Bangalore District Court
M. Renukamma vs W/O. Late G. K. Maheshwarappa on 22 October, 2021
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 22nd day of October, 2021.
Crl. Appeal. No.25207/2019
Appellant/ M. Renukamma,
Accused:- W/o. Late G. K. Maheshwarappa,
C/o Rudhrappa,
Aged about 40 years,
"Kumara Nilaya", #113,
11th Cross, 5th Main,
Byalasandra Road, GM Palya,
New Thippasandra Post,
Bangalore -560 075.
[By Sri. G. S. Prasanna Kumar-Adv]
[By Smt. GVP Adv Nominated by DLSA,
Bengaluru]
V/s
Respondent/ Vanitha,
Complainant: W/o Prakash. B. Nayak,
Aged about 50 years,
R/at No.202,Sri. Village Apartment,
2nd Floor, GM Palya,
New Thippasandra Post,
Bangalore -560 075.
(By Sri. K. Narayanaswamy-Adv.)
2 Crl.Appeal.No.25207/2019
JUDGMENT
This Appeal is preferred by the Appellant/ Complainant U/Sec. 374(3) of Cr.P.C, being aggrieved by the Judgment of conviction passed by the LVII Addl. CMM, Mayohall Unit, Bangalore in CC.No.52772 of 2018, dtd.09.07.2019, convicting the Appellant for the offence punishable U/Sec. 138 of NI Act, thereby sentencing her to pay fine of Rs.5,000/-. In-default to undergo Simple Imprisonment for 3 months. Further directed the Accused/Appellant to pay an amount of Rs.16,13,540/-, to the Complainant as compensation U/Sec. 357 of Cr.P.C. In default to pay the compensation, she shall undergo Simple Imprisonment for a period of 1 year.
2. The Brief facts leading to 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, she and the Accused are well known to eachother. Out of the said relationship, the Appellant approached her and demanded Rs 15,00,000/- as handloan in the first week of June 2016. As per the request of the Appellant, she mobilised the said 3 Crl.Appeal.No.25207/2019 amount and paid Rs 15,00,000/- to her in cash, in the third week of June 2016. On receiving the said amount, the Appellant assured to repay the said amount within period of six months. On expiry of the said period, she contacted the Appellant and requested her to return the said handloan. At that time, the Appellant issued the Cheque bearing No 363434 dated 01.03.2017 for Rs 11,37,000/- drawn on the Indian Overseas Bank, Malleshpalya, Bengaluru. She presented the said cheque for its encashment through her banker, the Oriental Bank of Commerce, New Thippasandra, Bengaluru. But the said cheque has returned unencashed with an endorsement "Insufficient Funds" on 18.03.2017. The same was intimated to the Appellant orally. Since the Appellant failed to repay the said amount, she (Complainant/ Respondent got issued Legal Notice through her counsel to the Appellant, by RPAD as well as by Speed post on 24.03.2017. The notice which was issued by RPAD has returned with an endorsement "Not Claimed" on 27.03.2017. And the notice which was issued by Speed Post has returned with an endorsement "Party not in Station".4 Crl.Appeal.No.25207/2019
On completion of the stipulated period required under the statute, the Respondent was constrained to file the present Complaint against the Appellant/Accused for the offence punishable U/Sec.138 of N.I.Act.
3. On being satisfied as to sufficient cause for the delay of 17 days and on condoning the delay, the Trial Court has issued summons U/Sec.204 of Cr.P.C., to the Accused on 19.03.2018. The Appellant appeared before the Trial Court on 30.05.2018 and she was enlarged on bail. Plea/Substance of Accusation of the Appellant/Accused was recorded by the Trial Court on 30.05.2018, wherein the Appellant has pleaded not guilty and claims to be tried.
4. The Complainant inorder to prove her case got herself examined as P.W.1 and got marked 10- documents as Ex.P.1 to Ex.P.10. PW1 was cross examined on behalf of the Accused on 24.08.2018.
Statement of the Accused U/Sec. 313 of Cr.P.C., was recorded by the Trial Court on 06.03.2019. Appellant/Accused got herself examined as DW.1 on 5 Crl.Appeal.No.25207/2019 11.04.2019 and got marked two documents as Ex.D.1 & Ex.D.2. DW.1 was cross examined on behalf of the Complainant on 04.05.2019.
On hearing both the sides, the Trial Court has passed the Judgment, convicting the Accused for the offence punishable U/Sec. 138 of N.I. Act on 09.07.2019. Hence, the Appellant is before this Court, being aggrieved by the said Judgment of conviction.
5. On preferring the appeal by the Appellant/Accused, this Court has suspended the sentence under appeal, for a period of three months, initially on 07.08.2019. Notice of the Appeal memo and I.A.No.1/2019 was issued to the Respondent and TCR were called-for. Respondent set-in her appearance on 30.01.2020. TCR were secured on 30.11.2019.
6. Since the Learned Counsel for the Appellant failed to represent the Appellant, from 30.01.2020. Relying the guiding principles laiddown by the Hon'ble Apex Court in the case of Shankar Vs The State of Maharastra (Crl.
6 Crl.Appeal.No.25207/2019Appeal No 1106/2018 dated of decision 23.07.2018), the Registry was requested to have necessary correspondence with the Legal Services Authorities and to get appointed/ Nominated an Amicus Curia/Counsel to represent the Appellant in the case.
Accordingly, Smt. G. V. P. Adv. was nominated by the DLSA to represent the Appellant in this case. She has filed her Authorization issued by the Legal Services Authorities to represent the Appellant through DLSA, Bengaluru.
The Learned nominated counsel for the Appellant filed Written Arguments on behalf of the Appellant on 17.09.2021.
Heard the Arguments of the Learned Counsel for the Respondent/Complainant on 11.10.2021.
I have carefully gone through the Written Arguments submitted on behalf of the Appellant.
7. The Appellant has preferred this appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has gravelly erred in convicting the Appellant for the offence punishable 7 Crl.Appeal.No.25207/2019 U/Sec. 138 of N.I. Act, which is manifestly erroneous and opposed to the facts and circumstances of the case;
b) The Trial Court has miserably failed to appreciate the oral and documentary evidence on record, in a proper and perspective manner;
c) The Trial Court has failed to consider that, the Respondent has not proved the fact of giving of Hand Loan to the Appellant, as claimed;
d) The Trial Court has failed to consider that the Cheque-ExP1 was misplaced by the Accused and the Respondent has taken the said Cheque and has misused it;
e) The Trial Court has failed to consider that, the cheque inquestion was lost by the Accused;
f) The Trial Court has failed to consider that, notice-ExP3 is not received by the Appellant.
Hence, prayed to allow the said appeal and setaside the Judgment of Conviction passed by the Trial Court.
8. Following points arise for my consideration;
1. Whether the Respondent/ Complainant is entitle for the benefit of presumption available U/Sec. 139 of N.I. Act?
8 Crl.Appeal.No.25207/20192. Whether the Appellant/ Accused proves on the basis of preponderance of probabilities that the Cheque-Ex.P.1 was not issued by her infavour of the Complainant, but the same was misplaced by her with ExP7 & ExP8 in a pouch; and the Complainant has taken the said pouch and filed the complaint?
3. Whether the Appellant/ Accused proves on the basis of preponderance of probabilities that the Cheque-Ex.P.1 was lost by her?
4. Whether the Trial Court is right in holding that, the Appellant/Accused has failed to rebut the presumption available U/Sec. 139 of N.I. Act?
5. Whether the Appellant/ Accused shows on the basis of preponderance of probabilities that, she had not received the Notice-Ex.P.3, got issued by the Complainant, through her Counsel?
6. Whether the Appellant/ Accused shows that the Order of Conviction and Sentence recorded by the Trial Court in CC.No.52772 of 2018, dtd.09.07.2019, deserves to be setaside, and thereby call for the interference of this Court?
7. What Order?
9 Crl.Appeal.No.25207/20199. My finding on the above points are as under:
Point No.1 : In the Affirmative; Point No.2 : In the Negative;
Point No.3 : In the Negative;
Point No.4 : In the Affirmative; Point No.5 : In the Negative;
Point No.6 : In the Negative;
Point No.7 : As per final order for the following :
REASONS
10. The rank of parties will be referred to, as they were before the Trial Court.
11. Point No.1:-
The Complainant has filed a Complaint U/Sec. 200 of Cr.P.C. alleging that the Accused has issued Cheque-ExP1, in her favour towards repayment of the handloan amount of Rs.15,00,000/-. The said cheque was presented for its encashment through her banker, but the same has been returned unencashed with an endorsement "Funds Insufficient", as per Ex.P2. Thereafter she has got issued a legal notice-ExP3 through her counsel on 24.03.2017 to the Accused by RPAD as well as Speed Post, as per the postal receipts-Ex.P4. Notice issued by RPAD has returned with an endorsement 10 Crl.Appeal.No.25207/2019 "Not Claimed", as per the Returned Envelop-ExP5 and the Notice issued by Speed Post, has returned with an endorsement "Party not in Station", as per the Returned Envelop-ExP6. The Complainant has produced the Copy of the Sale-deed and encumbrance Certificate at ExP7 & ExP8, respectively; Bank Statements at ExP9 & ExP10.
12. The Complaint was filed by the Complainant with an application to condone the delay of 17 days in filing the Complaint. The Trial Court has heard and has condoned the said delay on 16.01.2018. I have carefully gone through the said Orders. I do not find any error or irregularity in the said Orders.
13. On the basis of the documents produced by the Complainant 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 19.03.2018. Perused the said orders, do not find any error in the said order of the Trial Court.
14. The Accused has appeared before the Trial Court on 30.05.2018 and she was enlarged on 11 Crl.Appeal.No.25207/2019 bail. Substance of Accusation/Plea was recorded, by the Trail Court on 30.05.2018. I have gone through the said Plea/Statement of Accusation recorded by the Trial Court. I do not find any error or irregularity in it.
15. Coming to the ocular evidence, on point of issuance of the Cheque-Ex.P1, more specifically, cross-examination of PW.1, at Page No.6, Para No 2, Line Nos.5 to 10, which reads as under;
".... It is false to suggest that the Accused kept the signed blank cheques with the Ex.P7 & 8 in a pouch at her residence. It is false to suggest that the said pouch as misplaced from December 2016. ...."
As per this evidence, suggestion is made to the Complainant/PW1 on behalf of the Accused that, the Accused had kept the signed blank cheques with ExP7 & ExP8 in a pouch, the said pouch was misplaced, since December 2016 and she (Complainant) has taken possession of the said pouch from the accused and has filed the Complaint. The said suggestion is denied by the Complainant/PW1.
12 Crl.Appeal.No.25207/2019As per this suggestion, it is admitted from the side of the Accused that the Cheque in question belonged to her. Further she has not denied her Signature on the Cheque-ExP1, either in the cross examination of PW1 or in her Evidence led as DW1. On the otherhand the Accused contends that the said Cheque was misplaced alongwith ExP7 & ExP8. So when the Complainant has produced ExP7 & ExP8, then it points out to the Cheque-ExP1 only.
15.01. As per the above ocular evidence, more specifically, the admission given by way of suggestion, inrespect of the Cheque Ex.P1, it can be said that, the Accused has admitted that the cheque- Ex.P1 belongs to her.
16. Thus the Complainant has proved the initial burden casted upon her U/Sec.138 of N.I. Act, to show that, the Cheque-ExP1 belongs to Accused and the signature on the said Cheque, is that of the Accused.
17. On viewing the amount of oral evidence with the documentary evidence i.e., Ex.P.1 to 13 Crl.Appeal.No.25207/2019 Ex.P.10, which will suffice the Complainant, to have benefit of presumption available U/Sec.138, 139 of N.I. Act.
17.01. 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".
17.02. Now it is for the Accused to rebut the said presumption, available to the Complainant U/Sec.139 of N.I.Act.
Hence, I answer POINT NO.1 IN THE
AFFIRMATIVE.
14 Crl.Appeal.No.25207/2019
18. POINT NOS.2 & 3:
Both these points are taken for joint discussion, inorder to avoid repeatation and confusion in the discussion and to have brevity in the discussion.
18.01. The first defence takenup by the Accused is that, she had kept the signed blank cheques with ExP7 & ExP8 in a pouch, the said pouch was misplaced, since December 2016 and the Complainant has taken possession of the said pouch from her and has filed the Complaint. This line of defence can be seen as per the cross-examination of PW.1, at Page No.6, Para No 2, Line Nos.5 to 10, which reads as under:
".... It is false to suggest that the Accused kept the signed blank cheques with the Ex.P7 & 8 in a pouch at her residence. It is false to suggest that the said pouch has misplaced from December 2016. It is false to suggest htat, by taking the said pouch from the possession of Accused I have filed this false complaint against the Accused."
18.01.01. Further as per the examination- in-chief of DW1 at Page No 1, Para No 1, Line Nos 4 to 7, which reads as under:
15 Crl.Appeal.No.25207/2019"... My husband has purchased one Maruthi Omni car and in order to make the EMI of said vehicle I have kept the signed blank chqeque and that has been misplaced in the month of February 2017. ..."
As per this evidence, the Accused contends that, her husband had purchased one Maruthi Omni Car and inorder to make the EMI of the said vehicle, she had kept the signed blank cheque and the same had been misplaced in the month of February 2017.
18.01.02. As per the above ocular evidence, in one breath the Accused contends that she had misplaced the Cheque-ExP1 in December 2016; and in another breath she contends that she had misplaced the said Cheque-ExP1, in February 2017. She is not definite as to when the Cheque- ExP1 was misplaced.
18.02. Secondly, as per the cross examination of PW1 at Page No 6, Para No 2, Line Nos 8 to 10, which reads as under:
"... It is false to suggest that by taking the said pouch from the possession of Accused I have filed this false complaint against the Accused.".16 Crl.Appeal.No.25207/2019
As per this evidence, a suggestion is made to the Complainant/PW1 on behalf of the Accused that, she has taken possession of the said pouch from the Accused and has filed a false complaint.
18.02.01. Earlier the Accused contends that her pouch containing the Cheque-ExP1 and documents-ExP7 & ExP8 was misplaced by her. But in subsequent suggestion, the Accused contends that the said pouch is taken by the Complainant from her possession. Inotherwords, in the earlier stand knowledge of the Accused was absent. But in subsequent stand there exists knowledge, i.e., Complainant taking possession of the pouch with the knowledge of the Accused.
18.02.03. So this stand runs contrary to the earlier stand takeup by the Accused.
18.03. Thirdly, the Accused contends that the Cheque was misplaced while shifting her house on 20.01.2017.
17 Crl.Appeal.No.25207/2019This type of defence/contention can be found in the cross examination of DW1 at Page No 3, Para No 2, Line Nos 6 to 9, which reads as under:
"... The witness volunteers that her cheque has been misplaced while shifting the house. I have shifted the house from one portion of the building to the other portion of the building on 20.01.2017. ....".
18.03.01. This third contention again runs contrary to the above two contentions takenup by the Accused. Here the Accused contends that the Cheque was misplaced on 20.01.2017, in the earlier contentions she has contended that, it was misplaced in December 2016 & February 2017.
18.03.02. When she contends specifically that, the Cheque has been misplaced on 20.01.2017, then she would have
a) lodged a complaint to that effect, with the Jurisdictional Police, but she has not done so. This can be seen as per the cross examination of DW1 at Page No 3, Para No 2, Line Nos 9 to 11, which reads as under:
18 Crl.Appeal.No.25207/2019"... I have not lodged any police complaint regarding misplacing of the cheque. .....".
b) should have issued Stop Payment instructions to the Banker, but she has not done so, when it was misplaced. This can be seen as per the cross examination of DW1 at Page No 3, Para No 2, Line Nos 9 to 11, which reads as under:
"... I have not lodged any police complaint regarding misplacing of the cheque. .....".
18.04. Fourthly, the Accused contends that she had issued Stop Payment instructions to her banker.
18.04.01. Firstly it is was not issued immediately when the Cheque was misplace I..e, immediately after 20.01.2017.
18.04.02. Secondly, if it was issue so, then the reasons under ExP2, would have been something different then the one shown in it i.e., Insufficiency of funds.
19 Crl.Appeal.No.25207/201918.05. Under such circumstances, it was for the Accused to show that the Cheque was misplaced by her alongwith ExP7 & ExP8, from her house,or the same was lost by her, which have remained unproved by the Accused, on the basis of preponderance of probabilities.
Thus the said defences of the Accused, cannot be believed, as they are not fortified with cogent evidence/material on record.
Hence, I am constrained to answer POINT NOS 2 & 3 IN THE NEGATIVE.
19. POINT NO 4:
As per the decision of the Hon'ble Apex Court, in the case of APS Forex Services Pvt. Ltd., V/s Shakthi International Fashion linkers & others, wherein it is held that;
"When the financial capacity of the Complainant is questioned in support of probable defence, despite presumption U/Sec. 139 of the N.I. Act, withregard to the existence of legally enforceable debt, the onus shifts on the Complainant to prove the financial capacity. Under such circumstances, complainant is required to prove his financial capacity, inorder to raise the presumption available U/Sec. 139 of N.I. Act, in his favour".20 Crl.Appeal.No.25207/2019
19.01. Further, as per the decision of the Hon'ble Apex Court, in the case of Basalingappa V/s Mudibasappa, reported in (2018) 5 SCC 418, wherein it is held that;
"Appellant disputing financial capacity of the Complainant to pay the amount, by leading cogent evidence to prove it, leads to the Accused probablising his defence, then burden would be on the Complainant to establish his financial capacity".
19.02. Applying the above principles of law to the instant case at hand, it is seen that, in the present case, though the Accused has questioned the transaction inbetween her and the Complainant and issuance of Cheque-Ex.P1 by her to the Complainant, but the same is not been fortified with cogent evidence. Hence, the said stand of the Accused is not acceptable.
20. Under these circumstances, the Accused/ Appellant should have led some cogent evidence to prove the fact that;
a) the Cheque was misplaced by her; or
b) the Cheque was lost from her; and 21 Crl.Appeal.No.25207/2019
c) the Complainant, on finding the said Cheque has presented it and misused the same.
Unless the Accused leads cogent evidence to these effect, the defence of the Accused will not become probable, but it will be merely a pulpable defence, which will not be sufficient to discharge his duty to rebut the presumption available U/Sec. 139 of the N.I. Act, to the Complainant.
21. Thus, as per the above oral and documentary evidence, it can be said that, the Accused has taken various stands in his defence. On looking to the line of defences and the various contentions takenup by the Accused, in his evidence, the version of the Accused is not inspiring the confidence of this Court. Hence, the contention of the Appellant/Accused cannot be accepted at all.
22. Considering the inconsistent contentions raised by the Accused in the cross examination of PW1 and the evidence led by the him as DW.1, it can be said that, the stands takenup by the Accused, is not fortified with cogent evidence, on the basis of preponderance of probabilities, inorder to rebut the 22 Crl.Appeal.No.25207/2019 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.
23. Thus, the presumption available to the Complainant U/Sec. 139 of N.I. Act, has remained unrebutted, from the side of the Appellant/Accused. 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, more specifically, Para Nos.22 to 27. 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.
HENCE, I ANSWER POINT NO. 4 IN THE AFFIRMATIVE.
24. POINT NO 5:
Another defence taken up by the Appellant is that, she has not received the Notice-ExP3, issued by the Complainant by RPAD and Speed Post, to her.
The Complainant has produced Legal Notice at ExP3; Returned Postal Envelops-ExP5 & ExP6. As 23 Crl.Appeal.No.25207/2019 per these documents, it is seen that, the Notice-ExP3 is issued to the Accused.
24.01. The Learned Counsel for the Appellant would contend that, the address of the Appellant is #21, BBMP No 2, 3 rd Main, Ist Cross, Malleshpalya, New Thippasandra, Bengaluru.
Inorder to show the said address of the Appellant, she has produced the documents at Ex.D1 & Ex.D2. So consequently would contend that, the Complainant has wrongly mentioned her address on the Notice-ExP3, so the same is not received by the Accused.
24.02. Percontra, the Learned Counsel for the Respondent/Complainant would contend that, the address of the Accused shown in ExD1 & ExD2 tally's with the address shown by the Complainant in ExP3-Notice, ExP5 & ExP6-Returned envelops.
24.03. As per the decision of the Hon'ble Apex Court, in the case of N Parameshwaran Unni Vs G Kannan and Anr, reported in (2017) 5 SCC 737, wherein it is held that, 24 Crl.Appeal.No.25207/2019 "Notice sent by Payee by Registered Post to the correct address of the drawer of the cheque. Postal authorities acknowledge service of notice. As per Sec 27 of General Clauses Act, service is deemed service.
Drawer entitled to rebut that presumption, but in absence of rebuttal, requirement of Sec 138 proviso (b) would stand complied with."So there exist a presumption of issuance of notice and receipt of it, unless contrary is proved.
24.04. Coming to the ocular evidence on this point, more specifically,
a) cross examination of DW1, Page No.3, Para No.1, Line No.4 to 7, which reads as under:
"... Earlier I was residing at Malleshpalya thereafter shifted to G M Palya. I am residing at House No 113, 5 th Main, C/O: Thipperudrappa, Thippasandra Post, Bengaluru-560075, since January 2016.".
As per this evidence, Accused admits that, earlier she was residing at Malleshpalya and thereafter she has shifted to G M Palya. She was residing at House No 113, 5th Main, C/O:
Thipperudrappa, Thippasandra Post, Bengaluru- 560075, since January 2016.25 Crl.Appeal.No.25207/2019
b) cross examination of DW1, Page No.4, Para No.1, Line No.14 to 18, which reads as under:
"... The address stated in Ex.P5 Postal Cover is my address. The witness volunteers that she was not in the said address at that time due to her ill health and she was at parental house. It is false to suggest that though I was present deliberately not receive the notice. ...".
As per this evidence, Accused admits that the address shown in ExP5 Postal Cover, is her address. And further contends that she was not in the said address, as the relevant time, as she had gone to her parental house, as she was ill.
24.05. As per Sec. 27 of the General Clauses Act, which gives rise to a presumption that, service of notice is presumed to be affected, when it is sent to the correct address, by registered post.
24.06. Applying the said specific presumption to the instant case at hand, when the Complainant has shown that, the Notice-ExP3 is sent to the Accused, on her address, as found in it, under such circumstances, it is deemed that the Notice-
26 Crl.Appeal.No.25207/2019ExP3 has been served to the Accused/ addressee shown in Ex.P.5- Postal Cover, which leads to presume/deem that the Accused is having the knowledge of the notice, unless the contrary is proved.
24.07. And when the Accused has challenged about receipt of the said notice, then the Accused has to show that, either the said Notice was issued to an incorrect address; or she was not residing on the address shown on Ex.P3, ExP5 & ExP7, at the relevant point of time, within the knowledge of the Complainant, at the time of issuing the said notice.
24.08. In the present case, the Appellant/Accused contends that she had gone to her parental house, as she was ill, at the relevant point of time, but she has not placed any material/cogent evidence, in this regard, which would have countered the materials available on record like Ex.P.3, ExP.5 and Ex.P.6.
27 Crl.Appeal.No.25207/201924.09. Thus, notice issued by the Complainant under Ex.P.3 is deemed to have been served upon the Accused, as per Ex.P.5. I find force to my above view as per the decision of the Hon'ble Apex Court in the case of C.C. Alavi Haji V/s Palapetty Muhammad & Another, reported in (2007) 6 SCC 555.
24.10. Thus, the Appellant/Accused has failed to show on the basis of preponderance of probabilities that, the Notice-ExP3 issued to her, is not served upon her.
Hence, I answer POINT NO.5 IN THE
NEGATIVE.
25. Point No.6:-
Under these circumstances, there is no any hurdle to derive the presumption available to the holder of the cheque U/Sec.118 as well as U/Sec. 139 of N.I.Act. I find force to my above opinion as 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 @ 28 Crl.Appeal.No.25207/2019 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.
26. Further the Statement of the Accused is recorded by the Trail Court U/Sec 313 of CrPC on 06.03.2019, it covers the entire incriminating substance, brought on record by way of evidence, against the Accused. The Trial Court has examined the Accused U/Sec. 313 of Cr.P.C. I have gone through the statement of the Accused recorded by the Trial Court U/Sec. 313 of Cr.P.C., and the reply given by the Accused, to the said questions, in the statement. I do not find any fault in the statement of the Accused, recorded by Trial Court U/Sec 313 of Cr.P.C.
27. I have carefully gone through the reasonings given by the Trial Court, while awarding 29 Crl.Appeal.No.25207/2019 compensation to the Complainant U/Sec.357 of Cr.P.C. I do not find any error or material irregularity in the said findings.
28. Further inorder to conclude, the Hon'ble High Court of Kerala 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".
28.01. 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 30 Crl.Appeal.No.25207/2019 of the Accused may not be sufficient to rebut the said presumption".
29. 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 that presumption.
30. The Trial Court has considered all the aspects, the grounds taken up by the Accused, as defence. The Order of the Trial Court in awarding compensation to the Complainant, is also wel- reasoned.
31. When no fault is committed by the Trial Court, in coming to the conclusion, convicting the Accused for the offence punishable U/Sec 138 of NI Act, interference to that effect, by this Court does not arise at all.
32. Thus, I am declined to interfere with the findings recorded by the Trial Court.
31 Crl.Appeal.No.25207/201933. 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. The Accused is hereby directed to pay the amount of compensation, as ordered by the Trial Court.
Hence, for the above reasons I am constrained to answer POINT NO. 6 IN THE NEGATIVE.
34. POINT NO. 7:
For having answered Point Nos.1 & 4 in the Affirmative; Point Nos.2, 3, 5 and 6 in the Negative, 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 of conviction passed by the Learned LVII Addl. CMM, Bengaluru in C.C.No.52772 of 2018, dtd.09.07.2019, recording conviction of the Accused, is hereby confirmed.
The order of suspension passed by this Court U/Sec.389 of Cr.P.C. stands revoked.32 Crl.Appeal.No.25207/2019
The Trial Court shall execute its order, as per law.
No order as to costs.
In case, if the Appellant/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.
Remit the TCR to the Trial Court, on obtaining necessary acknowledgment, from it, alongwith the copy of this Judgment.
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(Dictated to the Stenographer 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 22nd day of October, 2021.) [Abdul-Rahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)