Bangalore District Court
Accused: Likhith Chakravarthy.C.V vs Likhith Chakravarthy.C.V on 13 May, 2021
IN THE COURT OF LXXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, MAYOHALL UNIT, BANGALURU. (CCH.74)
PRESENT:
Sri.Yamanappa Bammanagi, B.A., LL.B., (Spl.,)
LXXIII Addl.City Civil & Sessions Judge,
Mayohall Unit, Bangaluru.
Dated this the 13th day of May, 2021.
Crl. Appeal No.25120/2020
Appellant/
Accused: Likhith Chakravarthy.C.V.,
S/o.Vijaykumar.S.C.,
aged about 29 yrs,
No.118, 1st Cross, 3rd Stage,
IV Block, Basaveshwar Nagara,
Bangaluru560079.
(By Sri.Suresh.P. - Adv.)
V/S
Respondent/
Complainant: Prashant Shrivas,
S/o.Ramesh Singh Srivas,
aged about 41 yrs,
R/at.No.17/2, 17/3, 17/5,
Flat No.101, Honey Dew Apartments,
Old Age Home Road, Horamavu,
Bangaluru560043.
(By Sri.Vishruth.C. - Adv.)
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JUDGMENT
Being aggrieved by the judgment and sentence, passed by the learned XXXIII ACMM, Bangaluru, in CC No.57898/2018, dated 18.12.2019, convicting the appellant for the offence punishable under Section 138 of N.I.Act, sentencing him to pay fine of Rs.500/, in default of payment of fine amount, the accused shall undergo simple imprisonment for 3 months. Further ordered that, the accused shall pay compensation of Rs.50,85,000/ to the complainant, in default of payment of compensation, the accused shall undergo simple imprisonment for a period of one year, 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:
It is the case of the appellant that, the present respondent has filed complaint against the present appellant 3 Crl.A. No.25120/2020 u/S 200 of Cr.P.C. for the offence punishable u/S 138 of the N.I. Act. It is alleged in the complaint that, the complainant is working in an IT company named Microfocus Software India Pvt. Ltd., Bangaluru, as a IT Consultant. The accused is doing business of construction in the name and style as "Likhith Constructions" and he also owns the Go Gas Distributorship as "Likhith Distributor". The complainant was a part of common whats app business group named as "IBN Bangaluru1". In the year 2016 he sent a message in group asking for personal loan with higher interest. Since, then the complainant and accused were good friends. As such, the accused had approached the complainant seeking for hand loan of Rs.40,00,000/ on 28.3.2018 to meet his urgent financial necessities and assured to the complainant that he would return the said amount by 15.5.2018. Believing the words of the accused and out of mutual trust the complainant had agreed and arranged the amount of Rs.20,16,100/ and 4 Crl.A. No.25120/2020 gave the same by cash to the accused and thereafter the complainant has paid Rs.19,83,900/ to the accused to the links sent, the details of whats app conversation with a help of credit cards are given in the complaint. Further the complainant contended in the complaint that at the time of lending the loan amount the complainant got entered a loan agreement dated 5.5.2018 with the accused and complainant sought 5 cheques as a guarantee for the said loan amount and accused issued 5 cheques bearing No.00093 to 00096 and 00099, drawn on Kotak Mahindra Bank, Yashodhara Road, Basaveshwara Nagar, Bangaluru. The cheque Nos.00093, dated 25.6.2018, for Rs.9,00,000/, No.00094, dated 25.6.2018, for Rs.9,00,000/, No.00095, dated 25.6.2018, for Rs.9,00,000/, No.00096, dated 25.6.2018, for Rs.9,00,000/ and No.00099, dated 25.6.2018, for Rs.4,00,000/. Same were presented for encashment, but said cheques were returned with bank endorsement as "Funds 5 Crl.A. No.25120/2020 Insufficient" on 25.6.2018. Thereafter, the complainant got issued notice on 11.7.2018, through RPAD calling upon the accused to pay the said cheques amount within 15 days from the date of receipt of the legal notice. Said notice was returned with a shara "Addressee Left". Thereafter, the complainant has made an efforts to approach the accused in this regard by making calls as well as by whats app conversation, for which the accused has made a false assurance for repaying the loan amount, but, accused failed to pay the loan amount. Thus, the accused has committed offence punishable u/S 138 of the N.I. Act.
3. On being satisfied with the material placed before it, the trial court has taken cognizance for the offence punishable u/S 138 of the N.I. Act, issued summons u/S 204 of Cr.P.C. In pursuance of the summons, the accused has appeared before the trial court, the trial court enlarged the 6 Crl.A. No.25120/2020 accused on bail, thereafter, plea was recorded, the accused pleaded not guilty and claimed to be tried.
4. In order to prove his case the complainant was examined as P.W.1 and got marked Ex.P.1 to P.18. After giving sufficient opportunity to the accused for cross examination of P.W.1 and for leading his evidence, the trial court has taken cross of P.W.1 as Nil and no defence evidence has led. After hearing the arguments and on perusal of the materials on record, the trial court has recorded the order of conviction, convicting the appellant/accused for the offence punishable u/S 138 of the N.I. Act, with default clause. Being aggrieved by the said judgment and order of conviction, the accused is before this court, challenging the correctness and legality of the said judgment, order of conviction, on the following: "GROUNDS I. The trial court has passed the impugned judgment mechanically 7 Crl.A. No.25120/2020 without considering the defence of the appellant, hence the impugned judgment is liable to be set aside.
II. The trial court failed to appreciate the fact that before filing the complaint, the complainant has not served notice on the accused as required u/S 138 of N.I. Act. Thus, in the absence of service of notice the complaint filed by the complainant before the trial court is not maintainable. Hence, impugned judgment is liable to be set aside.
III. The trial court failed to appreciate financial capacity of the respondent, no material produced by the complainant before the trial court to show his financial capacity to lend such a huge amount and no witnesses has been examined by the complainant to prove his case.
Thus, the impugned judgment is liable to be set aside.
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Crl.A. No.25120/2020 IV. The trial court failed to give sufficient opportunity to the accused to contest the case, failed to follow the rule of natural justice even after remand the matter. The documents produced by the complainant does not proves loan transaction and amount of Rs.20,16,100/ paid in cash, which violates the provisions of the Income Tax Act.
V. It is well settled law that appellant need not lead evidence to rebut the presumption, but the material placed before the court by the complainant can be considered for rebutting the presumption. But, trial court failed to appreciate the material placed by the complainant which are sufficient to hold that the accused has rebutted the presumption. Thus, looking from any angle the impugned judgment is liable to be set aside. With this, the appellant prayed for allowing the appeal."
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5. Along with appeal the appellant has filed application u/S 5 of the Limitation Act for condonation of delay in preferring the appeal and same was allowed by condoning the delay and admitted the appeal. On admitting the appeal, this court has passed the order on the application filed by the appellant u/S 389 (1) of Cr.P.C., and suspended the operation and execution of the trial court order and issued notice to the respondent. The respondent appeared through counsel and received TCR. When appeal was posted for argument, the appellant and his counsel were absent, hence, argument on appellant side was taken as heard and posted for argument on respondent side. The learned counsel for the respondent has filed written argument and posted for judgment.
6. I have perused impugned judgment and order of the trial court, reappreciated oral and documentary evidence, led by the complainant before the trial court, considered 10 Crl.A. No.25120/2020 material placed before the court, considered the arguments 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 complainant proves that he has discharged initial burden to have a benefit u/S 139 of the N.I. Act?
2. Whether complainant proves the existence of legally recoverable debt and his financial capacity and accused has issued cheque towards discharge of legally recoverable debt?
3. Whether the complainant proves that he has issued notice to the accused as required u/S 138 of N.I. Act?
4. Whether accused proves that he has rebutted the presumption on preponderance of probabilities?
5. Whether the appellant/accused made out grounds to show that the order of conviction and sentence recorded by the trial court, in C.C. No.57898/2018, 11 Crl.A. No.25120/2020 dated 18.12.2019, is deserves to be setaside and call for the interference of this court?
6. What order?
7. My answer to the above points are as follows: Point No.1: In the Affirmative, Point No.2: In the Affirmative, Point No.3: In the Affirmative, Point No.4: In the Negative, Point No.5: In the Negative, Point No.6: As per final order, for the following: REASONS
8. POINT Nos.1 to 3: These three points are interconnected to each other, in order to avoid repetition, I proposed to answer these three points commonly. The rank of the parties is referred as they were referred before the trial court.
In order to prove his case, the complainant is examined as P.W.1 and got marked Ex.P.1 to P.18. P.W.1 deposed 12 Crl.A. No.25120/2020 before the court by filing affidavit in lieu of sworn statement and same is treated as evidence of complainant, by reiterating the averments of the complaint. P.W.1 deposed before the court that he is working in an IT company Microfocus Software India Pvt. Ltd., at Bangaluru as a IT Consultant and accused is doing business of construction in the name and style as "Likhith Constructions" and he also owns Go Gas Distributorship styled as "Likhith Distributors". Further he deposed before the court that himself and the accused were a good friends through common whats app group named as "IBNBangaluru1". Such being the fact, the accused had approached the complainant for financial assistance of Rs.40,00,000/ for his urgent necessities and accused has assured that he would repay the said amount by 15.5.2018, believing the words of accused the complainant had paid Rs.20,16,100/ by cash. Thereafter, for balance amount the complainant has secured from his previous employer Thomas 13 Crl.A. No.25120/2020 Reuters and paid Rs.19,83,900/ through links sent by the accused over whats app, details are as follows: Sl. Date of Details of Amount in No. Lending Credit Card Rs.
1. 28.03.2018 Standard 2,35,000/ Chartered
2. 07.04.2018 Citibank 4,98,900/ Credit card
3. 08.04.2018 Standard 2,30,000/ Chartered
4. 09.04.2018 Overdraft 2,50,000/ facility of Debit card
5. 09.04.2018 ICICI 2,70,000/
6. 05.05.2018 American 1,65,000/ Express
7. 07.05.2018 American 3,35,000/ Express Further the P.W.1 deposed before the court that he got entered into loan agreement on 5.5.2018 with accused and accused got issued 5 cheques bearing No.00093, dated 25.6.2018, for Rs.9,00,000/, No.00094, dated 25.6.2018, for Rs.9,00,000/, No.00095, dated 25.6.2018, for Rs.9,00,000/, No.00096, dated 25.6.2018, for Rs.9,00,000/ and No.00099, 14 Crl.A. No.25120/2020 dated 25.6.2018, for Rs.4,00,000/, drawn on Kotak Mahindra Bank, Yashodhara Road, Basaveshwar Nagar Branch, Bangaluru and same were presented for encashment and said cheques returned with a bank endorsement "Funds Insufficient". Thereafter, the complainant got issued legal notice to the accused through RPAD, same was returned with a endorsement "Addressee Left". Thereafter, the complainant tried to approach the accused through phone call as well as whats app conversations, for which the accused has made a false assurance of repayment of loan amount. Even after such assurance, the accused failed to pay the cheque amount. Thus, the accused has committed offence u/S 138 of the N.I. Act.
9. In support of oral evidence, the complainant has produced documents which have been marked at Ex.P.1 to Ex.P.18. Ex.P.1 to P.5 are the original cheques issued by the accused in the name of complainant, Ex.P.1 (a), 2 (a), 3 (a), 15 Crl.A. No.25120/2020 4 (a), 5 (a) are the signature of the accused appeared on Ex.P.1 to P.5, Ex.P.6 is the bank endorsement which reflects the reasons for the dishonour of cheques, Ex.P.7 is the office copy of legal notice, Ex.P.8 is the postal receipt, Ex.P.9 is the RPAD envelope, which discloses that notice issued by the complainant to the accused returned with a endorsement 'Addressee Left', Ex.P.10 is the standard chartered credit card statement of complainant, Ex.P.11 is the credit card statement of complainant, Ex.P.12 is the statement of account of complainant, Ex.P.13 is the corporate card statement of account of complainant, Ex.P.14 is the account statement of complainant, Ex.P.15 is the loan agreement, Ex.P.16 is the certificate u/S 65 (B) of the Indian Evidence Act, Ex.P.17 and P.18 are the whatsapp conversation.
10. On being satisfied with the above documents, the trial court has issued summons to the accused U/sec.204 of Cr.P.C. Hence, this court finds no error in the trial court 16 Crl.A. No.25120/2020 order in issuing summons to the accused. In pursuance of the summons, the accused appeared through counsel and plea was recorded by reading substances of accusation, in the language known to the accused. I have perused the plea recorded by the trial court and found no error in recording of plea. Thereafter, the complainant is examined as P.W.1 and got marked Ex.P.1 to P.18 and after giving sufficient opportunity to the accused for crossexamination of P.W.1 and to lead his defence evidence, the trial court has taken cross of P.W.1 as Nil and no defence evidence. Thereafter, the trial court heard the argument of the learned counsel for the parties and pronounced the judgment recording the conviction order on 2.7.2019, against the accused for the offence punishable u/S 138 of N.I. Act with default clause. The said judgment and sentence passed by the trial court was challenged by the appellant before the LXXII Addl. City Civil & Sessions Judge, Bangaluru, in Appeal No.25212/2019 17 Crl.A. No.25120/2020 challenging the correctness and legality of the judgment and sentence passed by the trial court on 2.7.2019 in CC No.57898/2018. The said appeal was disposed off on 11.11.2019 and remanded the matter to the trial court for retrial, while remanding the matter, in order to avoid further delay, the appellate court has directed the parties to appear before the trial court on 25.11.2019, at the behest, by treating the same as notice and without anticipating any summons or court notice from the trial court.
11. The trial court, as per the order of the appellant court in Crl. Appeal No.25212/2019, called out the case after remand on 25.11.2019. On 25.11.2019 appellant and his counsel were absent before the trial court when case was called out. Again case posted on 18.12.2019. On 18.12.2019 accused and his counsel absent, no representation, hence again case called out on 3 p.m., but there was no representation on appellant side before the trial court. Thus, 18 Crl.A. No.25120/2020 even after remand, the appellant failed to lead his evidence and failed to contest the matter. Hence, the trial court has pronounced the judgment on 18.12.2019, convicting the appellant for the offence punishable u/s 138 of N.I. Act and sentenced him to pay fine of Rs.500/ with default clause for 3 months simple imprisonment and further ordered that accused shall pay compensation of Rs.50,85,000/ to the complainant with default clause for one year simple imprisonment. Being aggrieved by the said judgment and sentence passed by the trial court on 2nd time the appellant is before this court challenging the judgment and sentence passed by the trial court in 2nd time.
12. On perusal of the oral and documentary evidence led by the complainant and material placed before the court, it is clear that, the accused has taken defence in the appeal memo that notice was not served on the appellant u/S 138
(b) of N.I. Act, the complainant failed to prove his financial 19 Crl.A. No.25120/2020 capacity before the trial court, the trial court failed to provide sufficient opportunity to the appellant to contest the matter even after remand of the matter and material produced by the complainant before the trial court are not sufficient to convict the appellant for the offence punishable u/S 138 of N.I. Act.
13. I have perused oral and documentary evidence of the complainant led before the trial court and reappreciated the same. On perusal of the same, it is clear that, the accused did not choose to crossexamine the complainant and did not choose to lead his evidence in support of his defence and to rebut the presumption. Thus, the oral and documentary evidence led by the complainant remained unchallenged.
14. That apart, in order to discharge his initial burden the complainant has produced as many as 18 documents in support of his oral evidence. Now it is relevant to appreciate oral and documentary evidence to ascertain as to whether 20 Crl.A. No.25120/2020 complainant has proved his financial capacity, service of notice and the existence of legally recoverable debt and the accused has issued cheque in question towards discharge of his liability.
15. Ex.P.1 to P.5 and Ex.P.1 (a), 2 (a), 3 (a), 4 (a) & P.5 (a) are the original cheques issued by the accused in the name of the complainant and signature of the accused appeared on Ex.P.1 to P.5. These documents are not denied by the accused before the trial court. Ex.P.6 is the bank endorsement issued by the Kotak Mahindra Bank Ltd., which reflects the reasons for the dishonour of cheques Ex.P.1 to P.5. Ex.P.6 has got presumptive value u/S 146 of the N.I. Act, which provides that bank's slip prima facie evidence of certain facts the court shall, in respect of every proceeding under this chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of cheque, 21 Crl.A. No.25120/2020 unless and until such fact is disproved. In the case on hand, the accused, though appeared before the trial court through counsel, did not choose to crossexamine P.W.1 and denied the oral and documentary evidence led and produced by the complainant. Further accused did not choose to lead his evidence in support of his defence and to rebut the presumption.
16. That apart, the accused has preferred an appeal before the LXXII Addl. City Civil & Sessions Judge, Bangaluru, in Crl.Appeal No.25212/2019 challenging the judgment and sentence of the trial court taking defence that the trial court did not provided sufficient opportunity to the accused to contest the matter and for crossexamination of P.W.1 and to lead his defence evidence. Considering the defence of the accused and considering the material placed before the appellant court and in order to give sufficient opportunity to the accused to contest the matter the appellate court in 22 Crl.A. No.25120/2020 Appeal No.25212/2019 has remanded the matter for retrial. As per the direction of the appellate court in Appeal No.25212/2019 the trial court has given an opportunity to the accused for crossexamination of P.W.1 and to lead his evidence. But, the accused failed to present before the trial court as per the direction of the appellate court in the Appeal No.25212/2019. Thus, it is clear that the appellant is not diligent in contesting the matter. Further on perusal of the material placed before the court I am of the opinion that the appellant is not entitled to take defence in the appeal memo for the 2nd time that he was not provided sufficient opportunity to contest the matter, since, the appellant has misused an opportunity provided to him in the appeal preferred by him in Appeal No.25212/2019. Because, taking such an defence in 2nd appeal after remand of the matter on the same defence, is amounts to abuse of process of law as it could be seen from the very material placed before the court. 23
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17. The 2nd defence of the appellant in the appeal is that complainant has not served the notice on the accused as required u/S 138 of N.I. Act. Thus, the complaint itself is not maintainable. Now it is relevant to appreciate Ex.P.7, P.8 & P.9, Office Copy of Legal Notice, Postal Receipt and RPAD Envelope returned with a endorsement "Addressee Left", respectively. I have perused the grounds taken in the appeal memo that the notice issued by the complainant returned with a endorsement "Addressee Left", under such circumstances, it is for the complainant who has to search the accused proper address. Without service of notice, the complaint is not maintainable. On the other hand, I have perused the complaint and it is clear that after receipt of postal endorsement the complainant has tried to approach the accused through call as well as through whatsapp conversation, for which accused has made a false assurance of repayment of loan amount.
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18. The accused denied the service of notice in the appeal memo. But, he has not denied the address shown in Ex.P.7 to P.9. When the complainant has issued notice to the accused to his correct address through registered post then it is deemed that notice through registered post has been served on the accused.
19. I have gone through the Ex.P.5 RPAD Envelope, which reflects that the complainant has issued legal notice to the accused, same was returned with a endorsement 'Addressee Left'. This clearly establishes that complainant has complied with the requirement of Section 138 of the N.I. Act.
20. On appreciation of oral evidence of P.W.1 and Ex.P.7 to P.9 it can be safely held that the notice issued by the complainant to the accused has been served and the complainant has complied with the requirement of Section 138 of the N.I. Act.
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21. When the RPAD returned with a postal shara as "Addressee Left" then it is deemed to be served on the accused as it is held in the decision reported in (1996) 7 SCC 523 in case of State of MP v/s Hira Lal and the decision reported in AIR 1992 SC 1604 in case of Jagadish Singh v/s Nathu Singh. The Hon'ble Apex Court held that, where the addressee manages to have the notices returned with a postal remarks "refused", "not available in the house", "houselocked", and "shop closed", respectively, it must be deemed that notices have been served on the addressee.
22. Further it is held by the Hon'ble Supreme Court about the deemed service of notice in the decision reported in (2007) 6 SCC 555 in case of C.C.Alavi Haji v/s Palapetty Mohammed and Another, held thus:
"According to Section 114 of the Evidence Act, read with illustration
(f), hereunder, when it appears to the court that the common course of 26 Crl.A. No.25120/2020 business renders it probable that a thing would happen, the court may draw presumption that thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case.
Consequently, the court can presume that the common course of business followed in particular cases. When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural events, the communications would have been delivered at the address of the 27 Crl.A. No.25120/2020 addressee. But, the presumption that is raised u/S 27 of the General Clauses Act is a far stronger presumption. Further, while
Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption.
For the sake of ready and reference, Section 27 of G.C. Act is extracted below:
Section 27. Meaning of Service by post - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter 28 Crl.A. No.25120/2020 containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
23. Section 27 of G.C. Act gives rise to a presumption that service of notice has been effected when it sent to the correct address by registered post. In view of the said presumption, when it is stated that the notice has been sent by registered post to the address of the drawer, it is unnecessary to further aware in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business.
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24. When issuance of cheques Ex.P.1 to P.5 and signatures on Ex.P.1 to P.5 are not in dispute, then the complainant is entitle to have shelter U/sec.118 and 139 of the N.I. Act as held in the decision reported in (2010) 11 SCC 441 in case of Rangappa v/s Sri.Mohan. The Hon'ble Apex Court has held thus:
"Once issuance of cheque and signature thereon are admitted, the presumption of legally enforceable debt in favour of the holder of the cheque arises. It is for the accused to rebut the said presumption.
Though accused need not adduced his own evidence and can rely upon the materials submitted by the complainant. However, mere statement of the accused may not be sufficient to rebut the said presumption."
25. Now it is relevant to appreciate Ex.P.15. Ex.P.15 is the original hand loan agreement, entered between the 30 Crl.A. No.25120/2020 complainant and accused in respect of loan, taken by the accused, which discloses that in order to discharge his obligation the accused has issued cheque bearing No.0093, 94, 95, 96 and 99. Further Ex.P.15 reflects the signature of the accused and complainant.
26. I have perused Ex.P.10 to P.14 Bank Statements, which clearly establishes the transaction between the complainant and the accused in respect of loan of Rs.40,00,000/ and further establishes the financial capacity of the complainant. Further I have appreciated Ex.P.16, P.17 and P.18. Ex.P.17 is the extract of whatsapp message, which clearly discloses the transaction between the complainant and the accused and establishes the payment of loan amount to the accused through the link provided by the accused to the complainant. Thus, the complainant has proved the existence of legally recoverable debt and transaction by producing the documentary evidence, which have not been challenged by 31 Crl.A. No.25120/2020 the accused before the trial court, even after giving sufficient opportunity.
27. So, on perusal of the oral and documentary evidence of the complainant, it is clear that, it is a fit case to avail the provision of Section 118 and 139 of the N.I. Act. When the issuance of cheque and documents produced by the complainant are not disputed, then accused cannot escape from the liability by saying that the complainant failed to prove the existence of legally recoverable debt, service of notice without producing any evidence to disbelieve the oral and documentary evidence produced by the complainant.
28. On reappreciation of oral and documentary evidence, it is clear that, no material has been produced by the accused to rebut the presumption and on perusal of the undisputed oral and documentary evidence led by the complainant it is clear that the complainant has proved the service of notice, his financial capacity and existence of 32 Crl.A. No.25120/2020 legally recoverable debt. Further it is clear from the material placed before the court that accused has issued the cheques in question towards discharge of legally recoverable debt and same were dishonoured for the reason shown in Ex.P.6 Bank Slip. Hence, presumption u/S 139 and 118 of the N.I. Act remained unrebutted.
29. On careful scrutiny of oral and documentary evidence, it is clear that except mere denial of the evidence of P.W.1 and the documents produced by the complainant in the appeal memo there is no specific denial and no specific case has been made out by the accused to rebut the presumption u/S 139 and 118 of the N.I. Act before the trial court, even though sufficient opportunity has been given to the accused at the initial stage as well as after remand of the matter for retrial. So, on perusal of the material placed before the court, perusal of judgment of the trial court, I am of the opinion that the complainant has discharged his initial burden to have 33 Crl.A. No.25120/2020 a shelter u/S 139 of N.I. Act. Hence, the trial court committed no error in recording of conviction. With the above observation and reasons assigned and relying on the decisions referred supra, I answer points No.1 to 3 in the Affirmative.
30. POINT Nos.4 & 5: These two points are interconnected to each other, in order to avoid repetition, I proposed to answer these two points commonly. On careful perusal of the material placed before the court, it is clear that the original cheques Ex.P.1 to P.5 and signature of the accused on Ex.P.1 to P.5 are not disputed by the accused, even the accused appeared through counsel and even after remand of the matter for retrial. Ex.P.6 to 18 clearly establishes the existence of legally recoverable debt and transaction between the accused and the complainant. The oral and documentary evidence led by the complainant remained unchallenged even during retrial of the matter. 34
Crl.A. No.25120/2020 That apart, it is well settled law that to rebut the presumption available to the complainant the accused need not get into the witness box and he need not produce any documents. But, the accused can rebut the presumption by cross examination of P.W.1 on oral and documentary evidence produced by the complainant. But, in the case on hand, the oral and documentary evidence remained unchallenged though sufficient opportunity has been given to the accused to contest the matter by crossexamination of P.W.1 or by leading his defence evidence. Under such circumstances, without there being any material to hold that the accused has rebutted the presumption available to the complainant, it cannot be held that accused has rebutted the presumption.
31. This court has scrutinized the oral and documentary evidence produced by the complainant with reference to facts in issue. On perusal of the same this court finds no material to hold that accused has rebutted the 35 Crl.A. No.25120/2020 presumption. The complainant has proved the requirement of Section 138 of the N.I. Act, by producing cogent, oral and documentary evidence. Hence, this court is of opinion that the accused has failed to rebut the presumption.
32. I have perused the documentary and oral evidence, led by the complainant and material placed before the court, it is 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 carefully perused the documentary as well as oral evidence and I have re appreciated the same. On perusal of the same I am of the opinion that, trial court has rightly come to conclusion that, the appellant/accused has committed offence u/S. 138 of the N.I. Act.
33. I have perused the material placed before the court, it is seen that the present appellant has preferred an 36 Crl.A. No.25120/2020 appeal before the LXXII Addl. City Civil & Sessions Judge, Bangaluru, in Appeal No.25212/2019 against the judgment and sentence passed by the trial court on 2.7.2019 in CC No.57898/2018 and said appeal was disposed off and remanded the matter for retrial holding that the trial court has not recorded the statement of the accused u/S 313 of Cr.P.C. As per the direction of the appellate court in the said appeal the trial court has provided sufficient opportunity to the accused for cross of P.W.1 and for recording the statement of the accused under Section 313 of Cr.P.C. But, after remand the accused and his counsel remained absent. Thus, the accused did not contested the matter even during retrial.
34. 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 37 Crl.A. No.25120/2020 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 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 38 Crl.A. No.25120/2020 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 reconciling 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."
35. Hence, on going through all the circumstances of the case, I am of the opinion that, the trial court has considered the undisputed facts and oral and documentary evidence, led by the complainant. Hence, I hold that the trial 39 Crl.A. No.25120/2020 court rightly hold the guilty of the accused of offence punishable u/s 138 of N.I. Act. With these reasons, the conviction order, recorded by the trial court is hereby confirmed, and does not warrants the interference of this court. Thus, the accused failed to rebut the presumption available to the complainant. Hence, I answer point Nos.4 & 5 in the Negative.
36. POINT No.6: In view of the discussion made on point Nos.1 to 5, 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 18122019, passed by learned XXXIII ACMM, Mayohall Unit, Bangaluru, in CC 40 Crl.A. No.25120/2020 No.57898/2018, is hereby confirmed.
The suspension order, dated 09.07.2020, passed by this court, on the application filed u/S 389 of Cr.P.C. stands canceled.
No order as to costs.
Office is directed to send TCR to the trial court with copy of the judgment.
(Dictated to the Stenographer, on computer, after computerization, corrected and pronounced by me in the Open Court, this the 13th day of May, 2021) (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, B'luru.(CCH74) 41 Crl.A. No.25120/2020 Judgment pronounced in the open court (vide separate judgment).
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 18122019, passed by learned XXXIII ACMM, Mayohall Unit, Bangaluru, in CC No.57898/2018, is hereby confirmed.
The suspension order, dated 09.07.2020, passed by this court, on 42 Crl.A. No.25120/2020 the application filed u/S 389 of Cr.P.C. stands canceled.
No order as to costs.
Office is directed to send TCR to the trial court with copy of the judgment.
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, B'luru.(CCH74) 43 Crl.A. No.25120/2020 44 Crl.A. No.25120/2020