TMI Blog2021 (6) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... rt have rightly held the accused guilty of the alleged offence and after convicting him, have awarded proportionate sentence for the proven guilt - there are no illegality, irregularity or impropriety, warranting interference in the impugned judgments of conviction and order on sentence passed by the Trial Court and confirmed by the learned Sessions Judge's Court. Criminal Revision Petition dismissed. - Criminal Revision Petition No. 696 of 2015 - - - Dated:- 16-4-2021 - Dr. H. B. Prabhakara Sastry, J. For the Appellant : S. Rajashekar, Advocate For the Respondents : P.P. Hegde, Advocate ORDER Dr. H.B. Prabhakara Sastry, J. 1. The present petitioner as the accused was tried by the Court of the learned Chief Metropolitan Magistrate (V Court), Mangaluru, Dakshina Kannada (hereinafter for brevity referred to as the Trial Court ), in C.C. No. 1454/2009, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as the N.I. Act ) and was convicted for the said offence by its judgment of conviction and order on sentence dated 22-12-2012. Aggrieved by the same, the accused preferred a Crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions Judge's Court, which, after hearing both side, by its impugned judgment dated 25-06-2015, dismissed the appeal filed by the accused, while confirming the impugned judgment of conviction and order on sentence passed by the Trial Court. Being aggrieved by the judgments of conviction and order on sentence, the accused has preferred this revision petition. 5. The respondent herein is being represented by his counsel. 6. The Trial Court and Sessions Judge's Court's records were called for and the same are placed before this Court. 7. Learned counsel for the revision petitioner/accused is appearing physically in the Court and learned counsel for respondent is appearing through Video Conference. 8. Heard the arguments from both side. Perused the materials placed before this Court including the Trial Court and Sessions Judge's Court's records. 9. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court. 10. After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is: Whether the judgments under revision are perverse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption and the onus is on the accused to raise a probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. It was further held in the same case that, to rebut the presumption, it is open for the accused to rely on the evidence led before him or the accused can also rely upon the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 12. Learned counsel for the respondent/complainant in his argument submitted that, even though the accused contends that, the complainant was a stranger to him, but the evidence of PW-1 and PW-2 read with Exhibits P-11(a), P-11(b), P-12 and P-13 makes it very clear that, even earlier to the transaction in question also, there were transactions between the parties and that the cheques issued by the accused to the complainant were encashed by the complainant, as such, both of them knew each other prior to the transaction in question. Learned counsel further submitted that, since the accused ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e explanation given by the drawer, although plausible, would not suffice. It is keeping the principles laid down in the above judgments, the case on hand is required to be analysed. 13. The complainant got himself examined as PW-1, wherein, in his examination-in-chief, he reiterated the contentions taken up by him in his complaint. In support of his contention, he got marked documents from Exs. P-1 to P-13. He also got examined one Sri. Shankar Rai, the Bank Manager as PW-2. The accused got himself examined as DW-1 and got marked a copy of his reply to the legal notice of the complainant as Exhibit D-1. The Complainant got produced and marked the dishonoured cheque at Exhibit P-1, which admittedly is drawn by the accused. However, the contention of the accused is that, he had not issued the said cheque to the complainant, much less towards any legally enforceable debt, on the other hand, it was his defence that, he had issued the said cheque to one of the friend of the complainant by name Praveen as a blank but duly signed cheque. 14. DW-1 in his cross-examination has stated that, as a security towards the amount borrowed by him from said Sri. Praveen Achar, he had given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the complainant. 15. According to the complainant, the accused was known to him and the accused had purchased some gold ornaments worth ₹ 13,80,000/-. On the other hand, the contention of the accused is a total denial, who has gone to the extent of telling that the complainant was a stranger to him. As already observed above, nowhere the accused has stated as to how come his cheque at Ex. P-1 reached the hands of the complainant, who, according to him, was totally a stranger. The complainant, in order to show that the accused was known to him even prior to the transaction, has examined PW-2 - Sri. Shankar Rai, the Bank Manager and also got produced documents from Exhibits P-10 to P-13. 16. PW-2 - Sri. Shankar Rai, the Bank Manager has stated that, in his Branch, which is Falnir Branch of Vijaya Bank, the accused was maintaining an account, in which the cheques bearing Serial Numbers from 401541 to 401550 were issued on 10-02-2008. The said Ledger extract was marked at Exhibit P-10. He also stated that from the Ledger of the accused, it is noticed that, on 16-12-2008 and 20-01-2009, a sum of ₹ 50,000/- and a sum of ₹ 1,00,000/- was respectively paid to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticularly for the Commercial Tax Department by the complainant, as such, the transaction itself is a doubtful one. In that regard, he drew the attention of the Court to the tax returns submitted under Form VAT 100 and submitted that the Tax amount mentioned in Exhibit P-8 is not reflected in the said returns at Ex. P-9. A perusal of the tax invoice book which has specific serial numbers of the several tax invoices raised by the complainant towards the business made in the month of April 2009 and collection of the value added tax would go to show that, under various invoices for the month of April 2009 including Ex. P-8 which is the tax invoice dated 21-04-2009, the complainant has collected the following amounts in the month of April 2009, as Value Added Tax (VAT) from various customers:- ₹ 25 + ₹ 11 + ₹ 5 + ₹ 9 + ₹ 21 + ₹ 6 + ₹ 4 + ₹ 7 + ₹ 11 + ₹ 13,678/- + ₹ 15 + ₹ 6 = ₹ 13,798/- . It is the said amount of ₹ 13,798/- which is shown as the tax payment details and the total tax payable in the tax returns produced at Ex. P-9. The said amount of ₹ 13,678/- is the value added tax (VA ..... 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