Bangalore District Court
Mr. Ravi Kumar vs S/O Mr. Munivenkatappa on 24 March, 2022
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 24th day of March, 2022.
Crl. Appeal. No.25140/2021
Appellant/ Mr. Ravi Kumar,
Accused:- S/o Mr. Munivenkatappa,
Wrongly shown as S/o Mr.
Venkateshappa,
Aged about 48 years,
Working as Economic Guest,
Lecturer, Economic Department,
Govt. First Grade College,
Mulbagal- 563 131.
[By Sri. M. D Raghunath -Advocate]
V/s
Respondent/ Mr. A. V Deva Reddy,
Complainant: S/o Mr. Venkata Reddy,
Aged about years,
R/at No.196, V Sowbhagya Building,
1st Floor, Kashivishwanatha Extn.,
Nilagiri Road, KR Puram,
Bengaluru- 560 036.
(By Sri. Raghunatha -Adv.)
2
Crl.Appeal.No.25140/2021
JUDGMENT
This Appeal is preferred by the Appellant U/Sec. 374 of Cr.P.C, being aggrieved by the Judgment of conviction passed by the XXXIV Addl. CMM, Bangalore in CC.No.54076 of 2017, dtd.23.07.2021, convicting the Appellant for the offence punishable U/Sec. 138 of NI Act, thereby sentencing him to pay fine of Rs.1,15,000/-. Indefault to undergo Simple Imprisonment for a period of three months. Further directed to pay compensation of Rs.1,10,000/- to the Complainant, U/Sec. 357(1) of Cr.P.C., out of the fine amount.
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, he is known to him. The Appellant approached him in August -2015 with a request to extent financial assistance to the tune of Rs.4,00,000/- inorder to meet his domestic and legal necessities. Considering the request, he has paid a sum of Rs.1,00,000/- by way of cash and issued a Cheque for a sum of Rs.3,00,000/- drawn in the 3 Crl.Appeal.No.25140/2021 name of the Appellant on HDFC Bank, Kasturi Nagar Branch, Outer Ring Road, Bengaluru. Thus on 12.08.2015, the Accused is in receipt of Rs.4,00,000/-. On 05.01.2016 he requested and demanded the Appellant to repay the amount received by him, but the Appellant pleaded that he has no cash in hand with him and he is having a cash in the bank and requested him to receive the Cheque and get it encashed; and issued a Cheque bearing No.403263 for Rs.4,00,000/- drawn on the State Bank of Mysore, Nagarbhavi Branch, Bengaluru. As per the assurance and promise of the Appellant, he presented the said Cheque through his banker HDFC Bank Ltd., Kasturi Nagar, Benglauru on 11.03.2016 for encashment, but the said Cheque has returned unencashed with an endorsement "Funds Insufficient" on 11.03.2016. Thereafter, he got issued a Legal Notice to the Appellant, through his counsel by RPAD on 19.03.2016. The said Notice was duly served on 22.03.2016. The Appellant has neither complied nor replied the said notice. On completion of the stipulated period required under the statute, the Respondent was constrained to file 4 Crl.Appeal.No.25140/2021 the present Complaint against the Appellant for 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 Appellant/ Accused on 25.02.2012. The Appellant/ Accused appeared before the Trial Court on 16.02.2018 and he was enlarged on bail. Substance of accusation (Plea) of the Appellant/Accused was recorded by the Trial Court on 16.02.2018, wherein the Appellant /Accused pleads not guilty and claims to be tried.
4. The Complainant inorder to prove his case got himself examined as PW.1 and got marked 05- documents as Ex.P.1 to Ex.P.5. PW.2 was cross examined on behalf of the Appellant / Accused on 20.08.2019. Ex.D1 and Ex.D2 were got marked on confrontation to PW.1.
Statement of the Appellant/Accused U/Sec.313 of CPC was recorded by the Trial Court on 23.09.2019. The Appellant got himself examined as DW.1 on 26.11.2019. DW.1 was cross examined on 5 Crl.Appeal.No.25140/2021 behalf of the Complainant/Respondent on 09.01.2020.
Appellant/Accused got examined Mr. M Munirathnaia S/o Muniyappa as DW.2 on 09.03.2020. DW.2 was cross examined on behalf of the Complainant/ Respondent on 30.12.2020.
On hearing both the sides, the Trial Court has passed the Judgment of conviction against the Appellant/ Accused. Hence the Appellant/ Accused is before this Court, being aggrieved by the said Judgment.
5. On filing the appeal, this Court has suspended the execution and operation of the sentence, initially for a period of 3-months on 25.08.2021. Notice of the Appeal memo and I.A.No.1 were issued to the Respondent and TCR were called for. Respondent appeared through his Counsel on 27.10.2021. TCR were secured on 27.10.2021. Heard the Learned Counsels for the Appellant and Respondent, on the appeal.
Learned Counsel for the Appellant has placed his reliance on the decision reported in ILR 2019 (4) Kerala 420.
6Crl.Appeal.No.25140/2021
6. 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 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, more specifically, by taking into consideration Ex.D-1 and Ex.D2- Receipts;
c) The Trial Court has failed to consider that, the Complainant had given Rs.3,00,000/- to the Accused through Munirathnaiah; and not Rs.4,00,000/-, as contended by him;
d) The Trial Court has failed to consider that, the Appellant had issued signed blank Cheque to Munirathaniah and not the Complainant;
e) The Trial Court has failed to consider that, the Appellant has paid the entire dues to the Complainant;
f) The Trial Court has failed to consider that, the writing on the Cheque is of the Complainant; and the said cheque was a blank cheque, when it was issued;7
Crl.Appeal.No.25140/2021
g) The Trial Court has failed to consider that, the father's name of the Appellant is wrongly shown in the Notice issued by the Appellant, so the Complainant has failed to comply the provision of Sec.138(b) of NI Act;
h) The Trial Court has failed to consider that, there exist no any legally enforceable debt against the Appellant/Accused;
i) The Trial Court has wrongly arrived at a conclusion that, the Complainant has discharged her initial burden to avail the benefit of presumption, but the Accused has not rebutted the said presumption;
Hence, prayed to allow the said appeal.
7. Following points arise for my consideration;
1. Whether the Respondent/ Complainant is entitle for initial benefit of presumption available U/Sec. 139 of N.I. Act?
2. Whether the Appellant/ Accused proves on the basis of preponderance of probabilities that, he has issued singed blank Cheque to Munirathanaiah and not to the Accused?
3. Whether the Appellant/ Accused proves on the basis of preponderance of probabilities that, he had received Rs.3,00,000/- from the Complainant through Munirathanaiah and not 8 Crl.Appeal.No.25140/2021 Rs.4,00,000/-, as contended by the Complainant?
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 proves on basis of preponderance of probabilities that he has not received Notice-ExP3, issued by the Complainant?
6. Whether the Appellant/ Accused shows that the Order of Conviction and Sentence recorded by the Trial Court in CC.No.54076 of 2017, dtd.23.07.2021, deserves to be setaside, and thereby call for the interference of this Court?
7. What Order?
8. 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 Affirmative;
Point No.4 : In the Affirmative;
Point No.5 : In the Negative;
Point No.6 : Partly in the Affirmative; Point No.7 : As per final order for the following :9
Crl.Appeal.No.25140/2021 REASONS
9. The rank of parties will be referred to, as they were before the Trial Court.
10. Point No.1:
The Complainant has filed a Complaint U/Sec. 200 of Cr.P.C. alleging that, the Accused has issued the Cheque-ExP1 to him, towards the repayment of the handloan amount of Rs.4,00,000/- given by him, by way of cash to the tune of Rs.1,00,000/- and by way of Cheque to the tune of Rs.3,00,000/-. The said Cheque was presented for its encashment through his banker, but the same have been returned unencashed with an endorsement "Funds Insufficient", as per Ex.P2. Thereafter he got issued a Legal Notice on 19.03.2016, as per ExP3 through his counsel to the Accused by RPAD, as per the Postal Receipt-Ex.P4. And the said notice was served on the Accused, on 22.03.2016, as per the Postal Acknowledgment- Ex.P5.
11. On the basis of the documents produced by the Complainant and the preliminary evidence led by the Complainant, the Trial Court has issued 10 Crl.Appeal.No.25140/2021 summons to the Accused U/Sec.204 of Cr.P.C., on 25.02.2012. Perused the said orders, do not find any error in the said order of the Trial Court.
12. The Accused had appeared before the Trial Court on 16.02.2018 and he was enlarged on bail. Substance of Accusation/Plea was recorded, by the Trail Court on 16.02.2018. 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.
13. Coming to the ocular evidence, withregard to issuance of Cheque by the Accused, more specifically, cross-examination of DW.1, at Page No.3, Line Nos.4 to 6, which reads as under:-
"The Cheque at Ex.P1 is my cheque. The witness said to was given to one Munirathnaiah when it was blank cheque. Signature at Ex.P19(A) is my signature."
As per this evidence, Accused/DW.1 admits that, Cheque-Ex.P1 belongs to him and the signature on the said Cheque, as per Ex.P1(A) is his signature. But contends that, he had given the said cheque to Munirathanaiah.
11Crl.Appeal.No.25140/2021 From the above ocular evidence, it is clear that, the Accused admits that the Cheque-Ex.P1 belongs to him and the signature found on it, also belongs to him.
14. Thus the Complainant has proved the initial burden casted upon him U/Sec.138 of N.I. Act, to show that, the Cheque-Ex.P1 belongs to Accused and the signature found on the said Cheque, is that of the Accused.
15. On viewing the amount of oral evidence with the documentary evidence i.e., Ex.P.1 to Ex.P.5, which will suffice the Complainant, to have benefit of presumption available U/Sec.138, 139 of N.I. Act.
15.01. 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, 12 Crl.Appeal.No.25140/2021 unless the Accused rebut that presumption".
15.02. 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.
16. POINT NO.2:
The defence takenup by the Accused is that, he has issued signed blank Cheque to Munirathanaiah; and not to the the Complainant.
This line of defence can be seen,
a) as per the cross-examination of DW.1, at Page No.3, Line Nos.4 to 6, which reads as under:-
"The Cheque at Ex.P1 is my cheque. The witness said to was given to one Munirathnaiah when it was blank cheque. Signature at Ex.P19(A) is my signature."
b) as per cross-examination of PW.1, at Page No.2, Para No.2, Line Nos.3 to 5, which reads as under:-
"It is false to suggest that aforesaid Munirathnaiah has given the blank signed cheque of the Accused to me."13
Crl.Appeal.No.25140/2021 16.01. The Learned Counsel for the Appellant would contend that, since the Appellant had issued signed blank Cheque, the name and other writings on the Cheque-Ex.P1 is got returned by the Complainant. He has invited the attention of this Court to the cross-examination of PW.1, at Page No.3, Para No.3, which reads as under:-
"When it is questioned to the witness that the entries found in the chqeue inrespect of amount, date and signature does not tallies in each other; the witness said that name in the cheque has been written by him."
As per this evidence, when a question is posed to Complainant/PW.1 that, entries found in the Cheque, inrespect of the amount, date, signature, does not tally with eachother, for which he contends that, the name in the Cheque has been written by him.
16.02. When the Accused contends that, he had given the signed blank Cheque to Munirathnaiah; and when the Accused has led the evidence of Munirathnaiah as DW.2, then DW.2 would have stated that, the Accused has given signed blank Cheque to him; and he has given the 14 Crl.Appeal.No.25140/2021 said Cheque to the Complainant. But on careful perusal of the evidence -examination- in- chief of DW.2, he has not at all stated that, the Accused has given signed blank Cheque to him; and he has delivered the said Cheque to the Complainant.
16.03. So the defence of the Accused that he has given signed blank Cheque to Munirathnaiah- DW.2, cannot be believed only on the admission of the Complainant /PW.1 that, he has written his name on the Cheque -Ex.P1.
16.04. Inorder to prove the said defence, the Accused ought to have proved that,
a) he has given signed blank Cheque to Munirathnaiah S/o Muniyappa -DW.2;
b) said Munirathnaiah S/o Muniyappa -DW.2 has handed over either the signed blank Cheque of the Accused to the Complainant, or he has handed over the said Cheque by filling the contents; and
c) either Munirathanaiah S/o Muniyappa- DW.2, or the Complainant has filled the Cheque, in its entirety.
15Crl.Appeal.No.25140/2021 16.05. Thus, the Accused has failed to prove on the basis of preponderance of probabilities that, he had issued signed blank Cheque to Muniranthainah S/o Muniyappa -DW.2; and inturn DW.2 has delivered the said Cheque to the Complainant.
Hence, I answer POINT NO.2 IN THE NEGATIVE.
17. POINT No.3:-
The second defence taken up by the Accused is that, he has received only Rs.3,00,000/- and not Rs.1,00,000/- which the Complainant contends to have given the said amount to the Accused, in cash.
The said defence can be seen, in the ocular evidence,
a) as per the cross-examination of DW.1, at Page No.3, Line Nos.11 to 14, which reads as under:-
"... When it is questioned to the witness that how much money you have borrowed as a loan; the witness said that Rs.3 lakhs has been transferred to this bank account. ..."16
Crl.Appeal.No.25140/2021
b) as per cross-examination of PW.1, at Page No.4, Line Nos.23 to 26, which reads as under:-
"... It is false to suggest that the Accused not at all borrowed or received Rs.4 lakhs from me. It is false to suggest that whatever the amount received by the Accused that has been repaid by him. ..."
17.01. Percontra, the Complainant contends that, he has paid totally an amount of Rs.4,00,000/- to the Accused, i.e., Rs.3,00,000/- by way of Cheque, which his admitted by the Accused; and another Rs.1,00,000/- byway of cash, which is denied by the Accused.
17.02. When the Accused has denied receipt of Rs.1,00,000/- from the Complainant, which the Complainant contends that, he has paid the said amount to him in cash, then it is for the Complainant to prove the said fact.
17.03. On perusal of the Judgment of the Trial Court wherein the Trial Court has opined at Page No.11, Para No.1, Line Nos.5 and 6, of its Judgment that, 17 Crl.Appeal.No.25140/2021 "The Accused has failed to prove that, he had took only Rs.3,00,000/- and issued blank Cheque."
17.03.01. Firstly, it is the case of the Accused that, he had received Rs.3,00,000/-; and he had issued the signed blank Cheque to Munirathnaiah S/ o Muniyappa -DW.2.
17.03.02. Secondly, the Trial Court has misread the said contention of the Accused to form an opinion that, the Accused on taking Rs.3,00,000/- has issued the blank Cheque.
17.03.03. Thirdly, when the Complainant avers the fact that he has paid Rs.1,00,000/- in cash apart from Rs.3,00,000/- byway of Cheque; and when the Accused denies the receipt of Rs.1,00,000/- in cash; and admits payment of Rs.3,00,000/- byway of Cheque, then it is for the Complainant to prove that, he has paid Rs.1,00,000/- in cash to the Accused, as per Sec.101 of Evidence Act.
But the Trial Court has formed an opinion that, the Accused has to prove that he has taken only 18 Crl.Appeal.No.25140/2021 Rs.3,00,000/-. Such opinion of the Trial Court is not in accordance with Sec.101 of Indian Evidence Act.
17.04. Coming to the materials on record, in the light of above discussion.
17.04.01. As per the cross-examination of PW.1, at Page No.2, Para No.1, Line Nos.6 to 18, which reads as under:-
"... I Have paid Rs.1 lakh in cash to the Accused in the presence of Advocates Janardhan and Munirathnaiah. When it is questioned to the witness that there is no impediment for you to examine Janardhan and Munirathnaiah; the witness said that he can examine but cannot examine Munirathnaiah as there was a quarrel between him and said Munirathnaiah. When it is questioned to the witness that whether you have paid Rs.1 lakhs on the same day you have paid Rs.3 lakhs to the Accused; the witness said that 4 days after paying the amount through cheque he has paid the money of Rs.1 lakh in cash to the Accused. It is false to suggest that I have not stated that Rs.1 lakh in cash paid 4 days subsequent to the payment of Rs.3 lakhs in cheque."
As per this evidence Complainant PW.1 contends that, he has paid Rs.1,00,000/- in cash to 19 Crl.Appeal.No.25140/2021 the Accused in the presence of Advocates Janardhan and Munirathnaiah.
17.04.02. Though the Complainant has contended so, he has not led the ocular evidence of the said Advocates Janardhan and Munirathnaiah to prove the said facts.
17.04.03.Secondly, the Accused has led the evidence of Munirathnaiah as DW.2, neither the said witness has adduce his evidence contenting that, the Complainant has paid Rs.1,00,000/- in cash, in his presence to the Accused; nor the Complainant has cross examined DW 2 on this point, to elucidate the fact of, he giving an amount of Rs.1,00,000/- in cash to the Accused, in his presence as well as in the presence of another Advocate by name Janardhan.
17.05. Thirdly, as per the cross- examination of PW1 referred to supra, PW.1 contends that, he has paid Rs.1,00,000/- in cash to the Accused, four days after paying the amount through Cheque.
20Crl.Appeal.No.25140/2021 17.05.01. Coming to the contentions taken up by the Complainant, more specifically, in Para No.3, wherein the Complainant contends that, he has paid Rs.1,00,000/- in cash and Rs.3,00,000/- byway of Cheque. And as on 12.08.2015 the Accused is in receipt of Rs.4,00,000/- from him.
On perusal of the date of the Cheque bearing No.000003, which the Complainant contends that, he has paid Rs.3,00,000/- to the Accused, is dated 12.08.2015.
So as per the averments taken up in the Complaint, the Complainant contends that, he has paid entire Rs.4,00,000/-, Rs.3,00,000/- in the form of Cheque and Rs.1,00,000/- in cash, to the Accused on 12.08.2015.
This averments of the Complaint runs contrary to the evidence Complainant /PW.1, referred to supra.
17.06. Thus, it was for the Complainant to prove that, he had given Rs.1,00,000/- in cash to the Accused apart from Rs.3,00,000/- paid byway of Cheque, but the Complainant has failed to prove the same.
21Crl.Appeal.No.25140/2021 17.07. So the Accused has proved on the basis of preponderance of probabilities that, the Complainant has paid only Rs.3,00,000/- and not Rs.4,00,000/-, as contended by him.
Hence, I am constrained to answer POINT NO.3 IN THE AFFIRMATIVE.
18. POINT NO.4:-
As per the decision of the Hon'ble Apex Court, in the case of Beersingh V/s Mukesh Kumar, reported (2019) 4 SCC 197, wherein it is held that;
"Even a blank Cheque leaf, voluntarily singed and handedover by the Accused which is towards some payment, would attract presumption U/Sec.139 of Negotiable Instruments Act, in the absence of any cogent evidence to show that, the Cheque was not issued, in discharge of a debt."
Applying the said preposition of law to the instant case at hand, when the Accused contends that, he had issued signed blank Cheque to Munirathnaiah S/o Muniyappa -DW.2, then it was for him to prove the said fact, by bringing certain cogent and reliable material on record. In the 22 Crl.Appeal.No.25140/2021 absence of the same, the Cheque issued, would attract the presumption U/Sec.139 of NI Act.
19. The Learned Counsel for the Appellant would contend that, the Complainant has failed to prove that, he was having sufficient funds to pay the amount to the Accused.
19.01. This contention will assumed importance, when the Accused proves his defence of issuance of signed blank Cheque to Munirathanaiah S/o Muniyappa, on the basis of preponderance of probabilities. Without bringing the cogent evidence on record to that effect, would not entail the Appellant to contend that, the Complainant has failed to prove his capacity.
20. In this case, the Accused has failed to prove his defence that, the Complainant has obtained signed blank cheque and has misused the same by filling it.
21. Considering the inconsistent contentions raised by the Accused in the cross examination of PW1, it can be said that, the stands takenup by the 23 Crl.Appeal.No.25140/2021 Accused, is not fortified with cogent evidence, 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.
22. 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, Page No.11, Para No.21, Line Nos.6 to 12. 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.
23. POINT NO 5:
Another defence taken up by the Appellant is that, he has not received the Notice-ExP3, issued by 24 Crl.Appeal.No.25140/2021 the Complainant by RPAD, to him, contending that, the name of the father of the Accused is wrongly shown as Venkateshappa, whereas the name of the father of the Accused is Munivenkatappa.
The Complainant has produced Legal Notice at ExP3; Postal receipt at ExP4; and Postal AOD at ExP5. As per these documents, it is seen that, the Notice-ExP3 is issued to the Accused and the same is received by the Addressee, as per the Postal Acknowledgment- Ex.P5.
23.01. The Learned Counsel for the Appellant would contend that, the Notice-ExP3 is not received by the Accused, as the name of the Accused is not properly shown in the said Notice.
23.02. On careful perusal of the address of the Accused, in the Notice-ExP3, it is mention as, "Sri. M Ravi Kumar S/o Sri. Munivekatappa".
Admittedly, the name of the father of the Accused is Munivenkatappa. But in Ex.P3-Notice the name of the father of the Accused is shown as Munivekatappa. "n" is missing inbetween the letters 'e' and 'k', in the name of the father of the Accused.
25Crl.Appeal.No.25140/2021 But the address of the Accused shown either in Ex.P3 -Notice, or shown in Postal Acknowledgment- Ex.P5, has neither been challenged nor denied by the Accused.
When the Accused has not denied the said address; and when the acknowledgment has returned with an endorsement as Served, then such service is deemed to be good in law. I find force to my above view, 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, "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.
26Crl.Appeal.No.25140/2021 23.03. So also, 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.
23.04. 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 his address, as found in it, under such circumstances, it is deemed that the Notice- ExP3 has been served to the Accused/addressee shown in Ex.P5- Postal AOD, which leads to presume/deem that the Accused is having the knowledge of the notice, unless the contrary is proved.
23.05. And when the Accused has challenged about receipt of the said Notice-ExP3, then the Accused has to show that, either the said Notice was issued to an incorrect address; or he was not residing on the address shown on Ex.P3 & ExP5, at the relevant point of time, which is within the knowledge of the Complainant, at the time of issuing the said notice.
27Crl.Appeal.No.25140/2021 23.06. But the Accused has not led any cogent and reliable evidence, to prove either the address found on ExP3-Notice & ExP5 Postal AOD; or that he was residing in the different address, when the Notice-ExP3 was sent to him..
23.07. Thus, notice issued by the Complainant under Ex.P.3 is deemed to have been served upon the Accused, as per Ex.P.5-Postal AOD. 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.
23.08. Thus, merely due to the typographical mistake in the spelling of the name of the father of the Accused, the Accused cannot contend that, he has not received the Notice-ExP3. Further the Appellant/Accused has failed to show on the basis of preponderance of probabilities that, the Notice-ExP3 issued to him, is not served upon him.
Hence, I answer POINT NO.5 IN THE NEGATIVE.
28Crl.Appeal.No.25140/2021
24. 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 @ 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.
25. Further the Statement of the Accused is recorded by the Trail Court U/Sec 313 of CrPC on 23.09.2019, 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 29 Crl.Appeal.No.25140/2021 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.
26. I have carefully gone through the reasonings given by the Trial Court, while awarding compensation to the Complainant U/Sec.357 of Cr.P.C., which can be found in Para No.22 of the Judgment of the Trial Court, wherein the Trial Court has opined that, the Accused has paid Rs.2,98,000/- and he is yet to pay Rs.1,02,000/-.
26.01. As per the cross-examination of PW.1, at Page No.3, Para No.4, Line No.1 to Page No.4, Line No.1, which reads as under:-
"It is true that the Accused has paid Rs.2 lakhs to me in the open court. It is true that as per the slips now shown to me I have received Rs.49,000/- each to my bank account. As the witness admitted the receipt of the said money and the bank challans are marked as Ex.D1 and Ex.D2. It is false to suggest that in this 30 Crl.Appeal.No.25140/2021 case I have received in total Rs.3 lakhs from the Accused. ..."
As per this evidence Complainant /PW.1 admits that, he has received Rs.2,00,000/- from the Accused, in the open Court; and Rs.49,000/- each, as per Ex.D1 and Ex.D2.
Thus, the Complainant admit to have receive Rs.2,98,000/-.
26.02. As discussed under Point No.3 supra that, the Complainant has failed to prove payment of Rs.1,00,000/- to the Accused in cash. Under such circumstances, the Complainant will be entitle to receive only Rs.3,00,000/-, as admitted by the Accused. This aspect has not been considered by the Trial Court, while awarding compensation to the Complainant, U/Sec.357(1)(b) of Cr.PC.
26.03. If this aspect is considered, then Rs.3,00,000/- is admittedly paid to the Accused; and the Accused has paid Rs.2,98,000/- to the Complainant, as admitted by the Complainant, as per oral evidence, referred to supra. Then the Complainant will be entitle to receive balance amount of Rs.2,000/-.
31Crl.Appeal.No.25140/2021 26.04. Further, though the Complainant admits that, he has received Rs.49,000/- each under Ex.D1 and Ex.D2 (the dates on Ex.D1 and Ex.D2 are 09.03.2016 and 10.03.2016), but he has not disclosed receipt of the said amounts in the Notice- ExP3, issued through his Advocate on 19.03.2016. The fact of the receipt of Rs.49,000/- each, under Ex.D1 and Ex.D3 is suppressed in Ex.P3-Notice. Such suppression is required to be viewed seriously. It is a suppression of an important fact.
26.05. Considering all these factors, coupled with the date of giving the amount of Rs.3,00,000/- by the Complainant to the Accused through the Cheque, it will be just, proper and feasible to grant Rs.12,000/- (balance Rs.2,000/- and damages Rs.10,000/-), as compensation to the Complainant.
To this effect the order of the Trial Court is required to be modified.
27. 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:
32Crl.Appeal.No.25140/2021 "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".
27.01. 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 of the Accused may not be sufficient to rebut the said presumption".
28. 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.
33Crl.Appeal.No.25140/2021
29. 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 required to be modified, as observed supra.
30. 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.
31. Thus, I decline to interfere with the findings recorded by the Trial Court.
32. 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 an amount of Rs.12,000/- (balance Rs.2,000/- and damages Rs.10,000/-), as compensation to the Complainant. To this effect the order of the Trial Court is required to be modified U/Sec 386(b)(iii) of Cr.PC.
34Crl.Appeal.No.25140/2021 Hence, for the above reasons, I am constrained to answer POINT NO.6 PARTLY IN THE AFFIRMATIVE.
33. Point No.7:
For having answer Point Nos.1, 3 and 4 in the Affirmative; Point Nos.2 and 5 in the Negative; and Point No.6 Partly in the Affirmative, I proceed to pass the following:
ORDER Acting U/Sec.386(b)(iii) of Cr.P.C., the Appeal preferred by the Appellant/ Accused is hereby Partly Allowed.
In the consequences, the order of conviction passed by the Learned XXXIV Addl. CMM, Bengaluru in C.C.No.54076/2017 dtd.23.07.2021, recording conviction of the Accused, is hereby confirmed, subject to the modification that, the Accused shall pay a fine of Rs.17,000/-. Out of which an amount of Rs.12,000/-, shall be paid as compensation to the Complainant U/Sec 357(1)(b) of Cr.PC., and Rs.5,000/- shall be paid to the State Ex-Chequer, as fine. In default of payment of fine amount, the Accused shall undergo Simple Imprisonment for a period of three months.35
Crl.Appeal.No.25140/2021 The order of suspension passed by this Court U/Sec.389 of Cr.P.C. stands revoked.
The Trial Court shall execute the 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, an amount of Rs.12,000/- may be released infavour of the Complainant and the remaining balance amount may be released infavour of the Accused, as per Law U/Sec. 143 of the said Act, after completion of the Appeal period.
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 24th day of March, 2022) [Abdul-Rahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)