Bangalore District Court
M/S Tirumala Constructions vs Builders And Developers on 10 December, 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 10th day of December, 2021.
Crl. Appeal. No.25070/2021
Appellants/ 1. M/s Tirumala Constructions,
Accused Builders and Developers
Persons:- A Partnership Firm
Office at No. 326, 5th Main,
10th Cross, 4th Stage,
Vinayaka Layout,
Nagarabhavi,
Bangalore- 560072
Represented by its Managing
Partners Mr. Mohan &
Mr. Praveen Mohan
AND OTHERS.
[By Sri. Prasanna .G.R.- Advocate]
V/s
Respondent/ Mr. K.N.Viswanatha,
Complainant: S/o Sri. K.N Narayana Setty,
Aged about 57 years,
R/at No.2878,
2nd 'B' Main Road,
BSK 2nd Stage,
Bangalore -560070
[By Sri. B.M. Maheswara -Advocate]
2 Crl.Appeal.No.25070/2020
JUDGMENT
This Appeal is preferred by the Appellant U/Sec. 374 (3) of Cr.P.C., being aggrieved by the Judgment and Order passed by the XIV ACMM, Mayohall Unit, Bengaluru, in CC. No. 56364 of 2019, dtd. 30.03.2021, convicting the Appellant/Accused for the offence punishable U/Sec. 138 of NI Act, thereby sentencing him to pay a fine of Rs.20,00,000/-. In default to pay the fine, the Appellant Nos 2 & 3 shall undergo Simple Imprisonment for a period of eighteen months. Further directed to pay an amount of Rs.19,90,000/-, to the Complainant as compensation U/Sec. 357(1) of CrPC, out of the fine amount.
2. The Brief facts leading to filing of the present appeal are:
The Respondent filed a Complaint U/Sec.200 of Cr.P.C. against the Appellant, alleging that, he and the Appellant Nos 2 & 3 are known to eachother. Taking advantage of the friendship the Appellant Nos 2 & 3 approached him in the last week of July 2016, representing that the Appellant No 1 is a Partnership 3 Crl.Appeal.No.25070/2020 firm, of which the Appellant Nos 2 & 3 are its partners, carrying a business as builders and developers. The Appellant Nos 2 & 3 had borrowed a sum of Rs 10,00,000/- from him on 39.07.2016, again approached him in the last week of April 2017, expressing dire necessity of funds to meet their business purpose and requested him to pay an amount of Rs 15,00,000/-, as hand loan, agreeing to pay interest at the rate of Rs1.5% per month and further agreed to repay the same within 6 months.
On their request he paid an amount of Rs 15,00,000/- to the Appellants through a cheque bearing No 401032 on 29.04.2017, favouring Appellant No 1. Appellant No 2 being the Managing Partner of Appellant No 1 firm exuected an On- Demand Promisory Note and Consideration Receipt in his favour on 29.04.2017.
The Appellants failed to repay the said loan amount. On reminder, the Appellants requested for some for time, as they were in financial trouble. The Appellants are due to pay a sum of Rs 15,00,000/- towards Principle Loan amount and a sum of Rs 5,85,000/- towards interest @ Rs 1.5% per month 4 Crl.Appeal.No.25070/2020 from May 2017 till June 2019. In all they are liable to pay an amount of Rs 20,85,000/-.
On repeated requests the Appellant Nos 2 & 3 issued a cheque belonging to the Appellant No 1 firm bearing No 016179 dated 13.06.2019 for Rs 15,00,000/- towards part payment of the outstanding liability. The said cheque was presented for its encashment through its banker The Karur Vysya Bank, Rajaji Nagar Branch, Bengaluru, but the same has returned unencashed with an endorsement "Funds Insufficient" on 19.06.2019. He issue a legal notice to the Appellants through his Counsel on 03.07.2019, by RPAD which was received by the Appellants on 04.07.2019. The Appellants have neither complied nor replied the said notice. Hence, he was constrained to file a Complaint against the Appellant, before the Trial Court.
3. On being satisfied, the Trial Court issued summons U/Sec.204 of Cr.P.C. to the Appellant on 25.09.2019. The Appellant Nos 2 & 3 appeared before the Trial Court on 27.01.2020 and they were enlarged on bail. Substance of Accusation/Plea of the Appellant Nos 2 & 3 was recorded by the Trial Court 5 Crl.Appeal.No.25070/2020 on 27.01.2020, wherein they plead not guilty and claim to be tried.
4. The Complainant inorder to prove his case got himself examined as P.W.1 and got marked 11- documents as Ex.P.1 to Ex.P.11. PW1 was cross examined on behalf of the Appellants/Accuseds on 11.02.2020.
Complainant got examined a witness as PW2 and got marked his signature on ExP10, as ExP10© and identified the signatures of the Appellant No 2/Accused No 2 on it as ExP10(A) and ExP10(B). PW2 was crossed examined on behalf of the Appellants on 18.02.2020.
5. On 28.02.2022, Statement of the Appellant Nos 2 & 3/Accused Nos 2 & 3 was recorded U/Sec. 313 of Cr.P.C. The Appellants got examined the Appellant No 2 as DW.1 on 07.03.2020. DW.1 was cross-examined on behalf of the Complainant on 22.12.2020 & 13.01.2021.
The Trial Court heard the Arguments of both the sides and has recorded Judgment of Conviction against the Appellant. Hence, the Appellant is before 6 Crl.Appeal.No.25070/2020 this Court, being aggrieved by the said Judgment of conviction.
6. On preferring the appeal by the Appellants/Accused persons, this Court has suspended the sentence under appeal, for a period of three months, initially on 01.07.2021. Notice of the Appeal memo and I.A.No.1/2021 was issued to the Respondent and TCR were called-for. Respondent set-in his appearance on 28.07.2021. TCR were secured on 28.07.2021.
7. Inspite of affording sufficient opportunities, the Appellants have failed to advance their Arguments. Hence Arguments of the Appellants was taken as "Not Addressed". However inorder to afford final opportunity, a liberty was granted to the Appellants to file their Written Arguments on or before 19.11.2021, with due notice to the Learned Counsel for the Respondent. The Appellants have filed their Written Arguments on 19.11.2021, with due notice to the Learned Counsel for the Respondent.
Heard the arguments of the Learned Counsel for the Respondent, respectively.
7 Crl.Appeal.No.25070/2020The Learned Counsel for the Appellant has placed his reliance on the decision of the Hon'ble Apex Court reported in (2009) 1 SCC 629.
I have carefully gone through the Written Arguments submitted on behalf of the Appellants and the decision cited on behalf of the Appellants.
8. The Appellants have preferred this appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has gravelly erred in convicting the Appellants 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;
c) The Trial Court has failed to consider that, the Respondent has not proved the fact of giving Hand Loan of Rs15,00,000/-;
d) The Trial Court has failed to consider that, there was no any enforceable debt, as the Respondent has failed to prove ExP10-DP Note;
e) The Trial Court has failed to consider that, the Respondent had obtained signed blank cheque and DP Note with Consideration Receipt;8 Crl.Appeal.No.25070/2020
f) The Trial Court has failed to see that the Notice-ExP3 is not served upon the Appellants;
g) The Trial Court has failed to shift the burden on the Appellants and has failed to apply the principles of proof. The Trial Court has shouldered the burden to prove the defence of the Appellants on the basis of proof beyond reasonable doubt, whereas the Trial Court ought to have measured the proof, which has to be measured in the civil cases, ie., on the basis of preponderance of probabilities;
h) The Trial Court has wrongly arrived at a conclusion that, the Complainant has discharged his initial burden to avail the benefit of presumption, but the Accused persons have failed to rebut the said presumption;
Hence, prayed to allow the said appeal and to setaside the Judgment of Conviction passed by the Trial Court.
9. 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?
2. Whether the Appellants/ Accused persons prove on the basis of preponderance of probabilities that they had issued signed blank 9 Crl.Appeal.No.25070/2020 Cheque-Ex.P.1 and signed blank On-
Demand Promisory Note and Consideration Receipt-ExP10 ?
3. Whether the Appellant/ Accused persons prove on the basis of preponderance of probabilities that, they have not received the Notice-ExP3?
4. Whether the Trial Court has rightly held that, Appellants/ Accused persons have failed to rebut the presumption available U/Sec. 139 of N.I. Act?
5. Whether the Appellant/ Accused shows that the Order of Conviction and Sentence recorded by the Trial Court in CC.No.56364 of 2019, dtd.30.03.2021, deserves to be setaside, and thereby call for the interference of this Court?
6. What Order?
10. 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 : As per final order for the following :10 Crl.Appeal.No.25070/2020
REASONS
11. The rank of parties will be referred to, as they were before the Trial Court.
12. POINT NO. 1:-
The Complainant has filed a Complaint U/Sec. 200 of Cr.P.C. alleging that, the Accused Nos. 2 and 3 have approached him and taken handloan of Rs.15,00,000/- from him and the Accused No.2 being the Managing Partner, has execute On Demand Promissory Note and Consideration Receipt, in his favour on 29.04.2017 and agreed to return the Principal amount with interest at the rate of Rs. 1.5% p.m. The Accused persons were in due to him to the tune of Rs.15,00,000/- towards Principal loan amount and Rs. 5,85,000/- towards interest from May 2017, till June 2019, which totally comes to Rs. 20,85,000/-. On repeated request the Accused Nos. 2 and 3 being the authorized signatories of the Accused No.1 Firm have issued the Cheque - Ex.P.1 in his favour. On receiving the said Cheque, he has presented the same through his Banker IDFC Bank Ltd., Residency Road, Bengaluru for its encashment, but the same has returned with an endorsement 'Funds Insufficient' on 19.06.2019. Thereafter, the 11 Crl.Appeal.No.25070/2020 Complainant got issued legal Notice to the Accused persons on 03.07.2019, as per Ex.P.3, by Register Post, as per Postal Receipts - Ex.P.4 to Ex.P.6. The said Notice was received by the Accused persons, as per Postal Acknowledgment at Ex.P.7 to Ex.P.9.
The Complainant has produced On Demand Promissory Note and Consideration Receipt at Ex.P.10, Summary of Account Extract at Ex.P.11.
13. On the basis of the said documents and the preliminary evidence led by the Complainant, the Trial Court has issued summons to the Accused U/Sec.204 of Cr.P.C, on 25.09.2019. I do not find any error in the said order of the Trial Court.
14. The Accused Nos. 2 and 3 have appeared before the Trial Court on 27.01.2020 and they were enlarged on bail. Substance of Accusation/Plea was recorded on 27.01.2020. I have gone through the contents of the substance of Accusation/Plea recorded by the Trial Court. I do not find any fault, in the Plea/Substance of Accusation, recorded by the Trial Court.
12 Crl.Appeal.No.25070/202015. Coming to the ocular evidence, on the point of issuance of the Cheque - Ex.P.1, more specifically,
a) cross-examination of DW.1, at Page No.4, Para No.3 to Page No.5, Para No.1, Line No. 2, which reads as under;
"....ನಮ್ಮ ಸಂಸ್ಥೆಯ ಬ್ಯಾಂಕ್ ಖಾತೆಯ ಚೆಕ್ಕಿಗೆ ನಾನು ಅಥವಾ ನನ್ನ ಮಗ ಸಹಿ ಹಾಕುವ ಅಧಿಕಾರ ಹೊಂದಿದವರಾಗಿರುತ್ತೇವೆ. ಯಾವುದಾದರೂ ಚೆಕ್ಕನ್ನು ನೀಡಬೇಕಾದರೆ ನಾನು ಹಾಗೂ ನನ್ನ ಮಗ ಪ್ರವೀಣ್ ಮೋಹನ್ ಚರ್ಚಿಸಿಯೇ ಚೆಕ್ಕನ್ನು ನೀಡುತ್ತೇವೆ. ನಿಪಿ-1 ಚೆಕ್ಕು ನಮ್ಮ ಸಂಸ್ಥೆಯ ಬ್ಯಾಂಕ್ಖಾತೆಗೆ ಸಂಬಂಧಪಟ್ಟ ಚೆಕ್ಕು ಆಗಿದ್ದು ಅದನ್ನು ಫಿರ್ಯಾದಿಗೆ ನಾವು ನೀಡಿರುತ್ತೇವೆ ಎಂದರೆ ಸರಿ. ಸಾಕ್ಷಿಯು ಮುಂದುವರೆದು ಸದರಿ ಚೆಕ್ಕನ್ನು ನೀಡುವಾಗ ಸಹಿಯನ್ನು ಹೊರತೆಪಡಿಸಿ ಬೇರೆ ಯಾವ ವಿಷಯಗಳು ಚೆಕ್ಕಿನಲ್ಲಿ ನಮೂದಾಗದೇ ಖಾಲಿಯಾಗಿತ್ತು ಎಂದು ಹೇಳುತ್ತಾರೆ. ಸದರಿ ಚೆಕ್ಕಿನಲ್ಲಿರುವ ವಿಷಯಗಳನ್ನು ತುಂಬಿಸಿಯೇ ನಾನು ಸಹಿ ಮಾಡಿಕೊಟ್ಟಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ....."
As per this evidence, the Accused No.2/DW.1 admits that the Cheque-ExP1 belongs to Accused No.1 Firm. At the time of issuing the said Cheque the same was signed Blank Cheque, but the signature on the said Cheque belongs to him.
b) cross-examination of DW.1, at Page No.5, Para No.1, Line Nos. 11 to 13, which reads as under;
".... ನಿಪಿ-1 ಚೆಕ್ಕನ್ನು ಸಾಲದ ಮರು ಪಾವತಿಗಾಗಿ ನೀಡಿರಲಾಗಿರುತ್ತದೆ ಎಂದ ಪ್ರಶ್ನೆಗೆ ಸಾಕ್ಷಿಯು ನಿಪಿ-1 ಖಾಲಿ ಚೆಕ್ಕನ್ನು ಸಾಲವನ್ನು ಫಿರ್ಯಾದಿದಾರರಿಂದ ಪಡೆಯುವ ಸಮಯದಲ್ಲಿಯೇ ನೀಡಲಾಗಿರುತ್ತದೆ ಎಂದು ಹೇಳುತ್ತಾರೆ..."13 Crl.Appeal.No.25070/2020
As per this evidence, the Accused No.2/DW.1 contends that, Ex.P.1 - Cheque was issued, as a signed Blank Cheque, at the time of receiving the loan from the Complainant.
16. As per the above ocular evidence, more specifically the admission given by the Accused No.2, it can be said that, the Accused persons have admitted that the cheque belongs to the Accused No.1 Firm and the signature on it, is of the Accused No.2.
17. Thus the Complainant has proved the initial burden casted upon him U/Sec.138 of N.I. Act, to show that, the Cheque - Ex.P.1 belongs to Accused persons and the signature on the said Cheque, is that of the Accused No.2, authorized signatory of Accused No.1 Firm.
18. On viewing the amount of oral evidence with Ex.P.1 to Ex.P.11, which will suffice the Complainant to have benefit of presumption available U/Sec.138, 139 of N.I. Act.
18.01. As per the trite principle of law, dealing with the presumption U/Sec.138 & 139 of 14 Crl.Appeal.No.25070/2020 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".
18.02. 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.
19. POINT NO.2:
The first defence takenup by the Accused persons is that, they have not agreed for repayment of loan of Rs. 15,00,000/- with interest at the rate of 1.5% p.m. and they have not executed any On Demand Promissory Note, as per Ex.P.10.
19.01. The Complainant contends that, he has paid an amount of Rs. 15,00,000/- to the Accused 15 Crl.Appeal.No.25070/2020 persons through the Cheque bearing No. 401032, on 29.04.2017 drawn on ICICI Bank Ltd., Jayanagar 3 rd Block Branch, Bengaluru in favour of Accused No.1.
19.02. The Complainant has produced the summary of account, as on 01.07.2017 at Ex.P.11. As per this document, it is seen that, there is a debit entry on 03.05.2017, for having paid an amount of Rs. 15,00,000/- to Tirumala Constructions as per Cheque No. 401032.
19.03. Further, the Complainant would contend that, the Accused persons have executed Promissory Note in his favour, which is marked at Ex.P.10.
But, the Accused persons contend that, they had issued signed Blank Promissory Note and not the filled one.
On perusal of Ex.P.10, it is seen that, the said document is executed for a sum of Rs. 15,00,000/- agreeing to pay interest at the rate of 18% p.a. for value received through Cheque bearing No. 401032 dated : 29.04.2017, drawn on ICICI Bank. Even the said document is attested by one witness. The said document is dated : 29.04.2017. The said document 16 Crl.Appeal.No.25070/2020 is accompanied with a consideration receipt dated :
29.04.2017, for an amount of Rs. 15,00,000/-. On perusal of the said document, it is also seen that, Promissory Note as well as Consideration Receipt is issued by the Tirumala Constructions, even Rubber Seal Stamp of the said Firm is affixed, on both this documents.
19.04. Coming to the ocular evidence, more specifically cross-examination of DW-1 at page No.3, Para No.2, Line No. 17 to Page No.4, Para No.1, Line No.10, which reads as under :
" ...ನಿಪಿ-10 ಪ್ರಾಮಿಸರಿ ನೋಟೀನಲ್ಲಿ ಬರೆದಿರುವ ಮೊತ್ತವು 1 ನೇ ಆರೋಪಿ ಸಂಸ್ಥಯ ಖಾತೆಗೆ ಜಮಾ ಮಾಡಿಕೊಂಡಿದ್ದು ಅದನ್ನು ಸಂಸ್ಥೆಯ ಆದಾಯ ಕರ ರಿಟರ್ನ್ಸನಲ್ಲಿಯೂ ಸಹ ತೋರಿಸಿದ್ದೇನೆ ಎಂದರೆ ಸರಿ. ರೂ 15,00,000/-(ಹದಿನೈದು ಲಕ್ಷ) ಹಣ ಮಾತ್ರ ಬಂದಿದ್ದು ಅದನ್ನು ಮಾತ್ರ ಖಾತೆಯಲ್ಲಿ ತೋರಿಸಿರುತ್ತೇವೆ. ಹದಿನೈದು ಲಕ್ಷ ರೂಪಾಯಿಯ ಚೆಕ್ಕು ಸಂಸ್ಥೆಯ ಬ್ಯಾಂಕ್ ಖಾತೆಗೆ ಜಮಾ ಆಗಿರುತ್ತದೆ ಎಂದರೆ ಸರಿ. ದಿನಾಂಕ 29.04.2017 ರಂದು ಹದಿನೈದು ಲಕ್ಷ ರೂಪಾಯಿ ಚೆಕ್ಕು ರೂಪದಲ್ಲಿ ಹಣವನ್ನು ಸಾಕ್ಷಿದಾರರ ಸಮಕ್ಷಮ ಪಡೆಯಲಾಗಿರುತ್ತದೆ ಎಂದರೆ ಸರಿ. ಸಾಕ್ಷಿದಾರರಾದ ಸುಕುಮಾರ್ ಸಹ ಹಣವನ್ನು ಪಡೆಯುವ ಸಮಯದಲ್ಲಿ ಹಾಗೂ ದಾಖಲಾತಿಯನ್ನು ಬರೆದುಕೊಡುವ ಸಮಯದಲ್ಲಿ ಹಾಜರಿದ್ದು ಸಹಿ ಮಾಡಿರುತ್ತಾರೆ ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ. ಸದರಿ ಸುಕುಮಾರ್ ಇದರ ಪರಿಚಯ ನನಗೆ ಇದೆ. ಸದರಿ ಸುಕುಮಾರ್ ನನಗೆ ಹಾಗೂ ಫಿರ್ಯಾದಿದಾರರಿಗೂ ಇಬ್ಬರಿಗೂ ಸ್ನೇಹಿತರು....."17 Crl.Appeal.No.25070/2020
As per this evidence, Accused No.2/ DW-1 contends that, the amount mentioned in Ex.P.10 - Promissory Note has been credited to the account of the Accused No.1 Firm and the same has been shown in the Income Tax Returns of Accused No.1. Accused No.1 Firm has received only Rs. 15,00,00/-. But, pleads his ignorance about the presence of a witness by name Sukumar, at the time of taking the On Demand Promissory Note - Ex.P.10 and at the time of writing the said document. He further contends that, he knows said Sukumar. He is his common friend with that of the Complainant.
19.05. The Complainant has adduced the evidence of the witness by name Sukumar, as PW-2. As per the ocular evidence of the said witness, more specifically
a) cross-examination of PW-2, Page No.3, Para No.1, Line Nos. 1 to 3, which reads as under :
"...ನನಗೆ 2 ನೇ ಆರೋಪಿ ಹಾಗೂ ಫಿರ್ಯಾದಿದಾರರು ಇಬ್ಬರೂ ಸ್ನೇಹಿತರು. ನಿಪಿ-10 ಕ್ಕೆ ಸಾಕ್ಷಿದಾರರಾಗಲು ನನ್ನನ್ನು 2 ನೇ ಆರೋಪಿಯಾದ ಮೋಹನ್ಅವರು ಕರೆದಿದ್ದರು...."
As per this evidence, PW-2 contends that, he knows both the Accused No.2, as well as the 18 Crl.Appeal.No.25070/2020 Complainant. He was called by the Accused No.2 to act as a witness to Ex.P.10.
b) cross-examination of PW-2, Page No.3, Para No.1, Line Nos. 4 to 11, which reads as under :
" ... ಆ ದಿನ ಅಂದರೆ ನಿಪಿ-10 ಬರೆದುಕೊಟ್ಟು ಸಹಿ ಮಾಡುವ ದಿನ 2 ನೇ ಆರೋಪಿ ಮೋಹನ್, ಫಿರ್ಯಾದಿದಾರರು ಹಾಗೂ ನಾನು ಮಾತ್ರ ಹಾಜರಿದ್ದೆವು. ನಿಪಿ-10 ನ್ನು 2 ನೇ ಆರೋಪಿಯಾದ ಮೋಹನ್ ಇವರು ತಮ್ಮ ಹಸ್ತಾಕ್ಷರದಿಂದ ಬರೆದಿದ್ದರು. ನಿಪಿ-10 ನ್ನು ಫಿರ್ಯಾದಿದಾರರ ಮನೆಯಲ್ಲಿ ಬರೆಯಲಾಗಿದೆ. ನಿಪಿ-10 ನ್ನು 2 ನೇ ಆರೋಪಿಯು ಬರೆದುಕೊಡದೇ ಇದ್ದರೂ ಸಹ ನಾನು ಹಾಗೂ ಫಿರ್ಯಾದಿದಾರರು ಶಾಮೀಲಾಗಿ ನಿಪಿ-10 ನ್ನು ಸುಳ್ಳು ಸೃಷ್ಟಿ ಮಾಡಿದ್ದೇವೆ ಎಂದರೆ ಸರಿಯಲ್ಲ...."
As per this evidence, PW-2 contends that, on the day of execution of Ex.P.10, Accused No.2 and Complainant were only present at that time. Ex.P.10 was written in the handwriting of Accused No.2, in the house of Accused No.2. Further, denies the suggestion made to him on behalf of the Accused persons that, Accused No.2 has not scribed Ex.P.10, but he in collusion with the Complainant have got created Ex.P.10.
19.06. So, the learned counsel for Appellant would contend that, the Appellant has not proved 19 Crl.Appeal.No.25070/2020 advancement of loan; and Ex.P.10, to have been executed by the Accused No.2.
19.07. On perusal of Ex.P.11 - Bank Statement and the ocular Evidence of Accused No.2 as DW-1 referred to supra, which makes it clear that, an amount of Rs. 15,00,000/- was debited from the account of the Complainant, on the basis of Cheque issued by him in favour of Tirumala Constructions - Accused No.1 Firm.
Secondly, the Complainant has produced On Demand Promissory Note with Consideration Receipt at Ex.P.10; the Accused No.2 has admitted, execution of the said document, but has denied the contents of the said document. The Accused No.2 has admitted his relationship, as well as the relationship of the Complainant with the witness to Ex.P.10, as a common friend. The Complainant has adduced the evidence of witness to Ex.P.10, wherein he has contended that, writings found on Ex.P.10 belongs to the Accused No.2. In the absence of rebuttal evidence from the side of Accused persons, the Complainant is said to have proved the contents of Ex.P.10.
20 Crl.Appeal.No.25070/2020Thus, the Complainant has proved that, he has advanced a loan of Rs. 15,00,000/- to the Accused persons and inturn Accused No.2 representing the Accused No.1 Firm has executed On Demand Promissory Note with Consideration Receipt, as per Ex.P.10.
20. The second line of defence takenup by the Accused persons is that, they had not agreed to pay Interest, as contended by the Complainant. This line of defence can be seen as per the ocular evidence of the Accused No 2, i.e. examination in chief of DW1 at Page No 1, Line Nos 2 to 4, which reads as under:
".... ನಿಪಿ-10 ರಲ್ಲಿ ವಾರ್ಷಿಕ ಪ್ರತಿಶತ ಶೇ.18 ರ ಬಡ್ಡಿ ದರವನ್ನು ನಾನು ನಮೂದು ಮಾಡಿರುವುದಿಲ್ಲ. ಸದರಿ ಬಡ್ಡಿದರವನ್ನು ಕೊಡಲು ನಾನು ಒಪ್ಪಿ ಕೊಂಡಿರುವುದಿಲ್ಲ....."
20.01. The Complainant contends that, the Accused No 2 being authorized representative of the Accused No 1 firm has agreed to pay the interest @ Rs 18% p.a. and has executed ExP10.
20.02. Coming to the ocular evidence on this point, more specifically,
a) cross examination of PW1 at Page No 5, Line Nos 11 to 13, which reads as under:
21 Crl.Appeal.No.25070/2020".....3 ನೇ ಆರೋಪಿ ಬಂದಿರಲಿಲ್ಲ. ಆರೋಪಿಯು ಯಾವತ್ತೂ ಬಡ್ಡಿ ಹಣವನ್ನು ಕೊಡಲು ಒಪ್ಪಿ ಕೊಳ್ಳದೇ ಇದ್ದರೂ ಸಹ ಮನಬಂದಂತೆ ನಾವು ಬಡ್ಡಿದರವನ್ನು ನಿಪಿ-10 ರಲ್ಲಿ ನಮೂದು ಮಾಡಿರುತ್ತೇವೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ...."
As per this evidence, the Complainant/PW1 has denied the suggestion made to him, on behalf of the Accused persons that, inspite of the Accused agreeing to pay the interest, as per his whims the same is mentioned in ExP10.
b) cross examination of PW1 at Page No 5, Line Nos 6 to 11, which reads as under:
".....15,00,000/- ರೂಪಾಯಿ ಅಸಲಿಗೆ ಪ್ರತಿಫಲವಾಗಿ 2.,85,000/- ರೂಪಾಯಿಯನ್ನು ಕೊಡಬೇಕೆಂದು ಅಗ್ರಿಮೆಂಟು ಮಾಡಿಕೊಳ್ಳಲು ಏನಾದರೂ ತೊಂದರೆ ಇತ್ತೋ ಎಂದು ಕೇಳಿದ ಪ್ರಶ್ನೆಗೆ ಸಾಕ್ಷಿಯು ನಿಪಿ-10 ರಲ್ಲಿ ಮಾಸಿಕ ಶೇ.1.5 ಬಡ್ಡಿಯನ್ನು ಕೊಡಲು ಒಪ್ಪಿದ್ದಾರೆ ಎಂದು ನಮೂದು ಇರುತ್ತದೆ ಎಂದು ಸಾಕ್ಷಿಯ ಹೇಳುತ್ತಾರೆ. ನಿಪಿ-10 ನ್ನು ಬರೆದುಕೊಡುವಾಗ 2 ನೇ ಆರೋಪಿ ಮಾತ್ರ ಬಂದಿದ್ದರು. ...."
As per this evidence, when it is questioned to the Complainant/PW1 that, any agreement has been entered for repaying Rs 20,85,000/- for advancing Rs 15,00,000/-. The Complainant replies that, it is agreed to pay 1.5% per month in ExP10.
c) cross examination of PW2 at Page No 3, Line No 11 to Page No 4, Line No 2, which reads as under:
22 Crl.Appeal.No.25070/2020"..... ಆರೋಪಿಯು ಯಾವುದೇ ಬಡ್ಡಿ ದರವನ್ನು ಕೊಡಲು ಒಪ್ಪದೇ ಇದ್ದರೂ ಸಹ ಪ್ರತಿಶತ ಶೇ.18 ರ ಬಡ್ಡಿಯನ್ನು ಕೊಡಲು ಒಪ್ಪಿದ್ದರು ಎಂದು ನಿಪಿ-10 ರಲ್ಲಿ ನಾನು ಹಾಗೂ ಫರ್ಯಾದಿದಾರರೇ ಸುಳ್ಳು ಸೃಷ್ಟಿ ಮಾಡಿ ಸೇರಿಸಿದ್ದೇವೆ ಎಂದರೆ ಸರಿಯಲ್ಲ ...."
As per this evidence, PW2 has denied the suggestion made to him, on behalf of the Accused persons that, he and the Complainant has got created ExP10 mentioning the rate of interest @ 18% p.a.
d) cross examination of DW1 at Page No 3, Para No 2, Line Nos 1 to 13, which reads as under:
"..... ನಿಪಿ-10 ಆನ್ ಡಿಮಾಂಡ್ ಪ್ರಾಮಿಸರಿ ನೋಟ್ ಹಾಗೂ ರಸೀದಿಯಲ್ಲಿನ ಸೀಲು 1 ನೇ ಆರೋಪಿ ಸಂಸ್ಥೆಯ ಸೀಲು ಆಗಿರುತ್ತದೆ. ಸದರಿ ದಾಖಲಾತಿಯಲ್ಲಿ ಕಂಡು ಬರುವ ಎರಡು ಸಹಿಗಳು ಅಂದರೆ ನಿಪಿ-10(ಎ) ಮತ್ತು ನಿಪಿ-10(ಬಿ) ನನ್ನವು. ಸದರಿ ದಾಖಲಾತಿಯನ್ನು ಫಿರ್ಯಾದಿದಾರರಿಂದ ಸಾಲವನ್ನು ಪಡೆಯುವಾಗ ಬರೆದುಕೊಟ್ಟ ದಾಖಲಾತಿಯಾಗಿರುತ್ತದೆ. ಸಾಕ್ಷಿಯು ಮುಂದುವರೆದು ಅದರಲ್ಲಿ ಬರೆದಿರುವ ವಿಷಯಗಳು ನನ್ನ ಹಸ್ತಾಕ್ಷರದಲ್ಲಿ ಇಲ್ಲ ಎಂದು ಹೇಳುತ್ತಾರೆ. ಸದರಿ ದಾಖಲಾತಿಯಲ್ಲಿ ಬರೆದಿರುವ ವಿಷಯಗಳನ್ನು ನಾನು ತಿಳಿದುಕೊಂಡು ಒಪ್ಪಿಕೊಂಡು ಬರೆದುಕೊಟ್ಟಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ ಸಾಕ್ಷಿ ಮುಂದುವರೆದು ನಾನು ಅದನ್ನು ಸಹಿ ಮಾಡಿ ಕೊಡುವಾಗ ಅದು ಖಾಲಿ ಇತ್ತು ಎಂದು ಹೇಳುತ್ತಾರೆ. ಸದರಿ ದಾಖಲಾತಿಯು ನಾನು ಸಹಿ ಮಾಡಿ ಕೊಡುವ ಸಮಯದಲ್ಲಿ ಖಾಲಿ ಇರದೇ ವಿಷಯಗಳನ್ನು ಬರೆಯಲ್ಪಟ್ಟಿದ್ದು ಅದನ್ನು ಓದಿ ತಿಳಿದುಕೊಂಡು ಸಹಿ ಮಾಡಿದ್ದರೂ ಸಹ ಸುಳ್ಳು ಸಾಕ್ಷಿ ಹೇಳುತ್ತಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ ...."23 Crl.Appeal.No.25070/2020
As per this evidence, the Accused No 2/DW1 admits that, seal found on ExP10 On Demand Promisory Note and Receipt belongs to the Accused No 1 firm. Signatures found on the said document as ExP10(A) & ExP10(B) belongs to him. The said document is executed at the time of receiving money from the Complainant. Further contends that the writings on the said document is not his writings. Further denies that he doesnot admit the contents of the said document. At the time of signing, it was blank.
20.03. Thus as per the ocular evidence as well as documentary evidence, more specifically ExP10, it can be concluded that, though the Accused persons contend that the Accused No 2 has signed ExP10, but it was blank, at the time of signing the same. The said fact has remained unproved from the side of the Accused persons. But the Complainant by leading the evidence of a witness, has shown that, ExP10 is written by the Accused No 2. The said fact is unrebutted by the Accused persons.
24 Crl.Appeal.No.25070/202021. The third line of defence takenup by the Accused persons that, Respondent has obtained signed blank cheque and ExP10. And further contend that the Accused No 2 though has issued the Signed Cheque, but has not put the date on it. This line of defence can be seen as per the examination in chief of DW1 at Page No 1, Line No 1 & 2, which reads as under:
"....ನಿಪಿ-1 ಚೆಕ್ಕಿನಲ್ಲಿ ತಾರೀಖನ್ನು ನಾನು ನನ್ನ ಹಸ್ತಾಕ್ಷರದಲ್ಲಿ ಬರೆದಿರುವುದಿಲ್ಲ ...."
21.01. Firstly, when the Accused persons admit that they have received Rs 15,00,000/- from the Complainant;
Secondly, when the Accused persons admit that, the Accused No 2 has issued the Cheque-ExP1;
Then it is for the Accused persons to show, that the Accused No 2 has issued signed blank cheque, without putting the date on it. If that is the case, then the Accused persons run peril for issuing the cheque, without putting the date on it.
Thirdly, there is presumption attached, as to date found on the negotiable instrument, as per Sec 118(b) of the NI Act. In the absence of any rebuttal evidence, it is hard to believe that the stand takenup by the Accused persons.
25 Crl.Appeal.No.25070/202022. The fourth line of defence takenup by the Accused persons that, since there was no transaction, he has not disclosed the same in ITR and the same is not produced by him.
22.01. Coming to the ocular evidence, more specifically, cross examination of DW1 at Page No 4, Para No 2, which reads as under:
"..... ನಮಗೆ ಹಣದ ತುರ್ತು ಅವಶ್ಯಕತೆ ಇದ್ದುದರಿಂದ ನಾನು ಹಾಗೂ ನನ್ನ ಮಗ ಫಿರ್ಯಾದಿದಾರರ ಬಳಿ ಹಣವನ್ನು ಕೇಳಿದ್ದೆವು. ಹಣವನ್ನು ಕೇಳಿದ ಬಳಿಕ ದಿನಾಂಕ 29.07.2016 ರಂದು ಹತ್ತು ಲಕ್ಷ ರೂಪಾಯಿಯನ್ನು ಸಾಲವಾಗಿ ನೀಡಿರುತ್ತಾರೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ದಿನಾಂಕ 29.04.2017 ರಂದು ಹದಿನೈದು ಲಕ್ಷ ರೂಪಾಯಿಯನ್ನು ಸಾಲವಾಗಿ ನೀಡಿರುತ್ತಾರೆ ಎಂದರೆ ಸರಿ...."
As per this evidence, the Accused No 2/DW1 contends that, he and his son have asked for loan as there was urgency. And denies that the Complainant has paid an amount of Rs 10,00,000/- on 29.07.2016, but admits that the Complainant has paid an amount of Rs 15,00,000/- on 29.04.2017.
22.02. In view of the above ocular evidence, wherein the Accused Nos 2 admits the payment of Rs 15,00,000/- by the Complainant, coupled with the 26 Crl.Appeal.No.25070/2020 documentary evidence ExP11-Bank Statement, I t can be concluded that, when the Accused persons admit receipt of Rs 15,00,000/- from the Complainant, then the defence present defence, will fall.
23. Thus the Accused persons have failed to show that, they had issued signed blank Cheque- Ex.P.1 and signed blank On- Demand Promisory Note and Consideration Receipt-ExP10 to the Complainant and the same is misused by the Complainant by filing the present Complainant.
Hence, I AM CONSTRAINED TO ANSWER POINT NO 2 IN THE NEGATIVE.
24. POINT NO 3:-
Another defence taken up by the Appellants is that, they have not received the Notice-ExP3, issued by the Complainant by RPAD, to them.
The Complainant has produced Legal Notice at ExP3; three Postal receipts at ExP4 to ExP6; and three Postal AODs at ExP7 to ExP9. As per these documents, it is seen that, the Notice-ExP3 is issued to the Accused persons.27 Crl.Appeal.No.25070/2020
24.01. The Learned Counsel for the Appellants would contend that, the Notice-ExP3 is not received by the Accused persons. The said line of defence can be seen
a) as per examination in chief of DW1 at Page No 1, Line Nos 4 & 5, which reads as under:
"....ಫಿರ್ಯಾದಿದಾರರು ವಕೀಲರ ಮೂಲಕ ಕಳುಹಿಸಿಕೊಟ್ಟ ನೋಟೀಸು ನನಗೆ ಬಂದು ಮುಟ್ಟಿರುವುದಿಲ್ಲ.....".
b) as per cross examination of PW1 at Page No 5, Line Nos 13 to 17, which reads as under:
".... ಬಡ್ಡಿ ದರವನ್ನು ನಿಪಿ-10 ರಲ್ಲಿ ನಮೂದು ಮಾಡಿರುತ್ತೇವೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಈ ಪ್ರಕರಣದಲ್ಲಿ ನೋಟೀಸು ಆರೋಪಿತರ ಮೇಲೆ ಜಾರಿಯಾಗಿರುವುದಿಲ್ಲ ಎಂದು ಕೇಳಿದ ಪ್ರಶ್ನೆಗೆ ಸಾಕ್ಷಿಯು ನಿಪಿ-7 ರಿಂದ ನಿಪಿ-9 ಅಂಚೆ ಸ್ವೀಕೃತಿ ಪತ್ರದಲ್ಲಿ ಕಂಪನಿಯ ಸೀಲು ಇದ್ದು ಸಹಿ ಮಾಡಲ್ಪಟ್ಟಿರುತತದೆ ಎಂದು ಸಾಕ್ಷಿಯು ಹೇಳುತ್ತಾರೆ.....".
24.02. 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 28 Crl.Appeal.No.25070/2020 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.
24.03. Coming to the ocular evidence on this point, more specifically, cross examination of DW1, Page No.2, Para No.2, which reads as under:
".... 1 ನೇ ಪಾಲುಗಾರಿಕಾ ಸಂಸ್ಥೆಯ ಕಛೇರಿ ಫಿರ್ಯಾದು ಕಾಸು ಟೈಟಲಿನಲ್ಲಿ ತೋರಿಸಿದ ವಿಳಾಸದಲ್ಲಿಯೇ ನಡೆಯುತ್ತಿದೆ. ನಿಪಿ-3 ನೋಟೀಸು ಹಾಗೂ ಫಿರ್ಯಾದಿನ ಕಾಸ್ ಟೈಟಲಿನಲ್ಲಿ ತೋರಿಸಿದ 1 ನೇ ಆರೋಪಿ ಸಂಸ್ಥೆಯ ವಿಳಾಸ ಸರಿ ಇರುತ್ತದೆ. ಸದರಿ ವಿಳಾಸದಲ್ಲಿಯೇ ನಮ್ಮ ಸಂಸ್ಥೆಯ ಪತ್ರ ವ್ಯವಹಾರ ನಡೆಯುತ್ತದೆ. ನಮ್ಮ ಸಂಸ್ಥೆಯ ಹೆಸರಿನಲ್ಲಿ ಯಾವುದೇ ಪತ್ರ ಅಥವಾ ನೋಟೀಸು ಕಳುಹಿಸಿದರೆ ಅದು ತಲುಪುತ್ತದೆ. 1 ನೇ ಆರೋಪಿ ಸಂಸ್ಥೆ ಹಾಗೂ ನಾವಿಬ್ಬರೂ ಪಾಲುದಾರರಿಗೆ ಸದರಿ ವಿಳಾಸಕ್ಕೆ ನೋಂದಾಯಿತ ಅಂಚೆ ಮೂಲಕ ಫಿರ್ಯಾದುದಾರರು ನಿಪಿ-3 ರಂತೆ ನೋಟೀಸು ಕಳುಹಿಸಿಕೊಟ್ಟಿದ್ದಾರೆ ಎಂದರೆ ಸರಿ. ನಾವಿಬ್ಬರೂ ಕಛೆರಿಯಲ್ಲಿ ಇಲ್ಲದ ಸಮಯದಲ್ಲಿ ಸಂಸ್ಥೆಯ ಹೆಸರಿನಲ್ಲಿ ಯಾವುದೇ ಪತ್ರ ಬಂದರೆ ನಮ್ಮ ಸಂಸ್ಥೆಯ ಉದ್ಯೋಗಿಗಳು ಅದನ್ನು ಸಹಿ ಸೀಲು ಮಾಡಿ ಸ್ವೀಕರಿಸುತ್ತಾರೆ. ನಿಪಿ-7 ರಿಂದ ನಿಪಿ-9 ಅಂಚೆ ಸ್ವೀಕೃತಿ ಪತ್ರದಲ್ಲಿ ಕಂಡು ಬರುವ ಸೀಲು ನಮ್ಮ ಸಂಸ್ಥೆಯ ಸೀಲಿನಂತೆ ಕಂಡು ಬರುತ್ತದೆ ಸದರಿ ಅಂಚೆ ಸ್ವೀಕೃತಿ ಪತ್ರದಲ್ಲಿ ನಮ್ಮ ಸಂಸ್ಥೆಯ ಉದ್ಯ್ಯೋಗಿಗಳೇ ನೋಟೀಸು ಸ್ವೀಕರಿಸಿದ ಬಗ್ಗೆ ಸೀಲು ಸಹಿ ಮಾಡಿರುತ್ತಾರೆ ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ. ಫಿರ್ಯಾದಿದಾರರು ಕಳುಹಿಸಿಕೊಟ್ಟ ನೋಟೀಸು ನಮಗೆ ಜಾರಿಯಾಗಿದ್ದ ವಿಚಾರ ನನಗೆ ಗೊತ್ತಿದ್ದರೂ ಸಹ ಗೊತ್ತಿಲ್ಲವೆಂದು ಸುಳ್ಳು ಹೇಳುತ್ತಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ...."29 Crl.Appeal.No.25070/2020
As per this evidence, the Accused No 2/DW1 admits that they are runing the business of Accused No 1 firm in the addresses shown by the Complainant in ExP3 to ExP9.
24.04. 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.
24.05. 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 persons, on their address, as found in it, under such circumstances, it is deemed that the Notice-ExP3 has been served to the Accused persons/addressee shown in Ex.P.6 to ExP9- Postal AODs, which leads to presume/deem that the Accused persons are having the knowledge of the notice, unless the contrary is proved.
24.06. And when the Accused persons have challenged about receipt of the said Notice-ExP3, then the Accused persons have to show that, either the said Notice was issued to an incorrect address;
30 Crl.Appeal.No.25070/2020or they were not residing or functioning on the address shown on Ex.P6 to ExP9, at the relevant point of time, within the knowledge of the Complainant, at the time of issuing the said notice.
24.07. Thus, notice issued by the Complainant under Ex.P.3 is deemed to have been served upon the Accused persons, as per Ex.P.6 to ExP9-Postal AODs. 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.
24.08. Thus, the Appellants/Accused persons have failed to show on the basis of preponderance of probabilities that, the Notice-ExP3 issued to them, is not served upon them.
Hence, I answer POINT NO.3 IN THE
NEGATIVE.
25. POINT NO 4:-
Further the Learned Counsel for the Appellant has placed his reliance on the decision of the Hon'ble Apex Court in the case of Kumar Export Vs 31 Crl.Appeal.No.25070/2020 Sharma Carpets, reported in (2009) 1 SCC (Civil) 629, wherein it is held that, "Accused is not expected to prove his defence beyond reasonable doubt, to rebut statutory presumption.
To disprove the presumption, accused should bring on record such facts and circumstances, upon consideration of which, Court may either believe that consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist.
Inorder to have a probable defence that blank cheques were obtained by the Complainant, as advance payment, the Accused has to discharge the onus of proving that cheques were not received by holder for discharge of debt or liability."
25.01. As per the decision of the Hon'ble Apex Court, in the case of M S Narayana Menon Alias Mani Vs State of Kerala & Another, reported in (2006) 6 SCC 39; in the case of wherein it is held that;
"Initial burden is on the Accused to rebut the presumption U/Sec 118(a) and 139, as to the issuance of cheque for consideration and discharge of debt, 32 Crl.Appeal.No.25070/2020 by raising probable defence. If the accused discharges the said burden, the onus thereafter shifts on to the complainant to prove his case.
Burden of proof on accused is not heavy. Accused need not disprove the prosecution case in its entirety.
Accused can discharge the burden on the basis of preponderance of probabilities through direct or circumstantial evidence."
26. Applying the above principles of law to the instant case at hand, it is seen that, in the present case though the Accused persons have questioned the financial capacity of the Complainant to lend money, but on the other hand, they have admitted that they have received Rs 15,00,000/- from the Complainant.
Secondly, the Accused persons has takenup a defence that, the Accused No 2 has given signed blank cheque-ExP1 and Promissory Note and Consideration Receipt-ExP10.
So under these circumstances, though the financial capacity of the Complainant is questioned by the Accused persons, but the same is not supported with probable defence. Hence, the said stand of the Accused persons is not acceptable.
33 Crl.Appeal.No.25070/202027. Under these circumstances, the Accused persons/Appellants should have led some cogent evidence to show that the Accused No 2 had given the signed blank cheque-ExP1 alongwith signed blank Promissory Note and Consideration Receipt, to the Complainant. Unless the Accused persons lead cogent evidence to this effect, the defence of the Accused persons will not become probable, but it will be merely a palpable defence, which will not be sufficient to discharge their duty to rebut the presumption available U/Sec. 139 of the N.I. Act, to the Complainant.
28. Thus, as per the above oral and documentary evidence, it can be said that, the Accused persons have taken various stands in their defence. On looking to the line of defences and the various contentions taken up by the Accused persons in thier evidence, the version of the Accused persons is not inspiring the confidence of this Court. Hence, the contention of the Appellants/Accused persons cannot be accepted at all.
34 Crl.Appeal.No.25070/202029. Considering the inconsistent contentions raised by the Accused persons in the cross examination of PW1 and PW2 and on leading evidence as DW1, it can be said that, the stands taken up by the Accused persons, 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 persons, cannot be accepted at all.
30. Thus, the presumption available to the Complainant U/Sec. 139 of N.I. Act, has remained unrebutted, from the side of the Appellants/Accused persons. Hence, presumption available to the Complainant U/Sec.139 of N.I.Act stands unrebutted. I have gone through the Judgment of the Trial Court, rightly the Trial Court has concluded that the Accused persons have failed to rebut the presumption available to the Complainant U/Sec.139 of N.I.Act.
HENCE, I ANSWER POINT NOS. 4 IN THE AFFIRMATIVE.
35 Crl.Appeal.No.25070/202031. POINT NO 5:
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 the 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.
32. Further 313 Statement is recorded by the Trial Court on 28.02.2020, it covers the entire incriminating substance, brought on record by way of evidence, against the Accused. The Trial Court has examined the Accused Nos 2 & 3 U/Sec. 313 of Cr.P.C. I have gone through the statement of the Accused persons recorded by the Trial Court U/Sec.
36 Crl.Appeal.No.25070/2020313 of Cr.P.C., and reply given by them, to the said questions, in the statement. I do not find any fault in the statement of the Accused persons, recorded by Trial Court U/Sec 313 of Cr.P.C.
33. I have carefully gone through the reasonings given by the Trial Court, while awarding compensation to the Complainant U/Sec.357(1)(b) of Cr.P.C. I do not find any error or material irregularity in the said findings.
34. Further inorder to conclude, the Hon'ble High Court has held in General Auto Sales Vs Vijayalakshmi, reported in 2005(1) KLT 478, in Paragraph No 8 thereof, that:
"Even if a blank signed cheque has been given towards liability or even as security, then the liability subsists and quantified, if the cheque is filled up and presented to the Bank, the person who had drawn the cheque, cannot avoid the criminal liability under Section 138 of NI Act".
34.01. Further the Hon'ble Apex Court has held in Rangappa Vs Sri Mohan, reported in (2010) 11 SCC 441, that;
37 Crl.Appeal.No.25070/2020"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".
35. 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 persons and they have failed to discharged their burden, to rebut the said presumption.
36. The Trial Court has considered all the aspects, the grounds taken up by the Accused persons, as defence. The Order of the Trial Court in awarding compensation to the Complainant, is also well-reasoned.
37. 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 38 Crl.Appeal.No.25070/2020 Act, interference to that effect, by this Court does not arise at all.
38. Thus, I am declined to interfere with the findings recorded by the Trial Court.
39. Necessarily the prosecution succeeds. The conviction is therefore confirmed, as the Accused persons are found guilty of the offence punishable under Section 138 of Negotiable Instruments Act. The Accused persons are hereby directed to pay an amount of compensation, as ordered by the Trial Court.
Hence, for the above reasons I am constrained to answer POINT NO.5 IN THE NEGATIVE.
40. POINT NO. 6:
For having answered Point Nos.1 and 4 in the Affirmative; Point Nos.2, 3 & 5 in the Negative, I proceed to pass the following:39 Crl.Appeal.No.25070/2020
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 XIV Addl. CMM, Bengaluru in C.C.No.56364/2019 dtd.30.03.2021, recording conviction of the Accused persons, is hereby confirmed.
The order of suspension passed by this Court U/Sec.389 of Cr.P.C. stands revoked.
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.
40 Crl.Appeal.No.25070/2020
Remit the TCR to the Trial
Court, on obtaining necessary
acknowledgement, from it,
alongwith the copy of this
Judgment.
--
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me, in the open court on this the 10th day of December, 2021.) [Abdul-Rahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)