TMI Blog2022 (7) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... plainants herein and one Sri. Shanthi Bhai when even according to accused, the alleged transaction of a sum of Rs. 50,000/- was only between himself and said Sri. D.T. Patel. Therefore, the defence of the accused creates a doubt in the mind of the court. The accused could not able to rebut the presumption about the existence of legally enforceable debt formed in favour of the complainants in both the cases under Section 139 of N.I. Act. Thus, both the Trial Court as well as the First Appellate Court since after proper appreciation of evidence placed before them, have rightly come to a conclusion holding the accused guilty of the alleged offence in both the matters and have sentenced him proportionate to the proven guilt, there are no reason to interfere in the impugned judgments in both the matters. The Criminal Revision Petition is dismissed. - Criminal Revision Petition Nos. 219 of 2018 Criminal Revision Petition Nos. 220 of 2018 - - - Dated:- 16-6-2022 - Dr. H. B. Prabhakara Sastry , J. For the Appellant : Ravikumar N. R. , Advocate For the Respondents : Vijaya M. N. , Advocate ORDER The present petitioner which is a proprietorship concern represent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51/2011 on behalf of the complainant, the documents were marked from exhibits P-1 to P-7. In C.C. No. 1049/2011, from the complainant side, documents from exhibits P-1 to P-6 were marked. In both the criminal cases, the accused neither examined any witness nor produced any documents as exhibits from his side. 5. The respondents in both these petitions were the complainants in each of the criminal cases respectively. Both the criminal cases which were tried separately, ended in conviction by the judgment of the Trial Court, both dated 29.12.2016. 6. Aggrieved by the same, the accused preferred Criminal Appeal No. 19/2017 against the judgment in C.C. No. 1049/2011 and Criminal Appeal No. 20/2017 against the judgment in C.C. No. 1051/2011, both in the court of II Additional Sessions Judge at Chikkamagalur (henceforth for brevity referred to as 'Session Judge's Court'). Both the appeals were dismissed on merit by separate judgments of the Session Judge's Court, both dated 24.11.2017. Aggrieved by the same, the accused in the Trial Court has preferred these two Revision Petitions. 7. The respondents are being represented by their counsel, the Trial Court and Ses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question was issued to the complainant therein as security but not towards repayment of any loan, further no notice was served upon the complainant therein. He submitted that without considering the above aspect, both the Trial Court and Session Judge's Court have convicted the accused for the alleged offence which is perverse. 14. Learned counsel for the respondent in her argument submitted that in both the cases, notices were sent to the correct address of the accused. The address shown in the notice in both the complaints have not been denied by the accused. She also submitted that the inaction on the part of the accused to take any steps in accordance with law to recover his alleged cheque given to the complainants as security itself shows that the accused had issued cheques towards legally enforceable debts only. With this, she submitted that the impugned judgments do not warrant any interference at the hands of this court. 15. In both the criminal cases, the complainants who got themselves examined as PW.1 in their examination-in-chief in the form of affidavit evidence, have reiterated the contentions taken up by them in their respective complaints. In support o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the accused to the correct address by duly paying necessary postage and also when the complainants have produced postal acknowledgement card and Certificate of Posting along with Registered Post receipt, it cannot be held that those notices were not served upon the accused. Hence, the argument of the learned counsel for the petitioner on this point is not acceptable. Admittedly, the accused has not repaid the alleged loan amount to the complainant even after the issuance of notice to him. Thus, the presumption about existence of legally enforceable debt form in favour of the complainant in both the cases. However, the said presumption is rebuttable. 16. In order to rebut the presumption, the complainant has taken a defence of general denial of the loan transaction in C.C. No. 1051/2011 and a common defence that the cheques in question were given to the complainant Sri. D.T. Patel, his brother by name Sri. Shanthi Bhai and the accused together as a security. However, those cheques have been misused by them. Naturally, the complainants in both the cases have denied the suggestions made to that effect from the accused side, in their cross-examinations. 17. In the cross-ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, he stated that he does not know that on those occasions, the accused was giving blank cheque and stamp paper to Sri. D.T. Patel. Since the said Sri. E. Lokesh as PW.1 in C.C. No. 1051/2011 in his cross-examination agreed that he received the cheque in question at Shivashakthi Saw Mill, the learned counsel for the petitioner submitted that since the said saw mill belongs to Sri. D.T. Patel, the cheque has been received by Sri. E. Lokesh from Sri. D.T. Patel. The said argument of learned counsel for the petitioner is only an assumption because nowhere Sri. E. Lokesh has stated in his evidence that he received the said cheque from Sri. D.T. Patel. Merely because he says that the said cheque was given to him in the said mill, it cannot be inferred that the said cheque was given to him by Sri. D.T. Patel. On the other hand, the reading of the entire evidence of the said Sri. E. Lokesh, makes it clear that he was going to Shivashakthi Saw Mill of Sri. D.T. Patel frequently and spend sometime there, as such, he knows both Sri. D.T. Patel and his elder brother Sri. Shanthi Bhai as well as the accused. The accused was visiting the said saw mill for supply of timber. Therefore, if the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused from taking appropriate action in recovering his alleged cheques from the alleged possession of Sri. D.T. Patel, his brother or Sri. E. Lokesh. There is nothing on record to show that any such attempt was made by the accused. Admittedly, neither any notice was sent to the complainants nor any complaint was lodged against them of wrongfully withholding the cheques nor even stop payment order was given by the accused to his banker. Thus, mere his self-serving oral statement that there was no due by him to the complainants, is not sufficient to rebut the presumption which has been formed in favour of the complainants. These matters clearly go to show that the accused could not able to rebut the presumption about the existence of legally enforceable debt formed in favour of the complainants in both the cases under Section 139 of N.I. Act. Thus, both the Trial Court as well as the First Appellate Court since after proper appreciation of evidence placed before them, have rightly come to a conclusion holding the accused guilty of the alleged offence in both the matters and have sentenced him proportionate to the proven guilt, I do not find any reason to interfere in the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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