Bangalore District Court
P.Raja vs Complainant: Smt.Mubashira Begum on 5 October, 2019
IN THE COURT OF LXXIII ADDL.CITY CIVIL AND
SESSIONS JUDGE, M.H.UNIT, BENGALURU.
(CCH.74)
PRESENT:
Sri. Yamanappa Bammanagi, B.A, LL.B. (Spl.)
LXXIII Addl. City Civil & Sessions Judge,
M.H.Unit, Bengaluru.
Dated this the 5th day of October, 2019.
Crl.Appeal.No.25064/2019
Accused/
Appellant: P.Raja, S/o.Puttappa,
aged about 42 yrs,
R/at.No.5/80,
Vinayaka Temple Street,
1st Cross, K.G.Halli,
Bengaluru560045.
(By Sri.Vellanki Ravi - Adv.)
Vs.
Respondent/
complainant: Smt.Mubashira Begum,
W/o.Adam Saffiulla Khan (Babu),
Major, R/at.No.555, Ground
Floor, 7th Cross, 5th Main,
1st Stage, 2nd Block, HBR Layout,
Bengaluru560043.
(By Sri.A.Layak Ali - Adv.)
JUDGMENT
Being aggrieved by the judgment and sentence passed by the learned XXIII ACMM, Bengaluru, in CC No.51488/2017, 2 Crl.A.No.25064/2019 dated 06.02.2019, convicting the appellant for the offence punishable under Section 138 of N.I.Act, sentencing him to pay fine of Rs.10,000/ and sentenced him to undergo simple imprisonment for 6 months and in default of payment of fine, he shall further undergo simple imprisonment for 30 days and directed the appellant to pay compensation of Rs.4,50,000/ to the complainant within one month from the date of order, failing which, the complainant is at liberty to recover the said amount as per Section 421 of Cr.P.C. Being aggrieved by the said order, the appellant is before this court, challenging the legality and correctness of judgment and sentence of trial court.
2. Brief facts of the case:
The present respondent has filed complaint under Section 200 of Cr.P.C. against the present appellant, for the offence punishable under Section 138 of N.I. Act, alleging that the respondent and her husband had approached the accused for purchasing the site No.32/A, situated in Sy.No.179, situated at Kacharakanahalli Village, Kasaba Hobli, Bengaluru East Taluk, measuring 23 x 16 feet, the appellant/accused has executed a agreement of sale in favour of respondent's husband in the year 3 Crl.A.No.25064/2019 2012 and respondent/complainant has paid advance amount of Rs.3,00,000/ to the accused and Rs.80,000/ to his brother P.Madan. Since the accused and his brother P.Madan failed to execute the sale deed in terms of agreement of sale, hence the accused are agreed to repay the advance amount. In order to repay the advance amount, the accused has issued cheque bearing No.562286, dated 1.4.2016, for Rs.3,00,000/, the said cheque was presented on 20.04.2016, for encashment, but it was returned with bank endorsement, dated 6.5.2016 as "Fund Insufficient". Thereafter the complainant/respondent issued a legal notice, through his counsel on 06.05.2016 to the accused, calling upon him to pay the cheque amount, same was served on 28.6.2016, even after service of notice, the appellant/accused did not complied with the demand of the respondent, hence the complainant constrained to file the complaint u/s 200 of Cr.P.C.
for the offence punishable under Section 138 of N.I. Act. On being satisfied with the materials, the trial court has taken cognizance, summons has issued u/s 204 of Cr.P.C. to the accused, accused appeared through his counsel, plea was recorded by the trial court, posted for complainant's evidence. 4 Crl.A.No.25064/2019 The complainant is examined as P.W.1 and got marked Ex.P.1 to P.6, P.W.1 was crossexamined by the learned counsel for the accused, the accused statement u/s 313 of Cr.P.C. was recorded by the trial court and appellant got himself examined as D.W.1 and in the evidence, the accused has denied the transaction between the appellant and respondent, except writing on Ex.P.1, and signature of the appellant on the cheque. The brother of the accused P.Madan was examined as D.W.2, after hearing argument on both side, the trial court has passed the judgment and recorded the conviction, convicting the appellant for the offence punishable u/s 138 of N.I. Act, sentenced him to undergo simple imprisonment for 6 months and shall pay fine of Rs.10,000/, in default of payment of fine, he shall undergo further simple imprisonment for 30 days, directed the accused to pay compensation of Rs.4,50,000/ to the complainant within one month from the date of the order, failing which the complainant is at liberty to recover the said amount as per the provisions of Section 421 of Cr.P.C., being aggrieved by the same the appellant has filed this appeal challenging the 5 Crl.A.No.25064/2019 correctness and legality of the said conviction order on the following: GROUNDS I. The appellant/accused submits that the impugned judgment of conviction dated 06.02.2019 passed by the learned trial court magistrate is contrary to law, facts and established principles and precedents of law and hence is liable to be interfered with by this court. II. The learned trial court magistrate has failed to consider the fact that the respondent/complainant has not approached the trial court with clean hands but with malafide intention, where during the crossexamination admits the fact that the alleged transaction was between her husband and not with her as such there is no transaction between the respondent/complainant and the appellant/accused, and the husband of the respondent/complainant is not examined as prosecution witness by the respondent/complainant who is very crucial to the transaction.
III. The accused submits that it is pertinent to note that the respondent/complainant (PW1) during cross examination has stated that the 6 Crl.A.No.25064/2019 agreement to sell was between her husband Adam Safiulla Khan (Babu) and the appellant/accused and P.Madan and further admits that there is difference in ink and handwriting on Ex.P1 and admits that she herself wrote her name in the beneficiary column.
IV. The appellant/accused submits that the legal notice (Ex.P3) was sent to him by the respondent/complainant's counsel on 03.06.2016 and when he did not receive any acknowledgment card nor the unserved letter, had addressed a letter to postmaster on 27.06.2016 (Ex.P.4) and the Superintendent of post vide letter dated 28.06.2016 (Ex.P.5) has stated that the letter has been delivered to accused. In that case, definitely there should have been the postal acknowledgment card delivered to the counsel's address and for best reasons known the complainant has not produced the postal acknowledgment before this court.
V. The appellant/accused submits that the respondent/complainant has placed emphasis on the sale agreement between herself and the appellant/accused and another by name P.Madan with regard to sale of site bearing No.32/A, 7 Crl.A.No.25064/2019 formed in portion of Sy.No.179, situated at Kacharakanahalli, Kasaba Hobli, Bengaluru North Taluk, Bengaluru, in her demand notice dated 03.06.2016 (Ex.P.3) which is totally false as per her say, in the cross examination, she has stated that the agreement to sell was between her husband and appellant/accused and P.Madan during the year 2012 and that only Rs.1,00,000/ was paid to appellant/accused by her husband.
Hence it is very clear that there was no transactional relation between the respondent/complainant and appellant/accused and she has falsely deposed before the trial court.
VI. The appellant/accused submits that the respondent/complainant has never stated in the Ex.P.3, nor in her evidence the exact dates, place on when she has paid the money to appellant/accused. On this aspect the appellant/accused had placed reliance on below mentioned reported decisions of Hon'ble Apex Court and Hon'ble High Court of Karnataka, which was overlooked and not considered.
(1) (2014)2 Supreme Court Cases 236 (2) 2015 AIR SCW 64 (3) 2016 (5) KCCR 1341 (4) 2011 Crl.L.J.552 8 Crl.A.No.25064/2019 VII. The appellant/accused submits that the respondent/complainant has malafidely and without the consent of the drawer of cheque has written her name in the beneficiary column and presented the same for realization, which is evidently clear that the respondent/complainant had misused the signed blank cheque of appellant/accused by obtaining the same from her husband, and moreover the respondent/complainant fails to examine her husband as prosecution witness who is very much essential, since the agreement to sell was made between him and the appellant/accused and P.Madan. On this aspect the appellant/accused had placed his reliance on the below mentioned reported decisions of Hon'ble High Court of Karnataka which was never looked into and not considered.
(1) 2011 (5) KCCR 4223 (2) 2012 (4) KCCR 3567 (3) LAWS (KAR) 2012.12.158 (4) 2013 (3) KCCR 1967 (5) ILR 2014 KAR 6572 VIII. The appellant/accused had deposed that he never received any legal notice sent by the respondent/complainant, though she has produced the settled reply of postal authorities 9 Crl.A.No.25064/2019 (Ex.P.5) she fails to examine the postman who has delivered the letter to appellant/accused on the day mentioned in Ex.P.5.
IX. The appellant/accused submits that the learned trial court judge has grossly erred in not appreciating the facts of the case and not considering the oral evidences of appellant/accused and P.Madan wherein they have reiterated the fact that the transaction was between the respondent/complainant's husband and not with the respondent/complainant and they have rebutted the presumption that the cheque is not issued for legally enforceable debt. X. The appellant/accused submits that the learned trial court judge failed to consider the fact that the transaction was during the year 2012 and whereas the cheque (ExhibitP1) is dated 01.04.2016 which evidently is a time barred debt and is not legally enforceable in law. On the above grounds, the appellant prayed for set asiding the judgment and sentence passed by the trial court.
3. Along with appeal, the appellant has filed application u/s 389 of Cr.P.C. for suspension of sentence, after hearing on the application, this court has suspended the sentence recorded by the trial court on 07.03.2019. Notice of the appeal was 10 Crl.A.No.25064/2019 issued to the respondent and respondent appeared through his counsel, LCR received, posted for argument. The learned counsel for the respondent/complainant filed written argument. Heard argument of the learned counsel for the appellant. In support of his argument the learned counsel for the appellant has relied on the decision reported in;
1) 2015 AIR SCW 64, in case of K.Subramani v/s K.Damodar Naidu.
2) (2014) 2 SCC 236, in case of John K.Abraham v/s Simon C. Abraham and another.
3) 2016 (5) KCCR 1341, in case of Smt.Threju v/s Smt.Jayalakshmi.
4) 2012 Crl.L.J 552, in case of Amjad Pasha v/s H.N.Lakshman.
5) 2011 (5) KCCR 4223, in case of M.B.Rajashekar v/s Savithramma.
6) 2012 (4) KCCR 3567, in case of K.M.Nagaraj v/s T.C.Govindegowda.
7) LAWS (KAR) 2012 12 158, in case of B.L.Karunakaran Hegde v/s Subhakar Shetty.
8) 2013 (3) KCCR 1967, in case of Wilson Marcelin Carvalho v/s Krishna Budhiji Patil.
9) ILR 2014 KAR 6572, in case of Sri.H.Manjunath v/s Sri.A.M.Basavaraju.
11 Crl.A.No.25064/2019
4. I have perused the grounds mentioned in the appeal memo, oral and documentary evidence, led by the parties and considered the argument of the learned counsel for the appellant and argument of the learned counsel for the respondent, on perusal of the same the points that would arise for my consideration are as follows:
1) Whether the accused/appellant made out grounds to show that order of conviction and sentence recorded by the trial court in CC No.51488/2017, dated 6.2.2019, deserves to be set aside and warrants the interference of this court?
2) What order?
5. My answer to the above points are as follows: Point No.1: In the Negative, Point No.2: As per final order, for the following: REASONS
6. POINT No.1: For the sake of convenience the rank of the parties are referred as they were referred before the trial court. It is the case of the complainant before the trial court that complainant has filed complaint under Section 200 of Cr.P.C. contending that the accused has committed offence punishable 12 Crl.A.No.25064/2019 under Section 138 of N.I. Act and produced the documents Ex.P.1 to P.6. Ex.P.1 is the original cheque No.562280 dated 1.4.2016, for sum of Rs.3,00,000/, in favour of the complainant, Ex.P.2 is the bank endorsement dated 6.5.2016, which bears the signature of the bank Manager with seal. Ex.P.3 is the legal notice issued by the respondent to the accused dated 2.6.2016, issued by the complainant to the accused calling upon him to pay the cheque amount, Ex.P.4 is the letter written to the postal authority by the complainant to know the service of notice on the accused. Ex.P.5 is the reply letter of the postal authority, which reflects that the postal authority has delivered the article; i.e., legal notice to the accused. Ex.P.6 is the postal receipt, on being perusal of the documentary material placed before the trial court, the trial court has issued the summons u/s 204 of Cr.P.C. On perusal of the documents produced by the complainant, I am of the opinion that trial court has committed no error in issuing summons to the accused u/s 204 of Cr.P.C.
7. I have perused the documentary and oral evidence led by both the parties and material placed before the court it is 13 Crl.A.No.25064/2019 clear that trial court has recorded the plea by framing accusation made against the accused and read over to the accused in the language known to him, accused not plead guilty and claimed to be tried. I have perused the plea recorded by the trial court and it is clearly shows that the trial court has recorded the plea properly. Hence, I find no error in recording plea. I have carefully perused the documentary as well as oral evidence and I have reappreciated. On perusal of the same it is clear that the complainant and her husband had approached to the accused and his brother for purchasing the site and accused had agreed to sell the site to the complainant, transaction was taken place between the complainant and accused, accused had agreed to sell the site for consideration of Rs.3,80,000/, the complainant has paid advance amount of Rs.3,00,000/. Further it is clear from the evidence of the parties that the accused become unable to execute the sale deed in favour of complainant in respect of said site; since he had sold the site to the third party and accused has agreed to refund the advance amount to the complainant. In order to refund the advance amount the accused has issued cheque bearing No.562280, 14 Crl.A.No.25064/2019 dated 1.4.2016, for Rs.3,00,000/, same was presented for encashment, but said cheque was returned with a bank endorsement dated 6.5.2016 as "Fund Insufficient". Hence, the complainant had issued notice to the accused calling upon him to pay the cheque amount. But, the accused did not responded, hence, the complainant was constrained to file complaint against the accused for the offence punishable u/s 138 of N.I. Act.
8. Now it is relevant to appreciate the evidence of P.W.1 . P.W.1 deposed before the court that there was a transaction between the accused and herself in respect of immovable property and accused has agreed to sell the site mentioned above and thereafter, the accused became unable to sell the site to the complainant, since he had sold the said site to the third party. In order to repay the advance amount, the accused has issued a cheque in favour of the complainant, for Rs.3,00,000/ and same was dishonoured. Now it is a relevant to appreciate the evidence of D.W.1. D.W.1 who is the accused before the trial court, clearly admits in the chief examination itself stating that, he is doing real estate business with his friend Madan and 15 Crl.A.No.25064/2019 further he admits that there was a transaction between the complainant and himself and in the said transaction the consideration amount was fixed Rs.3,80,000/. Further it is clear from the cross of D.W.1 that the issuance of cheque and signature is admitted by the D.W.1. The relevant portion of crossexamination reads thus;
ಈಗ ನನಗ ತತತರಸಸತತರ ಸವವತಹ ನಪಪ1 ರವತರಸವ ಚಕಸ ಕ ನನನ ಬಬವ ಕ ಖತಗ ಸವಬವಧಪಟಟದದ ಸ ಆಗದಸ ದ ಮತಸತ ಅದರಲರಸವ ಸಹಯಸ ನನನ ದಸ ಆಗರಸತತದ . ಸಕಯಸ ನತತಡ ತನನ ದವದಸ ಒಪಪಕ ತವಡಸ ಗಸರಸತಸರಸವ ಸಹಯನಸ ನ ನಪಪ1(ಎ) ಎವದಸ ಗಸರಸತಸಲಯತಸ.
When transaction is admitted then the defence of the accused is that he had received only Rs.1,00,000/, as a advance amount, such defence is not sustainable when it is admitted by the accused himself that the sale consideration was fixed for Rs.3,80,000/. Because consideration is also not in dispute. Under such circumstances the complainant is entitled for the presumption u/s 118 of N.I. Act.
9. I have perused carefully the deposition of D.W.1, in the chiefexamination itself, it is very much clear that the accused is a real estate business person, doing his business with his friend P.Madan. Further it is admitted by the accused that he had a 16 Crl.A.No.25064/2019 good friend by name Adam Shafiulla Khan, who is also doing a real estate business, said Adam Shafiulla Khan has demanded one site to the accused, being close friend, accused has agreed to sold the site to his friend Shafiulla Khan in respect of which the accused has already executed agreement of sale in favour of the complainant for sale consideration amount of Rs.3,80,000/. Since accused become unable to execute the sale deed in favour of the complainant in terms of the agreement of sale as accused has sold the site to his friend. Hence, accused has agreed to refund the advance amount of Rs.3,00,000/, received by him from the complainant. To substantiate this finding, it is relevant to extract the relevant portion of deposition of D.W.1 at 1 st para of chiefexamination which reads thus:
ನನಸ ರಯಲ ಎಸಟ ತಟ ವಬ ವಹರವನಸ ನ ಮಡಕತವಡರಸತತತ ನ. ಆ ವಬ ವಹರವನಸ ನ ನನಸ ಮತಸತ ನನನ ಸನ ತಹತ ಮದನ ಸತರಕತವಡಸ ಮಡಸತತದ ವ. ನನಗ ಆದಮ ಷಪಉಲ ಲ ಖನ ಎನಸ ನ ವವರಸ ಸನ ತಹತರಗದದ ರಸ ಪರಚಯ ಇರಸತತರ . ಆದಮ ಷಪಉಲ ಲ ಖನ ಇವರಸ ಸಹ ರಯಲಎಸಟ ತಟವಬ ವಹರ ಮಡಸತತದದ ಸ ನಮಮ ಹತತರ ಬವದಸ ಒವದಸ ಸಸಟ ಬತಕಸ ಎವದಸ ಕತಳಕತವಡದದ ರವದ ನವ ಅವರತವದಗ ನ ಮಡರಸತತತ ವ. ಅವರಸ ಸಸಟನನ ಸ 2012 ರಲ ಕತಳರಸತರ. ವಬ ವಹರವನಸ ಆಗ ನನಸ ಅವರಗ ಕಚರಕನಹಳಳ ಇದದ ಒವದಸ ಸಸಟನನ ಸ ಕರದಸಕತವಡಸ ತತತರಸರಸತತತ ನ. ನವತರ ಆ ಸಸಟ ಮತರಸ ಲಕದ ಎವಬತಸತ ಸವರ 17 Crl.A.No.25064/2019 ರಸಪಯಗಳಗ ಮತಸಕತ ಆಗರಸತತದ . ಆ ಹಣದಲ ಬಬಸರವರಸ ಒವದಸ ಲಕ ಹಣವನಸ ನ ಕತಟಸ ನ ಮಡಸಕತವಡರಸತತರ .
ಟ ಕರರಸಪತ ತವನಸ ನವತರ ಅವರಸ ನಮಮ ಹತತರ ಬವದಸ ಆ ಸಸಟ ತಮಗ ಬತಡ ಬತರ ಕಡ ಕತಡಸಕತಡ ಎವದಸ ಕತಳದರಸ. ಆ ನವತರ ನವ ಬತರ ಕಡ ಸಸಟನನ ಸ ತತತರಸದವ ಆದರ ಅವರಗ ಇಷಟ ಆಗಲಲಲ . ನನಗ ಕತಟಟದದ ವತಹ ಹಣವನಸ ಸ ಕತಡಲಸ ನನಸ ಕಲವಕಶ ಕತಳಕತವಡದನಸ.
ನ ವಪಸಸ
ಆದರ ಅವರಸ ನನಗ ಕಲವಕಶ ಕತಡದದದ ರವದ ಭದದ ತಗಗ
ಏನದರತ ಕತಡ ಎವದಸ ಹತಳದದ ರವದ ನನಸ ಒವದಸ ಸಹ ಮಡದ
ಖಲ ಚಕಕ ನಸ
ನ ಪರರದಯ ಗವಡನದ ಬಬಸ ಅಲರಸ ಆದಮ
ಷಪಉಲ
ಲ ಖನರವರಗ ಕತಟಟದ ನಸ.
On careful appreciation of chief examination of D.W.1, a prudent man can safely held that accused had initially agreed to sell the site in favour of the complainant for consideration amount of Rs.3,80,000/ and had received consideration amount of Rs.3,00,000/, as he has sold the site to his close friend, that too, he is also doing a same business, has demanded same site, hence accused sold the site to his friend and agreed to refund the advance amount to the complainant. This portion of evidence of accused is sufficient to hold that the complainant is not only entitled for the presumption u/s 118 and 139 of N.I.Act, it is also sufficient to hold that the complainant has proved the fact of legally recoverable debt.18 Crl.A.No.25064/2019
10. The second part of the chiefexamination of D.W.1 clearly established that accused has issued a cheque and he has put his signature on the cheque.
11. I have perused the evidence of D.W.2, which is clearly corroborates the evidence of D.W.1. D.W.2 has deposed before the court that he is doing real estate business and carpenter with the accused and he has also deposed about the transaction which took place between the complainant and accused in respect of site. Even D.W.2 has deposed before the court that the accused had agreed to refund the advance amount. On careful perusal of the evidence of D.W.1, it clearly shows that there was transaction between the complainant and accused in respect of site, due to nonavailability of site accused has agreed to refund the advance amount to the complainant.
12. In support of oral evidence the complainant has produced 6 documents, which have been marked at Ex.P.1 to P.6. Ex.P.1 is the original cheque, I have perused original cheque, it is seen that date of cheque, signature, amount mentioned in the cheque in the words are written in the same ink. In the cheque bounce case the important part of cheque has 19 Crl.A.No.25064/2019 been admitted, the defence of the accused is that cheque was blank at the time of issuing the same to the complainant and complainant had misused the said blank cheque is not sustainable. Even for the sake of defence, taken by the accused, if the accused had issued a blank cheque and admitted the signature appeared on the cheque, then what is the consequences of such a act of accused. To answer this question, it is relevant to extract Section 20 of N.I. Act, which reads thus:
20. Inchoate stamped instruments.__ Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India] and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person signing shall be liable upon such instrument, in the capacity in which he signed the same to any holder in due course for such amount:
provided that no person other than a holder in due course shall recover from the person delivering the 20 Crl.A.No.25064/2019 instrument anything in excess of the amount intended by him to be paid thereunder:
In support of my consideration I relied on the decision reported in the case of H.S.Srinivasa Vs. Girijamma, ILR 2006 (2) Kar 2054 : 2006 (3) AIR Kar R 522: 2006 (3) Kar.LJ 10: 2006 (2) DCR 705: 2006 (3) BJ 26 it is held that "A reading of Section 20 of the Act which is extracted above reveals that the words used are either wholly blank or having written therein an incomplete negotiable instrument. The instrument may be wholly blank or incomplete in particular in either case, the holder has the authority to make or complete the instrument as a negotiable a one. The authority implied by a signature to a blank instrument is so wide that the party so signing is bound to be a holder in due course. Promissory notes are often executed in the name of the payer and left unfilled to be afterwards filled by the actual holder, the object being to enable the owner to pass it off to another without incurring the responsibility as an endorser. Thus it is seen that the person in possession of an incomplete instrument in material particulars, has the authority prima facie to fill it up and thus the executant becomes liable to pay the amount due".21 Crl.A.No.25064/2019
13. So on perusal of the above said provision, it is clear that issuing of blank cheque with a signature to a person is an authorisation given to that person to fill up the cheque as he wants, more particularly with a reference to transaction taken place between the drawer and that person. So, considering this aspect the defence of the accused is not sustainable under the law.
14. Ex.P.3 is the bank endorsement which bears the signature of bank employee with seal. The endorsement issued by the bank is proof of certain facts with a reference to transaction as it has been issued by the public servant while discharging his duty as a public servant. So, it has evidentiary value under Section 35 of the Indian Evidence Act.
15. Ex.P.4 is the legal notice issued by the complainant on 3.6.2016, which was served on the accused on 4.6.2016 as per Ex.P.5, letter issued by the postal authority. Ex.P.5 and 6 are the postal letter and postal receipt which clearly estblishes the fact of service of notice prior to filing of complaint. So, on basis of Ex.P.4 to P.6 it can be safely held that the complainant has 22 Crl.A.No.25064/2019 complied with the mandatory requirement of Section 138 of N.I. Act.
16. So, on careful scrutiny of oral and documentary evidence it is clearly shows that the accused did not elicited anything from the cross of P.W.1 to disbelieve the case of the complainant and to rebut the presumption available to the complainant. Except formal denial nothing is elicited from the cross of P.W.1, to show atleast, a probable defence in support of his case. Even the accused has examined the supporting witness D.W.2, which does not helps the defence.
17. On facts and circumstances of the case, and admitted fact, material placed before the court, it can be safely held that no prudent man can say that the complainant is not entitled for the presumption available under Section 118 and 139 of N.I.Act. In support of my opinion I relied on the decision reported in (2008) 2 SCC Crl. 166 in case of Krishna Janardhan Bhat v/s Dattatreya.G.Hegde.
18. So trial court has considered all aspect with reference to oral and documentary evidence, hence I find no error in the trial court order.
23 Crl.A.No.25064/2019
19. I have perused statement of accused recorded by the trial court u/s 313 of Cr.P.C., which covers entire incriminating substances, trial court has formed the questions and read over to the accused in the language known to him and recorded the answer given by the accused, examined accused and provided sufficient opportunity to the accused to explain and answer the incriminating circumstances, appeared in the evidence against him. So on going through the statement, recorded by the trial court u/s 313 of Cr.P.C., I find no error in recording of statement.
20. I have gone through the reasonings given by the trial court for awarding the compensation u/s 357 of Cr.P.C. On going through the same, it is clear that trial court has considered the facts and circumstances of the case and awarded the compensation to the complainant. On perusal of the observation made, reasoning assigned by the trial court, for awarding the compensation, I am of the opinion that the trial court has awarded the compensation in accordance with the principle laid down by the Hon'ble Apex Court in the decision 24 Crl.A.No.25064/2019 reported in (1988) 4 SCC 551 in case of Hari Singh v/s Sukbhir Singh.
The lordships have held that; power given to the court to direct for payment of compensation is intended to do something for the victim. The provision was held to be a step forward in our criminal justice system. The lordships have made the observation in the said decision at para No.10 which reads thus;
"It empowers the court to award compensation to victim while passing judgment of conviction, in addition to conviction, the court may order the accused to pay some amount by way of compensation to the victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not a ancillary to other sentence but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconcilling the victim with a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We therefore, recommend to all courts to exercise this power liberally, so as to meet the ends of justice in a better way."25 Crl.A.No.25064/2019
21. Further the learned counsel for the complainant brought the notice of the court while arguing orally, that principle laid down by the Hon'ble High Court in the decision reported in 2005 (1) KLT 478 in case of General Auto Sales v/s Vijayalakshmi, and submitted that in the said decision the lordship have held that even blank cheque issued for discharge of liability or as a security, under such circumstances also the liability subsists and same is presented to the bank for encashment, the person who had drawn the cheque cannot escape from the liability fixed u/s 138 of N.I. Act.
22. Further the Hon'ble Apex Court has held in Rangappa's case reported in (2010) 11 SCC 441 it is held that; once cheque and signature thereon is admitted the presumption of legally enforceable debt in favour of holder of the cheque arises. So, it is for the accused who can rebut the presumption by proving the defence taken by the accused atleast to the extent of preponderance of probability of defence to rebut the presumption.
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23. In the case on hand, on the facts and circumstances of the case, the complainant is entitled for the legal presumption available to the complainant u/s 118 and 139 of N.I. Act.
24. I have gone through the decision relied on by the appellant, with a great respect to the law laid down in the decision relied on by the appellant, on the facts and circumstances of the case and more particularly on the admitted fact by the accused, the accused/appellant is not entitled to have a shelter under the law laid down by the lordships in the decision relied on by the accused.
25. Hence, on going through all the circumstances of the case I am of the opinion that the trial court has considered the admitted facts and oral and documentary evidence, led by both the parties with reference to fact in dispute. Hence, I hold that the trial court rightly hold the guilty of the accused of offence punishable u/s 138 of N.I. Act. With these reasons, conviction order recorded by the trial court is confirmed, and does not warranted the interference of this court. Hence, I answer this point in the Negative.
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26. Point No.2: In view of the discussion made on point No.1, I proceed to pass the following:
ORDER Acting u/S 386 of Cr.P.C. the appeal preferred by the appellant/ accused is hereby dismissed.
Consequently, the judgment and order of conviction and sentence dated 06022019, passed by learned XXIII ACMM, Mayohall Unit, Bengaluru, in CC No.51488/2017, is hereby confirmed.
The suspension order, dated 07.03.2019, passed by this court on the application filed u/S 389 of Cr.P.C. stands revoked.
No order as to costs.
Office is directed to send LCR to the trial court with copy of the judgment.
In case if accused has deposited the amount, same shall be dealt in 28 Crl.A.No.25064/2019 accordance with the provision of Section 143 of N.I. Act.
(Dictated to the Stenographer, on computer, after computerization, corrected and pronounced by me the Open Court, this the day of 5th day of October, 2019) (YAMANAPPA BAMMANAGI) LXXIII Addl. CC & SJ, M.H. Unit, B'luru.(CCH74) 29 Crl.A.No.25064/2019