Research › Search › Judgment

Karnataka High Court · body

2021 DIGILAW 670 (KAR)

Abdulrazaq v. M. N. Gadagkar

2021-06-11

M.G.UMA

body2021
JUDGMENT : 1. The appellant/complainant preferred this appeal aggrieved by the impugned judgment of acquittal dtd. 17/10/2011 passed in C.C.No.622/2006 on the file of the learned Principal Civil Judge and Principal JMFC, Dharwad (for short, 'the trial Court'), whereby the accused is acquitted for the offence punishable under Sec. 138 of the Negotiable Instrument Act (for short, 'the N.I. Act'). 2. For the sake of convenience, the parties in this appeal are referred to as per their status and ranking before the trial Court. 3. Brief facts of the case are that, the appellant herein as complainant filed private complaint in PCR No.97/2006 before the trial Court against the respondent/accused alleging commission of the offence punishable under Sec. 138 of N.I. Act. It is stated that the complainant and accused were friends and were knowing each other since 12 years. It is contended that the accused approached the complainant during December-2005 and requested for hand loan of Rs.78,000.00 to meet his family necessities. He promised to repay the same within six months. Accordingly, the complainant lent an amount of Rs.78,000.00 and was demanding back the amount frequently. Finally, the accused issued the cheque dtd. 21/4/2006 bearing No.0423153 drawn on Malaprabha Grameena Bank, Extention Counter, D.C. Compound, Dharwad Branch for Rs.78,000.00 in favour of the complainant towards repayment of the loan amount. The cheque was presented for encashment by the complainant but the same was dishonoured as there was insufficient fund in the account of the accused. The complainant further contended that he issued legal notice to the accused informing him about the dishonour of the cheque and calling upon him to repay the cheque amount. The said notice was not claimed by the accused and has not repaid the cheque amount and thereby he has committed the offence punishable under Sec. 138 of N.I. Act. 4. The trial Court took cognizance of the offence, registered C.C.No.622/2006 and summoned the accused to appear before the Court. Accordingly, the accused appeared before the trial Court represented by his counsel. Since the accused pleaded not guilty for the offence alleged against him, the complainant examined himself as PW.1 and got marked Exs.P.1 to P.4 in support of his contention. The trial Court took cognizance of the offence, registered C.C.No.622/2006 and summoned the accused to appear before the Court. Accordingly, the accused appeared before the trial Court represented by his counsel. Since the accused pleaded not guilty for the offence alleged against him, the complainant examined himself as PW.1 and got marked Exs.P.1 to P.4 in support of his contention. The accused has denied all the incriminating materials available on record in his statement recorded under Sec. 313 of Cr.P.C. and got examined himself as DW.1 and also examined DW.2 and got marked Exs.D.1 and D.2 in support 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 such circumstances, the trial Court could not have accepted the defence taken by the accused. Learned counsel further submitted that when the complainant has made specific averments and placed sufficient materials to prove lending of the amount and issuance of the cheque in question towards discharge of the legally recoverable debt by the accused, the trial Court erred in not drawing the presumption under Ss. 118 and 139 of N.I. Act in favour of the complainant. The trial Court has erred in placing the burden on the complainant to prove each and every fact even after accused admitting the cheque Ex.P.1. 118 and 139 of N.I. Act in favour of the complainant. The trial Court has erred in placing the burden on the complainant to prove each and every fact even after accused admitting the cheque Ex.P.1. The trial Court has not considered the facts and circumstances of the case in proper perspective. Therefore, he prays for allowing the appeal by setting aside the impugned judgment of acquittal passed by the trial Court. 7. Per contra, learned counsel for the respondent/accused contended that the complainant has not proved lending of amount of Rs.78,000.00 during December-2005. There are no documents in support of such contention. The accused even though admitted Ex.P.1 as the cheque belongs to him and also admitted his signature found therein, denied that the same was issued by the accused to the complainant towards discharge of any legally recoverable debt. Under such circumstances, heavy burden lies on the complainant to prove his contention. The trial Court properly appreciated the material on record including the oral evidence led by the parties and has arrived at a conclusion and it does not require any interference by this Court. No illegality or perversity is noticed in the impugned judgment of acquittal and therefore, the appeal is to be dismissed as devoid of merits. Accordingly, he prays for dismissal of the appeal. 8. In view of the rival contentions, the following point would arise for my consideration: "Whether the impugned judgment of acquittal calls for interference by this Court?" 9. My answer to the above point is in 'Affirmative' for the following: REASONS 10. It is the contention of the complainant that he was knowing the accused since about 12 years and the accused requested for hand loan of Rs.78,000.00 during December-2005. Accordingly the complainant had lent the said amount to the accused. Towards discharge of the hand loan, the accused had issued 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 Sec. 138 of N.I. Act. 11. 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 Sec. 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 paid the loan amount to the accused on his demand and also stated that Ex.P.1- cheque was drawn by the accused in his presence and handed over towards repayment of the loan amount. Witness denied the suggestion that the accused was not familiar with the complainant nor he had any transaction with him. Witness also denied that Ex.P.1 - cheque was not issued in his favour by the accused and that there was no transaction between the two. Witness admitted that he has filed five criminal cases against various persons alleging commission of the offence punishable under Sec. 138 of N.I. Act but denied the suggestion that he is doing money lending business without any license and he is circulating the black money which is unaccounted. Witness stated that he is not familiar with one Suresh Adiraj and denied the suggestion that that he is his close friend. Witness also denied the suggestion that he is carrying on money lending business through said Suresh Adiraj and he is collecting the interest. Witness further denied the suggestion that he is paying commission at 5% to said Suresh Adiraj on the amount collected by him. Witness denied the suggestion that Ex.P.1 - cheque issued by the accused in favour of said Suresh Adiraj was misused by the complainant. 13. Ex.P.1 is the cheque dtd. Witness further denied the suggestion that he is paying commission at 5% to said Suresh Adiraj on the amount collected by him. Witness denied the suggestion that Ex.P.1 - cheque issued by the accused in favour of said Suresh Adiraj was misused by the complainant. 13. Ex.P.1 is the cheque dtd. 21/4/2006 bearing No.0423153 drawn on Malaprabha Grameena Bank by the accused in favour of Abdul Razak B Havaldar i.e. the complainant for Rs.78,000.00. Ex.P.2 is the endorsement issued by Malaprabha Grameena Bank returning the cheque in question as funds insufficient. Ex.P.3 is the copy of the legal notice dtd. 3/5/2006 got issued by the complainant calling upon the accused to repay the cheque amount. Ex.P.4 is the postal envelop addressed to the accused with the postal endorsement by the authority that the 'envelop is unclaimed and returned to the sender'. Ex.P.4(a) is the legal notice found in Ex.P.4. 14. After denying the incriminating materials in his statement recorded under Sec. 313 of Cr.P.C., the accused filed his affidavit in lieu of examination-in-chief contending that prior to 2005 he had availed loan from one Suresh Adiraj and he repaid it with interest at 10% per month. Finally he repaid Rs.26,000.00 to the said Suresh Adiraj who issued a receipt and a no due certificate. Accused further stated that at the time of taking the loan from Suresh Adiraj, 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 Rs.78,000.00 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 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 Rs.22,000.00 from him. During 2002 itself he repaid the loan amount to Suresh Adiraj and had obtained the receipt. He pleaded his ignorance as to whether the said Suresh Adiraj himself had lent the amount or whether he arranged for the loan through somebody else. Witness stated that about three months earlier to the date of evidence he filed a criminal complaint against the said Suresh Adiraj contending that he had arranged for loan by getting the amount from 4-5 persons and even after repaying the loan amount by the accused, the said Suresh Adiraj had not repaid the same to the persons from whom he had availed the amount and had committed cheating. Witness stated that he had issued in all four cheques in favour of Suresh Adiraj during 2002 but he is not having any document in support of the same. He pleaded his ignorance whether Suresh Adiraj had availed loan from the complainant. However, he stated that Suresh Adiraj had informed him that he obtained the amount from the complainant and had lent it to the accused. Witness stated that he never borrowed an amount of Rs.87,000.00 from Suresh Adiraj but he had availed only Rs.22,000.00 and repaid it with interest at 10%. Witness stated that he had not issued any notice to Suresh Adiraj calling upon him to return the cheques. He denied the suggestion that he had availed loan from the complainant and had issued Ex.P.1- cheque towards discharge of the same. 16. Accused examined Suresh Adiraj as DW.2. This witness stated that he is not familiar with the complainant, however he knows the accused. He admitted his signature found on Ex.D.1 but stated that he has not written the other contents of the document. This witness was treated hostile and during cross-examination by the learned counsel for the accused, witness denied the suggestion that he was collecting the principal and interest amount from the accused and issued Ex.D.1 for having fully received the loan amount. 17. Ex.D.1 is the receipt dtd. This witness was treated hostile and during cross-examination by the learned counsel for the accused, witness denied the suggestion that he was collecting the principal and interest amount from the accused and issued Ex.D.1 for having fully received the loan amount. 17. Ex.D.1 is the receipt dtd. 12/12/2002 said to have been issued by DW.2 in favour of the accused stating that DW.2 has received Rs.26,000.00 towards loan that was due and nothing is due from the accused. 18. Ex.D.2 is the certified copy of complaint filed by the accused against DW.2 before the learned Principal Civil Judge (Jr.Dn.) and JMFC, Dharwad alleging commission of the offence punishable under Sec. 420 of IPC. It is contended by the accused in the said complaint that he and his wife are the retired 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 Rs.87,000.00 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 Rs.26,000.00 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 who is the accused in the complaint Ex.D.2 has committed the offence punishable under Sec. 420 of IPC and requested the trial Court to take cognizance of the o ffence and to initiate legal action. 19. Even after several requests, cheques issued as security were not returned and thereby Suresh Adiraj who is the accused in the complaint Ex.D.2 has committed the offence punishable under Sec. 420 of IPC and requested the trial Court to take cognizance of the o ffence and to initiate legal action. 19. On perusal of these materials on record and appreciating the contentions of both parties, the specific contention taken by the complainant is that he had lent an amount of Rs.78,000.00 in favour of the accused during December-2005 and towards discharge of the said loan amount the accused had issued Ex.P.1-cheque. Accused admitted that Ex.P.1-cheque belongs to him and it bears his signature. Even though the accused taken up a defence that he was not knowing the complainant, he was not familiar with him, he had not borrowed any amount from the complainant nor issued Ex.P.1 in his favour, the moment he admits that the cheque relied on by the complainant belongs to him and it bears his signature, presumption under Sec. 139 of N.I. Act arises. Similarly, Sec. 118 of N.I. Act gives raise to presumption regarding the consideration, date, time of acceptance, endorsements and that the holder is a holder in due course until the contrary is proved. Therefore, once the accused admits the cheque in question and his signature found therein, the initial burden of proving the contention is discharged by the complainant and it is for the accused to rebut these presumptions by raising the defence and probabalising the same. 20. In this regard, I place reliance on the recent decision of the Hon'ble Apex Court in M/S. Kalamani Tex and Another v. P.Balasubramanian, AIR 2021 SC 1308 , wherein the Hon'ble Apex Court has held as under: "15. Once the 2nd Appellant had admitted his signatures on the cheque and the Deed, the trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The trial Court fell in error when it called upon the Complainant-Respondent to explain the circumstances under which the appellants were liable to pay. Such approach of the trial Court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law. 16. xxxxx 17. xxxxx 18. The trial Court fell in error when it called upon the Complainant-Respondent to explain the circumstances under which the appellants were liable to pay. Such approach of the trial Court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law. 16. xxxxx 17. xxxxx 18. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar (2019) 4 SCC 197 , 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 Sec. 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 proo f 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 Rs.22,000.00 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 returned by him even after repayment of the loan amount. This specific defence taken by the accused is to be considered in the light of the cross-examination of PW.1 and the defence evidence led by the accused i.e. DWs.1 and 2. 23. During the course of cross-examination of PW.1, it is suggested by the learned counsel for the accused that DW.2 Suresh Adiraj is very close friend of the complainant and the complainant is doing money lending business through him. 23. During the course of cross-examination of PW.1, it is suggested by the learned counsel for the accused that DW.2 Suresh Adiraj is very close friend of the complainant and the complainant is doing money lending business through him. It is further suggested that the complainant used to lend the amount through Suresh Adiraj and collect the amount from him. Suresh Adiraj in turn used to get commission at 5%. 24. In the affidavit filed by the accused in lieu of examination-in-chief, it is specifically stated that prior to 2005 he availed loan from Suresh Adiraj agreeing to repay the same with interest at 10% per month and he paid Rs.26,000.00 and got a receipt from the said Suresh Adiraj. At the time of availing the loan the accused had issued two cheques as security and for collateral purpose but Suresh Adiraj had not returned the said cheques in spite of repeated requests. Accused further stated he never borrowed any amount from the complainant. 25. It is pertinent to note that during cross-examination, the accused stated that Suresh Adiraj was obtaining amount from others and was paying to him. However, he reiterated that he is not familiar with the complainant nor he knows about him. He also stated that he has not enquired about the complainant even after filing of the complaint. It is pertinent to note that when there is specific contention of the accused that he was not familiar with the complainant nor he knows him, the tenure of cross-examination of PW.1 where the learned counsel for the accused specifically suggested to the complainant that he is doing money lending business along with Suresh Adiraj and used to pay commission at 5% on the amount collected, assumes importance when the accused is not aware about the complainant and that he had no dealings with him. The accused further stated during cross-examination that Suresh Adiraj had informed him about availing the loan that he got from the complainant. This piece of evidence materially contradicts the defence taken by the accused that he was not familiar with the accused nor he borrowed any amount from him at any time. 26. The defence taken by the accused that 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. 26. The defence taken by the accused that 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 dtd. 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 complaint against Suresh Adiraj (DW.2) alleging commission of the offence punishable under Sec. 420 of IPC. It is pertinent to note that the accused herein alleged that Suresh Adiraj had brought loan of Rs.87,000.00 from one Mr.Havaldar with 10% interest per month and paid it to the accused herein. Further, the accused herein had paid the interest every month and also the principal amount in part. It is specifically stated that the accused herein used to repay the loan amount and the interest to Suresh Adiraj and at that time he had obtained Ex.P.1 - cheque and another cheque. It is specifically stated that the entire amount of Rs.87,000.00 was repaid by the accused and when the balance amount of Rs.26,000.00 was paid, Suresh Adiraj had issued the receipt. When the accused herein demanded to return Ex.P.1-cheque, he had promised to return both the cheques but subsequently he proclaimed that both the cheques were torn by him. It is specifically stated that the entire amount of Rs.87,000.00 was repaid by the accused and when the balance amount of Rs.26,000.00 was paid, Suresh Adiraj had issued the receipt. When the accused herein demanded to return Ex.P.1-cheque, he had promised to return both the cheques but subsequently he proclaimed that both the cheques were torn by him. It is further stated by the accused herein that he came to know that Suresh Adiraj had not paid the amount to Mr.Havaldar i.e. the complainant herein and subsequently C.C.No.622/2006 i.e. a criminal case before the trial Court, the Judgment of which is impugned in the present case, came to be filed. 28. Contents of this document Ex.D.2 are quite contrary to the defence taken by the accused. This document alone demolishes the defence that complainant is a stranger to the accused and that the accused never borrowed an amount of Rs.87,000.00 nor he had issued Ex.P.1-cheque towards legally recoverable debt. When Ex.D.2 demolishes the defence taken by the accused, the question of reverse burden shifting on the complainant does not arise. Therefore, I am of the opinion that the accused has failed to probabalise his defence taken during cross-examination of PW.1 or at subsequent stages. 29. Learned counsel for the respondent contended that the complainant has not proved lending of huge amount of Rs.87,000.00 that too during 2005. He further contended that the lending capacity of the complainant is not proved by producing any material. But the accused by his own contention taken in Ex.D.2 admits that he had availed loan of Rs.87,000.00 from the complainant through Suresh Adiraj and issued Ex.P.1-cheque as security and as collateral security. Moreover, during cross-examination of PW.1 it is elicited by the learned counsel 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 Sec. 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. 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 Sec. 139 of the Act does indeed include the existence of a legally en forceable 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 accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Sec. 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Sec. 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Sec. 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the of fence made punishable by Sec. 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually con fined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Sec. 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable de fence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. Therefore, if the accused is able to raise a probable de fence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." (emphasis supplied) 31. I have gone through the impugned judgment of acquittal passed by the trial Court. The trial Court has completely ignored the presumption under Ss. 118 and 139 of N.I. Act and placed the entire burden on the complainant. The trial Court blindly accepted the contradictory defence taken by the accused. It has not appreciated the contents of Ex.D.2 which cuts the defence taken by the accused at its root. The trial Court also relied on the decision in Krishna Janardhan Bhat (supra) to hold that any amount more than Rs.20,000.00 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 Ss. 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 be interfered with lightly and only on the ground that two views are possible. It is only in cases where there are compelling circumstances the interference by the Appellate Court will be justified. The judgment of acquittal cannot be interfered with lightly and only on the ground that two views are possible. It is only in cases where there are compelling circumstances the interference by the Appellate Court will be justified. When the judgment in appeal is found to be perverse, not based on the materials placed before the Court and when the same was rendered against the settled proposition of law, the interference under Sec. 378 of Cr.P.C. is called for. In this regard, I again place reliance on M/S. Kalamani (supra), where the Hon'ble Apex Court has held as under: "11. The short question which falls for our consideration is whether the High Court erred in reversing the findings of the trial Court in exercise of its powers under Sec. 378 of CrPC? 12. Having given our thoughtful consideration to the rival submissions, we do not find any valid ground to interfere with the impugned judgment. It is true that the High Court would not reverse an order of acquittal merely on formation of an opinion different than that of the trial Court. It is also trite in law that the High Court ought to have compelling reasons to tinker with an order of acquittal and no such inter ference would be warranted when there were to be two possible conclusions. Nonetheless, there are numerous decisions of this Court, justifying the invocation of powers by the High Court under Sec. 378 CrPC, if the trial Court had, inter alia, committed a patent error of law or grave miscarriage of justice or it arrived at a perverse finding of fact. (emphasis supplied) 34. The discussions held above disclose that the trial Court has mechanically proceeded to acquit the accused without appreciating oral and documentary evidence placed before it. It has ignored Ex.D.2 while appreciating the defence taken by the accused and held that the accused has taken a probabale defence. Therefore, I am of the opinion that 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. Therefore, I am of the opinion that 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 and it is against the position of law as laid down by the Hon'ble Apex Court and by this Court. Therefore, it 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 Sec. 138 of N.I. Act to contend that the punishment prescribed under Sec. 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 year 2005 and the conduct of the accused in taking contradictory defences, I am of the opinion that the accused shall be sentenced and with proportionate sentence. However, taking into consideration the age of accused as he is now said to be 75 years, some amount of leniency may be shown in sentencing him. 39. In view of the above, I proceed to pass the following: ORDER Criminal appeal is allowed. Impugned Judgment of acquittal dtd. 17/10/2011 passed in C.C.No.622/2006 on the file of the learned Principal Civil Judge and Principal JMFC, Dharwad is hereby set aside. 39. In view of the above, I proceed to pass the following: ORDER Criminal appeal is allowed. Impugned Judgment of acquittal dtd. 17/10/2011 passed in C.C.No.622/2006 on the file of the learned Principal Civil Judge and Principal JMFC, Dharwad is hereby set aside. Respondent No.1/accused is convicted for the offence punishable under Sec. 138 of N.I. Act and is sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,56,000.00. (Rupees One Lakh Fifty Six Thousand only). In default to pay fine amount, he shall undergo imprisonment for a period of six months. Out of the fine amount, a sum of Rs.1,25,000.00 (Rupees One Lakh Twenty Five Thousand only) is ordered to be paid to the appellant/complainant as compensation. Learned counsel, Sri.T.Hanumareddy is appointed as Amicus Curiae. He assisted the Court in disposal o f the appeal. Hence, his fees is fixed at Rs.5,000.00. Office is directed to supply free copy of this judgment to the accused.