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2019 DIGILAW 1961 (KAR)

Varna Builders A Partnership Firm v. Savi K. Jain

2019-09-05

B.A.PATIL

body2019
JUDGMENT : B. A. PATIL, J. 1. This petition has been filed by the accused being aggrieved by the judgment passed by LXVIII Additional City Civil and Sessions Judge, Bengaluru, in Criminal Appeal No.650/2015 dated 19.11.2015, whereunder the conviction and order of sentence passed by XVIII Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.10477/2013 dated 6.4.2015 is confirmed. 2. I have heard the learned counsel for the petitioner/accused and the respondent/complainant. 3. The case of the complainant in brief is that accused and complainant were acquainted with each other. In the month of July, 2009, accused borrowed a sum of Rs.11 lakhs as hand loan to meet out his business necessities and he agreed to repay the same within two months. Accused did not pay the said amount as agreed. In order to discharge the said debt on 28.08.2012 accused issued a cheque bearing No.021740 dated 19.3.2013 and when it was presented for encashment it returned dishonoured with endorsement "other reasons" on 20.3.2013. Thereafter, complainant tried to contact the accused, but became in vain. He issued a notice on 16.4.2013. Even within 15 days after service of notice, accused did not pay the said amount and as such a private complaint was filed. Court took cognizance, secured the presence of the accused and his plea was recorded. 4. In order to prove his case, complainant has examined himself as PW.1 and got marked 8 documents. After recording the statement of the accused under section 313 of Cr.P.C. accused has neither led any evidence nor got marked any documents. After hearing, the trial Court convicted the accused under Section 138 of Negotiable Instruments Act. The same was confirmed by the appellate Court. 5. The main grounds urged by the learned counsel for the petitioner/accused are that the trial court has erroneously passed the impugned order without proper reason and evidence. It is his further submission that no proper opportunity has been given to substantiate the case of the accused. The legal notice has not been issued and there is no cause of action to file the complaint. It is his further submission that the complainant is not having a capacity to pay the amount and there exists no legally recoverable debt. On these grounds he prayed to allow the petition and to set aside the impugned order. 6. The legal notice has not been issued and there is no cause of action to file the complaint. It is his further submission that the complainant is not having a capacity to pay the amount and there exists no legally recoverable debt. On these grounds he prayed to allow the petition and to set aside the impugned order. 6. Per contra, the respondent's counsel contended that the trial Court after considering the evidence and material placed on record has rightly come to a right conclusion. Accused has not led any evidence in order to substantiate his case. He further submitted that an amount of Rs.11 lakhs has been given through account payee cheque to the accounts of the accused. Under such circumstances, accused cannot contend that the complainant is not having any amount to pay the loan. He further submitted that the notice has also been served and the petitioner has not given any reply, under such circumstances a presumption has to be drawn as per Section 139 of the Negotiable Instruments Act. Petitioner has not made out any good grounds to interfere with the judgment of the trial Court. On these grounds he prayed to dismiss the petition. 7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. 8. The first and foremost contention taken up by the learned counsel for the petitioner is that complainant was not having any capacity to lend the amount of Rs.11 lakhs, but the evidence produced clearly goes to show that an amount of Rs.10 Lakhs had been given to the accused through account payee cheque and only Rs.1 Lakh has been paid by cash. Ex.P7 Bank Account extract of Canara Bank clearly goes to show that there is an entry on 25.7.2009 a cheque bearing No.48476 for Rs.10 Lakhs has been encashed by Verna Builders to which the accused is a Managing Partner and he has also issued cheque Ex.P1 as a Managing Partner. During the course of crossexamination accused has not denied the entry in Ex.P7 and also issuance of Ex.P1 and the signature thereon. During the course of crossexamination accused has not denied the entry in Ex.P7 and also issuance of Ex.P1 and the signature thereon. When the complainant has proved that the cheque which has been issued belongs to the accounts of accused and accused admits the signature thereon, then under such circumstances the accused is duty bound to draw a presumption under Section 139 of the N.I. Act. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Rangappa Vs. Sri.Mohan, (2010) 11 SCC 441 , wherein at paragraph 16 it has been observed as under:- 16. All of these circumstances led the High Court to conclude that the accused had not raised a probable defence to rebut the statutory presumption. It was held that: "6. Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered. ..." Hence, the High Court concluded that the alleged discrepancies on part of the complainant which had been noted by the trial court were not material since the accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act. Accordingly, the High Court recorded a finding of conviction. 9. ..." Hence, the High Court concluded that the alleged discrepancies on part of the complainant which had been noted by the trial court were not material since the accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act. Accordingly, the High Court recorded a finding of conviction. 9. On close reading of the said paragraph the presumption mandated under Section 139 of the N.I. Act includes a presumption that there exists a legally enforceable debt or a liability. However, the said presumption is rebuttable and it is open to the accused to raise a defence and he can prove that there exists no legally enforceable debt or liability by preponderance of probabilities. But in the instant case admittedly the accused has neither been examined nor he has brought anything on record to rebut the said presumption. Under such circumstances the contention of the petitioner/accused that the complainant was not having any financial capacity and ability to give a loan of Rs.11 lakhs is not acceptable, and it also proves there exists legally enforceable debt or a liability. 10. Second contention of the petitioner/accused is that no service of notice as contemplated under the law. Accused has also executed Ex.P8 Demand Promissory Note and notice has been issued to the accused as per Ex.P3. Ex.P6 is the endorsement issued by the postal authorities that the said registered post has been delivered to the addressee on 17.4.2013. It is not the case of the petitioner/accused that he is not residing in the said address. In that light, the contention raised is not acceptable. In this behalf the defence of the accused that the no notice has been served does not have any force. 11. The next contention is that he has not been given full opportunity to substantiate his case. But in order to substantiate the said aspect he has not produced any material. On going through the records it indicates that sufficient opportunity has been given to the accused. 12. Even as could be seen from the records, the accused has neither stepped into the witness box nor rebutted the evidence, then under such circumstances the case of the complainant stands proved and the accused is liable to be convicted. 13. On going through the records it indicates that sufficient opportunity has been given to the accused. 12. Even as could be seen from the records, the accused has neither stepped into the witness box nor rebutted the evidence, then under such circumstances the case of the complainant stands proved and the accused is liable to be convicted. 13. Even as could be seen from the order sheet of this Court it is submitted that matter is going to be amicably settled between the parties and petitioner/accused sought for time. But he went on taking the time, time and again this Court has adjourned the case for nearly more than one year and the accused has not made any arrangements of the said amount and has not settled the matter. That attitude itself clearly goes to show that the petitioner/accused is not diligent in conducting the case. It is his only intention to drag on the proceedings. If the case is going to be adjourned, then under such circumstances the very purpose of the order of the trial Court is going to be defeated. This proposition of law has also been laid down by the Hon'ble Apex Court that unnecessary adjournment of the case has to be avoided. In that light, the said contention also does not survive for consideration. 14. I have carefully and cautiously gone through the judgment of the trial Court as well as the first appellate Court. Both the Courts below after considering the evidence and material placed on record have come to a right conclusion. The said judgments are neither perverse nor illegal, the same deserves to be confirmed. The petition is devoid of merits and as such the same is dismissed.