Bangalore District Court
Smt. Uma vs Smt. Gangamma on 5 August, 2020
1
Crl.Apl No.882/2016
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE (CCH 70)
Present: Sri. Gururaj Somakkalavar, M.A.,LL.B.,
LXIX Additional City Civil and
Sessions Judge, Bengaluru.
Dated this the 5 th day of August, 2020
Crl. Appeal No.882/2016
Appellant : Smt. Uma
W/o Ranga Swamy,
Aged about 47 years,
R/at No.14/21, 2nd Floor,
5th Cross, 16th Main,
Srinivasanagar, 2nd Phase,
Near PES Ladies New Hostel,
Bangalore - 560 050.
[By Sri.N. Uday Kumar, Advocate]
V/s
Respondent : Smt. Gangamma
W/o Sri. Govinda Raju, Aged about 35 years, R/at No.1130, 3rd Main, 3rd Cross, M.C. Layout, Govindajanagar, Vijayanagar, Bangalore - 560 040.
(By Sri.D.R, Advocate) : JU DG M E NT :
Appellant/accused has assailed the legality and correctness of her conviction to the offence punishable U/Sec.138 of N.I.Act and her sentence to pay fine amount of Rs.5,25,000/- and in default shall under go simple 2 Crl.Apl No.882/2016 imprisonment for 6 months for the said offence through impugned judgment and order of sentence dated 15.07.2016 in C.C.No.6879/2014, on the file of XVI Additional Chief Metropolitan Magistrate, Bengaluru City.
The parties are referred to their original ranks.
2. Essential material facts lead to this appeal succinctly is as follow:-
Respondent/complainant, who will be herein after referred as 'complainant' launched criminal prosecution against accused for the offence punishable U/Sec.138 of N.I. Act through his private complaint maintained U/Sec.200 of Code of Criminal Procedure with support of allegation that Ex.P.1 cheque for Rs.5,00,000/- bearing No.564714 dated 07.05.2013 drawn at State Bank of Mysore, SBM Colony Branch, Bengaluru issued by accused to discharge his debt returned dishonoured on the ground of 'funds insufficient` as per Ex.P.2. the bank issued Bank Endorsement. Accordingly the complainant got issued legal notice and calling upon the accused to pay the amount and despite of service of notice the accused failed to pay the cheque amount and thereby accused committed the alleged offence. The Trial Court after taking cognizance on the complaint of complainant and examination of available materials, including complaint and sworn statement of complainant and other materials registered a case in C.C.No.6879/2014 against accused for the offence 3 Crl.Apl No.882/2016 punishable U/Sec.138 of N.I.Act. Accused appeared before trial court through his counsel. He was supplied with copies of papers and its supporting materials. Substance of accusation was read over and explained to the accused. Accused pleaded not guilty and claimed to be tried. Complainant to bring home above guilt of accused, himself examined as PW.1 and got marked 12 documents exhibited as Ex.P.1 to P.12 and one witness on her behalf as PW.2. Accused was examined U/Sec.313 of Code of Criminal Procedure. He denied all incriminating evidence appeared against him. Then accused examined herself as DW.1 on her behalf and marked as Ex.D1 and D2. The trial court after hearing arguments of learned counsels and examination of available materials, found accused guilty for the above offence with aforementioned finding on the points addressed for decision making in the impugned judgment and believed the existence of above version of complainant through impugned judgment and accordingly sentenced accused in the above manner through impugned order of sentence.
3. Feeling aggrieved and dissatisfied with the above nature of verdict of court below, accused has preferred instant appeal. Accused in his appeal memo, while reiterating above noted material events taken place prior to complaint and subsequent to complaint, specifically contended that Trial Court has not appreciated the evidence and documents on record in its proper perspective, on 4 Crl.Apl No.882/2016 behalf of the respondent PW.1 and PW.2 had examined and Exhibit P1 to P7 marked and on behalf of the appellant, she herself examined as DW.1 and Ex.D1 and D2 marked. As per Ex.P3 and P7 the loan was given in the 2 nd week of February 2013 and the appellant was approached for hand loand in the month of January 2013 as per contra the appellant was lost the cheque on 06.02.2013 and the complaint was lodged on 07.02.2013, this clearly shows that the appellant has never approached, afer lodging the police complaint, the respondent has presented the cheque to the bank. This clearly shows that, there was no transaction between the respondent and the appellant. Further submits that the respondent has no sources of income, because she is a house wife. The Ex.P1 cheque was altered from 2000 to 2013 and there is no initial of the appellant. The respondent clearly admits that, cheque was lost and the appellant has produced Ex.D1 and D.2. The respondent has improved her version before this court that at the time of transaction, PW.2 Gowramma present, but this fact was not stated in the Ex.P3 and 7. As per EX.P3 & 7 the alleged loan was given in the 2 nd week of February 2013, before that the appellant has lodged a complaint on 07.02.2013. This clearly shows that, after lodging of a complaint, the respondent has filled the cheque and presented to the bank. This clearly shows that, there is no transaction between the respondent and the appellant. The appellant is illeterate and she only sign in Kannada. The Ex.P1 was filled by the respondent.
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4. Further submits that the learned Magistrate was observed in the judgment that, the appellant has not challenged that respondent was not in a position to pay the loan amount, but the learned magistrate has not observed in the cross-examination of the respondent, she clearly admits that, she is housewife then the question does not arise that, the appellant has to challenge the income to the respondent. When the cheque was lost and the complaint was lodged and the learned magistrate was observed that, the appellant has not given stop payment to the cheque. When the complainant was lodged the question does not arise to give a letter to the concerned bank for stop payment. The learned magistrate was not observed the written arguments filed by the both the appellant and the respondent and without looking to that, she has convicted the appellant. The learned magistrate has passed impugned order on his own presumption and assumption without considering the written arguments and documentary evidence produced by the parties. The impugned order passed by the learned magistrate is erroneous and against the principals of natural justice and equity. With these amongst other grounds the appellant prays to set aside the impugned judgment and acquit her as per law. The Appellant has produced the certified copy of the impugned judgment.
5. Heard the argument and perused the record.
6. In the light of challenge of impugned judgment 6 Crl.Apl No.882/2016 by accused and above noted materials, following points fall for decision making of this court:-
1. Whether the complainant has proved that the accused has committed the offence punishable u/sec.138 of NI Act.?
2. Whether the impugned judgment and order of sentence passed by the learned Magistrate is proper and correct?
3. What order?
7. This court upon re-appreciation of available materials in the file with reference to prevailing law of land, give finding to the above points as follow:-
POINT NO.1 In affirmative
POINT NO.2 In affirmative
POINT NO.3 As per final order, on the
following;
: R E A S ON S :
8. POINT NO.1 AND 2 : I have perused the appeal memo, the private complaint, order sheet, impugned judgment and other materials available on record. The Respondent/complainant filed the private complaint against the accused. After considering the materials the learned Magistrate took cognizance and registered the case against the accused, the Accused appeared through his counsel and opposed the complaint. After full pledged trial the trial court convicted the accused in the above manner. Being aggrieved by the judgment of conviction the appellant has filed this appeal.
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9. On careful perusal of the impugned judgment, it depicts that the complainant has filed the complaint against the accused for the offence u/sec. 138 of NI Act. It is the case of the complainant that the accused is known to her from past several years. Thus being acquainted with her, the accused had approached her during the last week of January 2013 for a hand loan of Rs.5,00,000/- to meet her urgent domestic and other family commitments. In order to help her, she has arranged the said amount and paid Rs.5,00,000/- by way of cash during the second week of February 2013 and while borrowing the same, the accused had promised to repay the same within 3 months. After the laps of agreed period, when she approached the accused and demanded for repayment, the accused has issued a cheque bearing No.564714 dated 07.05.2013 for Rs.5,00,000/- drawn on the State Bank of Mysore, SBM colony Branch, Mysore Bank, Bengaluru. When she presented the said cheque for encashment, it got dishonoured as "Insufficient Funds". Immediately she intimated the said fact to the accused, but the accused has failed to repay the amount. Thereafter she got issued legal notice to the accused which came to be duly served upon her. However the accused has issued an untenable reply, but failed to repay the amount. Hence the complainant constrained to file the complaint.
10. To prove the case the complainant got examined 8 Crl.Apl No.882/2016 himself as PW.1 and marked Ex.P.1 to 12 and Subsequently 313 statement is recorded and the accused led evidence as DW.1 and marked Ex.D1 and D2.
11. Since the accused has challenged the conviction order of the trial court, the evidence is to be re appreciated in this appeal. The complainant has to discharge initial burden and prove the liability by the accused. As per the case of the complainant the accused approached her and sought for hand loan of Rs.5,00,000/- for her urgent domestic and other family commitments. The accused paid said Rs.5,00,000/- by way of cash during the 2 nd week of February 2014. The complainant demanded to return the amount paid to the accused. To discharge the said liability of Rs.5.00 lakhs the accused has issued the impugned cheque which got dishonored.
12. To substantiate the fact the complainant produced Ex.P.1 i.e. impugned cheque dated 07.05.2013, Ex.P2 to show Bank statement to prove that the cheque was dishnoured. Further Ex.P3 the copy of legal notice and also Ex.P6 reply notice and ExP8 to 10 Photos to show the acquittance with the accused. On perusal of the material placed before this court the complainant examined herself as PW.1 and she is subjected to cross examination by the counsel for the accused. But nothing material is elicited from the mouth of the PW.1. However the accused is able to elicit that the complainant is the housewife, but there is no 9 Crl.Apl No.882/2016 elaborate cross-examination on the financial capacity of the complainant. The said financial capacity of the complainant is not specifically challenged and it is not the main defence of the accused. It is argued by the counsel for the appellant that the trial court has not appreciated the fact that during the cross-examination complainant admitted that she is a housewife. It is argued that itself is a sufficient to hold that the complainant has no financial capacity. As stated above the accused has not substantially elicited or disproved the financial capacity of the complainant, merely on bare admission that she is a housewife it can be hold that she has no financial capacity. The accused has to elicit or brought to the notice of the court the other circumstances that the complainant has no sufficient means or income to lend such amount. Apart from the above said admission there is nothing elicited from the evidence of PW.1 regarding the financial capacity.
13. Further the complainant examined PW.2 who is her maternal aunt Gowramma who is the friend of accused. It is the case of the complainant that the accused is know to her through her aunt, and the said PW.2 has corroborate the evidence of complainant and through her the complainant marked Ex.P8 to 10 to show that the acquittance of accused with complainant and PW.2. From the evidence can it be seen that there is no suggestion put up to PW.2 that the persons in the photograph is not the accused and the accused has not denied her acquittance 10 Crl.Apl No.882/2016 with PW.2. However the accused has took up defence that she does not known complainant, but the complainant has proved the fact that the complainant and accused are known to each other.
14. The another important aspect is that the accused has not denied the fact that the impugned cheques belongs to his account and by virtue of that he has admitted the cheque at Ex.P1 and she has also not denied the signature on the said impugned cheque. Since the accused has admitted the cheque and signature on the impugned cheque the presumption u/sec 139 comes infavour of the complainant. It is worth to note the ratio laid down by Hon'ble Apex Court in Rangappa v/s Sri. Mohan (2010) 11 SCC 441 it is held that "Once the cheques relates to the account of the accused and he excepts and admits the signature on the said cheque, then initial presumption as contemplated u/sec 139 of Negotiable Instruments Act has to be raised by the court infavour of the complainant. The presumption refereed to sec 139 of NI Act is a mandatory presumption and not a general presumption, that the accused is entitled to rebut the said presumption. In the light of the above ratio lay down by the Hon'ble Apex Court it is clear that when the drawer has admitted the issuance of cheque 11 Crl.Apl No.882/2016 as well as signature present therein, the presumption envisaged u/sec 118 r/w 139 of NI Act would operate in favour of the complainant. The said provisions lays down special rule of evidence applicable to Negotiable Instruments. The presumption is one of law and there under court shall presume that the instrument was endorsed for consideration. So in the obscene of contrary evidence on behalf of accused, the presumption u/sec 118 and 139 of NI Act goes in favour of the complainant. Here in the present case also the accused has not disputed the cheque as well as signature on the same and by virtue of that he has admitted the impugned cheque belongs to his account and also admitted his signature on the said cheque. Hence the presumption u/sec 139 in the light of the ratio laid down by the Hon'ble Apex Court presumption u/sec 139 of NI Act has to be raised in favour of the complainant.
15. It is pertinent to mention that in respect of legally enforceable debt also the presumption u/sec 139 of NI Act favours the complainant. Once the complainant discharged his initial burden with sufficient material that there exist legally recoverable debt, the presumption u/sec 139 comes 12 Crl.Apl No.882/2016 in rescue of the complainant. Again it is worth to note the observation of the Hon'ble Apex Court in the above stated authority i.e. Rangappa v/s Sri.Mohan. The Hon'ble Apex Court held that;
"The presumption mandated by sec 139 includes a presumption that there exist legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise defense wherein the existence of legally enforceable debt or liability can be contested. However, herein, they can be do doubt that there is an initial presumption which favours the respondent/complainant."
16. On careful perusal of the entire material placed on behalf of complainant corroborated with oral and documentary evidence, it is clear that the complainant has complied with the ingredients of sec 138 of NI Act and also proved that there exist legally recoverable debt and discharged her initial burden, by virtue of that and in the light of the ratio laid down by Hon'ble Apex Court in respect of the Presumption U/sec 139 of NI Act in respect of existence of liability also comes infavour of complainant. Hence it can be held that in the present case, the complainant has discharge her initial burden, and proved that there exist liability towards complainant by the accused and the accused has issued cheque to discharge 13 Crl.Apl No.882/2016 the same.
17. The accused has challenged his conviction u/sec. 138 of NI Act in this appeal. Since the complainant discharged initial burden and proved his case the accused has to rebut the presumption which favors the complainant, since the said presumption u/sec 139 of NI Act is rebuttable presumption, now we have to see whether the accused is able to rebut the presumption through oral and documentary evidence or any other circumstantial evidence.
18. Here it is necessary to appreciate the nature of defense and standard of proof by the accused. As per the settled position of law the prosecution in general and the complainant in the particular is required to prove his case beyond all reasonable doubts. The standard of proof to disprove the case of the complainant by the accused is not the same standard of proof as required to prove the case of the complainant. In other words the complainant is required to prove his case beyond all reasonable doubt and the accused is required to disprove the case of the complainant by setting up a probable defense to disbelieve the case of the complainant. In this regard this court wants to rely upon the decision and the principle laid down by the Hon`ble Supreme Court in Kumar Exports vs. Sharma Carpets reported in ILR 2009 KAR 1633 wherein it is held that ;
Presumptions under Sections 118 and 139 - How to be rebutted - Standard of proof required for rebuttal -
14Crl.Apl No.882/2016 HELD , Rebuttal does not require proof beyond reasonable doubt - Something probable has to be brought on record - Burden of proof can be shifted back to the complainant by producing convincing circumstantial evidence - Therefore the said presumptions arising under Sections 118 and 139 case to operate - To rebut said presumptions accused can also rely upon presumptions under Evidence Act, 1872 Section 114 (common course of natural events, human conduct and public and private business) - Evidence Act, 1872 - Section 114 - Presumptions of fact under.
19. The above observation is again upheld by the Hon`ble Apex Court in a case of Rangappa vs. Mohana reported in AIR 2010 SC 1898 through its larger bench, wherein their Lordships observed that;
"It must be remembered that the offence made punishable by section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge 15 Crl.Apl No.882/2016 an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually imposed an evidentiary burden and not a persuasive burden. Keeping this in view it is a settled position that when an accused has to rebut the presumption under section 139 the standard of proof for doing so is that of a preponderance of probabilities. Therefore if the accused is able to raise a probable defense which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defense and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
20. It is also clarified by the Hon'ble Apex Court what is the nature of defense or explanation by the accused to rebut the presumption. It is observed by the Hon'ble Apex Court that;
"what is required to be established by the accused in order to rebut the presumption is different from each case under the given circumstances. But the facts remains that a mere plausible explanation is not expected from the accused and it must be more than plausible explanation by way of rebuttal evidence. In other words, the defense raised by way of 16 Crl.Apl No.882/2016 rebuttal evidence must be probable and capable of being accepted by the court"
21. Having observed the nature of defense it is also relevant to mention the life of the mandatory presumption. As observed by the Hon'ble Apex Court in Kumar Exports v/s Sharma Carpets, "the mandatory presumption will live exist and survive and shall end only when the contrary is proved by the accused, that is to say the cheque was not issued for consideration and in discharge of any debt or liability, in other words onus shifts on the accused to rebut the said mandatory presumption raised in favour of the complainant".
22. Now it has to be observed that whether the accused is able to put up probable defense to disprove the case of the complainant and also rebut the presumption envisaged u/sec 139 of NI Act.
23. The counsel for the appellant files written argument on behalf of the appellant. In the argument the counsel for the appellant narrated the case of the complainant and proceeding before trial court. The main argument of the appellant in support of the appeal is that, the trial court has not properly appreciated the evidence. The counsel for the appellant emphasized on the cross examination dated 01.10.2015. It is emphasized on the admission by the PW.1 that the complainant admitted the 17 Crl.Apl No.882/2016 fact that she is a housewife. Relying on the said admission it is argued that the said admission is sufficient to hold that she has no source of income to lend amount of Rs.5.00 lakh. Further it is also argued that the cheque in question was altered. Wherein the year 2000 was altered as 2013 and there is no initial on the said alteration. Which creates doubt in the case of the complainant. It is also argued that the cheques including impugned cheque was lost and same is misused by the complainant and the said fact was stated in the reply notice at Ex.P6 and the accused has lodged the complaint in respect of loss of cheques which is clear from Ex.D1 and D2. The date of loan and date of loss of cheque if carefully observed it shows that the appellant has never approached complainant after lodging the police complaint and it is clearly demonstrate that there is no transaction between the respondent and the appellant and it is also argued that the cheque in question was filled by the complainant herself and it can be seen from the cross examination of appellant. Wherein the appellant during cross-examination stated that, she does not know the reading and writing but she has only signed impugned cheque. The counsel for the appellant relied on the judgment passed by Hon'ble High Court of Madras in Crl.Apl No.383/2016 A.R Challappan v/s AR Thirugunam has emphasized fact that the altered instrument is not valid instrument and applying the same to the present case contends that here also the impugned cheque was altered and same is not valid instrument. On these grounds the 18 Crl.Apl No.882/2016 appellant argued that the order of the trial court is based on presumption and assumption without appreciating the oral and documentary evidence. Hence the order of the trial court is to be set aside and the present appellant be acquitted for the offence u/sec 138 of NI Act. The counsel for the respondent argued supporting the judgment of the trial court and sought for the dismissal of the appeal.
24. Now it has to be seen the defense of the accused which is put up through cross examination of PW.1 and evidence of DW.1 and the documents relied by the accused and it has to be observed whether the said defense is probable or not and the accused is entitled for acquittal for the offence u/sec 138 of NI Act. It is the case of the accused as well as defense that the accused does not know the complainant and there is no transaction between the complainant and the accused. The bone of the contention of the accused is that about 3 years back she was going to Vidhana Soudha in a bus and at that time she was possessing a plastic hand cover consisting of her 6 signed cheques of the SBM out of the total 10 cheques, while getting down from bus, some one took away her plastic cover and there after she lodged the complaint before the Girinagar Police on the next day and as per the instruction of the police, she has also sworn to an affidavit. And in that regard during the evidence DW.1, she has produced endorsement at Ex.D1 and affidavit at Ex.D.2. It is also contended that in the reply notice at Ex.P6 the accused has 19 Crl.Apl No.882/2016 taken up the said defense.
25. The first and foremost thing is that the accused contends she does know the complainant, but the complainant has examined PW.2 wherein the PW.2 deposed that she is the friend of accused and the accused came to know complainant through PW.2 and in support of said contention Ex.P8 to 10 are marked and the accused has not denied the acquaintance with the PW.2. During the cross- examination of PW.2, it was suggested by the accused that the complainant was selling flowers in Magadi Road, Dasarahalli Circle, which was denied by the PW.2. The said suggestion shows that the accused know the complainant and PW.2. The relevant fact is that if the accused does not know the complainant than how the said impugned cheques travels to the complainant. However the accused put up defense which will be discussed next, but from the material it is very much clear that the accused know the complainant and she acquainted with the PW.1.
26. Now coming to the main defense that the accused has lost the said cheque while traveling in bus, this is one strange defense took up by the accused. It is the defense that about 3 years back when she was traveling in a bus to go to Vidhana Soudha, some one took away her plastic cover which contain 6 signed cheque of SBM. It is relevant to mention that as per the accused the said cheque was lost 20 Crl.Apl No.882/2016 in Bangalore city, which is not small city, if cheques were took away by some one, than how come the said cheque come in the hands of complainant. It cannot be believed that the lost cheque in Bangalore City, where someone took away the cheque has handed over the same to the complainant which are misused. It is also not the case of the accused that the complainant or the PW.2 Gowramma were traveling along with the accused and they took the cheques and misused them. The story of the accused that someone took away the cheques while traveling and same were lost, and ends up in the hands of the complainant and complainant misused the same and the strange part is that the lost cheques without going to anywhere reaches in the hands of complainant who is morefully acquainted or known to the accused, may be through PW.2. Further more as rightly pointed out by the trial court that during cross examination of DW.1 it is questioned as why she could not file complaint on the same day regarding loss of cheques, to which she explained that by the time she reached Girinagar from Vidhana Soudha it was very late. The trial court rightly observed raising a question why the accused could not lodged the compliant before the Vidhana Soudha Police instead of returned to Girinagar. Further more in respect of this theory, the accused has not produced copy of the complaint said to have lodged by her. She has produced EX.D1 acknowledgement and affidavit. It is not clear from the Ex.D1and D2 that very impugned cheques were lost and there is no mention of cheque details or serial numbers 21 Crl.Apl No.882/2016 in the said affidavit or in the acknowledgement. Hence it cannot be believed that the very impugned cheque itself are lost and the complainant misused the impugned cheque. Another contention of the accused is that as per Ex.P3 and 7 loan was given in 2nd week of February 2013 and cheque were lost on 06.02.2013 and the complaint was lodged on 07.02.2013. It is the defense that the cheques were lost before the transaction and the said cheques were presented after filing the complaint. As discussed above though the accused has produced Ex.D1 and D2 but those documents does not contain the details of the cheques which are lost and also serial number. As per the case of the accused, a plastic hand cover of her containing 6 signed cheques were lost out of 10 cheques while traveling, but there is no explanation in respect of other 4 cheques. The said aspect without any proper explanation by the accused and also the observation held above that, the lost cheques end up with complainant. This version of the accused is not believable. It is the case of the complainant and same can be ascertain that the accused approached complainant and the PW.2 was present at that time and herself took the amount and handed over to the accused, same is corroborated with the evidence of PW.2 who has introduced accused to the complainant. Hence the theory of the accused regarding loss of cheque and same is misused by the complainant is not acceptable.
27. There is another contention is that the said 22 Crl.Apl No.882/2016 impugned cheques was altered by the complainant and there is no initial by the cheque holder on the said alteration or correction. But on perusal of the Ex.P1 it can be seen that the date colum wherein the year is mentioned '200...' and on last '0' was overwritten as 1, and no.3 was added as to write as 2013 since the cheque may be of 2000, wherein in the cheque book the complete year is not mentioned. The said correction is not an material alteration as stated by the accused and the said cheque is accepted by the bank and said alteration will not takeaway the case of the complainant.
28. Moreover as rightly pointed out by the trial court that when the cheques were lost while traveling nothing prevented the accused from issuance of stop payment instruction to her bank in respect of lost cheques. Though the accused has contended during evidence she has blocked her account, but there is no material placed to show that when she gave stop payment instruction to her bankers and it is also reveals from the evidence that when the accused has put up question as to when the cheque was presented the cheque returned with endorsement as 'funds insufficient' and not as "account blocked". From this it can be infer that though accused contended she has taken up steps towards lost cheques, but from record she has not taken up any steps to instruct her banker in respect of lost cheques and the theory of lost cheques of the accused does not hold water. It is also rightly pointed out by the trial 23 Crl.Apl No.882/2016 court that, when the accused received legal notice and came to know that the cheques were misused she has not taken any action against the complainant and lodged any complaint before police or recourse to legal action. If the complainant really misused the cheques which is of Rs.5.00 lakhs why the accused has not taken action against the complaint is not explained by the accused. Hence the defense put by the accused are not probably enough to believe the version of the accused. The stand of the accused in itself contradictory to each other which will not probabilise her defense and there is no plausible explanation, which comes as a defense infavour of accused.
29. On perusal of the entire material both oral and documentary evidence before this court, the complainant has proved there exist liability and the accused has issued the said cheque to discharge the liability. The complainant has discharged her initial burden, but on perusal of the cross examination of complainant and other evidence relied by the accused, the accused has not put up any probable defense to rebut the presumption u/sec 139 of NI Act which favours the complainant.
30. On culmination of entire facts, the accused fails to rebut the fact that he has not received any amount from the complainant. The accused completely denied the transaction between both, which creates the doubt in the mind of the court. As stated above the accused failed to 24 Crl.Apl No.882/2016 rebut the presumption as well as the case of the complainant, through oral and documentary evidence and also through circumstantial evidence. This court hold that the complainant has proved his case. The trial court appropriately and correctly with proper perspective appreciated all above noted materials, which placed by complainant and drawn the presumption in favor of the complainant. Though accused in his appeal memo urged many ground, but he has not pointed out how trial court committed error in appreciating any of the available materials. All the contentions of accused in his appeal memo do not hold water. The trial court with application of sound judicial approach and mind, properly believed the existence of version of complainant. There are no grounds whatsoever to discard the finding and element decision of trial court through impugned judgment. This court does not find any amount of irregularity and error either in appreciating evidence or in convicting accused for the above offence. Therefore, impugned judgment and order of sentence of trial court is perfectly correct and in accordance with law and this court does not found anything which call for interference of this court. Accordingly, these points are answered in the affirmative.
31. POINT NO.3; In the light of my finding on point No.1 and 2 this court proceeds to pass the following;
O R DE R 25 Crl.Apl No.882/2016 Appeal filed by the Appellant is hereby dismissed.
Impugned judgment and order of
sentence of trial court passed in
C.C.No.6879/2014, on the file of XVI ACMM, Bengaluru dated 15.07.2016 is hereby confirmed.
Send copy of this judgment alongwith TCR to the trial court for needful.
(Dictated to the Stenographer, script thereof is corrected, signed and pronounced by me in open court on this the 05th day of August, 2020) (Gururaj Somakkalavar) LXIX Addl.C.C. & Sessions Judge, Bengaluru.