Bangalore District Court
Mr. Shivashankar Pandit vs S/O Rajendra Pandit on 5 November, 2019
IN THE COURT OF THE LXXII ADDL. CITY
CIVIL & SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 05th day of November, 2019.
Crl. Appeal. No.25204/2018
Appellant/ Mr. Shivashankar Pandit,
Accused: S/o Rajendra Pandit,
Aged about 31 years,
R/at No.357, 9th Cross,
Tigalarapalya, Hoodi,
Bangalore562 048.
[By Sri. K. PrakashAdvocate]
V/s
Respondent/ Mrs. K. Shantha,
Complainant: W/o Krishnappa,
Aged about 50 years,
R/at Hoodi Village,
K.R.Puram,
Bangalore East Taluk.
(By Sri. C.S. Satyanarayana Adv.)
2 Crl.Appeal.No.25204/2018
JUDGMENT
This Appeal is preferred by the Appellant U/Sec. 374(3) of Cr.P.C., being aggrieved by the Judgment and Order of conviction passed by the LVIII Addl. CMM, Bengaluru, in CC. No.53360/2017, dtd.03.10.2018, convicting the Appellant/Accused for the offence punishable U/Sec. 138 of NI Act, thereby sentencing him to pay fine of Rs.2,55,000/. Out of which, Rs.2,50,000/ shall be paid as compensation to the Complainant U/Sec. 357(1) of Cr.P.C. and Rs.5,000/ shall be paid to the State Exchequer, as fine. In default, to undergo Simple Imprisonment for a period of three months.
2. The Brief facts leading to the filing of the present appeal are:
The present Respondent filed a Complaint U/Sec. 200 of Cr.P.C., against the present Appellant, alleging that, the Appellant approached the Respondent in the month of April 2016, requesting to give handloan of Rs.2,00,000/ to him, inorder to improve his 3 Crl.Appeal.No.25204/2018 business and for domestic purpose. On request, the Respondent paid handloan of Rs.2,00,000/ to the Appellant. On demand by the Respondent, the Complainant has issued two cheques for Rs.1,00,000/ each bearing cheque No.041719 dtd.15.07.2016, drawn on the Union Bank of India, HSR Layout Branch, Bengaluru, and another Cheque bearing No.998275 dtd.22.07.2016, drawn on the State Bank of Mysore, Koramangala Branch, Bengaluru, infavour of the Respondent. On receipt of the said Cheques, the Respondent presented the same for its encashment through her Banker, State Bank of Mysore, Hoodi Branch, Bengaluru. The said cheques have returned unencashed, with an endorsement "Funds Insufficient" on 26.09.2016. The Respondent has issued Legal notice dtd.14.10.2016 to the Appellant by RPAD on both the Addresses of the Appellant. The Legal notice issued to the first address of the Appellant, has returned with an endorsement, as served on 19.10.2016 and another Notice issued on another address of the Appellant, has returned with an endorsement "Insufficient Address". The 4 Crl.Appeal.No.25204/2018 Appellant has neither replied nor complied the said notice. On completion of the stipulated period, the Respondent was constrained to file the Complaint U/Sec.200 of Cr.P.C. alleging that the Appellant has committed the offence punishable U/Sec. 138 of N.I.Act.
3. On being satisfied, the Trial Court has issued summons U/Sec.204 of Cr.P.C. to the Accused on 24.04.2017. The Appellant has appeared before the Trial Court on 01.03.2018. He was enlarged on bail. Plea/Substance of Accusation was recorded by the Trial Court on 01.03.2018, wherein the Appellant did not plead guilty and claims to be tried.
4. The Complainant inorder to prove her case got herself examined as PW.1 and got marked 08documents as Ex.P.1 to Ex.P.08. P.W.1 was crossexamined on behalf of the Appellant on 12.04.2018 and 04.07.2018.
5. On closure of Complainant evidence, on the basis of incriminating substance, the Trial Court has recorded Statement of the 5 Crl.Appeal.No.25204/2018 Appellant/Accused U/Sec.313 Cr.P.C., on 04.07.2018. In defence, the Appellant got himself examined as DW.1 and has got marked one- document as Ex.D.1. DW.1 was cross examined on behalf of the Respondent/Complainant on 14.08.2018.
6. On hearing the Respondent/Complainant and the Appellant/Accused, the Trial Court recorded the Order of conviction against the Appellant/Accused on 03.10.2018. Hence, the Appellant/Accused is before this Court, being aggrieved by the said Judgment of conviction.
7. On filing the appeal, initially the sentence was suspended for a period of three months by this Court on 05.11.2018, with a condition that the Accused/Appellant shall deposit 20% of the Cheques amount and fine amount, before the Trial Court within four weeks. LCR were secured on 23.01.2019. Heard the Learned Counsels for the Appellant and the Respondent respectively, on the appeal. The Learned Counsel for the Appellant has also filed 6 Crl.Appeal.No.25204/2018 his written arguments on 05.10.2019. And the Learned Counsel has also filed his Written Arguments on 05.10.2019. I have carefully gone through the Written Arguments submitted on behalf of the Appellant and the Respondent.
8. The Appellant has preferred this appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has miserably failed to appreciate the oral and documentary evidence on record, in a proper and perspective manner;
b) The Trial Court has failed to consider the main contention taken up from the side of the Accused that, the Cheques Ex.P.1 and Ex.P.2 were issued by him to the son of the Complainant, towards security of the handloan taken from him;
c) The Trial Court ought to have considered that, the Appellant/Accused has already paid the handloan amount of Rs.1,00,000/ taken by him, from the son of the Complainant, for which he has produced Ex.D.1. Statement of Account;
d) The Trial Court ought to have considered that the cheques in question have been misused by the Complainant at the instance of her son;7 Crl.Appeal.No.25204/2018
e) The Trial Court ought to have considered that, there is no any transaction inbetween the Complainant and the Accused, muchtheless taking of the handloan by the Accused from the Complainant, as contended by her;
f) The Trial Court has failed to observe that the Accused has not received any Notice from the side of the Complainant, as required U/Sec. 138 of N.I. Act;
g) The Trial Court ought to have appreciated that the Appellant has successfully rebutted the presumption envisaged U/Sec. 139 of N.I. Act.
Hence, prayed to allow the said Appeal.
9. Following points arise for my consideration;
1. Point No.1: Whether the Appellant/Accused shows that the Order of Conviction and Sentence recorded by the Trial Court in C.C.No.53360/2017, dt.03.10.2018, deserves to be setaside, and thereby call for the interference of this Court?
2. What Order?
8 Crl.Appeal.No.25204/201810. My finding on the above points are as under:
Point No.1 : In the Negative;
Point No 2 : As per final order for the following :
REASONS
11. Point No.1: The rank of the parties will be referred as they were before the Trial Court.
The Complainant has filed a Complaint U/Sec. 200 of Cr.P.C. alleging that the Accused has committed an offence punishable U/Sec. 138 of N.I.Act, as he has issued two Cheques bearing No. 041719 dtd.15.07.2016, drawn on the Union Bank of India, HSR Layout Branch, Bengaluru, at Ex.P.1 and another Cheque bearing No.998275 dtd.22.07.2016, drawn on the State Bank of Mysore, Koramangala Branch, Bengaluru, at Ex.P.2, both drawn infavour of the Complainant. On receipt of the said Cheques, the Complainant presented the same for there encashment through her Banker State Bank of Mysore, Hoodi Branch, Bengaluru. The said cheques have returned 9 Crl.Appeal.No.25204/2018 unencashed, with an endorsement "Funds Insufficient" on 26.09.2016, as per Ex.P.3 and Ex.P.4. The Complainant has issued Legal notice dtd.14.10.2016 to the Appellant by RPAD on both his Addresses, as per Ex.P.6, which has returned served as per the postal acknowledgment Ex.P.7 and the notice issued on another address has returned as "Insufficient Address" as per Ex.P.8.
On the basis of the said documents and the preliminary evidence led by the Complainant, the Trial Court has issued summons to the Accused U/Sec.204 of Cr.P.C., on 24.04.2017. I do not find any error in the said order of the Trial Court.
12. On appearance of the Accused, Plea/Substance of Accusation of Accused was recorded on 01.03.2018. I have gone through the contents of the plea recorded by the Trial Court. I do not find any fault, in the Plea/Substance of Accusation recorded by the Trial Court.
13. On careful perusal of the evidence led by the Complainant as well as the Accused, it is the case of the Complainant that, inorder to repay 10 Crl.Appeal.No.25204/2018 the handloan of Rs.2,00,000/, the Accused has issued two cheques Ex.P.1 and Ex.P.2. Where as the case of the Accused is that he had taken a handloan of Rs.1,00,000/ from the son of the Complainant in the year 2015 and towards the security of the said loan, he had issued blank cheques to the son of the Complainant. Accused has paid the said handloan amount taken from the son of the Complainant, on demand of the said cheques kept as security, the Complainant's son contended that the said cheques have been misplaced. Now the said cheques have been utilized by the son of the Complainant, through the Complainant, by filing the present case. Further it is the case of the Accused that he has not received the notice Ex.P.6 U/Sec. 138 of N.I. Act.
14. As per the ocular evidence, more specifically cross examination of DW.1 at Page No.3, Para No.1, Line No.1, which reads as under;
" ನ.ಪ.-1 ರ ಚಕ ಮತತತ ಸಹ ನನನದದ......."
As per this piece of evidence, Accused admits that Ex.P.1cheque belongs to him and the signature found on Ex.P.1 is his signature.
11 Crl.Appeal.No.25204/201815. Further, looking to the defence taken up by the Accused, Accused admits that both the cheques Ex.P.1 and Ex.P.2 belongs to him and further contends that, the said cheques were given by him to the son of the Complainant, towards security on receiving handloan of Rs.1,00,000/ in the year 2015. This type of defence of the Accused can be seen as per examination in chief of DW.1, at Page No.1, Para No.1, Line Nos. 3 to 10 as well as in cross examination of PW.1, at Page No.1, Para No.2, which reads as under;
"..........ಈ ಪ ಪಕರಣದಲ ಹಜರತ
ಮಡರತವ 2 ಚಕ ನತ
ನ ಫರರದಯ ಮಗ
ವನನದದ ರವರಗ ಕನಟಟದದ ತ ಅವರರದ ಕಕಸಲ
ದ ಅದರ ಭದಪತಗಗ ಖಲ ಚಕ ನತ
ಪಡದತಕನರಡದತ ನ
ಕನಟಟದ. ವನನದದ ರವರರದ ಪಡದ ರನ. 1
ಲಕವನತ
ನ ಚಕಮನಲಕ ತರತವಳ ಮಡದ. ನನತ
ಕನಟಟ ಚಕ ಮನನವಗರತತತದ. ಅದತ ಮನನವದ ಬಗಗ ದಖಲಯನತ ನ ದ ಹಜರತಪಡಸದತ ಅದನತ ನ ನಡ.1 ಎರದತ ಗತರತತಸಲಯತತ. ಹಣ ಮರತಪವತರದ ನರತರ ನನನ ನ ನ ಚಕತ ಕನಟಟರತವದಲಲ. ನರತರ ಚಕತ ಸ ಕನಡತವರತ ನ ನ ವಪಸತ 12 Crl.Appeal.No.25204/2018 ಕದಳದ. ಆದರ ಸದರ ಚಕ ಕಳದತ ಹನದಗರತತತದ ಎರದತ ವನನದದರವರತ ಹದಳದದರತ. .........'' " 2. ನನಗಲದ ನನನ ಮಕಕಳತ ವರಮನ ತರಗ ಪವತದರರಲಲ. ದದ10.04.2016 ರರದತ ಅಪದತರಗ ರನ. 2 ಲಕ ಕನಟಟಲಲ ಸತಳತ ಳ ಹದಳತತತದನರದರ ಸರಯಲಲ. ಅಪದತರ ಜನತ ರನ.
2 ಲಕ ವನವಹರ ಬಟತ ಟ ಬದರ ರವದದ ವನವಹರ ಇರಲಲಲ. 2015 ರಲ ನನನ ಮಗ ವನನದದ ಅಪದತರಗ ರನ. 1 ಲಕ ಕನಟಟದದರತ ಎರದರ ಸರಯಲಲ. ಈ ಪಪಕರಣದಲ ಹಜರತ ಮಡರತವ 2 ಚಕತನ ನ ಆ ಸಲಕಕ ನನನ ಮಗ ಭದಪತಗಗ ಪಡದತಕನರಡದದರತ ಎರದರ ಸರಯಲಲ. 2015 ರಲ ರನ. 1 ಲಕವನತ ನ ನನನ ಮಗನಗ ಅಪದತರತ ವಎಎಎಪವತ ಮಡದದರತ ಎರದರ ಅದತ ಬದರ ಹಣ ಎರದತ ನತಡಯತತತರ. ನನನ ಮಗ ಅಪದತರಗ ಲನಟಟ ಈ ಮದಲನ ರನ. 1 ಲಕ ಬಗಗ ಖಸಗದ ಫರರದ ಪ ಪಮಣ ಪತ ತ ಮತತತ ನನದಟದಸನಲ ಹದಳಲಲ ಎರದರ ಅದತ ಬದರ ಇದತ ಪ ಪತನದಕ ಎರದತ ನತಡಯತತತರ . ಅಪದತರರದ ಹಚಚನ ಹಣ ಪಡಯಲತ ಸತಳತ ಳ ಸಕನ ಹದಳತತತದನರದರ ಸರಯಲಲ. ನನನ ಮಗ ಪ ಪಕರಣ ದಖ ಲತ ಮಡಸರತತತರರದರ ಸರಯಲಲ. "
Thus, as per this material on record, Accused has admitted that the cheques Ex.P.1 and Ex.P.2 belongs to him.
16. On viewing the amount of oral evidence with Ex.P.1 to P.8, which will suffices that the Complainant is entitle to have benefit of 13 Crl.Appeal.No.25204/2018 presumption available U/Sec.138, 139 of N.I.Act. As per the trite principle of law dealing with the presumption U/Sec.138 & 139 of N.I.Act and as per the dictum laid down by the Hon'ble Apex Court in the case of K. Subramani V/s K. Damodara Naidu, reported in 2014 (12) SCALE 677, as well as in the case reported in (2010) 11 SCC 441, wherein it is held that, "presumption U/Sec.139 of N.I.Act accrues to the benefit of the Complainant, unless the Accused rebut that presumption".
Now it is for the Accused to rebut the said presumption available to the Complainant U/Sec.139 of N.I.Act.
17. As per the crossexamination of PW.1 conducted on behalf of the Accused and on the basis of the defence evidence led by the Accused, the Accused has taken up following defences;
(a) He has not received Ex.P.6 notice;
(b)That Ex.P.1 and Ex.P.2 cheques were issued by him to the son of the Complainant, as security while obtaining handloan amount of 14 Crl.Appeal.No.25204/2018 Rs.1,00,000/ in the year 2015. On repaying the said handloan amount, the son of the Complainant has not returned the said cheques by contending that, the same were misplaced and now the son of the Complainant though the Complainant has filed the present Complaint, misusing the said cheques.
18. Coming to the first defence taken up by the Accused that he has not received the notice, which can be seen as per the cross examination of PW.1, at Page No. 2, Para No.3, Line Nos.3 to 7, which reads as under;
ನ ಸಸಷಟಸರತತತದನರದರ ಸರಯಲಲ.
"...... ಪ ಪಕರಣವನತ ನಪ6 ನನದಟದಸ ಅಪದತರಗ ಜರರಗಲಲ ಎರದರ ಸಕ ಅವರ ತರದ ತಗದತಕನರಡರಎತತರರದತ ನತಡಯತತತರ. ನಪ7 ರಲ ಪಡದತಕನರಡರತವರ ಸಹ ಇರತವದಲಲ ಎರದರ ನನಗ ಗನತತಲಲ. ಫರರದಯಲ ತನದರಸತವ 2 ನದ ವಳಸವ ಸರಪಣವರಗ ನಪ7 ರಲ ಇಲಲ. ಎರದರ ಸಠ ಆ ಕರಣಕಕಗ ನನದಟದಸ ಅಪದತರಗ ಜರರಗಲಲ ಎರದರ ಸರಯಲಲ.'' As per this evidence, it is seen that the Accused has denied that he has not received the NoticeEx.P.6.
Further as per the cross examination of DW.1, at Page No.3, Para No.2, Line Nos.1 to 4, which reads as under;15 Crl.Appeal.No.25204/2018
"ನಪ6 ನನದಟದಸನನನ ವಳಸಕಕ ಜರರಗತತತ ಮತತತ ಆ ಕರಣಕಕಗ ನಪ7 ಸಹ ಮಡರತತತದನರದರ ಸರ . ನನನ ತರದಯ ಜನತ ಸಸಲಲ ವಕಮನಸತಸ ಇದದ ಕರಣ ಖಸಗದ ಫರರದಯ ನನನ ಮದಲನಯ ವಳಸದಲ ವಸವದ ಎರದರ ಸರ.......'' As per this evidence, the Accused admits of receiving the NoticeEx.P.6, and having signed the acknowledgmentEx. P.7.
As per the documentary evidence Ex.P.6 to Ex.P.8 and on the basis of above oral evidence, it can be said that, the Accused has received the Notice as required U/Sec. 138 of N.I. Act. Hence, the first defence taken up by the Accused, that he has not received the NoticeEx.P.6, cannot be believed.
19. The second defence taken up by the Accused is withregard to, he having taken handloan of Rs.1,00,000/ from the son of the Complainant in the year 2015 and issuing the cheques towards security of the said handloan amount to the son of the Complainant. On payment of the said handloan amount, the son of the Complainant has not returned the said 16 Crl.Appeal.No.25204/2018 cheques. And the said cheques have been misused by him, through his mother.
The Accused has produced his Bank Statement with IDBI Bank at Ex.D.1, wherein as per transaction at Sl.No.768, dtd.31.10.2015, which suggest that an amount of Rs.1,00,000/ is debited from the account of the Accused and the same has been credited in the account of Vinodh K. as per the Cheque bearing No.14878.
20. As per this piece of evidence, it is asked to believe that the Accused has repaid Rs.1,00,000/ to the son of the Complainant, towards repayment of the handloan amount, which he has repaid by virtue of Cheque No.14878. If the defence of the Accused is taken into consideration, that he had issued Cheques towards the security of the said handloan amount, then what was the necessity for the Accused to issue the cheque bearing No.14878, towards repayment of the handloan amount, as the said cheques would have been utilized for the repayment of the said handloan amount.
17 Crl.Appeal.No.25204/2018Secondly, if it is considered that the Accused has repaid the said handloan amount to the son of the Complainant, then he would have repaid the amount by receiving the said Cheques, given by him as security to the son of the Accused, from him. Considering still further that the son of the Complainant has not returned the said Cheques, which the Accused has given as security, to him, then he would have issued the Notice to the son of the Complainant to return the said Cheques, but the same has not been done by the Accused. Even this aspect can be seen in the cross examination of DW.1, at Page No.4, Line Nos.3 to 6, which reads as under;
"......ನನತ ನಡ.1 ರ 2015 ರ ಇಸವ ದಖಲ ಎರದರ 2015 ರಲ ಸಲ ಪಡದದತದ ಅದದ ವಷದರಲ ಸಲ ಮರತ ಪವತ ಮಡರತತತದನ. ಫರರದಯ ಮಗನರದ ಪಡದ ಸಲ ಮರತಪವತರದ ನರತರ ನನನ ಚಕವಪಸತ ಸ ಕದಳ ವಕದಲರ ಮನಲಕ ನನದಟದಸ ನನನ ವಳಸಕಕ ಬಟವಡರಗದ ಎರದರ ಸರಯಲ. ಲ ಫರರದಗ ಹಣವನತ ನ ಕನಡತವದನತನ ತಪಲಸಲತ ಸತಳತಳ ಸಕನ ನತಡಯತತತದನರದರ ಸರಯಲಲ. '' As per this evidence, the Accused admits that he has not issued any notice to the son of the Complainant, calling upon him to return the said cheques given by him, as security, towards the handloan of Rs.1,00,000/.18 Crl.Appeal.No.25204/2018
Thirdly, even if it is considered that, the Accused has given the cheques as security to the son of the Complainant and he has not returned the said cheques contending that, he (son of the Complainant ) has misplaced it, then under such circumstances, the Accused could have issued necessary instructions to the Bank (his Banker) for stopping the payment towards the said Cheques, exhibiting the reason that the son of the Complainant has misplaced the Cheques, which was issued by him (Accused) to the son of the Complainant, towards security of handloan amount. Even this is not done by the Accused.
21. Further the Accused has taken up a contention that the writings on the said Cheques is of the son of the Complainant and not of his own. This can be seen as per the examination chief of DW.1, at Page No.1, Para No.1, Line Nos. 10 & 11, which reads as under;
" ......ನಪ1 ಮತತತ 2 ನನನ ಕಕಬರಹದದಲಲ.
ಫರರದಯಲ ಅಪದತರ ವಳಸವ ನನನ ವಳಸವಗರತವದಲಲ.........'' 19 Crl.Appeal.No.25204/2018 As per this evidence, the Accused denies the writings on the Cheques Ex.P.1 and Ex.P.2.
Further as per the cross examination of PW.1, at Page No.2, Para No.4, which reads as under;
ನ ನ ಬರದದದರತ . ಮದಲನದ
" 4. ಅಪದತರದ ಚಕತ
ಚಕನಲ ನನನ ಹಸರತ Shantha. K
ದ 2 ನದ ಚಕನಲ Shanta. K. ಎರದತ
ಎರದತ ಇದತ
ಇದ ಎರದರ ಅವರದ ಆ ರದತ ಬರದತಕನಟಟರತ.
ನಪ.1 ಮತತತ 2 ಚಕಗಳನತ
ನ ನನನ ಮಗ ಭತಪ
ಳ . ''
ಮಡರತತತರರದರ ಸತಳತ
As per this evidence, it is seen that a
suggestion was made to the Complainant that the name of the Complainant in one Cheque is written as "Shantha. K." and in another Cheque it is written as "Shanta.K." But the Complainant has specifically stated that, the writings is of the Accused and denied that the said writings is of her son. Under such circumstances, it is for the Accused to prove the said contention that, the writings on Ex.P.1 and Ex.P.2 is not of his, but of the son of the Complainant, which has remained unproved.20 Crl.Appeal.No.25204/2018
22. Further the Accused contends that, in Ex.P.6Notice there is mention that the Cheques are of the year 2015, but as per Ex.P.1 and Ex.P.2 the same are of the year 2016, this can be seen as per the cross examination of PW.1, at Page No.2, Para No.3, Line Nos.1 to 3, which reads as under;
3. ನಪ6 ರ ನನದಟದಸನಲ ಚಕಗಳತ 2015 ಮತತತ 2016 ಚಕಗಳತ ಎರದತ ನಮನದತ ಆಗದ ಎರದರ ಸರ. ಅಪದತರತ ರವದದ ಹಣ ಕನಡಲತ ಬಕ ಇರತವದಲಲ. ಪ ಪಕರಣವನತ ನ ಸಸಷಟಸರತತತದನರದರ ಸರಯಲಲ.......'' As per this evidence, the Complainant has admitted that in Ex.P.6 the Cheques have been mentioned of the year 2015. On perusal of Ex.P.1 and Ex.P.2Cheques, there is no any alternation withregard to the date on the Cheques, more specifically the years mentioned in the date column of Cheques. The said contention of the Accused will not amount to material alteration of the Cheques, but it may be a typographical mistake crept in Ex.P.6Notice. So even this contention will not rebut the presumption 21 Crl.Appeal.No.25204/2018 available to the Complainant U/Sec. 139 of N.I. Act.
23. Lastly, if at all it is considered that, Ex.P.6Notice has been received by the Accused, as admitted by him and if at all he had given the Cheques in question, to the son of the Complainant, as security towards the handloan of Rs.1,00,000/ taken by him, in the year 2015, then definitely he would have replied the said notice, taking the said contentions, in the reply. Even this has not been done by the Accused.
24. On viewing the oral and documentary evidence, it can be said that the Accused has failed to prove that, he had given the Cheques in question, to the son of the Complainant, as security towards the handloan of Rs.1,00,000/ taken by him, in the year 2015, which he contends that he has repaid on 31.10.2015, as per Ex.D.1.
Further the Accused contends that, he does not know the Complainant, which he has deposed in his examination in chief, more specifically 22 Crl.Appeal.No.25204/2018 examination in chief of DW.1, at Page No.1, Para No.1, Line No.1, which reads as under;
"1. ಫರರದ ನನಗ ಪರಚಯ ಇರತವದಲಲ..........'' Further, as per the Cross examination of DW.1, at Page No.3, Para No.2, Line Nos.5 to 8, which reads as under;
"...............ಫರರದಯ ಮಗ ವನನದದ ತತರಬ ವಷಗರಳರದ ಪರಚಯಸದರತ.
ವನನದದ ರವರಲ ಅವಶನಕತ ಇದಗ ಒರದತ ಸಲ
ಸಲ ಮಡದ. ವನನದದ ಮನಲಕ ಅವರ
ದ ಅವರ ಮನಗ
ತಯಪತ ನನಗ ಪರಚಯವಗದತ
ಹನದಗ ಬರತತತದ ಎರದರ ಸರಯಲಲ........'' As per this evidence, the Accused admits that he knows the son of the Complainant Vinodh, since many years. He admits that he used to take handloan from the son of the ComplainantVinodh,. Further he admits that through the said Vinodh he knows his motherthe Complainant. So the version of the Accused that, he does not know the Complainant is totally unbelievable. Thus, the entire version taken up by the Accused by way of defences, is unbelivable and is not backed with cogent evidence.23 Crl.Appeal.No.25204/2018
Thus, it is hard to believe, the said defences putforth by the Accused. The said defences have not inspired the confidence of this Court as well as the Court below. Hence, the same is discarded.
28. Considering the inconsistent contentions raised by the Accused during the course of cross examination of PW.1 and in his defence evidence, it can be said that, the said stands taken up by the Accused has remained unproved, even on the basis of preponderance of probabilities, inorder to rebut the presumption available to the Complainant U/Sec 139 of NI Act. So, in the absence of material evidence, the different and distinct stands taken up by the Accused, cannot be accepted at all.
29. The Learned Counsel for the Respondent relied upon the decision of the Hon'ble Apex Court in the case of M/s. Shree. Daneshwari Traders V/s Sanj Jain & Another 24 Crl.Appeal.No.25204/2018 (Crl.Appeal Nos.6162 of 2011, date of disposal 31.08.2019), wherein it is held that:
" When the Accused has not rebutted the statutory presumption, to be raised U/Sec. 139 of N.I. Act infavour of the Complainant, under such circumstances, a presumption is to be raised that the Complainant has sufficiently proved that the chques were issued towards the discharge of legally enforceable debt."
Hence, presumption available to the Complainant U/Sec.139 of N.I. Act stands unrebutted. I have gone through the Judgment of the Trial Court, rightly the Trial Court has concluded that the Accused has failed, to rebut the presumption available to the Complainant U/Sec.139 of N.I.Act.
30. Sec. 139 of N.I.Act lays down a presumption that, the holder of a cheque has received a cheque for the discharge of a debt or liability, legally recoverable, unless contrary is proved. Under such circumstances, there is no any hurdle to derive the presumption available to the holder of the cheque U/Sec.118 as well as 139 of N.I.Act. I find force to my above opinion as 25 Crl.Appeal.No.25204/2018 per the decision of Hon'ble Apex Court in the case of Hiten Pidalal V.s Bratindranath Banergi reported in 2001 Crl.L.J. 4647 (Supreme Court) as well as in the case of M.S.Narayan Menon @ Mani V/s State of Kerala and Another reported in 2006 SAR.Crl.616 and in the case of Krishna Janardhan Bhat V/s Dattatreya G. Hegde reported in (2008)2 SCC Crl. 166. Rightly, the Trial Court has considered all these aspect and there is no any fault on the part of the Trial Court. I do not find any force in the submission of the learned counsel for the Appellant.
31. I have carefully gone through the reasoning given by the Trial Court, while awarding compensation to the Complainant U/Sec.357 of Cr.P.C. The Trial Court has rightly consider the guiding principles laid down by the Hon'ble Apex Court, in the case of Harisingh V/s Sukhbir Singh reported in (1988) 4 SCC 551, as well as in the case of Suginthi Suresh 26 Crl.Appeal.No.25204/2018 Kumar V/s Jagadishan reported in 2002 Crl.L.J. 1003 (Supreme Court).
32. Further the Hon'ble High Court has held in General Auto Sales Vs Vijayalakshmi, reported in 2005(1) KLT 478 in Paragraph No 8 thereof, that;
"Even if a blank signed cheque has been given towards liability or even as security, then the liability subsists and quantified, if the cheque is filled up and presented to the Bank, the person who had drawn the cheque, cannot avoid the criminal liability under Section 138 of NI Act".
Further the Hon'ble Apex Court has held in Rangappa Vs Sri Mohan, reported in (2010) 11 SCC 441, that ;
"once issuance of cheque and signature thereon are admitted, presumption of a legally enforceable debt infavour of the holder of the cheque arises. It is for the Accused to rebut the said presumption, though Accused need not adduce his own evidence and can rely upon the material submitted by the Complainant. However, mere statement of the Accused may not be 27 Crl.Appeal.No.25204/2018 sufficient to rebut the said presumption".
33. In this case there was really presumption available infavour of the Complainant in terms of Section 138 & 139 of Negotiable Instruments Act, against the Accused and the Accused has not discharged, his burden to rebut the presumption available to the Complainant.
34. The Court below has considered all the aspects, the grounds taken up by the Accused as defence. Even I do not find any fault with the Order of the Trial Court in awarding compensation to the Complainant. When no fault is committed by the Trial Court, interference by this Court, does not arise at all. Thus I decline to interfere with the findings recorded by the Trial Court.
35. Necessarily the prosecution succeeds. The conviction is therefore confirmed, as the Accused is found guilty of the offence punishable under Section 138 of Negotiable Instruments Act.
28 Crl.Appeal.No.25204/2018Hence, for the above reasons I answer point No.1 in the Negative.
36. Point No.2: For the aforesaid reasons, I proceed to pass the following:
ORDER Acting U/Sec.386 of Cr.P.C., the Appeal preferred by the Appellant/Accused is hereby Dismissed.
In the consequences, the order passed by the Learned LVIIIth Addl. CMM, Bengaluru in CC No.53360 of 2017, dated 03.10.2018, recording conviction of the Accused, is hereby confirmed.
The Court below shall execute its order, as per law.
No order as to costs.
In case, if the Accused has deposited the amount, as directed U/Sec. 148 of N.I. Act, the same may be dealt with, as per Law U/Sec. 143 of the said Act.29 Crl.Appeal.No.25204/2018
Remit the LCR to the Court below, on obtaining necessary acknowledgement, alongwith the copy of this Judgment.
- (Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me, in the open court on this the 05th day of November, 2019.) [AbdulRahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)