Sri Manjunath N Vs Ms Manjula B

THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASDIE THE ORDER OF CONVICTION PASSED IN C.C.NO.5599/2018 DATED 13.11.2019 BY HON'BLE COURT FO SMALL CAUSES AND XXVI ADDL.C.M.M., BENGALURU CONVICTING THE PETITIONER FOR

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THE OFFENCE P/U/S 138 OF N.I. ACT AND SENTENCING HIM TO PAY A FINE OF RS.5,50,000/- (RUPEES FIVE LAKHS FIFTY THOUSAND ONLY) IN DEFAULT OF PAYMENT OF SAID FINE AMOUNT, HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR 6 MONTHS, OUT OF THE SAID AMOUNT ACCUSED SHALL PAY RS.5,40,000/- (RUPEES FIVE LAKHS FORTY THOUSAND ONLY) TO THE COMPLAINANT/RESPONDENT AS PROVIDED U/S 357 OF CR.P.C. AND RS.10,000/- (RUPEES TEN THOUSAND ONLY) SHALL REMITTED TO THE STATE AS FINE AND CONFIRMED BY THE HONOURABLE LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-66) IN CRL.A.NO.2529/2019 JUDGMENT DATED 02.02.2021 CONFIRMING THE JUDGMENT OF TRIAL COURT AND TO ACQUIT THE PETITIONER/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS JUSTICE J.M.KHAZI

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ORAL ORDER

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In this petition filed under Section 397 r/w 401 Cr.P.C, the accused has challenged his conviction and sentence imposed by the trial Court for the offence punishable under Section 138 of N.I Act, which came to be confirmed by the Sessions Court by dismissing his appeal.

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For the sake of convenience, parties are referred to by their ranks before the trial Court.

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Complainant filed a complaint under Section

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200 Cr.P.C alleging that she and accused were working in M.I. Lifestyle company and in the course of time became friends. Accused requested the complainant for a hand loan of Rs.4,50,000/- to buy a Maruti Baleno car. When complainant expressed her inability to pay such huge amount, accused suggested her to avail loan from the Bank and give it to him and he would repay the loan along with the interest. In order to help the accused, complainant borrowed personal loan of Rs.3,40,000/- from

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the Bank on 08.09.2017 and transferred the same to the account of the accused through NEFT. In addition to it, she also paid a sum of Rs.1,10,000/- to the accused by cash by borrowing the said amount from her sister Indiramma.

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3.1 However, accused failed to repay the installments, except payment of Rs.7,000/and

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Rs.8,000/-. On repeated request and demand accused

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issued a post dated 09.10.2018 cheque for Rs.4,50,000/-

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with an assurance that on presentation, it will be

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encashed. When complainant presented the cheque for, it was returned with endorsement “Funds Insufficient”. When complainant personally met the accused and informed about the dishonour of the cheque, he promised to pay the amount, but failed. Therefore, complainant got issued legal notice. Despite service of the notice accused has neither paid the amount due nor sent any reply and hence the complaint.

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Accused contested the case by pleading not

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guilty.

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In order to prove the allegations against the

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accused complainant has given evidence as PW-1. She has relied upon Ex.P1 to 7.

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During the course of his statement under Section 313 Cr.P.C accused has denied the incriminating evidence led by the complainant.

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Accused has also entered into the witness box by examining himself as DW-1. No documents are marked on his behalf.

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Both trial Court and Sessions Court accepted the case of the complainant and convicted the accused. He is sentenced to pay fine of Rs.5,50,000/- with the default sentence of imprisonment.

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9. In this petition, accused has challenged the

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concurrent findings of the trial Court and Session Court contending that the complainant has failed to establish that he availed the loan to help the accused to purchase car. However, during the course of cross-examination, complainant has admitted that she had business transaction with the accused and availed loan for business purpose. She has also admitted that periodically accused has deposited certain sum to her account. It is the profit

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given by the accused to the complainant for the investment made by her. Complainant has failed to

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establish that the cheque was issued towards repayment of legally recoverable debt or liability. The trial Court as well as the Sessions Court have not appreciated the evidence in proper perspective and as such their conclusions are perverse. Viewed from any angle the impugned judgment and order are not sustainable and pray to set aside the same and acquit him.

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On the other hand, learned counsel for

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complainant submitted that in the light of presumption under Section 139 of the N.I Act, initial burden is on the accused to rebut the presumption, only after which the burden would shift on the complainant to prove her case. However, accused has failed to rebut the presumption. Accused admitted the fact that he has received the amount from the complainant, which she has availed by way of loan and also from her sister. In the light of the presumption, burden is on the accused to establish that the said amount received by him was for business. However, he has miserably failed to discharge the initial

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burden. He would submit that accused has not sent reply to the legal notice, but he has come up with a defence that the cheque in question was stolen by one Mangala and given to the complainant to file the complaint. He has also failed to prove this defence. No fault could be found with the concurrent findings of the trial Court and Session Court and sought for dismissal of the petition.

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Having regard to the fact that the cheque in question is drawn on the account of the accused maintained with his banker and it bears his signature, presumption under Section 139 of N.I Act that the cheque was issued towards repayment of any legally recoverable debt or liability is operating in favour of the complainant, placing the initial burden on the accused to rebut the same. Only after the presumption is rebutted, the burden would shift on the complainant to prove her case.

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Accused is not disputing the address to which legal notice was sent, which is same as in the complaint.

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The postal track reported at Ex.P5 state that the legal notice is delivered to the address. Admittedly, accused has

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not sent any reply to the legal notice. He has come up with a defence that at the time of alleged service of notice, he was in judicial custody. Even though PW-1 admit that accused was in judicial custody in respect of a complaint filed by their friend and colleague Mangala, accused has not produced any documents to show the exact period during which he was in judicial custody. Even where it is accepted that accused was in custody when the legal notice was delivered at his address, on coming to know about the notice, he could have instructed his counsel to send reply. It is not the case of the accused that had he come to know about the notice, he would have paid the amount due. As held in C.C.Alavi Haji Vs. Palapetty Muhammed and Anr. ( C.C.Alavi Haji )¹ , if the accused was willing to pay the amount due under the cheque, had he received the legal notice, then on his appearance before the trial Court within 15 days, he may pay the amount and

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1 (2007) 6 SCC 555

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get the case dismissed. Since the accused is disputing that he has received a loan, this situation is not applicable to the present case.

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Accused has come up with a defence that complainant has invested Rs.3,40,000/- availed by way of loan from the bank in the business of the company and in turn he has supplied goods worth Rs.2,00,000/- to the complainant and for the remaining Rs.1,40,000/- he has sold the products and transferred the profit to the account of the complainant. Of course, complainant has disputed

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that the money paid by her to the accused is an investment in the company run by him and she has received the profit. During his cross-examination, the accused has admitted that whatever amount that would be invested in the company would be transferred to the account of the company and the profit would also be transferred from the account of the company to the investor.

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In the present case accused has not produced any documents to show that the money paid by complainant was an investment and it has gone to the account of the company. Even though the complainant has admitted that periodically accused and his father have credited a sum of Rs.8,000/- each to the account of the complainant, but she has explained that these payments are subsequent to the filing of the complaint. It appears after the complainant choose to prosecute the accused, he and his father credited certain sums into the account of the complainant.

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The accused has also come up with the defence

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that the cheque in question was stolen by Mangala when he was in judicial custody and given to the complainant, on the basis of which she has filed the complaint. The accused has not led any evidence to show where exactly he had kept the cheques, which are stolen by the said Mangala. Of course, the said Mangala has filed a complaint against the accused alleging that under a promise of

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marriage, accused sexually exploited her and ultimately refused to marry her and in that connection accused was in judicial custody. However, he has failed to prove that cheques belonging to him were stolen by Mangala and one such cheque was misused. He has also not made it clear when he came to know about the alleged theft of cheques. At least after coming to know about the alleged theft of cheques, accused ought to have instructed his banker not to honour the cheques. At the earliest available opportunity, he could have sent reply to the legal notice taking such defence. Perusal of the entire oral and documentary evidence placed on record makes it evident that accused has taken up a false defence and failed to prove the same.

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On the other hand, the complainant has proved that she borrowed a sum of Rs.3,40,000/- from the bank and transferred the same to the account of accused. She has collected remaining Rs.1,10,000/- from her sister and paid to the accused. Towards repayment of the same, the

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accused has issued the cheque which came to be dishonoured, giving rise to the cause of action for the complaint. Based on the oral and documentary evidence placed on record, the trial Court as well as the Sessions Court have rightly held that the allegations against accused are proved, convicted and sentenced in accordance with law. There is no perversity in the conclusions arrived at by them, calling for interference by this Court. In the result, the petition fails and accordingly the following:

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ORDER

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Petition filed by the accused under Section 397 r/w 401 Cr.P.C is hereby dismissed.

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The impugned judgment and order dated 13.11.2019 in CC.No.5599/2018 on the file of Judge, Court of Small Causes and XXVI ACMM, Bengaluru and judgment and

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order dated 02.02.2021 in

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