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Karnataka High Court · body

2023 DIGILAW 1213 (KAR)

Maqsood v. Syed Rizwan

2023-10-12

M.G.UMA

body2023
JUDGMENT 1. The accused in CC No.170/2014 on the file of the learned XXI Additional Chief Metropolitan Magistrate, Bengaluru City, (hereinafter referred to as 'the trial Court' for brevity) is impugning the judgment of conviction and order of sentence dtd. 27/7/2018, convicting him for the offence punishable under Sec. 138 of Negotiable Instrument Act ('NI Act' for short) and sentencing to pay fine of Rs.92, 10, 000.00, in default, to undergo simple imprisonment for a period of six months, which was confirmed in Crl.A.No.1678/2018 on the file of the learned LVI Additional City Civil and Sessions Judge, Bengaluru, CCH-57) (hereinafter referred to as the 'First Appellate Court' for brevity), vide judgment dtd. 23/12/2019. 2. Brief facts of the case are that, the complainant filed private complaint in PCR No.16462/2013 before the trial Court against the accused alleging commission of offence punishable under Sec. 138 of NI Act. It is contended that the accused introduced himself as son of Veteran artist Mehmood Ali and that one Masoom Ali is his elder brother. He also proclaimed that his elder brother Masoom Ali is the absolute owner in possession of the land bearing Sy.Nos.2 and 3 of Kenchenahally Village, Yelahanka Hobli, Bengaluru North Taluk, measuring 9.221/2 acres. He fraudulently claimed that he is the GPA holder of his brother and he is having authority to dispose of or transfer or enter into any agreement for sale with prospective buyers. Believing the words of the accused, the complainant agreed to purchase the said land for a total consideration amount of Rs.92.00 lakhs and agreement for sale dtd. 17/12/2002 was executed by the accused and the complainant paid a sum of Rs.22.00 lakhs in cash in the presence of the witnesses. The accused promised to produce the original documents including the original GPA deed, said to have been executed by his brother and to execute the sale deed in favour of the complainant. It is stated that the accused had postponed execution of sale deed on one pretext or the other claiming that, he being the professional, engaged at different parts of India. On 23/8/2009, he induced the plaintiff to pay another sum of Rs.5.00 lakhs as additional advance for agreement of sale dtd. 17/12/2002. The accused agreed to receive the balance amount of Rs.65.00 lakhs and to execute the registered sale deed. The further agreement for sale dtd. 23/8/2009 was also executed. 3. On 23/8/2009, he induced the plaintiff to pay another sum of Rs.5.00 lakhs as additional advance for agreement of sale dtd. 17/12/2002. The accused agreed to receive the balance amount of Rs.65.00 lakhs and to execute the registered sale deed. The further agreement for sale dtd. 23/8/2009 was also executed. 3. It is contended that the accused went on evading the complainant and postponing execution of sale deed and therefore, the complainant issued the legal notice on 12/6/2010 calling upon the accused to execute the sale deed by accepting the balance consideration amount. The said notice was served on the accused, but inspite of that, he had not executed the sale deed. Therefore, the complainant filed the suit O.S.No.599/2010 against the accused before the learned Principal Civil Judge, Senior Division, Bengaluru Rural District, seeking specific performance of the contract. The accused being the defendant in the said suit, appeared before the trial Court and filed his written statement. Thereafter, started persuading the complainant to withdraw the suit. As if the matter is amicably settled between the parties, the complainant being the plaintiff in the said suit could get back the Court fee paid, he agreed to withdraw the suit O.S.No.599/2010. But however, the accused went on postponing to settle the dispute till December 2012. Just before Christmas in 2012, the accused approached the complainant for settlement and offered to pay Rs.92.00 lakhs as compensation amount to the complainant, which includes the advance amount of Rs.27.00 lakhs paid by the complainant. The appreciation in the market value of the land was taken into consideration to fix compensation as damages from 2002 to 2012. The accused sought for three more months time to pay the amount of Rs.92.00 lakhs. Finally, the accused received back the original agreement for sale, further agreement for sale, legal notice and reply notice from the complainant and handed over the cheque bearing No.022854 dtd. 16/3/2013, drawn on Corporation Bank, Yelahanka Branch, Bengaluru for Rs.92.00 lakshs. The cheque was presented by the complainant for encashment, but it was dishonoured as there was insufficient funds in the account of the accused. The complainant issued the legal notice informing the accused regarding dishonour of the cheque and calling upon him to pay the cheque amount. Inspite of service of notice, the accused neither complied with the demands made therein, nor replied to the notice. The complainant issued the legal notice informing the accused regarding dishonour of the cheque and calling upon him to pay the cheque amount. Inspite of service of notice, the accused neither complied with the demands made therein, nor replied to the notice. Thereby, he has committed the offence punishable under Sec. 138 of NI Act. 4. It is contended that the complainant came to know that the brother of the accused was not the owner of the land bearing Sy.Nos.2 and 3 of Kenchenahally Village, nor he had executed any GPA deed in favour of the accused. Therefore, the accused fraudulently induced the complainant to part with the amount of Rs.27.00 lakhs and cheated him. Even after issuance of the cheque, he has not made arrangements to honour the same. Therefore, the accused is liable for conviction. Accordingly, he prayed the trial Court to take cognizance of the offence and to initiate legal action against the accused. 5. The trial Court took cognizance of the offence and the accused appeared before the Court in response to the summons, pleaded not guilty for the accusation made against him and claimed to be tried. The complainant examined himself as PW-1 and got marked Exs.P1 to 12 in support of his contention. The defendant denied all the incriminating materials available on record, while examining himself as DW1 and got marked Exs.D1 to D7 in support of his defence. The trial Court after taking into consideration all these materials, came to the conclusion that the complainant is successful in proving the guilt of the accused beyond reasonable doubt and accordingly, passed the impugned judgment of conviction and order of sentence against the accused. Being aggrieved by the same, the accused has preferred Crl.A.No.1678/2018. The First Appellate Court on re-appreciation of the materials on record, dismissed the appeal and confirmed the impugned judgment of conviction and order of sentence passed by the trial Court. 6. Being aggrieved by the same, the accused is before this Court. 7. The accused has filed I.A.No.1/2021 under Sec. 482 of Cr.PC, seeking an order directing to release the accused on probation on executing the bond as contemplated under Sec. 360 of Cr.PC or Sec. 4 r/w Sec. 11 of Probation of Offenders Act, 1958 (hereinafter referred to as 'the P.O. Act' for brevity). 7. The accused has filed I.A.No.1/2021 under Sec. 482 of Cr.PC, seeking an order directing to release the accused on probation on executing the bond as contemplated under Sec. 360 of Cr.PC or Sec. 4 r/w Sec. 11 of Probation of Offenders Act, 1958 (hereinafter referred to as 'the P.O. Act' for brevity). It is contended that the accused is not sentenced with substantial sentence, but only in default of payment of fine amount, he was directed to undergo simple imprisonment for a period of six months. The petitioner is having a prima-facie case. Therefore, the petitioner shall be released on probation, in the interest of justice. 8. Heard learned counsel Sri Ashwin Vaish for Sri Mohammed Saleha Mukarram and Smt. Nazima Tasneem, learned counsel for the revision petitioner/accused and Sri Gururaj Joshi along with Sri Nachiket Joshi, learned counsel for the respondent/complainant both on I.A.No.1/2021 and on merits. Perused the materials including the trial Court records. 9. Learned counsel for the revision petitioner contended that the complainant has not produced any document in support of his contention that the accused had entered into an agreement for sale and he had paid advance of Rs.27.00 lakhs in cash. However, the complainant had filed the suit O.S.No.599/2010 against the accused for specific performance of the contract. The accused had filed written statement in the said suit, admitting receipt of Rs.27.00 lakhs from the complainant. Therefore, the accused is not denying the said fact of receipt of Rs.27.00 lakhs. The said suit O.S.No.599/2010 was unilaterally withdrawn by the complainant by filing a memo as per Ex.P9 and accordingly, the suit came to be dismissed as withdrawn on 19/11/2010. The accused is not a party to the said memo for withdrawal of the suit, nor there was any agreement between the parties settling the dispute in terms of compromise. However, the complainant off late started contending that during December 2012 i.e., after morethan two years, the accused came and offered to pay Rs.92.00 lakhs for having received Rs.27.00 lakhs and also issued the cheque in question. The said contention of the complainant cannot be accepted even for a while. There is absolutely no reason as to why the accused voluntarily came forward and issued the cheque for Rs.92.00lakhs, when according to the complainant, he had paid only Rs.27.00 lakhs, that to, when the suit was already withdrawn by the complainant. 10. The said contention of the complainant cannot be accepted even for a while. There is absolutely no reason as to why the accused voluntarily came forward and issued the cheque for Rs.92.00lakhs, when according to the complainant, he had paid only Rs.27.00 lakhs, that to, when the suit was already withdrawn by the complainant. 10. Learned counsel further submitted that during cross-examination of PW-1, he categorically admitted that after compromise and withdrawal of the suit O.S.No.599/2010, he had no conversation with the accused. Under such circumstances, it cannot be believed that the accused had offered to pay a sum of Rs.92.00 lakhs and had issued the cheque in question. The complainant categorically denied the suggestion that the cheque in question was issued during 2010, which is against the contentions taken by the complainant in the complaint. Moreover, PW-1 admits that the postal acknowledgment Ex.P5 does not bear the signature of the accused, but it was signed by some other person. Under such circumstances, the legal notice said to have been issued by the complainant was never served on the accused. When the notice as required is not served on the accused, the complainant cannot invoke Sec. 138 of NI Act. 11. Learned counsel further submitted that even though the accused admits that the cheque Ex.P1 belongs to his bank account and he signed it, he categorically denied issuance of the same in favour of the complainant agreeing to pay Rs.92.00 lakhs. The writings in the cheque are not that of the accused. It must have been written by the complainant. A specific defence was taken by the accused that he was having a Manager by name Mr.Lucose, who in fact, handed over the blank cheque to the complainant. The complainant misused the same by writing the contents and presenting it for encashment. Therefore, no offence under Sec. 138 of NI Act is made out against the accused. 12. Even though the accused was cross-examined at length by learned counsel for the complainant, nothing has been elicited from him to believe the version of the complainant. Learned counsel further submitted that no one can believe the version of the complainant that he had withdrawn the suit O.S.No.599/2010 without receiving any money from the accused. Infact, the accused had paid Rs.27.00lakhs in cash and only thereafter, the suit came to be withdrawn. Learned counsel further submitted that no one can believe the version of the complainant that he had withdrawn the suit O.S.No.599/2010 without receiving any money from the accused. Infact, the accused had paid Rs.27.00lakhs in cash and only thereafter, the suit came to be withdrawn. But the blank cheque belonging to the accused was misused by the complainant and he is claiming Rs.92.00lakhs without any basis. The trial Court and the First Appellate Court have committed grave error in convicting the accused without properly appreciating the materials on record. The First Appellate Court gone to the extent of observing that admittedly the accused had agreed to pay Rs.92.00 lakhs to the complainant as per the compromise entered into in O.S.No.599/2010. The First Appellate Court also made an observation that the suit O.S.No.599/2010 came to be withdrawn as per Ex.P9 as the accused issued the cheque Ex.P1, which was not the contention of the complainant at all. 13. He further contended that the complainant withdrawn the suit O.S.No.599/2010 only after the third party filed an application under Order 1 Rule 10 of CPC, seeking to implead him in the said suit. The said application is produced as per Ex.D3 which is dtd. 1/10/2010. Immediately thereafter, the plaintiff withdrawn the suit which makes it clear that all was not well with the complainant and therefore, he was forced to withdraw the suit filed against the accused. None of these facts were considered either by the trial Court or by the First Appellate Court. Therefore, the impugned judgment of conviction and order of sentence passed against the accused is liable to be set aside. 14. Learned counsel alternatively submitted that, if for any reasons, this Court does not agree with his contention, I.A.No.1/2023 filed under Sec. 482 of Cr.PC may be considered favorably. The accused was not sentenced either by the trial Court or by the First Appellate Court by imposing substantive sentence. Only in default of payment of the fine amount, he was directed to undergo simple imprisonment for a period of six months. Therefore, the accused may be released on probation, in the interest of justice. 15. Learned counsel further submits that the accused has already deposited Rs.46.00 lakhs before the trial Court and the same is to be refunded to the accused in the ends of justice. Accordingly, he prays for allowing the revision petition. 16. Therefore, the accused may be released on probation, in the interest of justice. 15. Learned counsel further submits that the accused has already deposited Rs.46.00 lakhs before the trial Court and the same is to be refunded to the accused in the ends of justice. Accordingly, he prays for allowing the revision petition. 16. Per contra, learned counsel for the respondent/complainant opposing the revision submitted that the complainant as plaintiff filed the suit O.S.No.599/2010 before the trial Court and the plaint in the same is produced as per Ex.P8. It was a suit for specific performance of contract filed against the accused. The accused had appeared before the trial Court in the said suit and filed his written statement as per Ex.P6. While filing the written statement, he categorically admitted that he is the owner of 9.22 and 1/2 acres of land and he has received Rs.27.00 lakhs in cash as advance under the agreement for sale. The accused is the son of famous actor Mehmood Ali and the accused is also a singer popularly known as Lucky Ali. With this background to his credit, he could easily induce the complainant in entering into an agreement in respect of the land which was never belonging to him and part with huge amount of Rs.27.00 lakhs. But thereafter, he started avoiding the complainant and never came forward to execute the sale deed. Therefore, the suit O.S.No.599/2010 came to be filed. Luckily for the complainant, the accused admitted receipt of Rs.27.00 lakhs and execution of the agreement for sale. 17. As per Ex.D3, one Sri Sathish Pai filed an application under Order 1 Rule 10 of CPC, seeking his impleadment in the suit. He contended that Mohamood Ali, father of the accused sold the property in question in his favour and he is in possession and enjoyment of the same. The said application was filed on 1/10/2010 and immediately thereafter, the accused started pressurising the plaintiff to withdraw the suit and to return the original documents in his favour and promised to pay the advance amount along with compensation or damages. Believing his words, the complainant withdrawn the suit before Lok-adalath as could be seen from Ex.P11. Thereafter, the accused could avoid the complainant for two more years and finally, during Christmas in 2012, he agreed to pay Rs.92.00 lakhs and accordingly, he issued the cheque Ex.P1. Believing his words, the complainant withdrawn the suit before Lok-adalath as could be seen from Ex.P11. Thereafter, the accused could avoid the complainant for two more years and finally, during Christmas in 2012, he agreed to pay Rs.92.00 lakhs and accordingly, he issued the cheque Ex.P1. But on presentation of the cheque, the same was dishonoured as there was insufficient funds in his account. Legal notice issued by the complainant was served on the accused. Inspite of that, he has not paid the cheque amount. Thereby, he has committed the offence punishable under Sec. 138 of NI Act. 18. Learned counsel further contended that even though advance amount of only Rs.27.00 lakhs was paid to the accused, he agreed to pay Rs.92.00 lakhs after ten long years, as the advance amount was paid during 2002. The cheque was issued during 2013 towards repayment of advance amount of Rs.27.00 lakhs along with appreciation of the land value and compensation/damages. Therefore the accused agreed to pay additional amount of Rs.65.00 lakhs. 19. Learned counsel submitted that the accused categorically admitted that the cheque in question belongs to his bank account and he signed it. The only defence taken by the accused is that he had issued the blank cheque in favour of the complainant. At later point of time, he started contending that his Manager one Mr.Lucose must have handed over the blank cheque. Admittedly, the said Mr.Lucose continued to be an employee under the accused till his death. Only after filing the present complaint before the trial Court, the accused has filed a complaint against the said Lucose. But, 'B' report came to be filed. Therefore, virtually no action was taken against Lucose, even though it is contended that he has issued the blank cheque with the signature of the accused to the complainant without his instructions. 20. Learned counsel contended that while filing the written statement as per Ex.P6, the accused admitted that he knew the complainant since 2002. But during crossexamination, he has stated that he came in contact with the complainant only during 2012 or 2013. This shows the conduct of the accused, who can go to any extent in denying his liability. 21. 20. Learned counsel contended that while filing the written statement as per Ex.P6, the accused admitted that he knew the complainant since 2002. But during crossexamination, he has stated that he came in contact with the complainant only during 2012 or 2013. This shows the conduct of the accused, who can go to any extent in denying his liability. 21. Learned counsel for the complainant submitted that even if the contention of the accused that he had issued the blank cheque with his signature is to be accepted, even then, Sec. 138 of NI Act would operate against him and he is liable for conviction. When the accused admits that Ex.P1 cheque belongs to him and it bears his signature, the presumption under Ss. 118 and 139 of NI Act would operate and the burden shifts on the accused to rebut the same. The accused has taken inconsistent stand and failed to rebut the legal presumption. The trial Court has referred to various decisions of the Hon'ble Apex Court in support of its decision and both the trial Court as well as the First Appellate Court have came to proper conclusion and convicted the accused as stated above. There are absolutely no reasons to interfere with the impugned judgment of conviction and order of sentence. Hence, he prays for dismissal of the revision petition. 22. Regarding the application I.A.No.1/2023 filed by the accused, learned counsel for the complainant submitted that only in respect of the substantial sentence, the accused could be released on probation. But in the present case, no substantial sentence was imposed, but he was sentenced to pay fine. Only in default of payment of fine amount, he is ordered to undergo simple imprisonment. Under such circumstances, the provisions of Probation of Offenders Act or Sec. 360 of Cr.PC would not be applicable. Hence, he prays for dismissal of the said application, in the interest of justice. 23. In view of the rival contentions urged by learned counsel for both the parties, the points that would arise for my consideration is; 1. "Whether the impugned judgment of conviction and order of sentence passed by the trial Court, which is confirmed by the First Appellate Court suffers from perversity or illegality and calls for interference by this Court?" 2. In view of the rival contentions urged by learned counsel for both the parties, the points that would arise for my consideration is; 1. "Whether the impugned judgment of conviction and order of sentence passed by the trial Court, which is confirmed by the First Appellate Court suffers from perversity or illegality and calls for interference by this Court?" 2. Whether the petitioner has made out any ground to allow I.A.No.1/2023, seeking his release on probation?" My answer to the above points is in the 'Negative' for the following; REASONS 24. It is the contention of the complainant that he entered into an agreement for sale in respect of 9.22 and 1/2 acres of land in Sy.Nos.2 and 3 of Kenchenahally Village, Bengaluru North Taluk on 17/12/2002. He paid Rs.22.00 lakhs as advance to the accused and thereafter, on 23/8/2009, the accused again requested and received Rs.5.00 lakhs as additional advance from the complainant. However, the accused managed to postpone execution of the sale deed. Thereafter, the complainant filed the suit O.S.No.599/2010 before the trial Court for specific performance of the contract. The complainant has produced copy of the plaint as per Ex.P8. The accused being the defendant in the said suit, filed written statement as per Ex.P6. In the written statement, the accused stated that he is the attorney of his brother who are the sons of well known actor Mohamood Ali. He also stated that his brother Masoom Ali stays in USA and had executed GPA on 3/9/2002. On the basis of the same, he entered into an agreement for sale with the complainant in respect of 9.22 and 1/2 acres of land. He admits receipt of Rs.27.00 lakhs as advance and balance amount is Rs.65.00 lakhs to be paid by the complainant. It is stated that the plaintiff was not ready and willing to perform his part of the contract and therefore, the defendant has put into irreparable loss. Thus, entering into an agreement for sale with the complainant and receiving the advance amount of Rs.27.00 lakhs is categorically admitted by the accused in Ex.P6. 25. It is also admitted that the suit O.S.No.599/2010 came to be withdrawn as settled out of the Court and a memo for withdrawal of the said suit was filed by the plaintiff before Lok-adalath. The order sheet is as per Ex.P11 and the memo is as per Ex.P9 dtd. 19/11/2010. 25. It is also admitted that the suit O.S.No.599/2010 came to be withdrawn as settled out of the Court and a memo for withdrawal of the said suit was filed by the plaintiff before Lok-adalath. The order sheet is as per Ex.P11 and the memo is as per Ex.P9 dtd. 19/11/2010. As per the memo of withdrawal filed by the plaintiff and his counsel, the plaintiff and the defendant terminated the agreement of sale and settled the dispute at the intervention of the elders and wellwishers out of the Court and therefore, the suit is to be dismissed as not pressed. Accordingly, the suit came to be dismissed. 26. Now it is the contention of the complainant that after almost two years i.e., during Christmas in 2012, the accused agreed to pay Rs.92.00 lakhs to the complainant i.e., towards repayment of the advance amount of Rs.27.00 lakhs and additional amount of Rs.65.00 lakhs towards appreciation of the land value and as compensation or damages to the plaintiff. Accordingly, he issued Ex.P1 dtd. 16/3/2013. When the cheque was presented for encashment, same was dishonoured as there was insufficient funds in the account of the accused. Inspite of issuing legal notice, the accused has not repaid the amount. Thereby, he has committed the offence punishable under Sec. 138 of NI Act. 27. The accused admits that Ex.P1 cheque belongs to his bank account and it bears his signature. However, he disputes the writings found on the cheque and contends that it was the complainant who might have written the contents of the cheque. Even though an attempt was made to contend that the accused was not aware of handing over the blank cheque to the complainant, as it was his manager who handed over the cheque, it would not get support to accept the same. Even during cross-examination of PW1, nothing has been elicited in support of such defence. Sec. 20 of the NI Act refers to an inchoate Negotiable Instrument and, if a person signs and delivers such a negotiable instrument, either wholly blank or having written thereon, the drawer gives prima-facie authority to the holder thereof to make or complete as the case may be, upon which, the negotiable instrument for any amount specified therein and the person so signing shall be liable to the holder in due course. 28. 28. It is also relevant to refer the decision of the Hon'ble Apex Court in Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197 . where the Hon'ble Apex Court referred to a similar situation, where it was contended that a blank cheque with the signature of the accused was issued and held as under; "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. " 29. Therefore, the contention taken by the accused that the cheque Ex.P1 bears only his signature and he is not the author of other contents of the cheque, would not keep him in a better position as legally he is liable, once it is proved that the cheque belongs to him and it bears his signature. Once this primary evidence is lead by the complainant, the presumption under Ss. 118 and 139 of NI Act comes into operation. The burden shifts on the accused to rebut the presumption. Of course, the standard of proof to rebut the presumption is only a preponderance of probability and not the proof beyond reasonable doubt. Therefore, now it is to be considered as to whether the accused is successful in probabilising his defence to avoid conviction. 30. PW-1 was cross-examined by learned counsel for the accused on various dates. It is interesting to note that during cross-examination of PW-1, learned counsel for the accused suggested to the witness that Ex.P1 cheque was issued to the complainant in the year 2010. The said suggestion was denied by the witness. The suggestion put to the witness by learned counsel for the accused binds the accused that the accused had issued the cheque and he cannot disown the same. However, it is not the contention of the complainant that the cheque in question was issued by the accused during 2010. 31. Even under Sec. 4 of P.O. Act, the Court having power to release the offender on probation of good conduct is required to consider regard to the circumstances of the case, including the nature of the offence and the character of the offender. 31. Even under Sec. 4 of P.O. Act, the Court having power to release the offender on probation of good conduct is required to consider regard to the circumstances of the case, including the nature of the offence and the character of the offender. Moreover, under Sec. 5 of P.O. Act, the Court is having power to require the offender to pay compensation which is reasonable for loss or injury caused by commission of the offence and the amount so ordered as compensation could be recovered as fine in accordance with the provisions of Cr.PC. 32. As rightly contended by learned counsel for the respondent, the accused is not sentenced with substantive sentence. On the other hand, he was sentenced to pay fine of Rs.92, 10, 000.00. The cheque amount is Rs.92.00 lakhs which was ordered to be paid to the complainant as compensation. Under such circumstances, the petitioner is not entitled for the benefit of either Sec. 360 of Cr.PC or Sec. 4 of P.O. Act. Hence the application filed by the petitioner in that regard is liable to be dismissed. 33. Learned counsel for the accused placed reliance on the decision of the Hon'ble Apex Court in Sarav Investment & Financial Consultancy Pvt. Ltd., (2007) 14 SCC 753 . in support of his contention that the suggestion put to PW-1 by learned counsel for the accused during his cross-examination is not sufficient to hold that the accused has admitted issuance of cheque in question. But the complainant is not relying only on the fatal suggestion put to PW-1 which was denied by him. But the accused himself has admitted that the cheque belongs to him and it bears his signature. Such admission on the part of the accused goes a long way in raising the presumption in favour of the complainant and the burden is on the accused to rebut the same. 34. During cross-examination, PW-1 admitted that the signature on Ex.P5 is not that of the accused. Somebody else had singed the postal acknowledgment. On the basis of the same, learned counsel for the accused contended that legal notice was never served on the accused as admitted. 35. In this regard, learned counsel for the complainant placed reliance on the decision of the Hon'ble Apex Court in N.Paramesharan Unni Vs. G. Kannan, 2017 STPL 3391 SC. Somebody else had singed the postal acknowledgment. On the basis of the same, learned counsel for the accused contended that legal notice was never served on the accused as admitted. 35. In this regard, learned counsel for the complainant placed reliance on the decision of the Hon'ble Apex Court in N.Paramesharan Unni Vs. G. Kannan, 2017 STPL 3391 SC. wherein the Hon'ble Apex Court referring to Sec. 27 of General Clauses Act, 1897 held in para No.13 as under; "13. It is clear from Sec. 27 of the General Clauses Act, 1897 and Sec. 114 of the Indian Evidence Act, 1972, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. Then requirements under proviso (b) of Sec. 138 stands complied, if notice is sent in the prescribed manner. However, the drawer is at liberty to rebut this presumption." 36. Admittedly, the legal notice as per Ex.P3 was addressed to the accused and it was sent through RPAD as the postal receipt is produced as per Ex.P4. The postal acknowledgment also bears the address of the accused and that of the complainant. However, the same was signed by some other person and not the accused. When the notice is properly addressed to the accused and the postal authority returns the acknowledgment in proof of service of notice, the presumption under Sec. 114(e) of Indian Evidence Act comes into operation. Again, the burden will be on the accused to rebut the said presumption. Except eliciting from the mouth of PW-1 that the postal acknowledgment does not bear the signature of the accused, the accused has not made any effort to rebut the said presumption. Under such circumstances, I am of the opinion that the said defence is not available to the accused. 37. It is contended by learned counsel for the complainant that the suit O.S.No.599/2010 came to be withdrawn by the complainant immediately after Ex.D3 the application under Order 1 Rule 10 of CPC filed by a third party before the trial Court. According to the learned counsel for the accused, there must be some strong reason for the plaintiff to withdraw the said suit. According to the learned counsel for the accused, there must be some strong reason for the plaintiff to withdraw the said suit. But, apparently there is nothing on record to contend that the plaintiff has taken extreme step of withdrawing the suit merely on filing Ex.D3 by a third party, seeking his impleadment. But on the other hand, it is the contention of learned counsel for the complainant that the third party Sri Satish Pai made allegations against the defendant in Ex.D3 and asserted that it is the applicant Sri Satish Pai who is in possession and enjoyment of the property in question in Sy.Nos.2 and 3 as he acquired the same from the father of the accused and therefore, the accused was worried that the complainant will come to know about the fraud he has committed and that is the reason why the accused approached the complainant and insisted for withdrawal of the suit. 38. On going through the affidavit sworn by Sri Satish Pai who is the applicant in Ex.D3, the contention taken by learned counsel for the complainant is more probable than the contention raised by the accused. Otherwise, there would not have been any reason for the plaintiff to withdraw the suit for specific performance of the contract which he had filed by paying more than Rs.2.00 lakhs as Court fees. This conduct of the accused coupled with his admission that Ex.P1 cheque belongs to his bank account, which bears his signature probabilises the contention of the complainant rather the defence taken by the accused. 39. The contention taken by the complainant that the accused had agreed to repay Rs.92.00 lakhs during 2012 for having received Rs.22.00 lakhs during 2002 and Rs.5.00 lakhs in 2009 and the additional amount is towards compensation/damages suffered by the complainant due to appreciation in the land value is more probable and could be accepted as reasonable explanation. Therefore, I am of the opinion that the complainant is successful in proving his contention regarding existence of legally recoverable debt and issuance of cheque Ex.P1 by the accused towards repayment of the same. The cheque was dishonoured as there was insufficient funds in the account of the accused. Therefore, I am of the opinion that the complainant is successful in proving his contention regarding existence of legally recoverable debt and issuance of cheque Ex.P1 by the accused towards repayment of the same. The cheque was dishonoured as there was insufficient funds in the account of the accused. Inspite of service of legal notice, the accused has not repaid the cheque amount, nor he has replied to the legal notice and thereby, he has committed the offence punishable under Sec. 138 of NI Act. The accused even though made half hearted attempts to take defence in his favour, he has not probabilised the same and thereby, failed to rebut the legal presumption. Hence, he is liable for conviction. 40. Regarding the alternative submission made by learned counsel for the accused that the accused is entitled to be released on probation either under Sec. 360 of Cr.PC or under Sec. 4 r/w Sec. 11 of Probation of Offenders Act, Sec. 360 of Cr.PC refers to an order to release on probation of good conduct. When a person under the age 21 years is convicted of an offence punishable with fine only or with imprisonment for a term of 7 years or less or the accused is a women, convicted for the offence punishable with death or imprisonment for life, when there is no previous conviction, the Court can proceed to release the accused on probation, instead of sentencing him at once to any punishment. But the accused does not fall under any of these category to apply Sec. 360 of Cr.PC. 41. I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court, which was confirmed by the First Appellate Court. Both the Courts have taken into consideration all the materials on record in a proper perspective and arrived at a right conclusion. I do not find any reason to interfere with the same. Hence, I answer the above points in the 'Negative' and proceed to pass the following: ORDER The application IA No.1/2023 is dismissed. The criminal revision petition is dismissed. The amount in deposit, if any, be transmitted to the Trial Court to appropriate towards fine and compensation. Registry is directed to send back the Trial Court records along with copy of this order.