Bangalore District Court
S/O Late K.Krishna vs W/O Srinivas on 1 September, 2022
KABC010213892018
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
Dated this the 1st day of September, 2022
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
Crl.A.No.1455/2018
Accused/ Sri. K.Prakash
Appellant : S/o Late K.Krishna,
Aged about 42 years,
R/at No.37, 3rd Block,
BMTC Quarters, Shanthi Nagar,
Bengaluru - 560027.
Also at:
B.M.T.C., D-13,
K.Pralasj.
Mechanic, T.No.3560, Kamakya,
Katriguppe Post.
(By Sri.Nataraj Gowda P.V., Advocate)
-V/S-
Complainant/ Smt.Vani
Respondent: W/o Srinivas,
Aged about 37 years,
R/at No.62, Kanthamma,
Chikkanarayanappa Nilaya,
2
Crl.A.No.1455/2018
7th Cross, B.S.K. II Stage,
Sapalamma Temple Street,
Kadheerenahalli, Bengaluru-560070.
(By Sri.M.B.H., Advocate)
JUDGMENT
This appeal is filed by the Appellant praying to set aside the judgment dated 04.07.2018 passed by the learned 16th ACMM, Bengaluru in C.C.No.26589/2015 and praying to acquit him in the said case.
2. The appellant of this appeal was the accused before the Trial Court. The respondent of this appeal was the complainant before the Trial court. The rank of the parties to this appeal will be hereinafter referred to with the same rank as assigned to them before the trial court for the sake of convenience.
3. The brief facts which leads to file this appeal in nutshell are as follows:
The complainant had filed private complaint before the trial court bearing PCR No.13371/2015 against the accused by 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 complainant's husband and accused are known to each other as they working together from last ten to eleven years. During the year June 2013 to October 2014, the accused has 3 Crl.A.No.1455/2018 received sum of Rs.4,50,000/- as hand loan amount from the complainant. Inspite of repeated request and demand by the complainant, the accused had issued post dated cheque bearing No.999482 dated 12.07.2015 for Rs.4,50,000/-, drawn on The National Co-operative Bank Ltd., Banashankari II Stage Branch, Bengaluru, towards payment of loan amount. As per instruction given by the accused, the complainant had presented the cheque for realization through her banker on 14.08.2015. The said cheque was dishonoured by the accused banker on 18.08.2015 with shara "Funds Insufficient". The legal notice dated 16.09.2015 issued by the complainant to the accused to his working place through "speed post" was returned with shara "Refused" and which was issued through registered post was returned with shara "not claimed" and the notice sent to his house address through speed post and registered post is served. The accused has not paid the cheque amount. Hence, the complainant has alleged before trial court that the accused had committed the offence punishable u/Sec.138 of N.I. Act.
4. After filing of the complaint, the trial court took cognizance for the offence punishable u/Sec.138 of N.I.Act against the accused. Thereafter the trial court has recorded the sworn statement of the complainant. The complainant had adduced her sworn statement as P.W.1 before the trial court. The trial court after perusing the private compliant, sworn 4 Crl.A.No.1455/2018 statement of the complainant and the documents produced by him was pleased to registered criminal case against the accused in CC.No.26589/2015 for the offence punishable u/Sec.138 of N.I. Act and issued summons to the accused.
5. The accused had appeared before the trial court after the service of summons and he was enlarged on bail. On appearance of the accused before the trial court, the trial court had recorded the plea of accused for the offence u/Sec.138 of N.I.Act. The accused pleaded not guilty and claimed to be tried. Hence, trial court has posted the matter for evidence of the complainant.
6. In order to prove the allegations made in the complaint, the complainant had adduced her oral evidence as P.W.1. P.W.1 had produced 7 documents and got them marked as Ex.P.1 to P.7 and Ex.P.8 to P.12 are marked through D.W.1. Thereafter, the trial court had recorded the statements of the accused u/Sec.313 of Cr.P.C. The accused has chosen to lead his defence evidence. The accused has adduced his oral evidence as D.W.1. The accused has examine one witness on his behalf as D.W.2. The accused has produced 15 documents and got them marked as Ex.D.1 to D.15. Then the matter was posted by the trial court for arguments.
5Crl.A.No.1455/2018
7. The trial court, after hearing the arguments and after perusing the oral and documentary evidence was pleased to pass the judgment dated 04.07.2018 by convicting the accused for the offence punishable u/Sec.138 of N.I. Act. The trial court has sentenced the accused to pay fine of Rs.5,00,000/- and in default of payment of fine amount he shall undergo simple imprisonment for six months. The trial court has directed to pay Rs.4,90,000/- out of the said fine amount as compensation to the complainant and to forfeited remaining Rs.10,000/- amount towards fine. The accused being aggrieved by the said judgment of the trial court has preferred this appeal.
8. Grounds of appeal in nutshell as urged in the appeal memorandum are as follows:-
(a) The order of conviction passed by the trial Court is illegal, improper and suffers from serious legal infirmities and it requires re-appreciation of the entire evidence on record.
(b) The appellant has availed loan of Rs.1,20,000/- on 21.03.2013 and loan of Rs.1,26,000/- on 01.04.2014 at low interest from the bank and as such, there was no necessity for the appellant to take hand loan from the respondent as alleged in the complaint. The appellant has not availed hand loan from the the complainant as alleged by her.
(c) The respondent has not paid sum of Rs.4,50,000/- hand loan amount to the appellant from June 2013 to October 2014. The complainant has not paid the loan amount to the 6 Crl.A.No.1455/2018 appellant on a particular date, time and place. The amount does not corroborate with the notice, complaint and the evidence.
(d) The respondent has not shown the source of income to lend money of Rs.4,50,000/- to the appellant. Further the respondent has not proved her source of income to pay hand loan to the appellant as alleged in the complaint, notice and her evidence. The appellant has snot produced any license and any other documents to show that, she was doing the detergent soap business.
(e) The respondent has not produced any documents to show that she arranged Rs.1,00,000/- amount from her chit amount as stated by her in the cross-examination. The respondent has not produced any documents to show that Rs.2,50,000/- was given by her father-in-law and she has not examined her father-in-law to prove the said fact.
(f) P.W.1 in her examination-in-chief has stated that her detergent soap business was not running profitably. Hence, it is clear that she has no source of income to lend money to the accused. The trial Court has not considered these aspects.
(g) The trial Court has not considered the evidence admitted by the respondent about the difference of ink used to put signature, date and writing. The said important aspect was completely ignored by the trial Court.
7Crl.A.No.1455/2018
(h) The bank statement produced by the respondent at the time of argument cannot taken into consideration and which leads to confuse and mislead the court.
(I) The respondent has filed her bank statement only at the time of filing the arguments and the said statement has not been marked before the trial Court.
(j) The materials produced before the trial Court clearly reflect the fact that the respondent has misused the cheque. The trial Court has not properly appreciated the evidence on record in the proper perspective which has resulted in miscarriage of justice.
(k) The trial Court has left out important question of law. Hence, the conviction of appellant is erroneous and it is liable to be set aside and interference of this court is required with the impugned judgment of sentence and conviction passed by the trial Court.
On these among other grounds stated in the appeal memorandum, the appellant has prayed to set aside the impugned judgment of the trial court.
9. After filing of the appeal, it is registered as Crl.A.No.1455/2018 and notice was issued to the respondent. After service of the notice, the respondent has appeared through her counsel. Thereafter, the lower court record was called for. After receipt of lower court record, the matter was posted for arguments.
8Crl.A.No.1455/2018
10. Heard the arguments of the Learned counsel for the appellant and respondent. The learned counsel for the appellant filed written arguments. Perused the appeal memorandum, trial court record, the written arguments and other materials on record.
11. Having done so, the following points will arise for my consideration:
(1) Whether the appellant proves that the trial court is erred in convicting him for the offence punishable u/s.138 of N.I.Act ?
(2) Whether the appellant proves that the interference of this court is required with the impugned judgment of the trial court?
(3) Whether the appeal filed by the appellant is deserves to be allowed?
(4) What order?
12. My findings on the above points are as under:
(1) Point No.1 .. In the Negative
(2) Point No.2 .. In the Negative
(3) Point No. 3 .. In the Negative
(4) 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.
9Crl.A.No.1455/2018
14. The complainant had filed private complaint before the trial court u/Sec.200 of Cr.P.C. by alleging the commission of offence u/Sec.138 of N.I. Act by the accused. Since the complainant had alleged that the accused had committed the offence punishable u/Sec.138 of N.I. Act, it is for the complainant to prove all the essential ingredients of Sec.138 of N.I. Act. Hence, it is relevant to note down the provisions of Sec.138 of N.I.Act herein, in order to know its essential ingredients.
Sec.138 of N.I. Act provides as follows:
"Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque or with both. "
15. Thus from reading the aforesaid section, it is clear that the complainant has to prove the following essential 10 Crl.A.No.1455/2018 ingredients for holding the accused guilty of offence under the said section.
(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 her oral evidence as P.W.1. P.W.1 in her examination-in-chief has stated that her husband and accused are known to each other as they working together from last ten to eleven years. PW.1 has further stated in her examination-in-chief that during the year June 2013 to October 2014, the accused has received sum of Rs.4,50,000/- as hand loan amount from her. PW.1 has further stated in her examination-in-chief that inspite of repeated request and demand by her, the accused had issued post dated cheque bearing No.999482 dated 12.07.2015 for Rs.4,50,000/-, drawn on The National Co-operative Bank Ltd., Banashankari II Stage Branch, Bengaluru, towards payment of loan amount. PW.1 has further stated in her examination-in-chief that as per instruction given by the accused, she had presented the cheque for realization through her banker on 14.08.2015. PW.1 11 Crl.A.No.1455/2018 has further stated in her examination-in-chief that the said cheque was dishonoured by the accused banker on 18.08.2015 with shara "Funds Insufficient". PW.1 has further stated in her examination-in-chief that she had issued a legal notice dated 16.09.2015 to accused to his working place through "speed post" and same was returned with shara "Refused" and notice issued through registered post was returned with shara "not claimed" and the notice sent his house address through speed post and registered post is served. PW.1 has further stated in her examination-in-chief that the accused had not paid the cheque amount and hence, she has stated that the accused had committed the offence punishable u/Sec.138 of N.I. Act.
17. P.W.1 apart from adducing her oral evidence has produced certain documents. She has produced the original cheques bearing No.999482 dated 12.07.2015 for Rs.4,50,000/-, drawn on The National Co-operative Bank Ltd., Banashankari II Stage Branch, Bengaluru at Ex.P.1. Ex.P.1(a) is the signature of the accused. Ex.P.2 is the bank endorsements. In Ex.P.2, it is mentioned that Ex.P.1 cheque was dishonoured due to "Funds Insufficient". Ex.P.3 is the office copy of legal notice dated 16.09.2015 issued by him to the accused. Ex.P.4 is the postal acknowledgment. Ex.P.5 is returned legal notice. Ex.P.6 is unserved registered postal cover. Ex.P.7 is postal receipt. Ex.P.8 and 9 are the 12 Crl.A.No.1455/2018 photographs. Ex.P.10 is the certificate issued in favour of the complainant by Asian Paint Colour Academy. Ex.P.11 is the negatives of photographs. Ex.P.12 is the certificate dated 10.02.2017 issued by the National Co-operative Bank, Banashankari II Stage Branch, Bengaluru.
18. The oral and documentary evidence adduced on behalf of the complainant supports the complaint averments. The accused has not disputed the fact that Ex.P.1 cheque is belonging to him and it is drawn from the bank account maintained by him and it bears his signature. It is the defence of the accused as stated by D.W.1 in his examination-in-chief that he has lost blank signed non CTS cheque leaves including Ex.P.1 cheque while he was travelling in bus from Banashankari, BMTC Depot-13 to Wilson Garden 10th Cross on 07.09.2015 at about 6.30 p.m. Whether the accused has succeeded in proving the said defence or not will be discussed in later paras. But since the accused had admitted his signature on Ex.P.1 cheque and since the accused has admitted that the said cheque is belonging to him and it was drawn from the bank account maintained by him and since the complainant has presented the said cheque for encashment, I am of the opinion that the complainant will became 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.
13Crl.A.No.1455/2018 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.
19. Thus, u/s.139 of N.I.Act, the initial presumption arises in favour of the complainant that the said cheque was issued for discharge of legally enforceable debt. Once the cheque is proved to be relating to the account of the accused and he admits the signature on the said cheque, then the initial presumption as contemplated u/Sec.139 of N.I.Act has to be raised by the court in favour of the complainant. Further u/Sec.118(a) of N.I.Act there is presumption that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted for consideration. Presumption u/Sec.118(a) and 139 of N.I.Act is 14 Crl.A.No.1455/2018 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.
20. 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.
21. Further in the aforesaid judgment, the Hon'ble Supreme Court of India in Para No.15 has observed that the presumption raised u/Sec.118 and 139 of N.I.Act are rebuttable in nature. A probable defence needs to be raised, which must meet the standard of "preponderance of probability", and not mere possibility. Further, a bare denial of passing of consideration would not aid the case of the accused. In Para No.17 of the judgment, the Hon'ble Supreme Court of India has 15 Crl.A.No.1455/2018 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.
22. Thus from the aforesaid decision of Hon'ble Supreme Court of India in Kalamani Tex case, it is clear that once the accused admits his signature on the cheque, it can be presumed u/Sec.139 of N.I.Act that the cheque was issued for discharge of legally enforceable debt. The court cannot insist 16 Crl.A.No.1455/2018 the complainant to explain the circumstances under which the accused is liable to pay the cheque amount.
23. Thus from the provisions of Sec.118(a) and Sec.139 of N.I.Act, it is clear that the court shall raise presumption in favour of the complainant that he has received the cheque in question for discharge of legal liabilities and cheque was made and drawn for said purpose. This principles is also clearly held by the Hon'ble Supreme Court of India in Kalamani Tex case as discussed above. The burden is upon the accused to adduced satisfactory evidence to rebut the strong presumption as provided u/Sec.118 and Sec.139 of N.I.Act. Hence, the contention of the Learned counsel for the appellant that the burden is upon the complainant to prove her 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.
24. The accused in order to rebut the presumption U/s 118(a) and 139 of NI Act has adduced his oral evidence as D.W.1. D.W.1 in his examination-in-chief has deposed that he has lost his blank singed non CTS cheque leaves bearing No.99981 to 999490, 560 275004 and also CTS cheque No.032331 to 032340, 560 2750004, pertaining to National Co- operative Bank Ltd., Banashankari 2nd Stage branch, Bengaluru while he was travelling in bus from Banashankari, BMTC Depot-13 to Wilson Garden 10th Cross on 07.09.2015 at 17 Crl.A.No.1455/2018 about 6.30 p.m. D.W.1 in his examination-in-chief has deposed that he has lodged complaint to the Wilson Garden police station about the missing of his blank signed cheque leaves and also intimated his bank authorities about the same. D.W.1 in his examination-in-chief has further stated that he has not taken any hand loan from June 2013 to October 2014 from the complainant and hence, the question of issuing Ex.P.1 cheque to the complainant for Rs.4,50,000/- does not arises. D.W.1 has further stated in his examination-in-chief that the complainant and her husband have misused his cheque which was lost while he was travelling by filling one of the cheque. D.W.1 has further stated in his examination-in-chief that he has availed Rs.1,20,000/- from the bank on 21.03.2013 and he has availed Rs.1,26,000 on 01.12.2014 for his necessities and as such, there was no necessity for him to avail hand loan of Rs.4,50,000/- from the complainant.
25. From the defence of the accused as stated in his examination-in-chief, it is clear that Ex.P.1 cheque was lost by the accused on 07.09.2015 at about 6.30 p.m. while he was travelling in bus from Banashankari, BMTC Depot-13 to Wilson Garden 10th Cross and the said cheque was came in possession of the complainant and the complainant and her husband have mis-utilized the said cheque and they have filled the name of the complainant, amount and date on it and 18 Crl.A.No.1455/2018 presented the said cheque for encashment and the said cheque was not issued by the accused for discharge of any debt or liability. The accused has totally denied the allegations of the complainant that he had availed hand loan of Rs.4,50,000/- from the complainant from June 2013 to October 2014. The accused in order to prove the said defence has mainly depending upon to copy of the complaint given by him to Wilson Garden police about missing of cheque leaves while he was travelling in bus from Banashankari, BMTC Depot-13 to Wilson Garden 10th Cross on 07.09.2015 at about 6.30 p.m. The accused has produced the acknowledgment given by police at Ex.D.2. In the said acknowledgment, it is stated that the accused has given complaint stating that on 07.09.2015 at about 6.30 p.m., he has lost cheque leaves while travelling in the bus from Banashankari Depot-13 to Wilson Garden. The accused has not produced the copy of the complaint given by him to the police. According to the accused, he had lost the cheque leaves including Ex.P.1 cheque on 07.09.2015. But Ex.P.1 is dated 12.07.2015. The said cheque was presented by the accused for encashment on 14.08.2015 through her banker. The said cheque was came to be dishonoured on 18.08.2015 with bank endorsement "Insufficiency of funds".
When Ex.P.1 cheque was presented by the complainant before 07.09.2015 for encashment, the question of the accused misplacing the said cheque on 07.09.2015 does not 19 Crl.A.No.1455/2018 arises. In Ex.D.2, there is reference about the cheque No.999482 also. When the said cheque was presented by the complainant before 07.09.2015 for encashment, how the complainant has lost the said cheque on 07.09.2015 is not properly explained by the complainant. It creates doubt about the say of the accused that he has lost Ex.P.1 cheque on 07.09.2015 while he was travelling in the bus. It seems that the accused might have given complaint to the police immediately after he came to know about dishonour of Ex.P.1 cheque issued by him to the complainant to set up defence for the case likely to be filed by complainant for offence u/s.138 of N.I. Act.
26. D.W.1 in his examination-in-chief has deposed that he has also intimated his bank authority about lost of blank signed cheque while he was travelling in the bus on 07.09.2015. But the accused has not produced any letter given by him to his banker stating that he has lost Ex.P.1 cheque while he was travelling in the bus and requesting his banker to stop payment if the said cheque is presented for encashment. Ex.P.1 cheque was dishonoured due to insufficiency of funds in the bank account of the accused as per Ex.P.2 bank memo on 18.08.2015. The said cheque was not dishonoured due to stop payment given by the accused to his banker. Further the accused has not examined his banker to 20 Crl.A.No.1455/2018 prove his contention that he has lost Ex.P.1 cheque while travelling in the bus and as such, he has given requisition to his banker to stop the payment with respect to Ex.P.1 cheque. Further no FIR is also registered by Wilson Garden police against the complainant for misusing the cheque of the accused. Further the accused has also not initiated any action against the complainant and her husband for misusing his cheque and for filing the case against him by misusing his cheque. Under these facts and circumstances, I am of the opinion that the contention of the accused that he has lost Ex.P.1 cheque while travelling in the bus and it was traced out by the complainant and she and her husband have misusing the said cheque and filed false complaint against him does not seems to be probable defence to rebut the presumption existing in favour of the complainant u/Sec.118(a) and 139 of N.I.Act. Except the oral evidence of D.W.1 and Ex.D.2 police acknowledgment, there are no other sufficient believable materials on record to show that Ex.P.1 cheque was lost by the accused while travelling in the bus and the said cheque was misused by the complainant to file case against the accused.
27. Except the aforesaid defence, the accused has not given any other explanation in his chief-examination about how the complainant came in possession of Ex.P.1 cheque belonging to him bearing his signature which was drawn from 21 Crl.A.No.1455/2018 the bank account maintained by him. Further it is already discussed and held above that the defence taken by the accused in his chief-examination that Ex.P.1 cheque was lost by him while travelling in bus seems to be doubtful and it cannot be accepted as probable defence. The accused has failed to adduce sufficient probable materials to prove about how blank signed cheque belonging to him came in possession of the complainant. The accused has failed to adduce any sufficient believable evidence to prove that Ex.P.1 cheque was not given by him to the complainant and it was lost by him and the complainant has mis-utilized his lost cheque and filed false complaint.
28. The another grounds urged by the appellant in the appeal memorandum is that the complainant has failed to prove her source of income to lend money to the accused and as such, the accused is entitled for acquittal. In support of his arguments, the Learned counsel for the appellant has relied upon the judgment of Hon'ble High Court of Dharwad Bench reported in 2020(3) KCCR 2373 (Vishal V/s. Prakash Kadappa Hegannawar), wherein it is held that the accused is entitled for acquittal if the complainant has not laid any evidence regarding lending of money to huge extent. In the said case allegation was made regarding lending of Rs.14,00,000/-. Further the Learned counsel for the appellant 22 Crl.A.No.1455/2018 has relied upon another judgment of Hon'ble Supreme Court of India reported 2015 0 Supreme(Kar) 898 (A.M.Govindegowda V/s B.V.Ravi). In the said judgment, the Hon'ble Supreme Court of India has held that the complainant has failed to produce the pass books and other documents to show that as on the relevant day he has much amount to lend the same to the accused. It creates doubt in the minds of the court and as such, the accused is liable to be acquittal. The Learned counsel for the accused has also relied upon decision of Hon'ble Supreme Court of India reported in (2019) 5 Supreme Court Cases 418 (Basalingappa V/s Mudibasappa), wherein the Hon'ble Supreme Court of India has held that when the accused has disputed financial capacity of the complainant to pay the amount and lead his evidence to prove it, the accused laid probable defence and burden is upon the complainant to establish his financial capacity. The Learned counsel for the accused has also relied upon the judgment reported in (2006) 6 SCC 39, AIR 2019 Supreme Court 942, (2020) 15 SCC 348 and (2015) 1 SCC 99, in support of his argument that the burden is upon the complainant to prove the existence of legally enforceable debt and to prove his source of income.
29. But as it is stated earlier, the Hon'ble Supreme Court of India in the decision reported in (2021) 5 Supreme Court cases 283 : 2021 Online SC 75 (Kalamani Tex and 23 Crl.A.No.1455/2018 another V/s P.Balasubramanian, has clearly held that the court cannot insisted the complainant to explain the circumstances under which the accused is liable to pay the cheque amount. The Hon'ble Supreme Court of India in the said recent decision has clearly held that when the signature of the accused on the cheque is admitted, the presumption u/Sec.118(a) and 139 of N.I.Act should be raised in favour of the complainant. As such, I am of the opinion that in view of the aforesaid recent judgment of the Hon'ble Supreme Court of India, the other decisions cited by th Learned counsel for the appellant is not helpful to the appellant to prove his defence before the trial Court.
30. According to the complainant before the trial Court, she has not lend amount to the accused at a time. But it is her contention that she has lend amount to the accused from June 2013 to October 2014. P.W.1 in her cross-examination has stated that she has lend amount of Rs.4,50,000/- to the accused by way of cash. She has stated that during June 2013, she gave Rs.1,00,000/- to the accused and during December 2013 she gave Rs.2,50,000/- to the accused and in October 2014 she gave Rs.1,00,000/- to the accused. Only on the ground that the complainant has given amount in cash to the accused on different dates and only on the ground that she has not mentioned the same in her income tax returns, the case of the complainant cannot be disbelieved. If the 24 Crl.A.No.1455/2018 complainant has violated any provision of Income Tax Act by not disclosing the fact of lending money to the accused in her I.T. returns and by lending the amount in cash to the accused, it is further I.T. authority to takes proper legal action against the complainant for violating the provision of I.T. Act. Further punishment is also prescribed under Income tax Act for violation of 269SS of Said Act. As such, only on the ground that it cannot come to the conclusion that the accused has proved his probable defence. The said contention of the accused is not helpful to the accused to prove how the disputed cheque came in possession of the complainant. Further only on the say of complainant that the contents of the cheque are filled by her husband, the defence of the accused cannot be considered. P.W.1 in her cross-examination has stated that when accused has brought blank singed cheque to her house, she told her husband to fill the contents of the cheque as she did not know to write English. U/Sec.20 of N.I.Act, the holder of the cheque can fill the contents of the cheque. As such, the case of the complainant cannot be considered as doubtful on the ground that the contents of cheque are filled by husband of the complainant.
31. Only when the accused prove the fact that how the disputed cheque came in possession of the complainant, then only the other contention raised by the accused in his chief-
25Crl.A.No.1455/2018 examination can be considered. The demand notice issued by the complainant which is produced at Ex.P.3 was served on the accused. Ex.P.4 postal acknowledgment proved the said fact. The accused has not given any reply to the legal notice issued by the complainant by put forthing his defence regarding lost of his cheque while he was travelling in the bus and regarding he giving complaint to the police by denying the allegations of the complainant that he has availed hand loan of Rs.4,50,000/- from the complainant. The reason assigned by D.W.1 in the cross-examination for not issuing reply to the demand notice of the complainant cannot be acceptable one. D.W.1 in his cross- examination has voluntarily stated that notice was sent to his depot address and it was served upon him lately and as such, he could not give any reply to the said notice. D.W.1 in his chief-examination has given the similar address as his residential as it is mentioned in Ex.P.4 postal acknowledgment. From this fact, it is clear that the accused is residing in the address mentioned in Ex.P.4 postal acknowledgment. Hence, it is clear that the demand notice was served upon the residential address of the accused. As such, nothing has prevented the accused from giving reply to the legal notice by denying the case of the complainant as stated in the demand notice.
32. Further only on the contention of the accused that he has availed loan of Rs.1,20,000/- on 21.03.2013 and 26 Crl.A.No.1455/2018 Rs.1,26,000/- on 01.12.2014 from his bank, the case of the complainant cannot be disbelieved. Further the said defence of the accused is not helpful to the accused to prove the fact regarding how the possession of Ex.P.1 cheque belonging to him came to the possession of complainant. Further the fact of availing of loan by the accused from the bank goes to show that he was in need of money at that time. As such, it may be possible that insptie of availing loan from the bank, the accused might have availed hand loan from the complainant as stated by the complainant in the complaint. The accused has contended that he has advanced hand loan of R.2,50,000/- to the husband of the complainant. But when the accused himself was in financial problem and when he himself has availed Rs.2,46,000/- from his bank, how it is possible for the accused to give money to the husband of the complainant is not properly explained by the accused. Further the said defence is noway connected to Ex.P.1 cheque.
33. Ex.D.1 is self serving affidavit of the accused stating that he has lost his blank signed cheque leaves while travelling in the bus. The said affidavit was prepared by the accused after dishonour of Ex.P.1 cheque. Except Ex.D.1 and 2, the other documents produced by the accused are not pertaining to Ex.P.1 cheque. Ex.D.3 to D.12 produced by the accused are not helpful to the accused to prove his contention 27 Crl.A.No.1455/2018 that Ex.P.1 cheque was lost by him while he was travelling in the bus. If really the accused has lost Ex.P.1 cheque while travelling in the bus, definitely he would have given stop payment mandate to his banker not to honour the said cheque if it is presented. But as it is stated earlier, no stop payment mandate is given by the accused to his bank not to honour the said cheque if presented. Further Wilson Garden police have also not initiated any action against the complainant on the basis of alleged complaint given by the accused for mis- utilizing the cheque which was alleged to have been lost by the accused. Even if the police have not taken any action against the complainant, the accused would have filed private complaint before the court by alleging that the complainant and her husband have misused the cheque which was lost by him.
34. The evidence of D.W.2 on behalf of the accused is also not helpful to the accused to prove his defence that Ex.P.1 cheque was lost by him while he was travelling in the bus. D.W.2 has not stated anything about how Ex.P.1 cheque belonging to the accused was came in possession of the complainant. D.W.2 in her cross-examination has stated that she is not personally aware of the transaction between the accused and the complainant as stated in the complaint. She has also admitted in her cross-examination that she was not aware about the allegation leveled against the complainant in 28 Crl.A.No.1455/2018 the case. she has also stated in her cross-examination that she came in contact with the accused only after she appeared in this case in pursuance of summons. She has also clearly admitted in her cross-examination that she came to know about the facts of the case as per the say of the accused after she appeared in this case.
35. D.W.1 in his cross-examination has admitted the fact that he is working with the husband of the complainant in the same depot and also admitted that he and husband of complainant are joined the service in the year 1997 and he knows the husband of the complainant since 1997. D.W.1 in his cross-examination has also admitted that he has attended the marriage of the complainant and the birthday function of her son and he know her husband from 19 years. It is also the case of the complainant that the accused is well known to her family and as such, she has given hand loan amount as alleged in the complaint to the accused. D.W.1 in his chief- examination has stated that he has not singed all the cheques that were allegedly lost. Whereas D.W.1 in his chief- examination has stated that the cheque leaves which were lost by him were all singed by him without mentioning the name, amount and date. What was the necessity to him to carry the blank signed cheques along with him is not properly explained in his examination-in-chief. D.W.1 in his cross-examination has admitted that he had singed two to three cheques in order to 29 Crl.A.No.1455/2018 purchase electronic items for his house purpose. But the said fact is not stated either in the chief-examination or in Ex.P.2. Further as it is stated earlier, the accused has not produce the copy of the complaint stating that he has lost two to three singed cheques and he was carrying those cheques for the purpose of electronic items to his house. If really D.W.1 has carried the cheques for purchase of electronic items to his house, he would have specifically stated the names of the shop in the cheque and he would have mentioned the amount in the cheque. The accused in his chief-examination or in complaint has not specifically stated the fact that he was going to purchase the electronic items for his house on 07.09.2015 or earlier to it. Further P.W.1 in his examination-in-chief has not mentioned the shop name from where he was intending to purchase the electronic items to his house. Under these facts and circumstances, the contention of the accused that he was carrying two to three singed cheques for purchase the electronic items cannot be acceptable one. The accused has not given any proper and valid reasons for allegedly carrying several blank signed cheques while he was travelling in the bus.
36. The oral and documentary evidence adduced on behalf of the accused as discussed above are not helpful to the accused to prove how Ex.P.1 cheque was came in possession 30 Crl.A.No.1455/2018 of the complainant. Further the oral and documentary evidence adduced on behalf of the accused are not helpful to the accused to prove his defence taken in the examination-in- chief regarding Ex.P.1 cheque. On the other hand, the complainant by adducing oral and documentary evidence has proved the fact that she has lending hand loan amount of Rs.4,50,000/- to the accused and the accused has issued Ex.P.1 cheque for discharge of said loan amount and Ex.P.1 cheque was dishonoured by the banker of the accused with shara "insufficient funds" in the bank account of the accused. Further the complainant has also proved before the trial Court that she has issued demand notice to the accused by intimating about the dishonour of the cheque and demanding the cheque amount. The accused has not given any reply to the said legal notice. Further presumption u/Sec.118(a) and 139 of N.I.Act that Ex.P.1 cheque was drawn for consideration and presumption u/Sec.139 of N.I.Act that the holder of the cheque received cheque for discharge in whole or any part in debt or liability is in favour of complainant. Further as it is discussed earlier, the accused has failed to adduce any probable defence evidence to rebut the presumption u/Sec.118(a) and 139 of N.I.Act. As such, I am of the opinion that the complainant has proved all the essential ingredients of Sec.138 of N.I. Act. The trial Court has properly and judiciously appreciated the oral and documentary evidence adduced on 31 Crl.A.No.1455/2018 behalf of both the parties and the trial Court has rightly come to the conclusion that the accused has failed to prove his probable defence evidence to rebut the presumption u/Sec.118(a) and 139 of N.I.Act. The trial Court has rightly convicted the accused for the offence punishable u/s.138 of N.I. Act. As such, I do not find any ground to interfere with the finding of the trial Court that the accused has committed the offence punishable u/s.138 of N.I. Act.
37. For the discussions made above, I am of the opinion that any of the grounds urged by the appellant in the grounds of appeal are not helpful to the accused to prove his probable defence taken in the examination-in-chief about Ex.P.1 cheque. As such, I am of the opinion that the interference of this court is not required with the impugned judgment of the trial Court convicting the accused for the offence punishable u/s.138 of N.I. Act. I do not find any valid grounds to interfere with the said finding of the trial court. I do not find any merits in the grounds urged in the appeal memorandum to hold that trial court is erred in convicting the accused for the offence punishable u/Sec.138 of N.I.Act. For the discussions made above, I am of the opinion that the rulings relied upon by the Learned counsel for the appellant before the trial court are also not helpful to the accused to prove his innocence. Hence, the judgment of conviction passed against the accused by the trial court for the offence 32 Crl.A.No.1455/2018 punishable u/s.138 of N.I. Act is proper and judicious and it requires to be confirmed.
38. The trial court has sentenced the accused to pay fine of Rs.5,00,000/-. 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.5,00,000/-. By considering the length of trial, date of issuance of cheque and interest on the cheque amount etc., the discretion exercise by the learned Magistrate is also seems to be proper and judicious. 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 Negative.
39. 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 16th ACMM, Bengaluru, dated 04.07.2018 in C.C.No.26589/2015 is hereby confirmed.33
Crl.A.No.1455/2018 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 1st day of September, 2022).
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.
34 Crl.A.No.1455/2018 35 Crl.A.No.1455/2018 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 16th ACMM,
Bengaluru, dated 04.07.2018 in
C.C.No.26589/2015 is hereby confirmed.
Send back the lower court records along
with copy of this order.
LII Addl. City Civil & Sessions Judge,
Bangalore.