TMI Blog2021 (6) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... and probabalising the same. The complainant has discharged his initial burden of proving Ex.P.1-cheque upon which the presumption under Sections 118 and 139 of N.I. Act arises. Even though the accused is required to probabalise his defence to rebut the presumptions, he has failed to do so. Therefore, the accused is liable to be convicted - the trial Court has erred in acquitting the accused ignoring the settled proposition of law on the subject and wrongly placing the burden on the complainant to prove the existence of legally recoverable debt in spite of the accused admitting issuance of the Ex.P.1-cheque with signature. The impugned judgment of acquittal passed by the trial Court is nothing but perverse and illegal. Criminal appeal is allowed. - CRIMINAL APPEAL NO. 2579/2012 - - - Dated:- 11-6-2021 - THE HON'BLE MRS.JUSTICE M.G.UMA FOR THE APPELLANT : SRI.T.HANUMAREDDY, AMICUS CURIAE FOR THE RESPONDENT : SRI.S.N.BANAKAR, ADVOCATE FOR R1, SRI.PRAVEEN K UPPAR, HCGP FOR R2 JUDGMENT The appellant/complainant preferred this appeal aggrieved by the impugned judgment of acquittal dated 17.10.2011 passed in C.C.No.622/2006 on the file of the learned Prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his defence. The trial Court after taking into consideration these materials, came to the conclusion that the complainant has failed to prove the guilt of the accused and therefore the accused is entitled to be acquitted. Accordingly, the impugned judgment of acquittal came to be passed. Aggrieved by the said judgment of acquittal passed by the trial Court, the complainant has preferred this appeal. 5. Heard Sri.T.Hanumareddy, Amicus Curiae appearing for the appellant, Sri.S.N.Banakar, learned counsel for respondent No.1 and Sri.Praveen K Uppar, HCGP for respondent No.2. Perused the materials on record including the trial Court records. 6. Learned counsel for the appellant/complainant submitted that the complainant is successful in proving his contention regarding lending of the amount and issuance of the cheque towards repayment of the loan amount. The accused never denied the cheque marked as Ex.P.1. He also never denied dishonour of the cheque. The defence taken by the accused that he had issued Ex.P.1 in favour of DW.2 is not supported by any material except the self-serving statement made by the accused. Even DW.2 has not supported the contention of the accused. Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex.P.1 - cheque in favour of the complainant but the same was dishonoured as there was insufficient funds in the account of the accused. Legal notice got issued by the complainant informing the accused regarding the dishonour of cheque and calling upon him to repay the cheque amount was not claimed by the accused nor he repaid the cheque amount and therefore he has committed the offence punishable under Section 138 of N.I. Act. 11. To prove this contention, the complainant got examined himself as PW.1 and reiterated his contention as taken in the complaint. He got marked the cheque in question as Ex.P.1, endorsement issued by the bank as Ex.P.2, copy of legal notice as Ex.P.3 and the envelop addressed to the accused with postal endorsement 'unclaimed' as Ex.P.4. 12. During cross-examination of the complainant by the learned counsel representing the accused, it is elicited that the complainant is doing transport business and he is owning five lorries. He stated that the accused was working as a teacher in Karnataka High School and his wife is also a teacher. PW.1 stated that the son of the accused is working as mechanic in a car showroom. Witness stated that he had pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diraj, he had issued two cheques as security and for collateral purpose i.e. one cheque belonging to the accused and the other one of his wife. Even after repayment of the loan amount, Suresh Adiraj had not returned the cheques in spite of repeated requests. Accused further stated that he was not having any transaction with the complainant. He never taken any hand loan of ₹ 78,000/- as contended by the complainant. It is contended that a false complaint was lodged by the complainant. 15. This witness was further examined as DW.1 and during cross-examination by the learned counsel for the complainant, witness admitted his signature found on the Ex.P.1 - cheque but stated that other writings found on the cheque are not in his handwriting. Witness admitted that Ex.P.1 - cheque relates to his bank account held with Malaprabha Grameena Bank. Witness stated that he is not familiar with the complainant and even after filing of the complaint he had not enquired about the complainant. Witness stated that Ex.P.1 - cheque was handed over by him to Suresh Adiraj during 2002 as he had availed loan of ₹ 22,000/- from him. During 2002 itself he repaid the loan amount to Suresh Adir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d school teachers and his son is working as an automobile engineer. Suresh Adiraj who is the accused in the said complaint is a family friend of the complainant and he used to lend amount as and when required. It is stated that the said Suresh Adiraj had availed loan of ₹ 87,000/- from Mr.Havaldar i.e. complainant herein, on interest at the rate of 10% per month and had paid it to the accused herein. It is stated that the accused herein had issued two blank cheques in favour of Suresh Adiraj as security and one of the cheque bears No.0423153 drawn on Malaprabha Grameena Bank. It is stated that the accused herein was paying the interest regularly and finally paid ₹ 26,000/- to clear the debt. Suresh Adiraj had issued receipt for the said amount. When the accused herein demanded for return of the cheque in question given as security, he had not returned the same. After several days the accused herein came to know that Suresh Adiraj had not paid the amount to Mr.Havaldar and subsequently both of them together filed a false complaint against the accused herein and his wife. Even after several requests, cheques issued as security were not returned and thereby Suresh Adiraj w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar (2019) 4 SCC197, where this court held that: Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 21. It is well settled proposition of law that the standard of proof to rebut the presumption is only preponderance of probabilities and not proof beyond reasonable doubt. Therefore, I have to see as to whether the accused has taken a defence and probabalised the same to shift the burden again on the complainant to establish the guilt of the accused. 22. The accused, no doubt has taken a defence that he is not familiar with the complainant, he never transacted with him, he never issued Ex.P.1 in his favour. He further contended that Ex.P.1 was issued in favour of DW.2 as he had availed loan of ₹ 22,000/- and has already repaid the same. That while availing the loan he had issued two cheques (including the cheque in the present case) in favour of DW.2 which were not ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at even though he had issued Ex.P.1 - cheque in favour of Suresh Adiraj as security and for collateral purpose while availing loan, is not a probable defence. As per the contention of the accused he availed loan from Suresh Adiraj during 2002 and repaid the same in the very same year. According to his defence Ex.D.1 is the receipt issued by Suresh Adiraj which is dated 12.12.2002. Strangely, Ex.D.1 does not refer to Ex.P.1-cheque. Nothing prevented the accused to mention about the said cheque in the receipt. The accused has not thought of issuing a notice to Suresh Adiraj demanding back Ex.P.1-cheque nor he issued instructions to his banker to stop payment of the cheque in question after repayment of the loan amount to Suresh Adiraj. The natural conduct of a person who issues a blank cheque as a security or for collateral purpose would be to demand back the same or at least to instruct the banker to stop payment in case the cheque is presented for encashment. Nothing of that sort was resorted to by the accused for the reasons best known to him. 27. Ex.D.2 is the certified copy of the complaint filed by the accused. As per this document the accused herein filed a private complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the accused that the complainant is doing transport business and owns five lorries. 30. In Rangappa v. Sri Mohan (2010) 11 SCC 441, the Full Bench of the Hon'ble Apex Court discussed about the decision rendered by it in Krishna Janardhan Bhat v. Dattatraya G.Hegde (2008) 4 SCC 54 and categorically held that the presumption under Section 139 of the N.I. Act does indeed include the existence of a legally enforceable debt or liability. To that extent the observations made in Krishna Janardhan Bhat (supra) is held not correct. The relevant paragraphs in Rangappa (supra) are extracted below: 14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 20,000/- is to be paid or accepted by way of account payee cheque and lending of the amount in the present case through cash was disbelieved. The trial Court also held that even though the complainant established issuance of the cheque by the accused, he failed to establish the existence of legally recoverable debt and therefore the accused is to be acquitted. This finding of the trial Court is erroneous and glaringly against the settled proposition of law as laid down and reiterated by the Hon'ble Apex Court in catena of decisions. 32. In view of the above, I have no hesitation to state that the complainant has discharged his initial burden of proving Ex.P.1-cheque upon which the presumption under Sections 118 and 139 of N.I. Act arises. Even though the accused is required to probabalise his defence to rebut the presumptions, he has failed to do so. Therefore, the accused is liable to be convicted. 33. I am conscious of the position of law that when the accused is primarily presumed to be innocent unless found guilty and the trial Court acquitted him by extending benefit of doubt which strengthens the presumption of his innocence. The judgment of acquittal cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calls for interference. Hence, I answer the above point in affirmative. 35. Heard the learned counsel for the respondent/accused regarding quantum of sentence. 36. Learned counsel for the appellant/ complainant submitted that the loan in question was obtained during December-2005 which was about 16 years ago. The accused has taken false defence and made the complainant to suffer all these years. He drawn my attention to Section 138 of N.I. Act to contend that the punishment prescribed under Section 138 of N.I. Act is the imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the cheque or with both. Therefore, it is his contention that maximum imprisonment along with fine of double the cheque amount is to be imposed on the accused. 37. Per contra, learned counsel for the respondent/accused seeks indulgence of the Court in sentencing the accused. He submits that initially the trial Court acquitted the accused, who is now more than 75 years of age. Under such circumstances, maximum leniency is to be shown by sentencing only to pay the nominal fine amount. 38. Considering the fact that the loan amount was obtained in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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