Allowed

Mr K Murali v. Mr Nageshwara Rao M

Karnataka HC19 Sept 2024CRL.A/846/2015

Case brief

AI extract

What is this about?

The High Court set aside a High Court appellate order that had acquitted the respondent. The court held that the respondent admitted issuing cheques for a legal debt but failed to rebut the presumption under Section 139 of the NI Act with cogent evidence, thus maintaining the conviction.

What did the court decide?

Judgment of First Appellate Court set aside; conviction and sentence of Trial Court restored.

Mr K Murali Vs Mr Nageshwara Rao M — Cheque Dishonour | Karnataka HC (2024)

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1 - NC: 2024:KHC:38770 CRL.A No. 846 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA

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CRIMINAL APPEAL NO. 846 OF 2015 (A)

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BETWEEN:

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MR. K. MURALI S/O LATE N.V. KRISHNAN SINCE DECEASED BY HIS LRS SMT. SUBHAPRADHA SRINIVASAN W/O LATE K. MURALI @ MURALI SRINIVASAN AGED ABOUT 66 YEARS R/AT NO.250/A, 5^TH 'B' MAIN 2^ND 'A' CROSS, 2^ND BLOCK NEAR RAJKUMAR PARK KALYANNAGAR, BANGALORE - 560 043.

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…APPELLANT

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(BY SRI. B.R. PRASANNA, ADVOCATE)

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Digitally signed by SWAPNA V Location: high court of karnataka

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AND:

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MR. NAGESHWARA RAO .M S/O MR. BUCHAIAH CHARI AGED ABOUT 44 YEARS R/AT NO.343, PHASE 1 SAKET COLONY, KAPRA ECIL HYDERABAD.

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…RESPONDENT (BY SRI. VINOD KUMAR M., ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 08.05.2015 IN CRL.A.NO.25185/2014 ON THE FILE OF THE LVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BANGALORE (CCH-58) AND TO CONFIRM THE JUDGMENT DATED 05.11.2014 PASSED BY THE V ADDITIONAL SMALL CAUSE JUDGE AND XXIV A.C.M.M. COURT OF SMALL CAUSES, BANGALORE (SCCH-20) IN C.C.NO.26051/2012 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE M G UMA

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ORAL JUDGMENT

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The complainant in CC No.26051 of 2012 on the file of the learned V Additional Small Causes Judge and XXIV Additional Chief Metropolitan Magistrate, Court of Small Causes, Mayo Hall Unit, Bengaluru (hereinafter referred to as 'the Trial Court' for short), is impugning the judgment dated 08.05.2015 passed in Criminal Appeal No.25185 of 2014 on the file of the learned LVII Additional City Civil and Sessions Judge, Mayohall Unit, Bengaluru (CCH-58) (hereinafter referred to as 'the First Appellate Court' for short), in allowing the appeal preferred by the respondent - accused for the offence punishable under Section 138 of Negotiable Instruments Act (for short 'the NI Act'), by setting aside the judgment of conviction and order of sentence dated 05.11.2014 passed by the Trial Court and remanding the matter to the Trial Court for fresh consideration, after giving reasonable opportunity to the accused to put forth his defence.

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For the sake of convenience, the parties shall be

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referred to as per their rank and status before the Trial Court.

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Brief facts of the case are that, the complainant filed the private complaint in PCR No.9355 of 2010 before the Trial Court against the accused alleging commission of the offence punishable under Section 138 of NI Act. It is the contention of the complainant that the accused had approached the complainant during June-2008 and sought for financial assistance. The complainant had lent an amount of Rs.20,00,000/- (Rupees Twenty Lakhs Only) to the accused in between June 2008 to August 2008. The accused had issued the cheque as per Ex.P2 for Rs.25,00,000/- towards repayment of the loan amount. On presentation of the cheque, the same was dishonored as there was insufficient funds in the account of the accused. A legal notice as per Ex.P4 was issued to the accused informing him regarding dishonor of the cheque and calling upon him to repay the cheque amount. On receipt of the said notice, the accused issued two separate cheques marked as per Exs.P7 and P8 for Rs.8,50,000/- and Rs.23,00,000/respectively. When these cheques were presented for encashment, both the cheques were dishonored as there was

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insufficient funds in the account of the accused. The complainant issued the legal notice as per Ex.P10 and the same was served on the accused. The accused instead of repaying the cheque amount, issued reply taking untenable grounds. Thereby, he has committed the offence punishable under Section 138 of NI Act. Thus, the complainant requested the Trial Court to take cognizance of the offence and to initiate legal action.

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The Trial Court took cognizance of the offence and summoned the accused. The accused appeared before the Trial Court, pleaded not guilty and claimed to be tried. The complainant examined PWs.1 and 2 and got marked Exs.P1 to P20 in support of his contention. The accused denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C. He examined himself as DW1 and got marked Exs.D1 to D4 in support of his defence. The Trial Court after taking into consideration all these materials on record, proceeded to convict the accused for the offence punishable under Section 138 of NI Act, sentenced him to pay a fine of Rs.35,00,000/- and in default to undergo simple imprisonment for a period of one year. Out of the fine

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amount, Rs.34,50,000/- was ordered to be paid to the complainant as compensation.

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Being aggrieved by the same, the accused had preferred Criminal Appeal No.25185 of 2014. On reappreciation of the materials on record, the First Appellate Court allowed the appeal by setting aside the impugned judgment of conviction and order or sentence passed by the Trial Court and remanded the matter back to the Trial Court with a direction to give reasonable opportunity to the accused to put forth his defence and to dispose off the matter. It is stated after remand, CC No.26051 of 2012 is still pending before the Trial Court.

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Being aggrieved by the judgment of the First Appellate Court remanding the matter to the Trial Court for fresh consideration, the complainant is before this Court. During the pendency of this appeal, the complainant died and his legal representative is brought on record as per order dated 20.12.2023.

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Heard Sri B R Prasanna, learned counsel for the

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appellant and Sri M Vinod Kumar, learned counsel for the

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respondent. Perused the materials including the Trial Court records.

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Learned counsel for the appellant contended that availing loan of Rs.20,00,000/- in between June to August -2008 is not disputed by the accused. He had issued a cheque for Rs.25,00,000/- on 29.09.2009, which is produced as per Ex.P2. The said cheque was dishonored as there was insufficient funds in the account of the accused. A legal notice as per Ex.P4 was issued on 15.04.2010. After receipt of the legal notice, the accused had issued two separate cheques marked as per Exs.P7 and 8 on 08.05.2010 for Rs.8,50,000/- and on 25.05.2010 for Rs.23,00,000/- towards repayment of legally recoverable debt. Both these cheques were dishonored on presentation as there was insufficient funds in the account of the accused. The legal notice as per Ex.P10 was issued calling upon the accused to pay the said amount. Instead of repaying the cheque amount, the accused had issued the reply taking untenable grounds and thereby, he has committed the offence as stated above.

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Learned counsel submitted that the Trial Court on

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proper appreciation of the materials on record convicted the

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accused as stated above. But the First Appellate Court committed an error in forming an opinion that no reasonable opportunity was given to the accused to put forth his defence and remanded the matter to the Trial Court, which has caused prejudice to the complainant. Therefore, he prays for allowing the appeal by setting aside the judgment of First Appellate Court and to restore the judgment passed by the Trial Court.

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Learned counsel submits that the Trial Court has

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given ample opportunity to the accused to lead his defence. He has examined himself as DW1 and got marked Exs.D1 to D4 in his support of his defence. Later, he remained absent and NBW were issued repeatedly. In spite of that, the accused had not led any further evidence. Therefore, the finding of the First Appellate Court that no reasonable opportunity was given to the accused to put forth his defence is without any basis. Learned counsel has drawn the attention of the Court to the order sheet of this Court to contend that NBWs were issued to the respondent even through DG and IGP. Thereafter, he was represented by an advocate. But, even then the advocate had not appeared before the Court. Under such circumstances, it is a

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fit case for allowing the appeal. Accordingly, he prays for allowing the appeal.

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Per contra , learned counsel for the respondent opposing the appeal submitted that the respondent - accused was not given sufficient opportunity to put forth his defence. Even though the accused entered the witness box and examined as DW1, before completion of his evidence, his side was closed and the Trial court proceeded to convict the accused. The said judgment was challenged by preferring the appeal in Criminal Appeal No.25185 of 2014. The First Appellate Court on proper appreciation of the materials on record, allowed the appeal and the matter was remanded back to the Trial Court with a direction to give reasonable opportunity to the accused to put forth his defence. There is no illegality in the said judgment passed by the First Appellate Court, but order of remand is questioned by the complainant without any basis.

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Learned counsel submitted that the complainant has not placed any materials before the Trial Court to show his financial capacity or to prove actual lending of the amount.

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Under such circumstances, the Trial Court committed an error in convicting the accused.

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Learned counsel placed reliance on the decision of the Hon'ble Apex Court in K Subramani Vs K Damodara Naidu¹ to contend that when the complainant has not proved the existence of legally enforceable debt, the accused is entitled for acquittal. According to the learned counsel for the respondent, the complainant had not shown lending of the amount to the accused in his Income Tax returns. Therefore, his version is to be disbelieved.

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Learned counsel also placed reliance on the decision of the Hon'ble Apex Court in Sumeti Vij Vs M/s Paramolunt Tech Fab Industries² to contend that the initial burden on the complainant to prove the guilt of the accused beyond reasonable doubt is not discharged and therefore, the accused is entitled for acquittal. Accordingly, he prays for dismissal of the appeal in the interest of justice.

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1 2015 (1) SCC 99

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2 AIR 2011 SCC 1281

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In view of the rival contentions urged by learned

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counsel for both the parties, the point that would arise for my consideration is:

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"Whether the impugned judgment passed by the First Appellate Court suffers from perversity or illegality and calls for interference by this Court?"

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My answer to the above point is in the 'Affirmative' and pass the following:

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REASONS

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It is the specific contention of the complainant before the Trial Court that the accused had availed loan of Rs.20,00,000/- (Rupees Twenty Lakhs Only) in between June to August - 2008. Towards repayment of the said amount, the accused had issued the cheque for Rs.25,00,000/on 29.09.2009. On presentation of the cheque, the same was dishonored as there was no sufficient funds in the account of the accused. The cheque, which was dishonored is produced as per Ex.P2. The legal notice as per Ex.P4 was issued to the accused notifying him regarding dishonor of the cheque - Ex.P2 and calling upon him to pay the cheque amount.

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11 -

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It is the specific contention of the complainant that

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after receipt of the legal notice as per Ex.P4, the accused had issued two separate cheques marked as Exs.P7 and Ex.P8 dated 08.05.2010 for Rs.8,50,000/- and dated 25.05.2010 for Rs.23,00,000/-. Issuance of these cheques was towards repayment of legally enforceable debt. Even those cheques were dishonored and the legal notice as per Ex.P10 was issued calling upon the accused to repay the cheque amount. The accused had issued reply taking untenable contentions.

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The complainant in order to prove his contention examined himself as PW1, examined PW2 and got marked Exs.P1 to Ex.P20 in support of his contention. The accused has denied all the incriminating materials available on record and examined himself as DW1 and got marked Exs.D1 to D4 in support of his defence. However, the evidence of DW1 discloses that, he was examined in chief on 05.04.2014 and after examination in chief, cross examination of the witness was deferred. The order sheet of the Trial Court discloses that the accused remained absent and he never tendered himself for cross examination. NBW came to be issued against the accused on 19.04.2014. But in spite of that, his presence could not be

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secured. Finally, the Court proceeded to record that DW1 has not tendered himself for cross examination and proceeded to hear the matter on 16.09.2014 and 19.09.2014. Finally, the judgment came to be passed convicting the accused on 05.11.2014. Therefore, it is clear that the Trial Court has given a long rope to the accused to tender himself for cross examination in support of his defence. But such opportunity granted was not availed by the accused. Now the accused cannot turn around and contend that no reasonable opportunity was given to the accused to lead his evidence. The accused cannot be permitted to take advocate of his own wrong.

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Learned counsel for the respondent was not in a position to justify such conduct of the accused is not tendering for cross examination, when the Trial Court waited for almost 5 to 6 months even after issuance of NBW repeatedly to secure the presence of the accused before it. Therefore, the contention taken by the accused that he was not given opportunity to lead his rebuttal evidence cannot be accepted and accordingly, it is to be rejected.

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It is the contention taken by the complainant before

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the Trial Court that after receipt of legal notice as per Ex.P4, the accused had issued the cheques as per Exs.P7 and 8 towards repayment of legally recoverable debt. The accused is not disputing issuance of the cheque for Rs.25,00,000/- as per Ex.P2. He is also not disputing dishonor of cheque - Ex.P2 and receipt of legal notice as per Ex.P4. It is thereafter, Exs.P7 and 8 came to be issued by him. According to the case made out by the complainant, when the accused has not denied issuance of the cheque - Ex.P2, its dishonor and receipt of legal notice as per Ex.P4, he cannot contend that he had issued blank cheques in favour of the complainant and the same were misused by the complainant. There must be some foundation to be laid by the accused for the purpose of taking such defence. Under the peculiar facts and circumstances of the present case, the defence taken by the accused, cannot be accepted.

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I have taken into consideration the cross examination of PW1 and also the evidence led by DW1 in chief examination only to know the tenor of the defence taken by the accused. It is his contention that there was no financial transaction between him and the complainant. But the

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complainant promised him to get corporate fund to run his educational institution and therefore, got blank cheques with his signatures and also took his signature on blank bond papers. However, the witness states that he agreed to pay Rs.9,50,000/- to the complainant and out of which, he had already paid Rs.9,00,000/-. There is absolutely no explanation as to why he issued Ex.P2 for Rs.25,00,000/- on 29.09.2009. Even if Exs.D1 to 3 are to be taken into consideration, there is absolutely no reason for issuing Ex.P2 dated 29.09.2009. When accused admits receipt of legal notice as per Ex.P4, which is dated 15.04.2010, there is no reason as to why he has not issued any reply denying his liability to pay the cheque amount, that too, when a specific contention was taken by the complainant that after receipt of legal notice as per Ex.P4, the accused has issued two separate cheques as per Exs.P7 and 8 dated 08.05.2010 and 25.05.2010.

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It is pertinent to note that Ex.P15 is the reply notice dated 12.07.2010 contending that the complainant has promised to mobilize funds for the accused and the complainant had received Rs.20,00,000/- in cash as commission at 2% in anticipation of mobilizing about Rs.10,00,00,000/-. Apart from

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paying Rs.20,00,000/-, the accused has also issued three blank cheques with his signatures to the complainant as security. When the complainant is required to mobilize funds and in advance he has received Rs.20,00,000/towards his commission at 2%, there is absolutely no reason as to why the accused has to issue blank cheques as security.

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When the accused admits issuance of cheques as per Exs.P7 and 8 with his signatures, the initial burden on the complainant to prove issuance of cheques towards legally enforceable debt gets discharged. The burden shifts on the accused to rebut the presumption under Sections 118 and 139 of NI Act.

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The Hon'ble Apex Court in Rangappa Vs Sri Mohan³ , referring to its earlier decision is Krishna Janardhan Bhat Vs Dattatraya G Hegde⁴ , held that the presumption mandated under Section 139 of NI Act does in deed include the existence of legally enforceable debt or liability and to that extent, the observations in Krishna Janardhan Bhat (supra)

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3 (2010) 11 SCC 441

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4 (2008) 4 SCC 54

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was held to be not correct. The Hon'ble Apex Court further held in paragraphs 26 to 28 as under:

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"26. xxx

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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.

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27. Section 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 Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 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 confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of

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reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof.

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28. xxx

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Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of “preponderance of probabilities”. Therefore, if the accused is able to raise a probable defence 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."

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26. The Hon'ble Apex Court in Bir Singh Vs Mukesh

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Kumar⁵ , referred to its various decisions and highlighted the position of law that emerges from all those judgments and held in paragraphs 32, 34 and 36 as under:

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"32. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139

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5 (2019) 4 SCC 197

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that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post-dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act.

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34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.

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36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract the presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."

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The Hon'ble Apex Court again in Rohitbhai Jivanlal Patel Vs State of Gujarat and another⁶ held in paragraph 21 as under:

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"21. On perusing the order of the trial court, it is noticed that the trial court proceeded to pass

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6 (2019) 18 SCC 106

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the order of acquittal on the mere ground of “creation of doubt”. We are of the considered view that the trial court appears to have proceeded on a misplaced assumption that by mere denial or mere creation of doubt, the appellant had successfully rebutted the presumption as envisaged by Section 139 of the NI Act. In the scheme of the NI Act, mere creation of doubt is not sufficient."

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The Hon'ble Apex Court in Kalamani Tex and another Vs P Balasubramanian⁷ , considering its earlier decisions including the decisions in Basalingappa Vs Mudibasappa⁸ , Kumar Exports Vs Sharma Carpets⁹ , Rohitbhai Jivanlal Patel (supra) and Bir Singh (supra) held in paragraphs 13, 15, 17 as under:

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"13. Adverting to the case in hand, we find on a plain reading of its judgment that the trial court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established,

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7 (2021) 5 SCC 283

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8 (2019) 5 SCC 418

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9 (2009) 2 SCC 513

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then these “reverse onus” clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystallised by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat in the following words : (SCC pp. 120-21, para 18)

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“18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the trial court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have

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been raised for want of evidence regarding the source of funds for advancing loan to the appellantaccused.”

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15. No doubt, and as correctly argued by the Senior Counsel for the appellants, the presumptions raised under Section 118 and Section 139 are rebuttable in nature. As held in M.S. Narayana Menon v. State of Kerala, which was relied upon in Basalingappa, a probable defence needs to be raised, which must meet the standard of “preponderance of probability”, and not mere possibility. These principles were also affirmed in Kumar Exports, wherein it was further held that a bare denial of passing of consideration would not aid the case of the accused.

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17. 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, where this Court held that: (SCC p. 209, para 36)

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“36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards

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some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.”"

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Learned counsel for the appellant placed reliance on the decision of the Hon'ble Apex Court in Tedhi Singh Vs Narayan Dass Mahant¹⁰ . The Hon'ble Apex Court considered the facts of the case that the accused had in deed issued the reply notice had not set up any defence denying the financial capacity of the complainant to advance the loan. Even though the accused has taken the defence that the cheque in question was lost and the same was misused by the complainant, the Court observed that even the said defence was not raised in the reply notice. Under such circumstances, the defence taken by the accused at a later point of time was rejected. In the present case, even though the accused had issued the reply as per Ex.P15, no such specific defence was taken at the earliest.

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Learned counsel for the respondent placed reliance

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on the decision of the Hon'ble Apex court in K Subramani

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10 AIR Online 2022 SC 942

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(supra), wherein, the Hon'ble Apex Court referred to the its earlier decision in Rangappa (supra) and re-iterated the position of law in paragraph 8 as under:

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"8. A three-Judge Bench of this Court in the decision in Rangappa case laid down that the presumption mandated by Section 139 of the NI Act includes a presumption that there exists a legally enforceable debt or liability and that is 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. Relying on the said ratio the High Court answered the two legal issues raised by it in the impugned judgment. Though the criminal appeals were preferred against the judgment of acquittal passed in all the cases arising under Section 138 of the NI Act, the factual matrix and the evidence adduced were different. The High Court after answering the two legal issues did not consider the merits of each case individually and has simply remanded the matter to the trial court for fresh consideration."

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Learned counsel also placed reliance on the decision of the Hon'ble Apex Court in Sumeti Vij (supra) wherein, it is held in paragraph 21 as under:

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"21. That apart, when the complainant exhibited all these documents in support of his complaints and recorded the statement of three witnesses in support thereof, the appellant has recorded her statement under Section 313 of the Code, but failed to record evidence to disprove or rebut the presumption in support of her defence available under Section 139 of the Act. The statement of the accused recorded under Section 313 of the Code is not a substantive evidence of defence, but only an opportunity to the accused to explain the incriminating circumstances appearing in the prosecution case of the accused. Therefore, there is no evidence to rebut the presumption that the cheques were issued for consideration."

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On considering the decisions of the Hon'ble Apex Court in K Subramani (supra) and Sumeti Vij (supra), the Hon'ble Apex Court has re-iterated the settled position of law governing the presumption under Section 139 of NI Act. These decisions will not help the respondent in any manner to seek reversal of his conviction. When it is the settled position of law that when the accused admits issuance of the cheques with his signatures, the initial burden of the complainant gets discharged and the presumption under Sections 118 and 139 of

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NI Act would arise in favour of the complainant. The burden is on the accused to rebut those presumptions. Ofcourse, the standard of proof required to rebut the presumption is only to probabalise his defence i.e., to prove his defence by preponderance of probabalities and not as high as proof beyond reasonable doubt. But the accused is not successful in taking probable defence. Under such circumstances, he cannot contend that the complainant did not discharge his burden of proving either his financial capacity or actual lending of the amount.

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I have gone through the judgment of conviction passed by the Trial Court. It has taken into consideration the facts and circumstances of the case, in light of oral and documentary evidence and also the conduct of the accused in not tendering himself for cross examination, even after giving sufficient opportunity and issuance of NBW for securing his presence, proceeded to convict the accused. I do not find any illegality or perversity in the said judgment. The First Appellate Court without appreciating any of these materials on record, proceeded to allow the appeal preferred by the accused and remanded the matter with a direction to the Trial Court for

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fresh consideration after giving reasonable opportunity to the accused to put forth his defence. The First Appellate Court had no justification to remand the matter to the Trial Court with such directions when maximum leniency is shown in favour of the accused by granting time of more than 6 months for leading his evidence. Even after issuance of NBW repeatedly, the presence of the accused could not be secured to compel him to tender himself for cross examination.

¶141

The conduct of the respondent even before this Court discloses that to compel the presence of himself and his advocate, NBW came to be issued and only thereafter, the arguments on behalf of the respondent was addressed. Considering all these facts and circumstances and also the merits of the case, I am of the opinion that the accused is liable for conviction for the offence punishable under Section 138 of NI Act, as he fails to rebut the legal presumption under Sections 118 and 139 of NI Act. Hence, the impugned judgment passed by the First Appellate Court is liable to be set aside. Accordingly, I answer the above point in the affirmative.

¶142

27 - NC: 2024:KHC:38770 CRL.A No. 846 of 2015

¶143

REGARDING SENTENCE

¶144

Learned counsel for the respondent submitted that maximum leniency may be shown in favour of the respondent in sentencing.

¶145

Learned counsel for the complainant sought for restoration of the order of sentence passed by the Trial Court in the interest of justice.

¶146

The Trial Court has sentenced the respondent - accused to pay fine of Rs.35,00,000/- and out of the same, Rs.34,50,000/- was ordered to be paid to the complainant as compensation, in default to pay fine, the accused was sentenced to undergo simple imprisonment for a period of one year. The imposition of the sentence is quite reasonable and proportionate to the offence in question. Hence, I the proceed to pas the following:

¶147

ORDER

¶148

(i) The Criminal Appeal is allowed.

¶149

(ii) The judgment dated 08.05.2015 passed in Criminal

¶150

Appeal No.25185 of 2014 on the file of the learned LVII

¶151

28 - NC: 2024:KHC:38770 CRL.A No. 846 of 2015

¶152

Additional City Civil and Sessions Judge, Mayohall Unit, Bengaluru (CCH-58), is hereby set aside.

¶153

(iii) Consequently, the respondent - accused is convicted and sentenced for the offence punishable under Section 138 of NI Act, by restoring the judgment of conviction and order of sentence dated 05.11.2014 passed in CC No.26051 of 2012 on the file of the learned V Additional Small Causes Judge and XXIV Additional Chief Metropolitan Magistrate, Court of Small Causes, Mayo Hall Unit, Bengaluru.

¶154

Registry is directed to send back the Trial Court records along with copy of the judgment to the Trial Court for information and needful action i.e., to secure the presence of the accused and to issue conviction warrant.

¶155

Sd/(M G UMA) JUDGE

¶156

SPV/BGN CT:VS List No.: 2 Sl No.: 19

Mr K Murali v. Mr Nageshwara Rao M

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Mr K Murali v. Mr Nageshwara Rao M

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