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6. Aggrieved by the judgment of conviction and sentence, the accused has preferred this appeal on following grounds:-

Crl.A.No.758/2024 The judgment and sentence passed by the learned Magistrate is bad in law and against the materials placed on record and it is illegal, arbitrary and liable to be set aside. The trial court has failed to note that the cheque in question was not issued by the accused in respect of discharging his legally recoverable debt. The cheque was issued towards security for the purpose of vehicle loan to the complainant's husband Mr.Suresh. Therefore, the cheque should not have been sent for encashment. The respondent has completely admitted in her complaint and in her evidence that there is no direct transaction between her and the accused. The respondent admitted in her cross examination that her husband has received the cheque. The respondent further admitted in her cross examination that he husband has received insurance policy amount. The complaint is not in conformity with the provisions of law and mandatory requirement as contemplated u/S/138 of NI Act. The appellant has no knowledge about passing of judgment by the trial court. The judgment and order of the learned Magistrate is based on inferences and presumptions. The fine amount levied by the learned Magistrate is an Crl.A.No.758/2024 exorbitant and same is liable to be set aside. Relying upon the documents produced and evidence of the complainant the learned Magistrate has passed impugned judgment of conviction which is liable to be set aside. Hence, on these grounds, the appellant / accused payed to allow this appeal.

18. In the decision of Hon'ble High Court of Karnataka between ARJUN VS. E.SHEKHAR, wherein it is held that when the signature of the cheque is admitted, though the contention is that it was blank signed cheque, burden is on the accused to rebut presumption by cogent evidence and mere plausible explanation offered is not sufficient to disprove the case of the complainant. In the present case, as I already observed that the accused has not disputed regarding issuance of Ex.P.1 cheque and also no disputed his signature. The only contention of the accused is that he had issued cheque in favour of the husband of the complainant, in order to obtain vehicle loan. Whether the Crl.A.No.758/2024 accused has proved such contention taken in the cross examination of PW 1 could be seen.

19. PW1 in her cross examination has deposed that she is LIC Agent and also working as Insurance Agent. Her husband also working as Insurance Agent. She knows the accused since 3 years. She sates that the accused approached her to have insurance to the Tipper lorry. She has deposed that she is also making arrangement for vehicle loan. She has admitted the suggestion that her husband was assisted the accused for Tipper lorry loan. She has deposed that whenever she was making insurance to the vehicle she used to receive the amount through credit card or through cheque. She never received the amount by way of cash. She has deposed that she made insurance to one vehicle of the accused. At that time she has not received any amount from the accused. She states that the accused by assuring her to pay the insurance premium amount got the insurance policy. She has admitted the suggestion that in her complaint and in her examination in- chief that she has stated that the accused approached her Crl.A.No.758/2024 husband for insurance policy. She has admitted suggestion that her husband made insurance policy of the accused. she has deposed that usually the insurance policy amount is giving through the cheque. They used to pay the insurance policy amount to the insurance company through Online mode. She has deposed that the accused has not given any amount in cash in order to pay the insurance premium. She has admitted suggestion that her husband was helped the accused to obtain Tipper lorry loan from Indus-Ind Bank. She as admitted suggestion that her husband used to get commission for facilitating to give loan. She has deposed that her husband has not received any commission from the accused. She has admitted suggestion that at the time of facilitating the loan to the customers, her husband used to receive the documents. She has admitted suggestion that at the time of vehicle loan to the accused also her husband received the vehicle documents and cheque from the accused. she has denied suggestion that Ex.P1 cheque is the same cheque which received by her husband from the accused for vehicle loan. She has deposed that Ex.P1 cheque issued by the accused for payment of money of Crl.A.No.758/2024 insurance policy. She has denied suggestion that her husband misused the cheque of the accused which received for loan. Thus, on perusal of the cross examination portion of PW1 even though PW1 has admitted the suggestion that her husband assisted the accused to take vehicle loan and he has received vehicle documents and cheque from the accused, but she has denied the suggestion that Ex.P1 is the same cheque issued by the accused in favour of her husband. It is pertinent to note that PW1 in her cross examination has clearly deposed that she and her husband both are working as insurance Agent. It is the specific contention of PW1 / complainant is that the accused who approached her husband for payment of insurance policy amount of Rs.57,793/-. Hence, her husband paid amount of Rs.57,793/- by using his credit Card bearing No. 4412 XXXX 4005 dated 29.04.2019. At the time of paying the said insurance amount, the accused assured her that he will repay the amount of RS.58,000/- within a period of 3 months. The accused has not specifically denied regarding insurance amount paid to his vehicle. If at all the accused was paid insurance policy in cash to the Crl.A.No.758/2024 complainant or her husband he would have produced his bank statement to show such payment. He should have atleast produced his bank statement to show withdrawal of amount in order to pay cash to the complainant or her husband. In this case there is absolutely no documents on the side of the accused to show that he had paid insurance amount to the complainant or her husband. Merely because PW1 has admitted that her husband at the time of facilitating to obtain vehicle loan received vehicle documents and cheque from the accused., it does not presupposes that Ex.P1 is the same cheque issued by the accused. PW 1 in her cross examination clearly deposed that Ex.P1 cheque issued by the accused for repayment of insurance premium amount. While appreciating the evidence of the witnesses, we have to read the evidence as a whole and we cannot read the evidence in isolation. If we read the evidence of PW 1 as a whole she has specifically denied the suggestion that Ex.P1 is the cheque which was issued by the accused in favour of her husband for vehicle loan. Thus, by cross examining PW1, the accused has failed to prove his defence that Ex.P1 cheque issued for security Crl.A.No.758/2024 purposes of vehicle loan amount. It is not the contention of the accused is that he has not at all residing in the address mentioned in Ex.P5 postal cover. The address mentioned in the cause title of the complaint and Ex.P5 are one and the same. The accused appeared before the trial court when summons issued to the same address mentioned in the complaint. Hence, it is to be held that Ex.P5 notice duly served upon the accused. If at all the accused has not issued any cheque as per Ex.P1 in favour of the complainant or Ex.P1 was issued towards security purposes, in favour of the husband of the complainant, he should have taken such defence in the initial stage itself. But the accused has not taken any such defence in the initial stage by issuing reply notice to the complainant.