complainant has knowing fully well that accused do not owe any money to him, he has misused the said cheque and has filed false case against him and also on the ground that up to 26.1.2009 the clearing bank for the accused i.e. Guardian Souharda Niyamitha, was Centuries Bank with MICR Code No.560233251 and with effect from 27.1.2009, the clearing bank for accused banker as noted above, has been changed to Indus Indi Bank with new MICR Code 560234251 and therefore inview of these chances, the banker of the accused advised all the customers to surrender the old cheque book with old MICR Number and to collect the new cheque book with new MICR number and as well as on the ground that in response to the advise of the banker of the accused he surrendered the unused cheque leaves of the cheque book with old MICR Number during the month of April 2009 and collected new cheque book with new MICR Number, under these circumstances the contention of the complainant that accused issued the cheque in question which bears Old MICR Number in the on the of September 2009 is totally false and base less. And on the other hand it completely substantiate the contention of the accused that he issued said cheque during the year 2002 as contended above supra and also on the ground that other cheques in the same series have been encashed during the year 2002. Therefore, under these circumstances, it is contended as per the ground set out in the appeal memo being aggrieved by 16 Crl.A.No.415/2014 the impugned judgment of contention and sentence passed by the court below as against the appellant/ accused.
16. Keeping inview of the above defense of the accused and as well as the contention taken by the accused as referred above supra, it is to be ascertained whether the evidence of PW-1 and above material available on record, in the light of certain case laws relied by the learned counsel for the accused in support of the above contention of the accused, would probabalize the defense of the accused to render the evidence of PW-1 untrustworthy and also not free from the doubt by rebutting the presumption in respect of the disputed cheque at Ex.P.1 i.e., the learned counsel for the appellant/accused has relied on the following case laws with regard to the aspect of rebuttal of the presumption pertains to disputed cheque at Ex.P.1 as under;
1. LAWS(BOM) 2012 8 168 between Shobha V/s. Gajanan wherein it is held as under;
" Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in 17 Crl.A.No.415/2014 some cases the accused may not need to adduce evidence of his/her own".
2. LAWS (BOM) 2007 12 46 between Vinay Parulekar V/s. Pramod Meshram wherein it is that as under;
NEGOTIABLE INSTURMENTS ACT, 1881- Sections 138 and 139 -
Dishonour of cheque - Presumption under Section 139 of Act-Rebuttable-
Can be rebutted either by adducing evidence or bringing facts on record in cross-examination of complainant which makes case of complainant improbable that cheque was issued in discharge of any debit or other liability.
Upon consideration of various judgments as noted herein above, the position of law which emerges is that is not necessary for the accused to disprove the existence of consideration by way of direct evidence. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.
The accused can raise a probable defence from the material brought on record by him, so also by the complainant himself. Though it is 18 Crl.A.No.415/2014 obligatory on the court to rasie presumption contemplated under Section 118, 138 and 139 in every case, where the factual basis for raising of the presumption has been established. What is need for the accused is to raise a probabale defense or that the consideration does not exist. The presumption could be rebutted either by leading evidence or brining facts on record in cross-
examination of the complainant which could make the case of the complainant improbable that the cheque was issued in discharge of any debt or other liability or through the documents produced and proved through the complainant.
3. (2007) 5 SCC 264 between Kamal S V/s.
Vidhyadharan M.J.Another wherein it is held as under;
"Negotiable Instruments Act, 1881 - Ss. 139, 118(a) and 138 -
Presumption under Ss.139 and 118(a) is rebuttable - Whether presumption rebutted or not would depend upon facts and circumstances or each case-
Burden on accused to rebut the presumption can be discharged by 19 Crl.A.No.415/2014 preponderance of probabilities - Court can draw inference from mateirla brought on record as well as circumstances relied upon by accused
- Defence case put forth by accused to rebut the presumption under S.139 found by trial court to be probabale -
Held, High Court, without stating why the findings of trial court were not probable, erred in taking a different view against the accused and interfering with judgment and order of trial court- Trial Court' view that accused having discharged the initial burden, onus shifted on the complainant who failed to prove his case beyond reasonable doubt without help of the presumption, held was justified - Hence, High Court was not justified in convicting the accused -
appellant under S.138.
4. (2010) 11 Supreme Court Cases 441 between Rangappa V/s. Sri Mohan wherein it is held as under;
"A. Negotiable Instrument Act, 1881-S.139 - presumption under -
Scope of - Held, presumption
mandated by S.139 includes a
presumption that there exists a legally 20 Crl.A.No.415/2014 enforceable debt or liability- However, such presumption is rebuttable in nature - Criminal trial - proof -
presumptions - General"
5. LAWS (KAR) 2012 10 101 between Lakshmi Subramanya V/s. B.V.Nagesh wherein it is held as under;
(1) Negotiable Instruments Act, 1881- Section 138 R/w. Sections 118 and 139 - Dishonour of cheque -
presumption of debt- Drawer of cheque is entitled to rebut the presumption either by direct evidence or by circumstances brought out on record in evidence led on behalf of complainant - Standard of proving defence plea is based on preponderance of probabilities and not proof beyond reasonable doubt. (Para
14) (2) Negotiable Instruments Act, 1881 - Section 138 R/w. Section 118 and 139 - Criminal Procedure Code, 1973 - Section 378 - Dishonour of cheque - Acquittal - it is not forthcoming as to whether lending of -
8 Lakhs to accused by complainant has been reflected income tax returns of complainant - In promissory notes executed by accused, there is no 21 Crl.A.No.415/2014 promise to repay amount with interest
- Accused has probabilities his defence theory that only - 5 Lakhs was borrowed by him and remaining -3 Lakhs was amount AGRRED BY HIM TO BE PAYABLE AS INTEREST ON - 5 Lakhs and thereby he has rebutted presumption under sections 118 and 139 - Accused has established that he has repaid more than 8 Lakhs to complainant - Appeal dismissed".
6. 2010 (1) KCCR 212 (B.P.Venkateshulu V/s. K.P.Mani Nair) wherein it is held as under;
"Code of Criminal Procedure, 1974 -Sections 397 and 401 - Negotiable Instruments Act, 1881- Sections 138 and 139 - Presumption
that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or liability -
presumption rebuttable and may get
displaced by the very prosecution
material on record or through
independent evidence led by the
accused or from suspicious
circumstances clouding the
prosecution case and damaging it".
22 Crl.A.No.415/2014
7. 2010 (1) KCCR 437 between (G.Premdas V/s. Venkataramana) wherein it is held as under;
""A. negotiable Instruments Act, 1881- Section 139 - Presumption -
when available - Case, filed under Section 138 off the Act-Drawer prosecuted - Trial Court doubting the transaction pleaded - Judgment of Acquittal passed - Complainant preferring an appeal under Section 378 of the Criminal Procedure Code-
Contending that when the accused has given the cheque and admitting hi signature presumption to be drawn and accused should be punished -
Requirements necessary to draw the presumption."
Held : provision of Section139 introduced in the Act as a presumption, which is to the effect that unless the contrary is proved it is deemed that the holder of the cheque has received the cheque for discharge of whole or part of any debt/liability.
This presumption is of course available for the holder of the cheque.
But unless the complainant discharges the basic requirements of proof of 23 Crl.A.No.415/2014 commission of offence through cogent evidence such presumption cannot be drawn."
8. 2004 Cr.L.J. 2812 between Abdul Rahim V/s. UPK Mohammed Haneefa where in it is held as under;
"Negotiable Instruments Act (26 of 1881). S.138 - Dishonour of cheque
- legally enforceable debt - Allegation that cheque issued by accused to complainant in discharge of handloan of Rs.60,000/- borrowed from complainant got dishonoured-Story of hand loan put forth by complainant was improbable in view of strained relations between parties and pendency of litigations between them-
Plea of accused that complaint along with some other persons had shortched away a series of cheques from him was acceptable inview of fact that cheque number of complaint file dby complianant and another companions of complainant started with same number-Complainant was not truthful witness- No interference with order of acquittal.24 Crl.A.No.415/2014
9. 2008(4) KCCR 2477, KARNATAKA HIGH COURT between Shiva Murthy -Vs- Amruthraj wherein it is held as under;
"NEGOTIABLE INSTRUMENT ACT, 1881- Sections 138 and 142- Cheque Bouncing - Concurrent findings of conviction challenged in revision-
Accused revision petitioner convicted for having a dishonoured a cheque for Rs.75,000/- complainant alleging hand loan- Question of payment made towards legally enforceable debt-
Presumption arising under section 139
- Whether rebutted? - Case of the accused was that two blank cheques were stolen by his employee, and one was misused by the complainant -
Trial Court as well as the first appellate Court on the admission that the cheque was admitted to have the signature of the accused convicted the accused".
10. ILR 2009 KAR 172 between Sri A.Viswanatha Pai .VS. Sri. Vivekananda S. Bhat wherein it is held as under;
NEGOTIABLE INSTRUMENT ACT, 1881 - Section 138- Offence under -
Conviction - Appealed against and 25 Crl.A.No.415/2014 Sentence- Conviction and Sentence confirmed - Revision against Section 139 - Presumption under - HELD, Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act; as, Section 139 merely raises a presumption in favour of the complainant that the cheque was issued for discharge of any debt and other liablility. - Both the Courts examined the case of the accused on the assumption that the presumption under Section 139 of the Negotiable Instrument Act extends not only to the issuing of the said cheque towards existing legally recoverable debt, but also to the existence of legally enforceable debt as on the date of its issue. ON FACTS, HELD, The accused has successfully established his defence version by adducing his own evidence and also by eliciting in the cross-examination of PW1 and also by producing Ex.D.1, the statement of his accounts with his Banker. Therefore, it is quite clear that as on the date of the cheque in question, bearing No.973199, which came to be 26 Crl.A.No.415/2014 presented during the year 2004, there did not exist any legally enforceable debt payable by the accused to the complainant. Hence, Conviction and Sentence passed by the Trial Court/ affirmed by the Appellate Court is not sustainable in law.
11. ILR 2009 KAR 2331 between B.Indramma Vs. Sri. Eshwar
12. 2010(5) KCCR 3397, between S. Timmappa Vs. L.S. Prakash wherein it is held as under;
NEGOTIABLE INSTRUMENT ACT, 1881- Sections 139, 118(a), (b) and 139 - Presumption - The provision of Section 139 does not contemplate existence of debt as a matter of legal presumption - The Court held that it the drawee of cheque to has to prove the existence of debt or liability.
Complaint it is merely stated that accused had borrowed Rs.1,00,000/-
as hand loan from complainant.
Complaint do not state date in which complainant advanced the said loan.
Even in examination-in-chief, 27 Crl.A.No.415/2014 complainant has not spelled out date on which loan was advanced. However in cross-examination, it is elicited from him that loan was advanced on 06.1.1995. Perusal of cheque indicates it bears the date as 06.03.1995.
Therefore, according to clause (b) of Section 118 it was deemed to have been drawn on 6.31995. It is clear that no consideration has passed under the cheque on the said date as even according to complainant, the loan was advanced on 6.1.1995. Therefore, presumption under clause (a) of Section 118 of the Act stood rebutted.
Appeal dismissed.
It is to be seen whether the counsel for the accused made efforts to rebut the evidence of PW-1 and as well as the presumption in respect of disputed cheque at Ex.P.1 as far as cross-examination of PW-1 is concerned it is necessary to consider the version of PW-1 elicited therein by the counsel for the accused. On going through the version of PW-1 elicited by the learned counsel for the accused on 19.8.2011 wherein it is elicited that complainant had income of Rs.1,00,000/- from his tailoring business per month and there are 25 persons working under him and he is spending salary to his staff to the extent of Rs.1,00,000/- per month 28 Crl.A.No.415/2014 and except the source of income from his tailoring business, he is not doing any other business. It is also elicited that every month there will be expenditure of Rs.4,000/- towards domestic needs. It is also elicited that he is not in the habit of giving money to others on loan basis but he had given the loan only to the accused. It is also elicited that three years back he had given loan of Rs.6,00,000/- to one Shantharam but he had not taken any interest either from accused or from the said person. It is also elicited that he is an income tax assessee and he has not shown the amount which he had given to the accused in ITI. It is also elicited that he had paid advance amount of Rs.2,00,000/- towards purchase of house in the year 2006 and he had a residential house at Chickpet in address No.13, Darjipet, RT Street Cross, Bangalore-53. During the year 2009 he was residing at Rajajinagara. It is also elicited that he had given Rs.12,00,000/- to the accused in his house situated at Darjipet, in the third week of September 2009 in cash and by that time his friends by name G.Prashanth and Chandrashekar Gowda were present. It is also elicited that while he paid the said amount to the accused in the said house, by that time it was 4.00 p.m., It is also elicited in his cross-examination on page No.3 from 17th line that "¸ÁzÁgÀtªÁV £Á£ÀÄ £À£Àß ªÀÄ£ÉAiÀÄ°è 1 CxÀªÁ 2 ®PÀë ºÀtªÀ£ÀÄß EnÖgÀÄvÉÛãÉ. £Á£ÀÄ ªÀÄ£ÉAiÀÄ°è EnÖzÀÝ 2 ®PÀë ºÀt, £À£ÀUÉ aÃn ªÀåªÀºÁgÀzÀ°è 6 ®PÀë ºÀt §A¢vÀÄÛ ªÀÄvÀÄÛ G½zÀ ºÀtªÀ£ÀÄß £À£Àß ¸ÉßûvÀ ZÀAzÀæ±ÉÃRgïgÀªÀjAzÀ 4 ®PÀë vÉUÉzÀÄPÉÆArzÀÄÝ MlÄÖ 12 ®PÀë ºÀtªÀ£ÀÄß £Á£ÀÄ DgÉÆæUÉ PÉÆnÖgÀÄvÉÛãÉ. ªÉÄÃ¯É ºÉýzÀ 6 ®PÀë ºÀtªÀ£ÀÄß £Á£ÀÄ aÃn 29 Crl.A.No.415/2014 ªÀÄÆ®PÀ ¥ÀqÉ¢gÀÄvÉÛ£É JAzÀÄ vÉÆÃj¸À®Ä £À£Àß §½ zÁR¯É EgÀÄvÀÛz.É ¸ÀzÀj ºÀtªÀ£ÀÄß £Á£ÀÄ aÃn ºÀt¢AzÀ ¥ÀqÉ¢zÀÄÝ CzÀ£ÀÄß ¸ÀAzÀ§AzÀs ¥ÀlÖ Ln jl£ïì£À°è vÉÆÃj¹gÀÄvÉÛãÉ. ªÉÄÃ¯É ºÉýzÀ 4 ®PÀë ºÀtªÀ£ÀÄß £À£Àß ¸ÉßûvÀjAzÀ £ÀUÀzÀÄ ªÀÄÆ®PÀ ¥Àqz É ÀÄPÉÆArgÀÄvÀÛãÉ. ªÉÄÃ¯É ºÉýzÀ 4 ®PÀë ºÀtªÀ£ÀÄß £À£Àß ¸ÉßûvÀjAzÀ ¥ÀqÉzÀ §UÉÎ AiÀiÁªÀÅzÉà zÁR¯É EgÀĪÀÅ¢®è. £Á£ÀÄ DgÉÆæUÉ PÉÆlÖ ªÉÄÃ¯É ºÉýzÀ 12 ®PÀë ºÀtªÀ£ÀÄß ¸ÀĪÀiÁgÀÄ MAzÀÄ ªÁgÀzÀ CªÀ¢Aü iÀĪÀgÉUÉ £À£Àß §½ ElÄÖPÉÆArzÉÝ£ÀÄ".
17. It is also elicited that he had obtained surabhi chits situated at Shivananda Circle and the said chit company used to pay only through cheque and in this regard he is ready to produce the document . It is also elicited that he had obtained six lakh rupees from the chit from the Co- operative Bank namely the Bhavasara Kshthriya Co-operative Bank Ltd., Kilari Road, Bangalore and he is ready to produce the statement of the said bank before the court. It is also elicited that he had obtained Rs.4,00,000/- from his said friends in order to give to the accused consolidatively totally for Rs.12,00,000/- and his said friends given Rs.4,00,000/- to him on the same day. It is also elicited that the old cheques which were issued to the accused by his banker were returned back in the year 2009 itself and issued new cheque book in the month of April 2009. But he stated that he do not know the same. It is also elicited that he knows a person by name Arjun Putane @ Arun through whom he came in contact with the accused.
30 Crl.A.No.415/201418. It is also elicited in his further cross-examination by the accused dt.30.8.2011 wherein he admitted he had obtained Rs.50,000/- from the accused in the year 1997 to pay the rent advance to his shop owner. It is also elicited that he had purchased share of his joint family members in the year 2006 for a consideration of Rs.9,50,000/- lakhs. It is also elicited that he had purchased site in the year 2006 for Rs.2,30,000/- and the same was given to Kanva Developers and for that he had taken a loan of Rs.8,50,000/- from the said Co-operative Bank and towards discharge of the said loan he used to repay EMI Rs.11,000/- p.m., It is also elicited that he is an income tax assessee from the year 2003 and 2004 and there were five persons working in his shop permanently and remaining 20 persons were doing piece work and he used to pay Rs.40,000/- p.m., to the persons who were doing piece work. It is also elicited in his cross- examination on page No.8 from 13th line that "CdÄð£ï ¥ÀÅmÁtô ªÀÄvÀÄÛ DgÉÆæ AiÀiÁªÁUÀ®Æ eÉÆvÉAiÀÄ°è wgÀÄUÁqÀÄwÛgÀÄvÁÛgÉ JAzÀgÉ ¤d. CªÀgÀ ¥ÀjZÀAiÀÄ £À£ÀUÉ EgÀÄvÀÛzÉ. £Á£ÀÄ £À£Àß ¨ÁåAPï£À SÁvɬÄAzÀ 6 ®PÀë ºÀÀtªÀ£ÀÄß vÉUÉzÀÄ DgÉÆæUÉ PÉÆnÖgÀÄvÀÛÉ JAzÀÄ vÉÆÃj¸À®Ä zÁR®ÉAiÀÄ£ÀÄß ºÁdgÀÄ ¥Àr¸ÀÄvÉÛãÉ. DgÉÆæ ²ªÁf£ÀUÀgÀzÀ E§æ»A ¸Á»¨ï ²æÃmï£À°è vÀ£Àß mÉÊ®jAUï GzÀåªÀĪÀ£ÀÄß ªÀiÁqÀÄwÛzÁÝgÉ JAzÀgÉ ¤d".
19. It is also elicited that he filed complaint against one Shantharam for recovery of the amount of Rs.6,00,000/- and the said case was ended in compromise for 31 Crl.A.No.415/2014 Rs.4,61,000/- and the said Shantharam has repaid the amount completely in installment. It is also elicited that the said Shantharam had paid the last installment amount to him during the year 2008 or 2009.
20. It is also clear from his version elicited by the learned counsel for the accused in his further cross- examination dt.6.11.2013 that wherein it is elicited that he had lend the amount of alleged loan to the accused in 3rd week of September 2009 but he cannot say the date on which he had lend the money. It is also clear from his further cross- examination dt.8.1.2014 made by the counsel for the accused wherein it is elicited that still he has to repay the amount Rs.6,00,000/- to the co-operative bank from whom he had taken loan towards purchase of property from his brother. It is also elicited that while he entrusted the property to Kanva Developers he had not obtained any loan for the purpose of advance payment of Rs.2,30,000/-. It is also elicited that he had not taken any loan while lending the amount of Rs.6,00,000/- to one Shanthakumar. It is also elicited that he has not produced any document before the court to show that he had obtained Rs.4,00,000/- from his friend Chandrashekar. It is also elicited that he repaid Rs.4,00,000/- obtained by him from Chandrashekar in the year 2010. It is also clear from remaining suggestions made during the entire cross-examination of PW-1 on above respective dates by the counsel for the accused in respect of 32 Crl.A.No.415/2014 the above defense of the accused are concerned have been categorically denied by PW-1 in toto.
21. Where as on the other hand accused has given his evidence by filing his affidavit evidence in chief in lieu of his examination in chief about his case as referred above supra and got marked two documents at Ex.D.1 and Ex.D.2 which are the statement issued by the accused banker. Apart from this before considering the credibility of the evidence of DW-1 evidence which recorded by the trial court at this stage it is necessary to consider the further evidence of the accused which is adduced before this court as per the direction given by the Hon'ble High Court of Karnataka, Bangalore as referred above supra. Accused has deposed in his examination in chief by producing the bank statement pertains to the respondent for the period 1.4.2008 to 31.3.2009 as per Ex.A.1 and also produced similar document pertains to the period from 1.3.2009 to 31.3.2010 which is marked as Ex.A.2 and the evidence of AW-1 remained unchallenged by the respondent.
22. Now, coming to the credibility of the evidence of DW-1 is concerned by the counsel for the complainant wherein it is admitted by DW-1 that he is doing tailoring work for the last 15-20 years in his own shop as per the address given in the cause title of the complaint at Sl. No.2 which comprising ground, first and second floor building and also comprising 10 to 12 shops. It is also elicited that he is 33 Crl.A.No.415/2014 having acquaintance with the complainant for the last 15 years and frequently there was a financial transaction taken place between him and the complainant and complainant had once taken Rs.50,000/- from him and that amount was repaid to him. Similarly he had taken loan twice from the complainant Rs.1,00,000/- for each time and he repaid it to the complainant and till today the financial transaction between him and the accused had taken place only through cash. It is also elicited that the learned counsel for the complainant during cross-examination of DW-1 that from 6th line "¤.¦.1 ZÉQÌ£À°è EgÀĪÀ ¸À» £À£ÀßzÉà EgÀÄvÀÛzÉ. ¦gÁ墬ÄAzÀ ¥ÀqÉzÀ ¸Á® ªÀÄgÀÄ¥ÁªÀwUÉAzÀÄ ¤¦ 1 ZÉPÀÌ£ÀÄß PÉÆnÖzÉÝÃ£É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. ¦ügÁåzÀÄzÁgÀ PÉÆlÖ £ÉÆÃnùUÉ £Á£ÀÄ PÉÆlÖ GvÀÛgÀzÀ'è ºÁUÀÆ £À£Àß ªÀÄÄRå «ZÁgÀuÉAiÀÄ°è K£ÀÄ G®èÃT¹zÉ JAzÀÄ £À£ÀUÀ ªÀiÁ»w EgÀÄvÀÛzÉ. £À£Àß ªÀÄÄRå «ZÁgÀuÉAiÀÄ°è £À£Àß ¨ÁåAQ£ÀªÀgÀÄ 2009gÀ°è ºÀ¼ÉAiÀÄ ZÉPÀÄÌUÀ¼À£ÀÄß ªÀÄgÀ½ vÉUÉzÀÄPÉÆAqÀÄ ºÉƸÀ ZÉPÀÄÌU¼À À£ÀÄß PÉÆnÖgÀĪÀgÀÄ JAzÀÄ G¯ÉèÃR ªÀiÁrzÀÄÝ ¸ÀzÀj «µÀAiÀĪÀ£ÀÄß £ÉÆÃnùUÉ PÉÆlÖ GvÀÛgÀzÀ°è G¯ÉèÃR ªÀiÁrgÀĪÀÅ¢®è".
23. It is further elicited that during the year 2008 he had requested the complainant to return back the cheques which were given by him during the year 2002 and in respect of the said denial made by him to the complainant he has not produced any documents. It is also elicited that during the year 2009 while retuning the old cheques to the bank he had intimated to his bank in writing that he had no old cheques and in this regard he has not produced document before the 34 Crl.A.No.415/2014 court. It is also elicited in his further cross-examination on page No.3 from last four lines that "¸ÀzÀj ¸ÀªÀÄAiÀÄzÀzÀ°è ¤¢µÀÖ ¸ÀASÉåAiÀÄ ZÉPÀÄÌ PÀ¼ÉzÀÄ ºÉÆÃVzÀÄÝ CzÀ£ÀÄß £ÀUÀzÀÄ ªÀiÁqÀ¨ÁgÀzÀÄ JAzÀÄ £À£Àß ¨ÁåAQUÉ «ªÁ¢vÀ ZÉPï PÀÄjvÀÄ AiÀiÁªÀÅzÉà ªÀiÁ»w PÉÆnÖgÀĪÀÅ¢®è. E°èAiÀĪÀgÉUÁzÀgÀÆ ¸ÀzjÀ ZÉPÀÄ AiÀiÁgÀ ªÀ±Àz° À è EzÉ J£ÀÄߪÀ PÀÄjvÀÄ CxÀªÁ PÀ¼ÉzÀÄ ºÉÆÃzÀ §UÉÎ AiÀiÁªÀÅzÉà ¥ÉÇð¸ï PÀæªÀÄ vÉUÉzÀÄPÉÆArgÀĪÀÅ¢®è".
24. It is also admitted by DW-1 that except requesting the complainant for return of his cheques in the year 2002 he had not written any letter to him and he also admitted in this regard he had not taken any legal action against the complainant. It is also clear from the remaining suggestions made by the counsel for the complainant in respect of the case of the complainant are concerned have been categorically denied by DW-1 in toto.
25. DW-2 Arjun Putane S/o.Ramachandra Rao deposed in his examination in chief that he knows complainant and accused and he acquainted with the accused subsequent to the acquaintance of complainant as he came to know accused through complainant and he also deposed that himself, complainant and accused are all friends. He also deposed that earlier complainant had availed the loan from the accused for the purpose of starting his business and subsequently accused had obtained loan from complainant. He also deposed that during the year 2002 35 Crl.A.No.415/2014 accused had obtained Rs.1,00,000/- from the complainant and subsequently in the year 2003 accused had also availed loan of Rs.1,00,000/- from complainant and by that time i.e., during the year 2002 accused had issued one singed blank cheque and one singed blank promissory note and so also the accused had issued signed blank cheque and signed blank promissory note to the complainant in the year 2003. He also deposed that accused had repaid the said amount to the complainant along with 4% interest to the complainant in the year 2008 and at the time of repayment of the said loan he was present while requesting accused to the complainant for return of above said documents and cheques to him. By that time complainant told that he had shifted his house from Rajajinagara to Darjipet and mean while those documentary cheques were misplaced and if they are traced he would return the same.
26. As far as the credibility of the evidence of DW-2 is taken into consideration, in the light of suggestion made by the counsel for complainant he denied the suggestion that accused introduced the complainant to him and not visa- versa. It is also elicited that in the month of March 2012 he retired from HAL and he used to work from 6.00 a.m., to 3.00 p.m., DW-2 also denied the suggestion that in the year 2002 accused had availed a loan of Rs.2,00,000/- from complainant. It is also admitted by DW-2 that he has no knowledge about the transactions made by the accused in his absence. But he denied the suggestion that in the year 36 Crl.A.No.415/2014 2009 accused availed loan of Rs.12,00,000/- from the complainant in his absence and therefore, for this reason the said transaction is not know to him and in order to help the accused he is deposing falsely.
27. On going through the entire evidence of PW-1 in the light of suggestions made by the learned counsel for the accused with regard to the above defense of the accused is concerned it is clear that except eliciting certain stray admissions nothing worthy while has been elicited, during cross-examination of PW-1 but as far as the disputed aspect with regard to the economic capacity of the complainant is concerned in the light of certain admissions elicited during the cross-examination of DW-1 as referred above supra it can be inferred that since complainant and accused were knowing to each other very well in their respective profession prior to filing complaint by the respondent and as well as earlier to filing of complaint also there were certain financial transactions taken place between both which is remained undisputed fact. It is also pertinent to note that in this case accused is disputing the economic condition of the complainant on the ground that the disputed cheque in question misused by the complainant on the ground that he had obtained loan of Rs.2,00,000/- in the year 2002 and 2003, as far as evidence of DW-1 and 2 are concerned and at the time of repayment of the said loan accused demanded for return of two signed blank cheques and two signed promissory notes from the complainant and with regard to 37 Crl.A.No.415/2014 this aspect the evidence of DW-1 in the light of his admission as referred above supra due to non taking legal action against the complainant by the accused and as well as non production of letter by Guardian Souharda Co-operative Bank which became core banking subsequently, requested the accused for return of the old cheques to the bank, no documents are produced by the accused except 12 cheques which were used by the accused during the year 2009, in respect of which no documents have been produced by DW-1, these material admissions on the part of accused are taken into consideration it can be inferred that the evidence of accused as DW-1 which is nothing but introducing new facts for the first time before the court below in his examination in chief as the above said facts could have been set up by accused in his reply notice as per Ex.P.7 in respect of notice got issued by complainant as per Ex.P.3 which was duly served on him as far as Ex.P.5 and 6 are concerned and if really it was such circumstance prevailing by that time, it is for the accused who could have replied to the legal notice got issued to the complainant to him as per Ex.P.3 and deemed to have been received by him as per Ex.P.4, 5, 6 and as well as Ex.P.7. Considering all these circumstances in the light of above material admissions on the part of DW-1 it can be inferred that the above defense theory which is not based on any cogent evidence and proof by the accused, the evidence of DW-1 is not sufficies in order to disbelieve the evidence of PW-1, because in this context it is pertinent to note that if really the disputed cheque in question was the 38 Crl.A.No.415/2014 old cheque which was said to be given by the accused to the complainant towards security purpose which was with held by the complainant, under such circumstances as a prudent man no one can kept quiet for long time for non return of signed blank two cheques and signed on demand promissory notes and therefore the failure on the part of accused under these circumstances having regard to the previous understanding between both the parties for long time personally as well as the time when occasion arises between them to get financial help to each other, when such being the situation the evidence of PW-1 and document at Ex.P.8 to 14 are taken into consideration, there is nothing on the record to disbelieve the evidence of PW-1 as nothing worthwhile has been elicited to disbelieve the entire evidence of PW-1.
28. Now coming to the aspect of the fact that if complainant had sound economic condition to provide financial help to the accused, he could have mentioned the fact of alleged lending of money of Rs.12,00,000/- by him to the accused in his income tax returns produced at Ex.P.10 to 12 and in this context additional evidence is produced by AW-1 before this court also at Ex.A.1 and Ex.A.2, certain entries dt.10.7.2009 at Sl. No.69 and as well as Sl. No.73 and as well as Sl. No.79 with reference to cheque no.742661 and as well as the other entries at Sl. No.144, Sl. No.154, Sl. No.2 and 14 and also the subsequent honour of cheque referred there in on 9.3.2010 as per Sl. No.232 are taken in to consideration it clearly goes to show that by virtue of 39 Crl.A.No.415/2014 production of Ex.A.1 and Ex.A.2 for some time certain transactions between complainant and other persons for which there is a reference of cheque have been made inorder to show that complainant was not competent economically to advance the alleged loan amount of Rs.12,00,000/- to the accused, if the above circumstances and relevant entries made in Ex.A.1 and Ex.A.2 are taken into consideration it clearly goes to show that those are not suffices to probabalize the above defense of the accused.
29. It is also pertinent to note that in this case another material aspect to be considered is that non- examination of the friends of the complainant i.e., Chandrashekar Gowda and Prashanth from whom he had availed the loan of Rs.4,00,000/- and as well as the complainant alleged to have secured amount of Rs.6,00,000/- from Surabhi Chits, in this context the documents at Ex.P.12 to 15 are taken into consideration nothing worthwhile has been elicited to disbelieve the evidence of PW-1. It is also pertinent to note that in this case though there is no specific date about the alleged lending of loan of Rs.12,00,000/- by the complainant to the accused but as could be seen from the entire evidence of Pw-1 it is clear that it is specific case of the complainant that he lend the said amount to the accused in 3rd week of September 2009. In this regard as nothing worthwhile has been elicited in order to disbelieve the evidence of DW-1 and as well as when the evidence of Pw-1 and above documentary evidence are suffices to probablize 40 Crl.A.No.415/2014 the case of the complainant that he advanced the amount of Rs.12,00,000/- to the accused at the relevant point of time and inspite of issuance of demand notice accused failed to repay the said amount within stipulated time and therefore in this context the document relied by the accused at Ex.D.1 and Ex.D.2 and as well as A-1 and A-2 are taken into consideration there is nothing on the record to probablize the above defense of the accused because as per the contention of the accused that there was a change of circumstances about the core banking system wherein he had failed to return back the alleged cheque to the said bank since he had obtained new cheque book in the month of April 2009, when such being the situation accused could have given instructions to his banker as he was aware of the situation with regard to alleged non return of signed two blank cheques and singed on demand promissory notes by the complainant to him inspite of his oral request, to stop the payment but it appears that no such attempt was made by the accused. It is also pertinent to note that the evidence of DW-1 and 2 and above material relied by him are taken into consideration in the light of version of PW-1 elicited during his cross- examination by the learned counsel for the accused which do not goes to the root of the above defense of the accused so as to render the evidence of PW-1 improbable and on the contrary to probablize his defence, as per the view taken in Rangappa V/s. Mohan reported in AIR 2010 Supreme Court 1898. It is also pertinent to note that as the evidence of DW-1 and 2 which are not suffices to hold that the accused is able 41 Crl.A.No.415/2014 to probablize his defense as referred above supra or to probablize his said defence by relying on the entire version of PW-1 as referred above supra, in order to rebut the evidence of PW-1 and as well as the presumption as contemplated under Section 138, 118 R/w. Section 139 of N.I. Act. therefore, under these circumstances it can be inferred that as per the views relied by the learned counsel for the appellant in the above case laws are taken in to consideration in the light of present facts and circumstances of this case, appellant has failed to probablize his defence and where as on the contrary with regard to the other citations relied by the learned counsel for the appellant accused are taken into consideration in the light of present facts and circumstances of this case. It is clear that the facts and circumstances of those cases are concerned are quiet different from the case in hand. Hence, they are not applicable to the case in hand. Thus, I am of the opinion that the judgment and conviction passed by the Court below is taken into consideration in the light of entire evidence of both the parties and material available on record and as well as the observation made by the trial court from para No.14 to 16 of the impugned judgment under this appeal it is crystal clear that trial court has properly appreciated each and every material aspect in respect of factual and legal aspects of the case in hand and has rightly come to the conclusion holding accused guilty of the offence under Section 138 of N.I. Act and has rightly convicted the accused as referred above supra, and on re- appreciation of the oral evidence of both the parties and also 42 Crl.A.No.415/2014 documentary evidence available on record and as well as having regard to the observation made in the above case, in this case as referred above supra in the light of contention taken by the appellant in view of the grounds set out in the appeal memo are concerned are devoid of merits and therefore, considering all these circumstances this court is of considered view that the appellant/accused has failed to substantiate and prove that the impugned judgment under the appeal is perverse, erroneous and interference by this Court is required and appellant/accused is entitled for acquittal for the offence under Section 138 of N.I. Act. Hence, I answer Point No.1 in the Negative.
30. POINT No.2:- Having regard to my above observations, and findings on Point No.1 in the negative, I proceed to pass the following;
ORDER
The appeal preferred by the
appellant/accused under Section 374 of Cr.P.C., is hereby dismissed.
Consequently the judgment passed by the learned XXI A.C.M.M., Court Bangalore in C.C. No.47990/2010 dated 5.4.2014 for convicting of the appellant/accused under Section 138 of the N.I. Act if hereby confirmed 43 Crl.A.No.415/2014 Sent bank the LCR with copy of this Judgment to the court below forthwith.
(Dictated to the stenographer on computer, corrected and then pronounced by me in the open Court on this the 09th day of October, 2018) (S.A. CHIKKORDE) LXI Addl. City Civil & Sessions Judge, Bangalore City.
44 Crl.A.No.415/201409.10.2018 App - M.B.R. Respt - B.R.P. For Judgment Judgment pronounced in the Open Court (vide separate order) ORDER The appeal preferred by the appellant/accused under Section 374 of Cr.P.C., is hereby dismissed.
Consequently the judgment
passed by the learned XXI
A.C.M.M., Court Bangalore in
C.C. No.47990/2010 dated
5.4.2014 for convicting of the
appellant/accused under Section
138 of the N.I. Act if hereby
confirmed
Sent bank the LCR with
copy of this Judgment to the
court below forthwith.
LXI Addl. City Civil & Sessions Judge,
Bangalore City.
45 Crl.A.No.415/2014