Bangalore District Court
Amruthahalli vs S/O Kalase Gowda on 1 February, 2022
0 Crl.A.No.1018/2019
1 Crl.A.No.1018/2019
KABC010151122019
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
Dated this the 01st day of February, 2022
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
Crl.A.No.1018/2019
Accused/ 1. Sangeetha Rathna Vidyalaya,
Appellants: Amruthahalli,
Proprietorship concern,
No.40, 8th 'B' Block, Varadaraja
Layout, Amruthahalli,
Byatarayanapura, Bengaluru-560092.
Rep. By its proprietor
K.M.Venkataramaiah.
2. K.M.Venkataramaiah,
No.40, 8th 'B' Cross, Varadaraja
Layout, Amruthahalli,
Byatarayanapura, Bengaluru-560092.
(by Sri.Ramesh H.C., Advocate)
-V/S-
Complainant/ Sri.K.K.Ramesh
Respondent: S/o Kalase Gowda,
Aged about 46 years,
R/at No.9, Bhadrappa Layout,
Kashinagar, Amruthahalli,
Bengaluru-560092.
(By Sri.G.R.R., Advocate)
2 Crl.A.No.1018/2019
JUDGMENT
This appeal is filed by the Appellants praying to set aside the judgment dated 05.04.2019 passed by the learned 18th ACMM, Bengaluru, in C.C.No.23781/2016 and prayed to acquit them in the said case.
2. The appellants of this appeal were the accused No.1 and 2 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/respondent had filed private complaint before the trial court bearing PCR No.10412/2016 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 No.1 is a proprietorship concern, accused No.2 is proprietor of accused No.1. The accused No.2 known to the complainant since from the past 8 years. Out of such acquaintance accused No.2 had availed financial assistance of Rs.13,00,000/- from the complainant on 06.12.2014 by way of cash to discharge antecedent debts and legal necessities. The accused No.2 has acknowledged the receipt of the said amount in the presence of witnesses and executed the loan agreement in favour of complainant and 3 Crl.A.No.1018/2019 accused No.2 has agreed to return the same within ten months. Thereafter, he did not come forward to pay hand loan amount. When the complainant has insisted for payment, the accused No.2 had issued two cheques bearing No.555290 dated 01.08.2016 for Rs.3,00,000/- and another cheque bearing No.555301 dated 10.08.2016 for Rs.10,00,000/-, drawn on State Bank of India, Amruthahalli Branch, Bengaluru, in favour of the complainant for payment of loan amount. The complainant had presented the said cheques through his banker State Bank of Mysore, Byatarayanapura Branch, Bengaluru for realization as per the instruction of the accused.
Those two cheques were dishonoured by the accused bank with endorsement "Funds Insufficient" in his account on 17.08.2016. Thereafter, the complainant had issued legal notice to the accused on 23.08.2016 through RPAD by informing about dishonour of cheque and demanding the payment of cheque amount. The said RPAD notice was duly served on the accused on 01.09.2016. The accused have not paid the cheque amount and they have issued an untenable reply on 15.09.2016. 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. 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 4 Crl.A.No.1018/2019 complainant and the documents produced by him was pleased to registered criminal case against the accused in CC.No.23781/2016 for the offence punishable u/Sec. 138 of N.I. Act and issued summons to the accused.
5. The accused No.2 has appeared before the trial court on his behalf and on behalf of accused No.1 after the service of summons and he was enlarged on bail. On appearance of the accused No.2 before the trial court, the trial court had recorded the plea of accused No.2 for the offence u/Sec.138 of N.I.Act. The accused No.2 pleaded not guilty and claimed to be tried. Hence, trial court has posted the matter for evidence of the complainant.
6. The complainant in order to prove the allegations made in the complaint had adduced his oral evidence as P.W.1. P.W.1 had produced 15 documents and got them marked as Ex.P.1 to P.15. Thereafter, the trial court had recorded the statements of the accused No.2 u/Sec.313 of Cr.P.C. The accused No.2 has denied all the incriminating evidence appearing against him and he has chosen to lead his defence evidence. The accused No.2 has adduced his defence evidence as D.W.1. He has produced five documents and got them marked as Ex.D.1 to D.5. 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 05.04.2019 by convicting the 5 Crl.A.No.1018/2019 accused No.1 and 2 for the offence punishable u/Sec.138 of N.I. Act. The trial court has sentenced the accused No.1 and 2 to pay fine of Rs.17,10,000/- and in default of payment of fine amount he shall undergo simple imprisonment for one year. The trial court has directed to pay Rs.17,00,000/- out of the said amount as compensation to the complainant and to forfeit remaining Rs.10,000/- amount towards fine. The accused have 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 impugned judgment of the trial court is bad in law and the learned Magistrate is grossly erred in coming to conclusion that the appellants are guilty of alleged offence on the sole interested testimony of the respondent.
(b) The learned Magistrate has failed to observed that the respondent had failed to prove that appellant is due to the sum mentioned in the cheque.
(c) The learned Magistrate has not considered the defence evidence of the appellants. The learned Magistrate has not consider the fact that the respondent does not have any source of income to lend huge sum of Rs.13,00,000/- to the appellants. The respondent has not produced any document pertaining to his financial capacity or source of income.6 Crl.A.No.1018/2019
(d) The learned Magistrate has failed to observed that the respondent has not at all proved the fact of issuance of cheque in question by the appellants to clear the loan of the borrower at any point of time.
(e) The trial court has failed to observed that the respondent has not produced any documents to show that appellants have issued cheque in question to discharge the loan amount.
(f) The impugned judgment of the learned Magistrate and sentence passed by him is oppose to law and fact and circumstances of the case and as such, the same is liable to be set aside.
On these among other grounds stated in the appeal memorandum, the appellants have prayed to set aside the order of the trial court.
9. After filing of the appeal, it is registered as Crl.A.No.1018/2019 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 called for. After receipt of lower court record, the matter was posted for arguments.
10. Heard the arguments of the Learned counsel for the appellants and respondent. The learned counsel for the respondent has filed his written arguments along with 7 Crl.A.No.1018/2019 citations. Perused the appeal memorandum, lower court records, written arguments and other materials on record.
11. Having done so, the following points will arise for my consideration:
(1) Whether the appellants prove that the trial court is erred in convicting the accused/appellants for the offence punishable u/s.138 of N.I.Act ?
(2) Whether the appellants proves that the interference of this court is required with the impugned judgment of the trial court?
(3) Whether the appeal filed by the appellants 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 .. In the Negative
(3) Point No. 3 .. In the Negative
(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.
14. The complainant had filed private complaint before the trial court u/Sec.200 of Cr.P.C. by alleging the commission 8 Crl.A.No.1018/2019 of offence u/Sec.138 of N.I.Act by the accused No.1 and 2. Since the complainant had alleged that the accused have 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.1018/2019(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 before the trial court as P.W.1. P.W.1 in his examination- in-chief filed by way of affidavit has stated that accused No.2 being the proprietor of accused No.1 proprietorship concern had availed financial assistance of Rs.13,00,000/- from him on 06.12.2014 by way of cash to discharge antecedent debts and legal necessities. The accused No.2 has acknowledged the receipt of the said amount in the presence of witnesses and executed the loan agreement in favour of complainant and accused No.2 has agreed to return the same within ten months. P.W.1 has further stated that he did not come forward to pay hand loan amount. When he had insisted for payment, the accused No.2 had issued two cheques bearing No.555290 dated 01.08.2016 for Rs.3,00,000/- and another cheque bearing No.555301 dated 10.08.2016 for Rs.10,00,000/-, drawn on State Bank of India, Amruthahalli Branch, Bengaluru, in favour of the complainant for payment of loan amount. P.W.1 has further stated that he had presented the said cheques through his banker State Bank of Mysore, Byatarayanapura Branch, Bengaluru for realization as per the instruction of the accused. Those two cheques were 10 Crl.A.No.1018/2019 dishonoured by the accused bank with endorsement "Funds Insufficient" in his account on 17.08.2016. Thereafter, he had issued legal notice to the accused on 23.08.2016 through RPAD by informing about dishonour of cheque and demanding the payment of cheque amount. The said RPAD notice was duly served on the accused on 01.09.2016. The accused have not paid the cheque amount and they have issued an untenable reply on 15.09.2016. Hence, P.W.1 has stated that the accused have committed the offence punishable u/Sec.138 of N.I. Act.
17. P.W.1 apart from adducing his oral evidence has produced certain documents. He has produced the two original cheques issued by the accused bearing No.555290 dated 01.08.2016 for Rs.3,00,000/- and another cheque bearing No.555301 dated 10.08.2016 for Rs.10,00,000/-, drawn on State Bank of India, Amruthahalli Branch, Bengaluru, at Ex.P.1 and P.2. Ex.P.1(a) and P.2(a) are the signatures of the accused No.2. Ex.P.3 and P.4 are the bank endorsements. In Ex.P.3 and 4, it is mentioned that Ex.P.1 and P.2 cheques are dishonoured due to insufficiency of funds in the account of the accused. P.W.1 has produced the office copy of legal notice dated 23.08.2016 issued by him to the accused at Ex.P.5. Ex.P.6 is the postal receipt of the said legal notice. Ex.P.7 and 8 are the postal acknowledgements. Ex.P.9 is the reply notice dated 01.09.2016 issued by the accused. Ex.P.10 is the RPAD cover. Ex.P.11 is the loan agreement dated 06.12.2014. Ex.P.12 is the agreement dated 08.12.2011 between the 11 Crl.A.No.1018/2019 complainant and son of the accused. Ex.P.13 to 15 are the certified copies of the Sale Deeds.
18. The accused have not disputed the fact that Ex.P.1 and P.2 cheques are belonging to them and those cheques were drawn by them on the account maintained by them in their bank. The accused have not disputed the signature of accused No.2 on Ex.P.1 and P.2 cheques. In the reply notice at Ex.P.9, the accused have taken the defence that accused No.2 has lost the cheque book and he had lodged complaint before the Amruthhalli police station about the same and Ex.P.1 and 2 cheques were not issued by them to the complainant. The accused have also contended in the legal notice that they have not availed loan of Rs.13,00,000/- from the complainant and they have not issued the said cheques for repayment of the said loan amount. Whether the accused have succeeded in proving the said defence or not will be discussed in later paras.
19. The learned counsel for the appellants in their written arguments has mentioned all the grounds urged by the appellant in the appeal memorandum and as such, it is not necessary to reproduce the same herein. It is further argued by the learned counsel for the appellants that the respondent has not proved his source of income and he has not produced any documents to prove his to prove his financial capacity to pay loan of Rs.13,00,000/- to the accused. It is further argued by the learned counsel for the appellants that Ex.P.1 and P.2 cheques were not issued by the 12 Crl.A.No.1018/2019 accused to the complainant for discharge of any legal debt or liability.
20. Before the trial court, the accused have clearly admitted the fact that Ex.P.1 and P.2 cheques are belonging to them and the said cheques bears the signature of accused No.2 and those were drawn from the bank account maintained by them in the name of accused No.1. As such, 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 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.
21. Thus, u/s.139 of N.I.Act, the initial presumption arises in favour of the complainant that the said cheque was 13 Crl.A.No.1018/2019 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.
22. 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 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.
23. Further in the aforesaid judgment, the Hon'ble Supreme Court of India in Para No.15 has observed that the 14 Crl.A.No.1018/2019 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 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.
24. Thus from the aforesaid decision of Hon'ble Supreme Court of India in Kalamani Tex case, it is clear that 15 Crl.A.No.1018/2019 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.
25. 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 cheques 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 appellants that the burden is upon the complainant to prove his source of income to lend money to the accused and the burden is upon the complainant to prove the existence of legally enforceable debt cannot be acceptable one and hence, the decisions relied upon by the learned counsel for the appellants on the said point of law will not helpful to the appellants in view of the recent judgment of the Hon'ble Supreme Court of India which is referred above.
26. In order to rebut the presumption u/Sec.139 of N.I.Act, the accused have adduced the oral evidence of accused No.2 before the trial court as D.W.1. D.W.1 in his examination-in-chief filed by way of affidavit has stated that 16 Crl.A.No.1018/2019 his son was running one service station in the premises of the complainant by constructing building for the purpose of office. He has also stated that he gave Rs.5,00,000/- as advance to the complainant and agreed to pay Rs.10,000/- monthly rent. D.W.1 in his examination-in-chief has also stated that the complainant had agreed to sell the property to him. He has further stated in his examination-in-chief that since his son was having good business, the complainant had forcibly made the workers to go out of the premises. D.W.1 has further stated in his examination-in-chief that as such, he himself was running the service station. He has further stated in his examination-in-chief that he use to keep one bag and cheque book in the office. He has further stated in his examination-in- chief that when he was not in the service station the complainant has thrown all the articles of the service station out of the premises and also made his son to go away from the place. He has further stated in his examination-in-chief that he gave some blank signed cheques to his sons and the complainant has took those cheques, cheque book and other documents and hence, he had lodged complaint against the complainant. He has further stated in his examination-in-chief that he has not received any amount from the complainant and he has not issued the cheque for repayment of any loan amount and he has also not executed any loan agreement in favour of the complainant.
27. From the defence of the accused No.2 in his chief- examination, it is clear that Ex.P.1 and P.2 blank signed cheques were given by him to his son and they were kept in 17 Crl.A.No.1018/2019 the service station of his son situated in the property of the complainant and he has also kept bag containing his cheque book and the complainant had stolen the cheque book and blank signed cheque leafs from the service statement of his son.
28. But this defence of the accused is not found in Ex.P.9 reply notice. In Ex.P.9, it is stated that accused No.2 had lost his cheque book while he was traveling and as such, he has lodged complaint to Amruthahalli police station. In Ex.P.2, there is no mention about giving of blank signed cheque to the son of accused No.2 and committing of theft of those blank signed cheques by the complainant from the service station of the son of accused No.2. D.W.1 has produced copy of the complaint given by him to Amruthahalli police on 12.09.2016. In the said complaint, it is stated that he was traveling in the car belonging to the complainant about 20 years back and at that time he lost his cheque book near Maruthi Bar and Restaurant of Amruthahalli. But in Ex.P.9, there is no mention about accused No.2 traveling along with the complainant in the car and about he loosing the cheque book at that time near Maruti Bar and Restaurant of Amruthahalli.
29. Ex.P.5 legal notice issued by the complainant was served on the accused on 01.09.2016. On the said date, the accused were aware about contention of the complainant. The accused have given reply notice on 15.09.2016 by alleging that the cheque book belonging to accused No.2 was lost by 18 Crl.A.No.1018/2019 him while he was traveling. But it is not specifically mentioned in the reply notice about when the accused No.2 has lost the cheque book and where he has lost the same. It is not specifically mentioned in the reply notice that accused No.2 has lost blank signed cheque leafs including Ex.P.1 and P.2. How many blank singed cheques were lost by accused No.2 are also not stated in the reply notice. In the reply notice it is not specifically mentioned that Ex.P.1 and P.2 cheques were lost by accused No.2. In the reply notice, accused No.2 has made bare denial of all the allegations made in the legal notice. Except the bare denial accused have not set up any specific defence about Ex.P.1 and P.2 cheques. Further most specific allegation is made against the complainant by stating that he had found the blank signed cheque alleged to have been lost by accused No.2 and complainant had filled the same and presented for encashment.
30. Ex.P.3 is the complaint dated 12.09.2016 given by accused No.2 about missing of cheque book. As on 12.09.2016 also, accused No.2 was aware about the contents of Ex.P.5 legal notice. In Ex.D.3, the accused No.2 was only alleged that about 20 days back when he was traveling in the car of the complainant, he lost cheque book of SBI, near Maruthi Bar and Restaurant of Amruthahalli. If Ex.P.1 and P.2 cheques were really lost by accused No.2, he would have lodged complaint against the complainant by specifically alleging that he has lost Ex.P.1 and P.2 signed cheques when he was traveling along with the complainant and complainant had found the same and mis-utilized the same. Even though 19 Crl.A.No.1018/2019 in Ex.D.3, it is alleged that cheque book was lost about 20 days back, no complaint was lodged by the accused immediately after accused No.2 has lost the cheque book. No reasons are assigned by the accused for not lodging the compliant immediately. If the complainant had really missed cheque book and if he had really not issued Ex.P.1 and P.2 cheque to the complainant, accused No.2 would have given stop mandate instructions to his bank stating that he has lost cheque book containing Ex.P.1 and P.2 cheques and instructing his banker not to honour those two cheques and other cheques if presented for realization. Further in Ex.D.3, the cheque numbers of the cheques which were alleged to have been lost by accused No.2 are not mentioned. Further cheque numbers of the cheques which were signed by accused No.2 which were lost is also not specifically mentioned. In Ex.D.3, the date on which accused No.2 had lost the cheque book is also not mentioned. All these facts and circumstances, give raise to doubt that Ex.D.3 complaint might have been lodged by accused No.2 belatedly after receipt of legal notice by the complainant as an after thought to create the defence for filing the reply notice. It seems that after giving the complaint on 12.09.2016, reply notice was issued by the accused on 15.09.2016 to the legal notice of the complainant.
31. As it is stated earlier, D.W.1 in his examination-in- chief has taken all together different defence than what is taken by the accused in Ex.P.9 reply notice. D.W.1 in his examination-in-chief has not stated anything about missing of 20 Crl.A.No.1018/2019 cheque book by him when he was traveling in the vehicle of the complainant as stated in Ex.P.9. He has not stated anything about giving of reply notice as per Ex.P.9. He has not stated anything about he giving complaint to the police as per Ex.D.3 prior to giving reply notice as per Ex.P.9. The complaint which is referred in the chief-examination of D.W.1 is not the complaint produced at Ex.D.3. But it is about Ex.D.4.
32. D.W.1 in the chief-examination has stated that he has kept the cheque book and a bag in the office of service station of his son situated in the property of the complainant and he had also given blank signed cheques to his son and the complainant had taken the said blank signed cheques, cheque book and other documents when he has thrown all the materials from the service station and when he has forcibly send his son out of the service station. D.W.1 in his chief- examination has not specifically stated the date when the complainant had made galata with his son and when he had thrown the materials from the service station of his son and when complainant took blank signed cheques and other documents from the service station of his son. D.W.1 in his evidence has not specifically stated the date on which he gave complaint to the police. He has stated that after the incident, he came back from his village and gave police complaint. Ex.D.3 complaint cannot be considered as the said complaint alleged to have been given by the accused No.2 since in the said complaint there is no mentioned about the galata that took place in the service station and there is no 21 Crl.A.No.1018/2019 mentioned about accused taking cheque book, blank signed cheques and other documents. Further accused No.2 has not given any complaint against the complainant by specifically alleging that complainant had took his blank signed cheques which were given by him to his son.
33. It is to be noted here that Ex.D.4 complaint which is given by the son of accused No.2 to Amruthahalli police is also dated 12.09.2016. Ex.D.3 complaint given by accused NO.2 to the same police is also dated 12.09.2016. In Ex.D.4, it is stated that on 11.09.2016 at about 11.00 a.m., complainant and his friends have came to his service station and picked up quarrel with him, abused him and threatened him to take his life if he did not vacate the service station. It is further alleged in Ex.D.4 that the complainant had break opened the lock of service station which was put by son of the accused No.2 and physically pushed him out of the service station. It is further alleged in Ex.D.4 that thereafter the complainant and his friends came near the house of the son of accused No.2 and they have abused his parents and took two blank cheques from his father. It is also alleged in Ex.D.4 that the complainant has stolen his cheque book and his father's cheque book. In Ex.D.4, there is no mention about accused No.2 giving blank signed cheques to him and he keeping those cheques with him in his service station and accused taking those signed blank cheques of given by his father. On the other hand, son of accused No.2 in Ex.D.4 has stated that, the complainant after making galata in his service station had went to his house and took blank cheques from his father 22 Crl.A.No.1018/2019 accused No.2. Even though as per Ex.D.4, it is alleged that the incident took place on 11.09.2016 in the service station of son of accused No.2, accused No.2 has not stated anything about the allegations made in Ex.D.4 in the complaint given by him as per Ex.D.3 on 12.09.2016. The reasons for not stating those facts in Ex.D.3 is not explained by the accused No.2. From Ex.D.4, it is clear that blank cheques were lost on 11.09.2016 in the service station of the son of accused No.2. Whereas Ex.P.1 and P.2 are dated 01.08.2016 and they were dishonoured on 17.08.2016. As such, doubt arises about the contention of the accused No.2 that the complainant has found his missed blank cheques and filled the blank signed cheques and presented for encashment.
34. The accused No.2 has failed to adduce sufficient evidence to prove that he has lost Ex.P.1 and P.2 cheques prior to the presentation of those two cheques by the complainant for realization and to prove that the complainant has found the missed cheques and he had filled the same and presented for encashment even though those two cheques were not issued by him for discharge of his legally enforceable debt or liability. All the facts and circumstances, which are discussed above creates doubt about the defence of the accused that he had lost blank signed cheques either while he was traveling in the car or in the service station of his son as alleged by accused No.2 in his reply notice and evidence. Further doubt also arises about the say of D.W.1 that he gave blank signed cheques to his son and his son has kept those cheques in his service station and complainant had stolen those blank signed 23 Crl.A.No.1018/2019 cheques from the service station of son of accused No.2. The accused No.2 has not examined his son to prove the said contention. There are no sufficient materials on record to show when accused No.2 gave Ex.P.1 and P.2 blank signed cheques to his son before the date of presentation of those two cheques and when those two cheques were lost or stolen by the complainant. Under these facts and circumstances, doubt arises about the defence taken by the accused No.2 about Ex.P.1 and P.2 cheques in his reply notice as well as in his chief-examination. The said defence cannot be considered as probable defence evidence to rebut the strong legal presumption u/Sec.118(a) and 139 of N.I.Act.
35. The accused No.2 has admitted the fact that his son was running service station in the property belonging to the complainant on rental basis. Thus it is clear that the complainant and accused are known to each other. The accused No.2 has admitted the fact that Ex.P.1 and P.2 cheques are belonging to the accused and its bears his signature and they were drawn from the account maintained in the name of accused No.1. P.W.1 has clearly deposed that accused have availed loan of Rs.3,00,000/- and Rs.10,00,000/- from him and they were given Ex.P.1 and P.2 cheques for repayment of said loan amount. It is also discussed and held above that in view of the recent judgments of Hon'ble Supreme Court of India, the burden is upon the accused to prove that those cheques were not issued by him for discharge of any legal liability or debt. The accused have to 24 Crl.A.No.1018/2019 adduce probable defence evidence to rebut the presumption u/Sec.118(a) and 139 of N.I.Act.
36. But the accused have failed to adduce probable defence evidence to prove that they have not issued the cheque to the complainant for repayment of loan amount and their exists no legal debt or liability with the complainant. Further accused have also failed to prove their probable defence of theft of those two cheques by the complainant or missing of those two cheques by the accused No.2 as stated in the reply notice or in the evidence of D.W.1. Even though the burden is not upon the complainant to prove the existence of legally enforceable debt and his financial capacity to pay the amount, P.W.1 in his cross-examination has stated that he is doing liquor business and he was having year income of Rs.15,00,000/- to Rs.16,00,000/-. He has stated that he had got cash of Rs.13,00,000/- with him on 16.12.2014 which came from his business. He has denied the suggestions put to him that the accused is not in requirement of Rs.13,00,000/- as on the date of issuance of cheque. Only on the ground that the complainant has not shown the fact of lending of Rs.13,00,000/- cash to the complainant in his IT returns and only on the ground that the complainant has not produced his IT returns, entire case of the complainant cannot be disbelieved. If the complainant has failed to show the lending of Rs.13,00,000/- in cash to the accused No.2 in his IT returns and failed to comply the provision of IT Act, it is for the IT authorities to initiate proper legal action against the complainant as per IT Act for violation of any of the provisions 25 Crl.A.No.1018/2019 of said act. The accused have also failed to adduce any evidence to prove that on 1612.2014, they were not in need of money and they have got sufficient balance in their account. The fact of dishonour of cheque on 17.08.2016 by the banker of the accused with shara "Funds Insufficient" in the account of accused No.1 goes to show that the accused have no sufficient balance in their account and as such, the contention of accused that they were not in need of money and they have sufficient amount with them cannot be acceptable one.
37. The complainant has also produced Ex.P.11 loan agreement executed by accused No.2 in favour of the complainant by acknowledging the receipt of Rs.13,00,000/- from the complainant on 06.12.2014 execution of Ex.P.11 is not denied by D.W.1 in his chief-examination. He has not taken any contention in his chief-examination that the said document is created and it does not bears his signature. Though it is suggested to P.W.1 in his cross-examination that Ex.P.11 is created document and it does not contain the signature of accused NO.2, accused No.2 in his chief- examination has not stated anything about the said contention. Accused No.2 has also not initiated any criminal proceedings against the complainant by alleging that complainant had forged his signature and created Ex.P.11. The accused No.2 has also not made any efforts to get the opinion of handwriting experts about genuineness of his signature on Ex.P.11. Under these facts and circumstances, 26 Crl.A.No.1018/2019 the contention of accused that Ex.P.11 is created by the complainant cannot be acceptable.
38. The complainant had produced Ex.P.13 sale deed to show that he had purchased site No.29 from one Ramamurthy on 05.12.2011. He has produced Ex.P.14 and P.15 sale deeds to show that he had sold the said property to one Premaram L. Chaudary. The accused No.2 has alleged that the complainant had executed agreement of sale dated 20.06.2016 with respect to said property in his favour and received advance consideration amount of Rs.15,00,000/-. The complainant has denied the execution of said agreement of sale. Ex.D.5 is dated 20.06.2016. Whereas Ex.D.9 reply notice is dated 15.09.2016. Ex.D.3 and D.4 are dated 12.09.2016. But in those documents, there is no mention about Ex.D.5. If really Ex.D.5 agreement of sale was executed on 20.06.2016 by the complainant to accused No.2, definitely accused No.2 would have stated about the same in Ex.D.3, D.4 and P.9. D.W.1 in his cross-examination has admitted that in Ex.P.9 he has not mention about Ex.D.5 and he has produced Ex.D.5 for the first time before the court. The accused No.2 has to prove before the competent court that the complainant has executed Ex.D.5 in his favour and he has to seek the relief of specific performance before the competent civil court on the basis of said alleged agreement. The execution of the said alleged agreement dated 20.06.2016 is nothing to do with Ex.P.1 and P.2 cheques. Only on the basis of Ex.D.5, alleged agreement of sale, the defence of the accused cannot be acceptable one. Execution of Ex.D.5 is denied by the complainant. The 27 Crl.A.No.1018/2019 accused No.2 has to prove that the said document was executed by the complainant and accused No.2 has to prove that he has paid Rs.15,00,000/- as advance to the complainant. The accused No.2 has not produced any document to show that he had paid Rs.15,00,000/- to the complainant in cash on 20.06.2016. No witnesses are examined by the accused No.2 to prove due execution of Ex.D.5 and to prove payment of Rs.15,00,000/- in cash to the complainant. Apart from it Ex.D.5 transaction is nothing to do with the transaction shown by the complainant before the trial court.
39. Under these facts and circumstances, I am of the opinion that the accused have failed adduce any probable, believable defence evidence to rebut the presumption u/Sec.118(a) and 139 of N.I.Act. For the discussions made above, I am of the opinion that the defence evidence adduced on behalf of accused as stated above cannot be considered as probable defence to rebut the presumption u/Sec.118(a) and 139 of N.I.Act. Thus from the evidence of P.W.1 and from the documents adduced on behalf of the complainant and on the basis of legal presumption u/Sec.118(a) and 139 of N.I.Act and on the ground that accused has failed to adduce sufficient probable defence evidence, I am of the opinion that it can be come to the conclusion that the complainant has proved that the accused have committd the offence punishable u/Sec.138 of N.I.Act.
28 Crl.A.No.1018/201940. 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.
41. The trial court has sentenced the accused to pay fine of Rs.17,10,000/-. The complainant had not challenge the sentence imposed by the trial court. As per Sec.138 of N.I.Act, the learned Magistrate has got discretion to sentence the accused to undergo imprisonment for the period up to two years or to 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 only with fine of Rs.17,10,000/-. The discretion exercise by the learned Magistrate is also seems to be proper and judicious having considered the facts and circumstances of the case. As such, I do not find any grounds to interfere with the sentence passed by the trial court. As such, I am of the opinion that the impugned judgment of the trial court is deserves to confirmed and the appeal filed by the appellant is deserves to be dismissed. Accordingly, I answer Points No.1 to 3 in In Negative.
29 Crl.A.No.1018/201942. 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 dismissed.
The order passed by learned 18 th ACMM, Bengaluru, dated 05.04.2019 in C.C.No.23781/2016 is hereby confirmed.
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 01 st day of February, 2022).
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.30 Crl.A.No.1018/2019
Judgment 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 dismissed.
The order passed by learned 18 th ACMM, Bengaluru, dated 05.04.2019 in C.C.No.23781/2016 is hereby confirmed.
Send back the lower court records along with copy of this order.
LII Addl. City Civil & Sessions Judge, Bangalore.