Bangalore District Court
Sri.T.Murugan S/Otanga Vellu vs Mr.A.X.Christy Jude on 18 April, 2022
IN THE COURT OF THE XIII ADDL.CITY CIVIL & SESSIONS JUDGE
Mayohall unit: Bengaluru. (CCH:22)
PRESENT: - Smt. Suvarna K. Mirji, B.Com., LL.B.[Spl]
XIII Addl. City Civil and Sessions Judge,
Bengaluru.
Dated this the 18th day of April 2022
CRIMINAL APPEAL No.25168/2017
Appellant :- 1. Sri.T.Murugan S/oTanga Vellu,
aged about 38 years, R/at No.GBJ-346,
12th Cross, Central Township,
HAL Quarter, Bangalore- 560 075.
And also;
HAL Composite Shop,
Helicopter Division-ALH,
Final Assembly, Dep. No. 6354,
PB No. 69062-06, Helicopter Division,
Bangalore- 560 075.
(Rep by Sri. Subhas Patil Advocate)
V/s
Respondent:- Mr.A.X.Christy Jude,
aged about 41 years,
R/at No. 115, Maccan Road,
Cross-Q, 4th Street,
Bangalore- 560 001.
(Rep by Sri. A.L., Advocate)
2
Judgment Crl.A.No.25168/2017
:JUDGMENT:
The appellant/accused has preferred this Criminal Appeal U/S 374(3) of CRPC praying to set aside Judgment of conviction and sentence passed by LVIII ACMM, Mayohall Unit, Bengaluru in CC.No.53105/2015 on 04/11/2017 for an offence punishable U/S 138 of Negotiable Instrument Act.
2. The appellant is accused and respondent is complainant before court below. The rank of both parties are referred as referred before the court below.
3. The brief facts of complaint is as under:-
The complainant submits that he and accused are working at Helicopter Division, HAL, Bangalore and they are friends from past 4 years and thus he and accused became very close acquaintance. In the month of June 2009 accused approached him 3 Judgment Crl.A.No.25168/2017 for financial assistance of Rs.1,25,000/- to purchase site bearing No.17, Old Sy.No.56/1, New Sy.No.56/4, Chikkanckundi Village, Sarjapura Hobli, Anekal Taluk, Bangalore. The accused also assured to him that apart from working at HAL accused having various business managed and run by him both inside and outside the factory namely, Chit business, Mobile phone currency recharge, Sodex Couple business from employees of factory on commission basis, Textile business all these business carried by accused inside the factory. The following business are carried by accused outside factory, Rice trading business whole sale and retails including home delivery to HAL quarters, Booking rice bags in company on commission basis, Travel agencies, owning Tata Sumo bearing registration No.KA-03/B-6345, Swaraz Mazda Mini Business, Tempo Travels, Innova, Qulies, Ticket booking for Flight, Bus and Train, all these business are carried out by accused in the name and style of Vinayak Tours and 4 Judgment Crl.A.No.25168/2017 Travels and Vinayaka Enterprises at #2, Balakrishna Building, Doddanekkundi Main Road, Doddanekkundi Post, Bangalore. The accused assured to him to repay hand loan amount to be borrowed from him shortly in presence of employees of HAL Factory.
4. The complainant further submits that accused being aware and also being convinced by business carried out by accused and his wife both inside and outside factory and also the accused being the employee of HAL and drawing salary of Rs.20,000/- per month, He consulted his wife to help accused and both he and his wife came forward to help accused by giving hand loan from the complainant's P.F. Amount. On 17/06/2009 he has obtained loan to tune of Rs.1,78,000/- from his provident fund account for his sons and daughter's education and domestic purpose, he spent only Rs.74,000/- for above said purposes, out of the loan amount taken from his PF amount of Rs.1,78,000/-. That after 5 Judgment Crl.A.No.25168/2017 obtaining assurance from accused, would repay loan amount of he borrowed from his PF amount, he paid Rs.1,04,000/- to accused by way of two cheques bearing No.461358 dated:
13/07/2009 for Rs.54,000/- and cheque bearing No.461359 dated 15/07/2009 for Rs.50,000/-, both the above cheques drawn on SBI, HAL, Helicopter Branch. After receiving the said cheques from him the accused deposited same into his account bearing No.10918181504 held at SBI, HAL Branch and thus Rs.1,04,000/- was transferred into account of accused on 13/07/2009 and 15/07/2009 respectively. Later on 17/07/2009 he gave back Rs.4,000/- to him and rounded borrowed amount of Rs.1,00,000/- only.
5. The complainant further submits that after transfer of Rs.1,04,000/- to the account of accused, the accused issued post dated cheque bearing No.361912 dated:30/11/0012 for Rs.1,00,000/- after deducting Rs.4000/- given to him on 6 Judgment Crl.A.No.25168/2017 17/07/2009, the post dated cheque drawn on State Bank of Hyderabad, J.C.Road Branch, Bangalore and HAL Extension Counter, L.C.A.ARDC, Bangalore, Karnataka and further accused had promised to clear his provident fund loan amount on or before 30/11/2012 and requested him not to present cheque before 30/11/2012 and the accused assured to him that the accused would repay the amount and would take back the cheque after the repayment of Rs.1,00,000/- in presence of witnesses of HAL employees. Then he approached accused during the year 2010 to pay loan amount of Rs.1,00,000/- whenever he approached the accused, accused would only ask him to wait for some time to pay amount borrowed by him.
6. The complainant further submits that the accused contacted him through common friend from HAL during the month of November 2012 and agreed to pay loan amount to him and directed him to present post dated cheque bearing No.361912 7 Judgment Crl.A.No.25168/2017 dated 30/11/2012, drawn on State Bank of Hyderabad, J C Road Branch, Bangalore and as per accused assurance he presented cheque through his bankers Union Bank of India, St.John's Church Road Branch, St. John's School premises Bangalore on 30/11/2012. The said cheques issued by accused by came to be dishonoured by Banker's Memo dated: 03/12/2012 with an endorsement "Funds Insufficient". He received said cheque back on 03/12/2012, thereafter he approached accused through same friend who asked the accused to present cheque and brought the facts to his notice and demanded for payment of Rs.1,00,000/- borrowed by the accused and also sent words through the accused friends requesting the accused to pay back the loan amount. For which the accused has went on postponing the payment by one or the other reason.
7. The complainant further submits that outstanding loan amount towards the PF amount as on Nov 2012 is Rs.1,38,268/-, 8 Judgment Crl.A.No.25168/2017 every month the PF loan amount borrowed to give the accused has been deducted from his salary and it is been continued to be deducted. The accused has utilized the sum of Rs.1,00,000/- given by his client towards the purchase of the property No.17, Old Sy.No.56/1, New Sy.No.56/4, Chikkanekundi Village, Sarjapura Hobli, Anekal Taluk and intentionally cheated the complainant by not maintaining the sufficient amount in the accused account only with malafide intention to cheat the complainant and thus the accused has committed an offence punishable U/s 138 of NI Act and 420 of IPC. Thereafter the complainant got issued legal notice dated: 28/12.2012 informing the accused to repay said sum within 15 days. The said notice was sent by RPAD to the above said addresses to the accused, the notice sent under RPAD was served upon the accused vide RPAD acknowledgment dated 03/01/2013, and the accused has given untenable reply on 17/01/2013 to said notice. The complainant 9 Judgment Crl.A.No.25168/2017 prays to take cognizance against against accused for offence punishable U/s 138 of Negotiable Instrument Act and dealt with the accused in accordance with law.
8. That trial Court in the order sheet dated 08/07/2015 mentioned that in view of the Division Bench Decision in Cr.R.P.No.2604/2012 dated 09/07/2013 recording of sworn statement is dispensed and permitted to file the affidavit in lieu of the sworn statement and complainant filed affidavit in lieu of sworn statement. Thereafter trial court registered case against the accused for offence punishable U/s 138 of Negotiable Instrument Act and issued summons to the accused, accused appeared before trial court and released on bail and thereafter plea of accused was recorded by trial court and accused denied the same and claim to be tried. The complainant examined as PW.1 and marked ExP1 to ExP10. Thereafter trial court recorded the statement of the accused U/s 313 of Cr.PC the incriminating evidence came 10 Judgment Crl.A.No.25168/2017 against the accused, he denied the same and accused examined as DW.1 and marked ExD1 & ExD2. Thereafter trial court on hearing the arguments pronounced the Judgement on 04/11/2017 convicting the accused for an offence punishable U/s 138 of N.I. Act and sentenced to pay fine of Rs.5,000/-, in default of payment of fine the accused shall undergo S.I for a period of three months, U/s 257 of Cr.P.C the compensation was awarded to the complainant by directing the accused to pay Rs.1,90,500/- to the complainant and in default of payment of compensation the accused shall undergo S.I for a period of one year. Aggrieved by the said conviction Judgement of trial court the accused/appellant has preferred the present appeal on the following grounds.
9. The appellant/accused submits that the court below erred in convicting the appellant without considering the cross examination of PW.1 and also evidence of the appellant and also got marked Ex 'D' series to the appellant/accused giving by 11 Judgment Crl.A.No.25168/2017 benefit of doubt to appellant the trial court passed the judgment against the appellant/accused. Hence the impugned conviction order is liable to be set aside. The court below has not given natural justice to the appellant. Hence the impugned order is liable to be set aside by this court. Further the respondent has no produced any material in support of the claim. The respondent has failed to prove beyond all the reasonable doubts and the claim against he appellant. In spite of the said fact, the court below has proceeded to convict the appellant by passing judgment without applying the judicial mind or giving natural justice. The appellant has got good case on merits and the appellant will definitely succeed in trial court, hence it just and necessary to set-aside the one sided Judgment passed by trial court and direct the Lower Court to consider the citation filed by the counsel for appellant and to dispose the matter in accordance with law. The appellant further submits that according to respondent had paid sum of 12 Judgment Crl.A.No.25168/2017 Rs.1,00,000/- to the appellant without taking any necessary documents for the purpose of loan transaction. In this regard respondent has not produced any iota evidence to prove the prima facie case against the Appellant and moreover respondent is the Central Government Employee, but as per the Income-tax Act, if is the bounden duty of respondent to pay amount through cheque only either to appellant or anyone else, but the respondent has given evidence before trial court that gold was pledged to the bunk and taken the money from the bank find the same is paid to the appellant. If the respondent really pledged the gold and taken the loan from the Bank, the respondent might have been issued a cheque in the name of the appellant, the benefit will be arose whether the respondent really made the payment to the appellant, this benefit will not be given to appellant. The Lower Court ought to have committed an error and trial court is come to the conclusion that respondent has made the payment to the 13 Judgment Crl.A.No.25168/2017 appellant, it is the wrong concept one and the appellant had taken the defence that appellant and respondent are working in the same shop premises at Helicopter Division, HAL, Bangalore. The defence taken by appellant that the cheques were lost/theft from the factory, and it this regard, the appellant has also lodged complaint before the jurisdiction police station regarding the theft of Cheque Book with Cheque Leaves and also given a letter to his Bank Manager stating hot the Cheque Book has been lost/theft and not to honour the above said cheque leaves and cheque book by way of stop payment and appellant had replied to the legal notice issued by the respondent, but Magistrate has not considered the above said facts and the material documents produced by appellant and Magistrate without applying the mind the Learned Magistrate has convicted the accused/appellant. The Appellant further submits that according to respondent, he had obtained the money from his PP Office received in the year 2009 14 Judgment Crl.A.No.25168/2017 and the respondent had taken the contention that the amount was paid in the year 2009 i.e. 13/07/2009 and 15/07/2009 if the respondent would have taken the money from the PP Office and others, if the respondent really helps to appellant would have issued the cheque in the name of the appellant and without taking any document/ necessary documents, the respondent has paid the money to the appellant, it clearly goes to show that respondent not made any payment to the appellant and the respondent's intention only to grub the money from appellant and respondent had not proved the prima facie case against the appellant is respect of the legally recoverable debt, if respondent proved prima facie case U/s 139 and 118 of NI Act, then burden will be shifted to the appellant, it clearly prima facie case by cognizance, oral as well as documentary evidence, totally respondent miserably failed to prove the prime facie case against the appellant, but the Magistrate come to the conclusion that 15 Judgment Crl.A.No.25168/2017 respondent had proved the prima facie case against the appellant and convicted appellant by trial court and also taken contention that appellant was issued the post dated cheque i.e. on 30.11.2012, but as per the NI Act and also acknowledgement of debt and according to the Respondent the cheque was issued in the year 2009 as post dated cheque doted 30/11/2012, according to respondent there is no legally recoverable debt because according to respondent, the payment was made in the year 2009 and immediately the Appellant had issued the post dated cheque to the Respondent i.e. on 30/11/2012, but as per the some is time barred debt, but the Respondent had not collected the cheque within the stipulated period, but respondent had taken the cheques from appellant's working place and the same was misused and filled up the cheque with his convenient and filed the false complaint before trial court. In this regard his counsel had submitted the citation's in respect of the time barred debt, but the 16 Judgment Crl.A.No.25168/2017 Magistarate ought not to have considered the citations filed by the appellant and not observed the same. The accused/appellant prays to allow the appeal setting aside the conviction order dated 04/11/2017 passed in CC.No.53105/2015 by 58th ACMM Court, Mayo Hall Unit, Bengaluru.
10. The lower court records secured. The appellant counsel argued and filed memo with citations. The respondent counsel argued. Perused the records.
11. The Points arise for my consideration are as under.
1. Whether the interference of this court in the judgment passed by the trial court on 04/11/2017 in C.C.No.53105/2015 in convicting the appellant/accused for an offence U/s 138 of Negotiable Instrument Act is needed?
2. What order?
12. My findings on the above Points are as under: 17
Judgment Crl.A.No.25168/2017
Point No.1: In Negative
Point No.2: See final order for following:
:REASONS:
13. Point No.1:-
The complainant A.X. Christy Jude filed filed his affidavit in lieu of examination in chief before trial court and deposed evidence that he and accused are working at Helicopter Division, HAL, Bangalore and they friends from past 6 years and thus he and accused became very close acquaintance. In the month of June 2009 accused approached him for financial assistance of Rs.1,25,000/- to purchase the site bearing No.17, Old Sy.No.56/1, New Sy.No.56/4, Chikkanckundi Village, Sarjapura Hobli, Anekal Taluk, Bangalore. The accused also assured to him that apart from working at HAL, the accused having various business managed and run by him both inside and outside the factory namely, Chit business, Mobile phone 18 Judgment Crl.A.No.25168/2017 currency recharge, Sodex Couple business from the employees of the factory on commission basis, Textile business all these business carried by the accused inside the factory. The following business are carried by the accused out side the factory, Rice trading business whole sale and retails including home delivery to HAL quarters, Booking rice bags in company on commission basis, Travel agencies, owning Tata Sumo bearing registration No. KA-03-B-6345, Swaraz Mazda Mini Business, Tempo Travels, Innova, Qulies, Ticket booking for Flight, Bus and Train, all these business are carried out by the accused in the name and style of Vinayak Tours and Travels and Vinayaka Enterprises at #2, Balakrishna Building, Doddanekkundi Main Road, Doddanekkundi Post, Bangalore. Thereafter accused assured to him to repay the hand loan amount to be borrowed from him shortly in presence of employees of the HAL Factory. 19
Judgment Crl.A.No.25168/2017
14. The PW.1 further deposed evidence that accused being aware and also being convinced by the business carried out by the accused and his wife both inside and outside the factory and also the accused being the employee of HAL and drawing salary of Rs.20,000/- per month, he with confidence and to help the accused, consulted his wife and both he and his wife came forward to help the accused by giving hand loan from his P.F amount. On 17/06/2009 he obtained loan to the tune of Rs.1,78,000/- from his provident fund account for his sons and daughter's education and domestic purpose, he spent only Rs.74,000/- for the above said purposes, out of the loan amount taken from his PF amount of Rs.1,78,000/-. the after obtaining assurance from the accused, would repay the loan amount of him borrowed from his PF amount, he paid Rs.1,04,000/- to accused by way of two cheques bearing No. 461358 dated: 13/07/2009 for Rs.54,000/- and cheque bearing No.461359 dated :15/07/2009 20 Judgment Crl.A.No.25168/2017 for Rs.50,000/-, both above cheques drawn on SBI, HAL, Helicopter Branch. After receiving said cheques from him the accused deposited the same into his account bearing No. 10918181504 held at SBI, HAL Branch and thus Rs.1,04,000/-
was transferred into the account of accused on 13/07/2009 and 15/07/2009 respectively. Later on 17/07/2009 he gave back Rs.4,000/- to him and rounded borrowed amount of Rs.1,00,000/.
15. The PW.1 further deposed evidence that after transfer of Rs. 1,04,000/- to the account of the accused, the accused issued post dated cheque bearing No. 361912 dated: 30/11/0012, for Rs.1,00,000/- after deducting Rs.4000/- given to the complainant on 17/07/2009, the post dated cheque drawn on State Bank of Hyderabad, J.C.Road Branch, Bangalore and HAL Extension Counter, L.C.A. ARDC, Bangalore, Karnataka. The accused had promised to clear his provident fund loan amount on or before 30/11/2012 and requested him to not to present the cheque before 21 Judgment Crl.A.No.25168/2017 30/11/2012 and the accused assured to him that he would repay the amount and would take back the cheque after the repayment of Rs.1,00,000/- in presence of witnesses of the HAL employees. He approached the accused during the year 2010 to pay loan amount of Rs.1,00,000/- whenever he approached the accused, accused would only ask him to wait for some time to pay the amount borrowed by him.
16. The PW.1 further deposed evidence that the accused contacted him through common friend from HAL during the month of November 2012 and agreed to pay loan amount to him and directed him to present the post dated cheque bearing No. 361912 dated 30/11/2012 drawn on State Bank of Hyderabad, J C Road Branch, Bangalore and as per assurance of accused he presented the cheque through his bankers Union Bank of India, St.John's Church Road Branch, St. John's School premises Bangalore on 30/11/2012. But said cheques issued by the accused 22 Judgment Crl.A.No.25168/2017 came to be dishonoured by the Banker's Memo dated:03/12/2012 with an endorsement "Funds Insufficient". He received the said cheque back on 03/12/2012, thereafter he approached the accused through same friend who ask the accused to present the cheque and brought the facts his notice and demanded for payment of Rs. 1,00,000/- borrowed by the accused and also sent words through the accused friends requesting the accused to pay back the loan amount. For which the accused has went on postponing the payment by one or the other reason.
17. The PW.1 further deposed evidence that outstanding loan amount towards the PF amount as on Nov 2012 is Rs.1,38,268/-, that every month the PF loan amount borrowed to give accused has been deducted from his salary and it is been continued to be deducted. The accused has utilized the sum of Rs.1,00,000/- given by him towards the purchase of the property No.17, Old Sy.No.56/1, New Sy.No.56/4, Chikkanekundi Village, Sarjapura 23 Judgment Crl.A.No.25168/2017 Hobli, Anekal Taluk and intentionally cheated him by not maintaining the sufficient amount in the accused account, only with malafide intention to cheat him. Thereafter he issued legal notice dated: 28/12.2012, informing the accused to repay the said sum within 15 days. The said notice was sent by RPAD to the above said addresses to the accused, the notice sent under RPAD was served upon the accused vide RPAD acknowledgment dated 03/01/2013, and the accused has given untenable reply on 17/01/2013 to the said notice. The PW.1 prays to allow his prayer as prayed in complaint. In support of oral evidence P.W-1 marked Ex.P1 to Ex.P10.
18. The accused T. Murugan S/o Thangavelu examined as DW.1 before trial court and in his examination in chief he deposed evidence that in the year 2008 he was given loan of Rs.2,00,000/- to the complainant. Thereafter the complainant has 24 Judgment Crl.A.No.25168/2017 returned the said amount of Rs.1,00,000/- in cash and remaining one lakh in four cheques. It is false that in the year 2009 the complainant given loan amount to him. Further it is false that for repayment of the loan he was given cheque to the complainant. The hand writing in ExP1 is not in his hand writing the complainant written the same. He has kept signed cheques and same were lost and out of said cheques the ExP1 is one of the cheque. It is false that the complainant by mortgaging the gold given loan to him, but the complainant given the amount to be payable by the complainant to him. The complainant given notice to him and he has given reply to the notice through his counsel. He has not liable to pay Rs.1,00,000/- to the complainant. The complainant filed false complaint through his friend to get illegal gain. The DW.1 marked the document ExD1 stop payment application and ExD2 complaint given in the Police Station. 25
Judgment Crl.A.No.25168/2017
19. The accused/appellant counsel while arguing relied upon citations reported in AIR 2019 Supreme Court 1983 Basalingappa V/s. Mudibasppa A. Negotiable Instrument Act 1881-Sec 138, 139, 118(a)- Dishonour of cheque-Non- mentioning of date of issuance of cheque by complainant in complaint as well as in his evidence- Complainant not satisfactorily explaining contradiction in complaint vis-a- vis his examination-in-chief and cross- examination-his failure to prove financial capacity though he is a retired employee to advance substantial amount to different persons including accused-findings of trail court that complainant cannot prove his financial capacity cannot be termed as purverse without discarding evidence laid by the defence-accused entitled to acquittal.
(2014) 2 Supreme Court Cases 236 John K. Abraham V/s. Simon C. Abrahma and another 26 Judgment Crl.A.No.25168/2017 A. Debt, Financial and Monetary Laws-
Negotiable Instrument Act, 1881- Sec 181, 139 and 138- Dishonour of cheque-drawing presumption U/s 118 R/w Sec 139-
Prerequisites for, when cheque is for repayment of a loan/advanced money- proof required on the part of complaint- Held, in order to draw presumption U/s 118 r/w sec. 139, burden lies on complainant to show: (i) that he had the requisite funds for advancing the sum of money/loan in question to accused, (ii) that the issuance of cheque by accused in support of repayment of money advanced was true, and (iii) that the accused was bound to make payment as had been agreed while issuing cheque in favour of complainant-In present case, complainant not aware of the date when substantial amount of Rs.1,50,000 was advanced by him to appellant-accused-Respondent complainant failed to produce relevant documents in support of the alleged source for advancing money to accused-complainant also not aware as to when and where the transaction taken place for which the cheque in question was issued to him by accused- complainant also not sure as to who wrote the cheque and 27 Judgment Crl.A.No.25168/2017 making contradictory statements in this regard- In view of said serious defects/lacuna in evidence of complainant, judgment of High court reversing acquittal of accused by trial court held was perverse and could not be sustained-Acquittal restored.
(2015) 1 Supreme Court 99 K. Subramani V/s. K. Damodara Naidu A. Debt, Financial and Monetary Laws-
Negotiable Institution Act 1881- Sec 138, 118 and 139- Dishonour of cheque- Legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to appellant accused- Presumption in favour of holder of cheque, hence, held stood rebutted-Acquittal restored.
(2008) Supreme Court 1325 Krishna Janardhan Bhat V/s Dattatraya G. Hegde A. Negotiable Instrument Act (26 of 1881) Sec 139- presumption U/s 139 merely raises presumption in favour of holder of cheque that same has been issued for discharge of any debt or other liability-Existence of legally 28 Judgment Crl.A.No.25168/2017 recoverable debt-is not matter of presumption U/s 139.
B. Negotiable Instrument Act (26 of 1881) Sec 138, 139-Dishonour of cheque- Defence- Proof-Accused not required to step into witness box- He may discharge his burden on basis of materials already brought on record- whether statutory presumption rebuttal question or not-Must be determined in view of other evidences on record.
(2008) 1 DCR 151 SCC K. Prakashan V/s P.K. Surenderan Negotiable Instrument Act, 1881- Sec. 138- Dishonour of cheque- Acquittal by trial court but convicted by High Court-Sustainability of
-appreciation of evidence-advanced summons various dates but source nor proved- No re- payment but still advanced the money without interest-no commercial or business transaction
-father and brother of complainant not produced to whom behalf money was advanced-Diary in which entries was alleged to kept not produced-consideration of -held- keeping in view the peculiar fact and situation the judgment passed by trial court cannot be 29 Judgment Crl.A.No.25168/2017 said to be perverted or suffered from any illegality-set aside the order of High Court- restored the order of trail court-allowed appeal-acquitted the accused.
ILR 2009 KAR 1633 SCC Kumar Exports V/s Sharma Carpets Negotiable Instrument Act 1881- Sec 139 and 138-presumption that cheque was issued in discharge of debt or liability- Presumption how to be displaced-Declaration made by the complainant himself to the sales tax department that no sale had taken place-
accepted as a valid proof that cheques were not issued by accused in discharge of any debt or liability to complainant-accused therefore by producing this evidence, held to have displaced the presumption U/s 139 and therefore offence U/s 138 not proved against accused.
ILR 2008 KAR 4629 Shiva Murthy V/s Amruthraj Negotiable Instrument Act 1881-Sec 138 offence under- complaint-conviction and sentence-confirmed in appeal-revision against- production of additional documents before the 30 Judgment Crl.A.No.25168/2017 appellate court-non-consideration of -existence of legally enforceable debt-failure of the complainant to prove-presumption drawn merely on the basis of the conduct of the accused-presumption drawn merely on the basis of the conduct of the accused-legality of HELD- the courts below more particularly, appellate court before whom and documents produced has not directed itself in this regard to find out as legally enforceable debt. Both the trial court and the appellate court have mainly proceeded to consider the conduct of the accused. Before considering the conduct of the accused to find out as to whether or not he has been able to rebut the statutory presumption available U/s 139, the courts ought to have considered as to whether the complainant has proved the existence of legally enforceable debt. It is only after satisfying that the complainant has proved existence of legally enforceable debt or liability, the court could have proceeded to draw presumption U/s 139 of the NI Act and thereafter find out as to whether or not the accused has rebutted the said presumption- judgment of conviction and sentence are liable to be set-aside-accused is acquitted. 31
Judgment Crl.A.No.25168/2017
ILR 2007 KAR 2709
K. Senguttuvan V/s. Mahadevaswamy
Negotiable Instrument Act 1881-Sec 138- Offence U/s 139 -presumption under-Rebuttal of-Order of acquittal-appeared against-HELD, That the presumption U/s 139 of the act need not be rebutted only by leading defence evidence and the said presumption can be rebutted even on the basis of the facts elicited in the cross-examination of the complainant as has been done in the present case-judgment of acquittal is justified.
ILR 2009 KAR 172 A. Viswanatha Pai V/s Vivekananda S. Bhat Negotiable Instrument Act 1881- Sec 138- offence under-conviction-appealed against and sentence- conviction and sentence confirmed- Revision against- section 139- presumption under-HELD, existence of legally recoverable debt is not a matter of presumption under sec. 139 of the act-as, sec 139 merely raises a presumption in favour of the complainant that the cheque was issued for discharge of any debt and other liability-Both the courts examined the case of the accused on the 32 Judgment Crl.A.No.25168/2017 assumption that the presumption u/sec. 139 of the Negotiable Instrument Act extends not only to the issuing of the said cheque towards existing legally recoverable debt, but also to the existence of legally enforceable debt as on the date of its issue. On facts HELD, the accused has successfully, established his defence version by adducing his own evidence and also by eliciting in the cross examination of PW.1 and also by producing ExD1, the statement of his accounts with his banker. Therefore it is statement of his accounts with his banker. Therefore, it is quite clear that as on the date of the cheque in question, bearing No. 973199, which came to be presented during the year 2004, there did not exist any legally enforceable debt payable by the accused to the complainant. Hence, conviction and sentence passed by the trial court, affirmed by the appellant court is not sustainable in law.
2009 (1) Crimes 300 (BOM) Sayeeda Iqbal Vakil V/s Javed Abdul Latif ShaikhShaikh Negotiable Instrument Act 1881-Sec 138- Dishonor of cheque- Order of acquittal on 33 Judgment Crl.A.No.25168/2017 finding of complaint failing to prove cheque issued in discharge of legally enforceable debt or liability- appeal-cheque was stated to have been issued toward repayment of loan-
complainant admitted she did not remember date or month when loan was advanced-
though complainant was income tax assessee but amount given as loan was not reflected in tax return cheque was delivered to complainant through someone and had been issued on special account meant for payment of monthly installments to finance Company- Acquittal called for no interference.
2008 (4) Crimes 196 (BOMBAY) Vinay Parulekar V/s Pramod Meshram Negotiable Instrument Act, 1881-section 138 and 139 -Dishonour of cheque-
Presumption as regards consideration-
Respondent accused had issued two cheque one for Rs. 3 lakhs and other of Rs.5 lakks and both cheques bounced with remarks "payment stopped by drawer"-order of acquittal by trial court on findings that accused successfully rebutted presumption available U/s 139 of the act-appeal complainant claimed to have provided loan to accused and towards 34 Judgment Crl.A.No.25168/2017 repayment of which accused issued cheques defence plea was that cheques were obtained under pretext that complainant would arrange loan from purchasing financial institutions for purchasing a piece of land- to rebut the presumption standard of proof was preponderance of probabilities and inference could be drawn from material on record-
evidence showed that claim of complainant was consistent with defence propounded by accused that he sought help of complainant for purchasing property- no evidence was produced as to how complainant has such a huge amount and paid it to accused in cash- complainant could not be said to have proved that cheques were issued in discharge of any debt or liability-no reason to interfere with acquittal.
2009 (2) Crimes 559 (Madras) Kalavally V/s Parthasarathy Negotiable Instrument Act 1881- sections 118, 138 and 139- Dishonour of cheque-
presumption for valid consideration for issue of cheque for Rs. 3,29,000/- was alleged to have been issued discharge of loan liability given in business transaction-defence plea 35 Judgment Crl.A.No.25168/2017 was that petitioner did not issue the cheque to respondent and some cheque had been stolen-
conviction by courts below-Revision-
complainant had not stated on what date the sum of Rs.3,00,000/- was advanced as loan and for what purpose it was advanced-|No case of complainant if loan was acknowledged through any receipt or document-Specific case of petitioner that respondent was not a man of means but only used to help petitioner in her gas agency business- trial court recorded finding of guilt merely basing reliance on fact that accused admitted her signature in cheque and that instrument was supported by consideration but existence of legally recoverable debt was not a matter of presumption, U/s 139 of the act-courts failed to consider the defence takes by accused or that accused had rebutted the legal presumption-onus could be discharged by accused by preponderance of probabilities - conviction was liable to the set aside.
2003 Cri. L. J. 411 SC C. Anthony V/s K.G. Raghavan Nair Criminal P.C.(2 of 1974) Sec.378-Appeal against acquittal-power of appellate court-it 36 Judgment Crl.A.No.25168/2017 has full power to appreciate evidence-but without coming to definite conclusion that find has given by trial court are perverse- cannot substitute the findings of trail court by taking a totally different perspective-dismissed by trail court for want of proof of advancement of money complainant- High Court without holding that finding of trail court is preserve and on totally different perspective converting acquittal into conviction order unsustainable.
20. The complainant examined as PW.1 and deposed the evidence that he and accused are friends and they are having close acquaintance. In the month of June 2009 the accused approached him for financial assistance of Rs.1,25,000/- for purchasing site property bearing No.17, old Sy.No.56/1, New Sy.No.56/4 of Chikkanckundi Village, Sarjapura Hobli, Anekal Taluk, Bengaluru. The accused assured that apart from working in HAL he is having various business run by him i.e., Chit business, Mobild phone currency recharge, Sodex couple business from the 37 Judgment Crl.A.No.25168/2017 employees of the factory on commission basis, Textile business, Rice trading business, Booking rice bags on commission basis, Travel Agencies. That he was obtained loan of Rs.1,78,000/- from his provident fund and utilized Rs.74,000/- for his daughter and son education and domestic purpose. Hence on assurance of the accused he given Rs.1,04,000/- to the accused under two cheques bearing No.461358 dated 13/07/2009 for Rs.54,000/- and cheque bewaring No.461359 dated 15/07/2009 for Rs.50,000/- both cheques drawn on State Bank of India, HAL Helicopter Branch, Bengaluru. After receiving the said cheques the accused deposited the same into the account bearing No.10918181504 held at SBI, HAL Branch and thus Rs.1,04,000/- was transferred to the account of the accused and later the accused gave back Rs.4,000/- to him and rounded the borrowed amount of Rs.1,00,000/-. Thereafter accused issued post dated cheque bearing No.361912 dated 13/12/2012 for Rs.1,00,000/- drawn on 38 Judgment Crl.A.No.25168/2017 State Bank of Hyderabad, J.C.Road Branch, Bengaluru and thereafter he presented the said cheque, but the said cheque returned with bank memo dated 03/12/2012 with endorsement 'Funds Insufficient'. Then he intimated the accused regarding dishonor of cheque and also issued Legal Notice to accused to pay the amount within 15 days and said notice was served on the accused on 03/01/2013 and accused given untenable reply on 17/01/2013. In support of oral evidence PW.1 marked ExP1 to ExP10.
21. The ExP1 is cheque bearing No.361912 dated 30/11/2012 said to have been issued by accused in favour of complainant for Rs.1,00,000/- drawn on State Bank of Hyderabad, J.C. Road Branch, Bengaluru. The ExP2 is memo of State Bank of Hyderabad dated 03/12/2012 regarding dishonor of the cheque bearing No.361912 for insufficient funds. The ExP3 is legal notice issued by the complainant to the accused on 28/12/2012 39 Judgment Crl.A.No.25168/2017 intimating about dishonor of the cheque bearing No.361912 and payment of Rs.1,00,000/- within 15 days and ExP4 is postal receipt and ExP5 is acknowledgement regarding service of notice to accused. The ExP6 is reply given by accused to the notice of complainant on 17/01/2013, wherein the accused denied the allegations of the notice of the complainant and also denied issuance of the cheque to the complainant for discharge of loan of Rs.1,00,000/- and taken contention that his cheque book was lost which was kept in the Factory premises and same was mis utilized. The ExP7 is Pass Book of A/c No.30533677450 SBI, HAL Helicopter Branch, HAL Bengaluru belongs to the complainant, wherein the entries dated 13/07/2009 discloses that complainant issued cheque No.461958 for Rs.50,000/- and another cheque bearing No.461359 dated 15/07/2009 for Rs.50,000/- and both cheques were debited in his account and ExP8 is letter given by SBI, Helicopter Division, HAL Branch, 40 Judgment Crl.A.No.25168/2017 Bengaluru stating that complainant A.X. Chirsty Jude is maintaining the Bank Account No.30533677540 in their bank and he had issued two cheques bearing No.461358 of Rs.54,000/- and 461359 of Rs.50,000/- dated 13/07/2009 and 15/07/2009 respectively to T. Murugan who is maintaining his saving bank account No.10918181504 in their branch and both cheque amount were credited to Murugan's account. The ExP9 & ExP10 are Salary Slips of complainant working in HAL Bengaluru. Therefore ExP7 & ExP8 Bank Pass Books and Letter of the SBI, HAL Branch Bengaluru discloses that, two cheques bearing No.461358 of Rs.54,000/- and another cheque bearing No.461359 of Rs.50,000/- were credited to the account of the accused. The accused not denied in his evidence regarding credit of said amount in his account, whereas in his cross-examination the accused deposed that the complainant has paid the said amount to be payable by complainant to him. But he admits 41 Judgment Crl.A.No.25168/2017 regarding credit of two cheque amount issued by the complainant to his account. Hence the documents ExP7 & ExP8 discloses that the complainant paid Rs.1,04,000/- to the accused by way of cheque. The accused denied issuance of ExP1 cheque to the complainant. But his contention that his cheque book was lost which was kept in the HAL Factory where he was working and deposed the evidence that he has given letter for stop payment and also complaint to the police and marked the said documents at ExD1 & ExD2.
22. The defence of accused that he was kept cheque book in his Factory where he is working and said cheques were stolen. The accused examined as DW.1 and marked ExD1 & ExD2. The ExD1 is requisition letter given by accused to Manager, State Bank of India, HAL Division Branch, HAL, Bengaluru for stop payment for account No.10918181504 since he has lost cheque book which is signed and stop payment of cheques No.938073 to 42 Judgment Crl.A.No.25168/2017 938086 and said letter was given by accused on 18/01/2012. The ExD2 is complaint given by accused in HAL Police Station that he lost cheque Nos.938073 to 938086 of HAL Branch for account No.10918181504. The ExP1 Cheque is dated 30/11/2012, but accused not denied his signature on ExP1 cheque. That in ExD1 & ExD2 he mentioned that he lost the cheque book, whereas in the evidence before court he deposed evidence that cheque book was stolen.
23. That as per the complaint allegations in the month of June 2009 the accused approached him for financial assistance of Rs.1,25,000/- to purchase/ Then he obtained loan of Rs.1,78,000/- from his provident fund account for his son and daughter's education and domestic purpose and he had spent Rs.74,000/- and he had given remaining amount of Rs.1,04,000/- to the accused under two cheques bearing No.461358 dated 13/07/2009 for Rs.54,000/- and cheque bearing No.461359 dated 15/07/2009 for 43 Judgment Crl.A.No.25168/2017 Rs.50,000/- both cheques drawn on State Bank of India, HAL Helicopter Branch, Bengaluru. After receiving the said cheques the accused deposited the same into the account bearing No.10918181504 held at SBI, HAL Branch and thus Rs.1,04,000/- was transferred to the account of the accused and later the accused gave back Rs.4,000/- to him and rounded the borrowed amount of Rs.1,00,000/-. Thereafter accused issued post dated cheque bearing No.361912 dated 13/12/2012 for Rs.1,00,000/- drawn on State Bank of Hyderabad, J.C Road Branch, Bengaluru and thereafter he presented the said chque, but the said cheque returned with bank memo dated 03/12/2012 with endorsement 'Funds Insufficient'.
24. That the accused as per ExD1 given letter to his bank for stop payment of the amount for the cheque Nos.938073 to 938086 on 18/01/2012. But afterwards what action was taken by the concerned bank is not clarified by the accused, accused as per 44 Judgment Crl.A.No.25168/2017 ExP1 the cheque presented by the complainant was dishonored on 03/12/2012 and the complainant issued Legal Notice to the accused on 28/12/2012 mentioning about dishonor of the cheque issued by accused as insufficient fund and intimated the accused for payment of the amount and to the said notice the accused given reply as per ExP7 on 17/01/2013. Wherein he narrated about lost of cheques in factory premises and also denied the loan transaction with the complainant. Then the accused ought to have take legal action against complainant for misusing of his cheque by the complainant. But in the entire evidence accused/DW.1 has not deposed regarding action taken by him against complainant. That receipt of notice issued by complainant to accused as per ExP3, accused came to know about dishonour of ExP1 cheque presented by complainant in Bank. Thereafter also accused ought to have take legal action against the complainant, but accused has not deposed regarding action taken against complainant in his 45 Judgment Crl.A.No.25168/2017 evidence and also not produced documents. That as per ExD2 complaint given by accused in HAL Police Station that he lost cheque Nos.938073 to 938086 of HAL Branch for account No.10918181504. But what action was taken by police on his complaint is not explained by accused. Further there is no reference of name of complainant in ExD2 complaint. That the accused not denied his signature on ExP1. The accused admits ExP1 cheque belongs to him and also signature is belongs to him and he has not denied the contents of the cheque not written by him.
25. The accused/DW.1 in his examination in chief deposed evidence that in the year 2008 he was given loan of Rs.2,00,000/- to the complainant. Thereafter complainant has returned said amount of Rs.1,00,000/- in cash and remaining one lakh in four cheques. The appellant in his appeal ground taken contention that according to respondent, he had obtained the money from his PP 46 Judgment Crl.A.No.25168/2017 Office received in the year 2009 and the respondent had taken the contention that amount was paid in the year 2009 i.e. 13/07/2009 and 15/07/2009 if the respondent would have taken the money from the PP Office and others, if the respondent really helps to appellant would have issued the cheque in the name of the appellant and without taking any document/ necessary documents, the respondent has paid the money to the appellant, it clearly goes to show that respondent not made any payment to the appellant and the respondent's intention only to grab the money from appellant and respondent had not proved the prima facie case against the appellant is respect of the legally recoverable debt, if respondent proved prima facie case U/s 139 and 118 of NI Act, then burden will be shifted to the appellant.
26. That as per complainant he obtained loan of Rs.1,78,000/- from his provident fund account for his son and daughter's education and domestic purpose and he had spent Rs.74,000/- and 47 Judgment Crl.A.No.25168/2017 he had given remaining amount of Rs.1,04,000/- to the accused under two cheques bearing No.461358 dated 13/07/2009 for Rs.54,000/- and cheque bearing No.461359 dated 15/07/2009 for Rs.50,000/- both cheques drawn on State Bank of India, HAL Helicopter Branch, Bengaluru. After receiving the said cheques the accused deposited the same into the account bearing No.10918181504 held at SBI, HAL Branch and thus Rs.1,04,000/- was transferred to the account of the accused. The complainant marked ExP7 & ExP8 Bank Pass Books belonging to him and Letter issued by SBI, HAL Branch Bengaluru discloses that, two cheques bearing No.461358 of Rs.54,000/- and another cheque bearing No.461359 of Rs.50,000/- were credited to the account of accused bearing No.10918181504. But on the contrary accused has not produced his account No.10918181504 extract to show that no such amount of cheques credited to his account. The accused has not produced any 48 Judgment Crl.A.No.25168/2017 documents on which date and for what purpose he had given Rs.2,00,000/- loan to the complainant as deposed in his evidence. Hence the accused failed to prove his defense. Hence it is just and proper to hold that the accused himself has issued cheque ExP1 to the complainant for discharge of legally enforceable debt to be payable by him to complainant and thereafter he has given letter to concerned bank for stop payment and hence the said cheque ExP1 was dishonored and thereby the accused even though receipt of notice given by complainant not made payment of the amount to the complainant. Hence the citations discussed above does not help defence of accused since the accused failed to prove his defence. As discussed above the accused taken loan of Rs.1,04,000/- from the complainant and for discharge of the said loan he issued ExP1 cheque and same was dishonored and even afterwards receipt of the notice the accused not made payment. Hence the accused has committed an offence punishable U/s 138 49 Judgment Crl.A.No.25168/2017 of N.I. Act. The trial court in its Judgment properly appreciated all these facts and properly come to the conclusion in convicting the accused. Hence interference of this court in the judgment pronounced by trial court is not needed. Therefore I answer point No.1 in Negative.
27. Point No.2:-
In view of above discussion I proceed to pass the following :ORDER:
The appeal filed U/s 374(3) of CRPC by the appellant/accused is dismissed.
The judgment passed in CC.No.53105/2015 on 04/11/2017 by the LVIII ACMM Bengaluru is hereby confirmed.
The order of suspension of sentence passed by this court U/s 389 of CRPC stands cancelled.50
Judgment Crl.A.No.25168/2017 Send back lower court records along with certified copy of Judgment of this appeal.
(Dictated to the Stenographer, typed by him. Corrected directly in computer, taken printout, then corrected, signed and pronounced by me in the open Court on this the 18 th day of April 2022).
(Smt.Suvarna K. Mirji) XIII Addl. City Civil and Sessions Judge Mayohall Unit, Bengaluru.