(Prayer: This Criminal Appeal is filed Under Section 378(4) of Cr.P.C praying to set aside the order dated 25.11.2010 passed by the XIV ACMM, Bengaluru in C.C.No.30613/2007 - acquitting the respondent/accused for the offence punishable under Section 138 of N.I. Act.)1. This appeal is filed challenging the judgment of acquittal dated 25.11.2010 passed in C.C.No.30613/2007 on the file of XIV Additional Chief Metropolitan Magistrate, Bengaluru City.2. The parties are referred to as per their original ranking before the Trial Court as complainant and accused to avoid the confusion and for the convenience of the Court.3. The factual matrix of the case is that the complainant is a reputed International School in Bengaluru. The accused approached the complainant representing his expertise and contacts in matters of land conversion, approvals etc. The complainant paid the accused a sum of Rs.7,69,200/- towards the Government conversion fee and commission to handle the entire process of conversion of lands situated at Sarjapur, Anekal Taluk, with the permission of BMRDA of additional school room for the exiting school. The accused assured the complainant that he would get the land converted with the permission of concerned authorities. The complainant delivered necessary documents and made payments through UTI Bank to the accused and the accused failed to get the complainant's land converted as promised by him. He continued to receive the payments from the complainant and did not put any effort to get the conversion of land. The complainant came to know that the accused has not made any efforts and requested to return the payments paid towards the Government fee and commission. The accused was due to pay a sum of Rs.7,69,200/- and the accused issued a cheque bearing No.836761 dated 27.05.2007 for a sum of Rs.7,32,000/- drawn on ICICI Bank, Indira Nagar Branch, Bengaluru. He had promised and assured that the cheque would be honoured. When the same was presented, it was dishonoured with an endorsement "Funds insufficient". The complainant issued a legal notice to the address of the accused both by way of RPAD and UCP. The notice sent to the accused returned as "Addressee Left" dated 9.6.2007. The accused is deemed to have received the notice and has deliberately failed to comply with the demand. Without any other alternative remedy, the complainant has filed a complaint against the accused.4. The Trial Judge after taking the cognizance has secured the accused and the accused did not plead guilty. The complainant in order to substantiate his contention, he examined himself as P.W.1 and marked the documents as Ex.P.1 to P.11. The incriminating evidence against the accused was recorded under Section 313 of Cr.P.C. The accused also denied the issuance of cheque and lead evidence by examining himself as D.W.1 and got marked the documents as Ex.D1 to Ex.D8. The Trial Judge after considering both oral and documentary evidence has acquitted the accused. Hence, the present appeal is filed before this Court.5. The main grounds urged in the appeal is that the Trial Judge has committed an error in acquitting the accused and failed to take note of the mischievous act of the accused in issuing an unsigned cheque. The defense of the accused is that he did issue two cheques to the appellant-school as security deposit under the contracts between the complainant-school and the accused. The accused categorically admits that Exs.D4, D-7 and D-8, produced by the respondent himself, do not contain any clause or requirement for payment of security deposit and in the cross-examination also he admits that the contracts do not contain any clause for payment of security deposit. In spite of the said admission being elicited from the mouth of D.W.1, the Trial Court has committed an error in acquitting the accused, accepting the false defense. The accused did not dispute the receipt of the amount, but he claims that he did the work to the extent of Rs.8 Lakhs but nothing is placed before the Court except the exhibit 'D' series which are marked by the accused himself and the trial judge failed to take note of the said fact and erroneously acquitted the accused. It is also contended that the Judgment of acquittal is contrary to the well established principle of law under Section 139 of the Negotiable Instruments Act, 1881 ('the NI Act' for short), which mandates a presumption on the part of the Court that the cheque issued by the respondent is towards discharge of a debt or liability. The complainant had clarified that the agreement was oral with regard to the work of entrusting to the accused for conversion of the land and in spite of the claim of the complainant that it was an oral agreement, the Trial Judge has committed an error in coming to the conclusion that no document is produced to substantiate the work entrusted to the accused.6. The other contention of the accused is that the cheque had been forged and the trial Judge failed to take note of the fact that the said cheque has not been sent for any handwriting expert and also no steps was taken to lodge any complaint against the complainant and also not given any stop payment for the said cheque and in spite of the same the Trial judge has committed an error.7. It is the claim of the accused that he gave the cheque to Mr. Girish Nivas and he has not been examined before the Trial Court by the complainant and there was no requirement to examine the estate manager.8. Learned counsel appearing for the appellant/complainant, in his arguments vehemently contend that the work entrusted to the accused for conversion of the land is only an oral entrustment of the work and it is not the case of the complainant that a document came into existence. When such being the case, the Trial Court ought not to have come to the conclusion that no documents are produced.9. The learned counsel also would submit that the accused had provided the generator system to the School and his consultancy is also in respect of the maintenance of the generator and the accused also categorically admitted the payment made to him in respect of the work he has done. The accused is known to the complainant and hence the oral work was entrusted to him and the very accused himself relied upon the documents - Exs.D2 to D8 and as per his claim also the amount is only Rs.1,43,563/- is in respect of providing generator as well as the work done by him. But the subject matter of the cheque in question is involved is Rs.7,32,000/- towards the balance to be paid by the accused and he gave the said cheque towards the part payment since he did not convert the land belonging to the complainant-school. There was no explanation on the part of the accused for having received the amount of Rs.8,83,800/- in all. The Trial Judge has committed an error in coming to the conclusion that there are no documents entrusting the work to the accused to get it done the conversion of the land to the complainant's school. It is also important to note that it is the claim of the accused that he gave two cheques which are unsigned. No explanation regarding why he did not re-collect the cheques also. The accused not responded to the notice and also he has not given any complaint. When the accused claims that his signature was forged on the cheque, which was given as a security, the trial judge ought to have considered the admission elicited from the mouth of D.W.1. It is also important to note that the Bank has returned the cheque with an endorsement 'Funds Insufficient' and the Bank has not returned the cheque on the ground that the signature mismatches with the original signature of the accused and the signature available in Ex.P4. All these aspects have not been considered by the Trial Court.10. Learned counsel appearing for the appellant in support of her contentions, she has relied upon the judgments of the Apex Court, this Court and also Madhya Pradesh High Court.11. The learned counsel relying upon the Judgment of the Apex Court in the case of T.P. Murugan (Dead) thr. L.Rs. and Ors. v. Bojan reported in MANU/SC/0795/2018, she drew the attention of this Court to paragraph No.8 of the Judgment and would submit that there is statutory presumption that the cheque is issued in discharge of a legally enforceable debt or liability. The Apex Court also held in the Judgment that presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan.12. The learned counsel relying upon the judgment of the Madhya Pradesh High Court in the case of Sadhna Pandey v. Prakash Chand Jain reported in MANU/MP/1090/2014, she drew the attention of this Court to paragraph No.4 of the Judgment, discussed with regard to not giving any reply to the notice of the complainant and also the Court observed that when the banker of the applicant itself has not dishonoured the cheque on the ground of difference of the signature then, the applicant/accused would not take such defense. The learned counsel referring to this Judgment would contend that the endorsement issued by the Bank is not on account of any mismatch of the signature. When such being the case, the accused cannot contend that the signature of the accused was forged by the complainant.13. The learned counsel relying upon the judgment of this Court in the case of H.M. Satish v. B.N. Ashok reported in MANU/KA/7172/2007, she brought to the notice of this Court, paragraph No.7 of the Judgment and referring to the same would submit that in the case of denial of signature of drawer of a cheque, the best witness would be the concerned Bank Manager and not a handwriting expert and learned counsel referring to this Judgment would submit that though the accused contend that his signature was forged neither sent the said signature to the handwriting expert or examine the Bank Manager with regard to any difference in the signature.14. The learned counsel relying upon the judgment of the Apex Court in the case of L.C. Goyal v. Suresh Joshi and Ors. reported in MANU/SC/0159/1999, she brought to the notice of this Court, paragraph No.8 of the Judgment and referring to the same would submit that the Apex Court in this Judgment regarding forgery of signature held that the handwriting expert be examined in order to find out the genuineness of the signature and the cheque bounced not on account of the fact that the signature of the accused was not tallying with the specimen signature of the accused kept with the Bank, but on account of 'insufficient funds'. In the case on hand also, the learned counsel would submit that no such effort has been made either to send the cheque for handwriting expert and in the case on hand the cheque was returned on account of 'Funds Insufficient' and not mismatching the signature or forgery.15. The learned counsel relying upon the judgment of the Apex Court in the case of C.C. Alavi Haji v. Palapetty Muhammed and Ors reported in MANU/SC/2263/2007, she brought to the notice of this Court, paragraph No.16 of the Judgment and referring to the same, she would submit that the issuance of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the Court in respect of the complaint under Section 138 of the NI Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons, and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the NI Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the General Clauses Act and Section 114 of the Evidence Act. It is held that any other interpretation of the proviso would defeat the very object of the legislation. It is also observed in K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. (MANU/SC/0625/1999), if giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the NI Act.16. The learned counsel relying upon the judgment of the Apex Court in the case of K.N. Beena v. Muniyappan and Ors. reported in MANU/SC/0661/2001, she brought to the notice of this Court, paragraph No.7 of the Judgment and referring to the same, she would submit that the burden of proving consideration for a dishonoured cheque is on the complainant, is erroneous. Learned Judge had lost sight of Sections 118 and 139 of the NI Act. In a complaint under Section 138 of the NI Act, the Court has to presume that the cheque has been issued for a debt or liability. The presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused as held in the judgment of Hiten P. Dalal case.17. The learned counsel relying upon the judgment of the Apex Court in the case of Hiten P. Dalal v. Bratindranath Banerjee reported in MANU/SC/0359/2001, she brought to the notice of this Court, paragraph No.22 of the Judgment and referring to the same, she would submit that both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn.18. The learned counsel relying upon the judgment of this Court in the case of Usha Suresh v. R.V. Shashidaran reported in MANU/KA/0639/2005, this Court held that, whenever an accused leads rebuttal evidence to discharge the presumption initially raised in favour of the complainant, the Court must see whether the defense raised by the accused would be that of a prudent man.19. The learned counsel relying upon the judgment of the Madhya Pradesh High Court in the case of Ragini Gupta v. Piyush Dutt Sharma reported in MANU/MP/0115/2019, she brought to the notice of this Court, paragraph No.20 of the Judgment and referring to the same, she would submit that the Court has to take note of the conduct of the parties changing their stand from time to time. No specific suggestion was given to the respondent alleging that the cheque in question does not bear her signatures. No application was ever filed under Section 45 of the Evidence Act for sending her disputed cheque to the handwriting expert for examination of her signatures. On the contrary, specifically admitted that the signature on the cheque resembles with the specimen signatures in the Bank.20. The learned counsel referring to this Judgment would contend that in the case on hand when the accused disputes the signature available on Ex.P4 ought to have invoked Section 45 of the Evidence Act sending the same to get the opinion of the handwriting expert and the same has not been done.21. The learned counsel referring to all these judgments would submit that the trial judge had assigned the reasons that there was no agreement entrusting the work to the accused for conversion and also erred in coming to the conclusion that the notice was not served on him in spite of the very documents relied upon by the accused himself discloses the said address.22. The learned counsel also would submit that the complainant has not produced the postal cover addressed for sending the cheques to the complainant. The other observation that the cheque issued without signature itself creates a doubt regarding the case put forth by the complainant and it is the specific case of the complainant that the accused mischievously sent the cheque without the signature. The trial judge failed to consider the fact that the accused has not rebutted the case of the complainant and in spite of the same acquitted the accused erroneously. Hence, it requires an interference of this Court.23. Per contra, learned counsel appearing for the accused vehemently contend that there is no documentary evidence with regard to the service of notice. The learned counsel would submit that with regard to the service work entrusted to the accused in respect of the generator is not in dispute. The complainant has not furnished any material for having paid the service charges and the complainant has suppressed the said material and whatever the payment has been made in favour of the accused is in respect of the service rendered by him, the cheque is also not issued for any debt or loan and no material evidence before the Court that the cheque was issued towards legal debt. The accused has rebutted the case of the complainant as there is no legal debt. When such being the case, the same cannot be recoverable at the instance of the accused. The trial Judge has rightly acquitted the accused and the judgments relied upon by the learned counsel appearing for the complainant are not applicable to the case on hand.24. It is elicited from the mouth of P.W.1 that the accused was managing the affairs of maintaining the generator in respect of the complainant's school and the said amount was paid towards the services rendered by the accused and also towards the generator charges. The accused has taken a specific stand that a blank cheque was given as security and not given in respect of any liability. The complainant would contend that the cheques are sent through post and those postal covers are not produced for having sent the cheques through post and the trial judge in detail discussed the material on record and not committed any error. Hence, it does not require any interference of this Court.25. In reply to the arguments of the accused counsel, the complainant counsel would submit that the accused mischievously sent the unsigned cheque and thereafter he has issued the cheque marked as Ex.P4. It is categorically contend that the work entrusted to the accused for conversion only on oral contract and not on any written contract and Ex.P3 itself discloses that the payment was made towards conversion and accused categorically admits the payment made in terms of Ex.P3. When such being the case, the trial Judge ought not to have acquitted the accused.26. Having heard the arguments of the learned counsel appearing for the appellant/complainant and the learned counsel appearing for the respondent/accused and the grounds urged in the appeal memorandum also on perusal of the material available on record, the points that would arise for consideration of this Court are:-(1) Whether the Trial Judge has committed an error in acquitting the accused for the offence punishable under Section 138 of the NI Act?(2) What order?Point Nos.(1) and (2):27. Before considering the oral evidence, this Court would like to refer to the contents of the complaint and on perusal of the complaint, the complainant has contended in the complaint that the accused had claimed that he had expertise and contacts in matters of land conversion. Hence, the complainant availed the services of the accused and paid the amount of Rs.7,69,200/- towards the Government Conversion fee and commission to handle the entire process of conversion of lands of this School. When he did not do any work of conversion in discharge of the liability, he gave the cheque and the same was dishonoured.28. The complainant in order to substantiate his contention examined the financial controller and authorised signatory of the complainant school as P.W.1. P.W.1 reiterated the averments of the complaint in the affidavit and got marked the documents as Exs.P1 to P11. P.W.1 was subjected to cross- examination. In the cross-examination, he admits that the accused being the qualified person with regard to generators and he contacted him. It is also elicited that the accused has not given in writing regarding conversion and his consent agreeing to do the conversion work. But they have given in writing to the accused regarding conversion of the land and the details regarding the same and he can produce such documents. The accused has not given in writing specifically accepting the said offer and no document in writing for entrusting the work to the accused for conversion. He admits that the conversion of the land is not within the purview of BBMP but it is with BMRDA. He admits that out of 41 acres of land 21 acres of land has been converted into non-agricultural land and no assistance given by the accused for conversion of land. It is suggested that the school is in access of the BMRDA and concerned panchayath and the said suggestion was denied. It is elicited that the transaction with the accused started in the month of March 2006 and completed in the month of November 2006 and also admits that the amount was transferred to the account of the accused. No notice has been issued to the accused with regard to conversion of the land asking him to show any progress. There is no communication regarding the progress of the work within a span of 9 months from March to November 2006. It is elicited that since 2005, the accused was involved in the work of maintenance and installation of generators. It is further elicited that in the complainant-Institution, Ex.P3 is generated. As per Ex.P3, the complainant-Institution made five payments to the accused to the tune of Rs.8,83,800/-. It is also elicited that in column No.4 of Ex.P3 is in respect of consultation charges to the accused and an amount of Rs.2,43,000/- is towards the consultation fee of the accused. He also admits that in the complaint or in the legal notice or in his affidavit evidence not stated regarding the liability of the accused is to the tune of Rs.8 lakhs and odd and he can produce the letter dated 17.5.2006, which is referred in Ex.P3 and also he can produce the five vouchers, which is mentioned in Ex.P3. The cheque was in the custody of the accounts Section before presentation. It is elicited that there is a difference of Rs.1,51,600/- and regarding the same no mention is made in the complaint. The complainant- institution was waived Rs.37,000/- and asked the accused to make the payment for the remaining amount. In the audit report, the payments made to the accused are mentioned and the books of account are also audited. It is elicited that the accused has stopped rendering services to the Complainant- School in the month of June 2007. It is elicited that in the Ex.P9- Postal envelope, there is a shara that the same was returned to the sender as 'addressee left'. It is suggested that Exs.P4 and P11 are mis-used and tampered by the complainant-school authorities for the purpose of this complaint by forging the signatures of the accused and the same was denied.29. The accused in his evidence in the affidavit would contend that he has issued two blank cheques to the school authorities to get the contract work and the same were taken as security for his work and he has terminated his contract with the complainant since May 2007. It is also his evidence that the signature appears on cheque-Ex.P11 is not belongs to him and also he does not know how the complainant has arrived for an amount of Rs.7,32,000/- in spite of the payment made Rs.8,83,800/- in terms of Ex.P3 in his favour. It is also his evidence that he shifted his business in March 2006 to another place and no notice was served on him. Ex.P3 is the self-attested statement of the complainant and he is operating his business from 25.03.2006 in different place. He has produced the documents Exs.D1 to D8 and got marked the same. He was subjected to cross-examination.30. In the cross-examination, it is elicited that the complainant gave him two contract works. One was in the month of December 2005 and another contract work was in the month of November 2006. There is no mentioning of issuing cheques as a security in the contract agreements. Exs.D4 and D7 and D8 are the contract agreements. He also issued Exs.D5 and D6 to the complainant. He issued two cheques to the complainant one was in the month of December 2005 and another was in the month of November 2006. The signature on Ex.P4 does not belong to him. He has not taken any legal action against the complainant for forging the signature on Ex.P4. He has given Exs.P11 and P4 to estate Manager Sri Girish Nivas. He was residing and working in the address mentioned in Ex.D1 from March 2006. For the last six months, he has been residing in Indira Nagar. It is elicited that Ex.D8 is directly connected to Ex.D3. There was a contract between himself and the complainant with regard to maintenance of the generator. He has issued two cheques to the complainant in respect of three contracts. He also admits that he has received some payments from the complainant-School through Axis Bank Limited, also on UTI Bank Limited. Later, that Bank was changed his name as Axis Bank Limited. He did the work around Rs.8 to 9 Lakhs to the complainant-School. He does not know whether this fact was mentioned in the defense evidence or not. He can produce documents to show that the complainant-School made payment to the tune of Rs.8 to 9 Lakhs. He has exhibited four work orders with the complainant. He has worked for the complainant for the total amount of Rs.7 Lakhs. The work orders were already marked as Exs.D4, D7 and D8. He has not stopped the contract work with the complainant during the end of 2007. He used to work for the complainant only on the basis of a written contract. There were no disputes relating to work orders or bills during the period of three years, his work of contract with the complainant. After issuing cheques to the complainant he has not intimated to the Bank for stop payment. But he volunteers that he has issued two blank cheques without his signature. He admits that the payments received from 1.4.2006 to 31.3.2008 as mentioned in Ex.P3. It is suggested that he had offered the complainant to convert the School land and the same was denied and the suggestion was made that the complainant has paid the conversion charges of Rs.7,69,000/- on his assurance that conversion work will be completed within time and the suggestions are denied.31. Having perused both oral and documentary evidence, this Court has to examine the material available on record in consonance with the principles laid down in the Judgments referred supra by the complainant's Counsel.32. Regarding issuance of notice is concerned, Ex.P6 is the notice addressed to the accused in respect of the address mentioned as No.64, Krishnappa Building, Motappanapalya, Indira Nagar, Bengaluru-560 038. The said notice is dated 6.6.2007. The complainant in order to substantiate the issuance of notice relied upon Exs.P7 and P8-Registered Postal Receipts and also the Certificate of Posting in respect of the very same address. Exs.P9 and P10 are the returned postal covers in respect of the very same address, which were written as 'addressee left'.33. The learned counsel appearing for the complainant would submit that the document relied upon by the accused himself, particularly, Ex.D1 is dated 25.3.2006 and while entering into the Rental Agreement, the very same address was mentioned in the document and the said premises is in respect of residential premises. The complainant counsel also relied upon the document - Ex.D2 i.e., dated 15.12.2005 and so also Ex.D3 dated 27.1.2006; Ex.D4 is dated 19.12.2005-Purchase Order; Ex.D5 is the acknowledgement issued by the complainant dated 15.09.2006 and the address mentioned in the letter dated 14.9.2006, the very same address mentioned in other documents. Ex.D6 is the other document dated 10.1.2006; Ex.D7 is dated 10.11.2006-the work order issued by the complainant and Ex.D8 is dated 17.1.2006 i.e., annual maintenance order.34. Though the accused would contend that he shifted his business in terms of Ex.D1 in the march 2006 itself, the very document Ex.D5 is dated 14.9.2006 subsequent to the alleged shifting of his business and the same also discloses the very same address and he also relied upon the acknowledgment having given the same on 15.9.2006. Hence, it is clear that he continued the business in the very same premises. It is also important to note that Ex.D7-work order was also given to the accused on 10.11.2006.35. Having considered Exs.D5 and D7, it is clear that in respect of the notice sent to the address mentioned in the legal notice, the very same documents of the accused and also the complainant are exchanged between the parties. Apart from that, DW.1 in the cross-examination, he categorically admits that Ex.D1 which came into existence in March 2006 and he is residing and working in the said address, but he categorically admits from last six months, he is residing in Indira nagar and he was cross-examined on 19.1.2010 and this admission also takes away the case of the accused that he was residing and doing the business from 2006, cannot be accepted. Though the document - Ex.D1 is marked in order to proof of his address and the same has not been proved and the very answers elicited from the mouth of DW.1 is clear that he continued the business till 2009 and in the cross-examination made in 2010 he admits that he was doing the business from last six months in terms of the address mentioned in Ex.D1. Hence, document-Ex.D1 cannot be believed. On the other hand, Exs.D5 and D8, his own documents marked by him are clear that he continued the business in 2007 also. Hence, the very contention of the accused that no notice was served on him cannot be accepted. The Trial Judge has committed an error in coming to the conclusion that notice was not served on him without considering the admission of DW.1 and also the documentary proof-Exs.D5 and D7. The postal receipt discloses that the notice also sent through Under Certificate of Posting and hence the principles laid down in the judgment of the Apex Court in C.C. Alavi Haji's case (supra), is aptly applicable to the case on hand invoking Section 27 of the General Clauses Act and Section 114 of the Evidence Act.36. The very defense of the accused is that he gave the said two cheques without signing the same as security and the said contention also cannot be accepted for the reason that no person will accept the cheques without the signature for security. It is also important to note that in the cross- examination, he categorically admits that he has not given any complaint when the cheque of the accused is forged in respect of Ex.P4(a) and he says the signature on Ex.P4 is not of him and also not taken any legal action against the complainant for forging of his signature on Ex.P1. It is also important to note that he claims that those two cheques are given as security and admits that there is no mentioning of issuing cheques as security in the contract agreements. It is also important to note that he has not given any letter to the Bank for stop payment, but he volunteers that he has not signed the cheque. Hence, he has not given any intimation to the bank. It is important to note that when he claims that his signature was forged why he has not given the complaint, there is no explanation in this regard. It is also pertinent to note that he claims that he has received the amount and he did the work to the extent of Rs.8 to 9 Lakhs as admitted by him. Though he claims that he can produce the documents to show that he did the work to the extent of Rs.8 to 9 Lakhs, no documents are produced. The accused does not dispute Ex.P3 and he admits the payment made to him in terms of Ex.P3. It is also important to note that he claims the complainant gave two contract works one was in the month of December 2005 and another contract work was in the month of November 2006 and he is relying upon the document Exs.D4, D7 and D8, there is no dispute with regard to issuance of those documents. It is pertinent to note that in terms of Ex.D2- Consulting Charges for the renewal of Air Pollution and water for all the three sets claimed as Rs.29,500/- and the purchase order is Ex.D4. It is also pertinent to note that Ex.D5 to the tune of Rs.4,275/- and also Ex.D6 is in respect of the amount of Rs.39,950/- and so also Rs.30,000/- in terms of Ex.D7-work order. Ex.D8 in respect of the annual maintenance order Rs.39,838/-.37. Except these documents, the accused has not produced any document to show that he rendered the services to the tune of Rs.8 to 9 Lakhs as he contended in the evidence by taking into note of the entire claim of the accused considering the exhibit 'D' series it comes to Rs.1,43,563/-. The accused also not disputes that he has received an amount of Rs.8,83,800/-. It is also important to note that on perusal of Ex.P3, it discloses that the amount was also paid towards the conversion charges and also the amount transferred towards advance for Saharayu, Special allowance for Rajkumar and for Jessicaa as per letter dated 17.5.2006. Though PW.1 admits in the cross-examination that he can produce the said letter, the same is not placed before the Court.38. Having perused the oral and documentary evidence, no dispute with regard to payment of Rs.8,83,800/- and only contention of the accused is that the said payment was made towards the services he has rendered and having rendered his services also, he relied upon exhibit 'D' series and I have already pointed out that it will not exceed to the tune of Rs.1,43,563/-. It is also important to note that when the accused takes the defense that he has not signed the cheques, no legal action was taken against him and also it is important to note that he has not given any reply notice. Though he contends that the notice was not served, this Court referring to the documents had already come to the conclusion that notice was given but he has not given any reply when the reply was not given by t
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he accused, the very principles laid down in the judgments referred supra by the Apex Court with regard to the General Clauses Act as well as the service of summons when the accused did not pay the amount within 15 days, the Court has to draw the presumption though the accused denies the signature on Ex.P4(a) and on perusal of Ex.P4, the handwriting as well as signature are all signed by him and written by him with the very same ink pen. He ought to have sent Ex.P4 to a handwriting expert when he disputes the signature and the same has not been done.39. The Madhya Pradesh High Court in Sadhna Pandey's case (supra) and Ragini Gupta's case (supra), held that, the complainant ought to have invoked Section 45 of the Evidence Act to prove his defense that he has not signed the cheque.40. These are the aspects which have not been considered by the Trial Court while considering the material available on record both oral and documentary evidence and in the cross-examination of PW.1 also nothing is elicited to prove preponderance of probabilities of the case of the accused. PW.1 only gives the admission with regard to the transaction is concerned and having acquaintance with the accused and also admits that the payment was made in respect of consultation charges of the accused and it is clear that the services of the accused was availed for conversion of the land. No doubt, in the cross-examination of PW.1, it is elicited that no documentary proof with regard to entrusting the work to the accused for conversion of the land and then, the accused has to explain why he has received the amount more than Rs.7,50,000/- other than the exhibits he relied upon. There is no explanation on the part of the accused for having received more than Rs.7,50,000/-, when this Court comes to a conclusion that the document - Ex.P4 is issued by the accused only since he has not sent the document to the handwriting expert and the very theory of he has given the blank cheque as security cannot be accepted that too unsigned cheques.41. I have already pointed out that no prudent man will receive the unsigned cheque as security. Hence, the trial Judge has committed an error in coming to the conclusion that the accused has made out the case by rebutting the evidence of the complainant and preponderance of probabilities are made out. The trial Judge did not consider the material available on record in a proper perspective. The Trial Court ought to have drawn the presumption against the accused under Section 139 of the NI Act. When the accused though denied the signature when he has not sent the same to the handwriting expert and also not given any reply to the notice and instead of drawing the presumption in favour of the complainant, the trial judge believed the evidence of the accused and committed an error which amounts to perversity and also not considering the material available on record. Hence, it requires an interference of this Court.42. In view of the discussions made above, I pass the following:ORDER(i) The appeal is allowed.(ii) The impugned judgment of acquittal dated 25.11.2010 passed in C.C.No.30613/2007 on the file of XIV Additional Chief Metropolitan Magistrate, Bengaluru City, is hereby set aside.(iii) The accused is convicted for the offence punishable under Section 138 of the NI Act.(iv) The accused is directed to pay the fine amount of Rs.8,00,000/- to the complainant within eight weeks from today and in default of the payment of the fine amount, the accused shall undergo simple imprisonment for a period of one year.(v) The trial Court is directed to secure the accused if he fails to pay the amount and subject him to serve sentence.(vi) The Registry is directed to transmit the Trial Court records to the concerned Court, forthwith.