(Prayer: This Criminal Appeal is filed Under Section 378(4) of Cr.P.C praying this court to set aside the order dated 24.12.2010 passed by the XVIII ACMM & XX ASCJ, Bengaluru in C.C.No.32811/2006 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 24.12.2010 passed in C.C.No.32811/2006, on the file of the XVIII ACMM and XX ASCJ, Bangalore City.2. The parties are referred to as per their original ranking before the Trial Court as complainant and accused in order to avoid the confusion and for the convenience of the Court.3. The factual matrix of the case is that the complainant had filed a complaint under Section 200 of Cr.P.C. claiming that the accused in discharge of her liability had issued two cheques dated 30.06.2006 for a sum of Rs.5,90,000/- and Rs.60,000/-, drawn on State Bank of Mysore, Jayanagar Branch, Bangalore, in favour of the complainant. When the complainant presented the cheques for encashment with her banker, the cheques were returned with an endorsement dated 14.07.2006 for the reason 'payment stopped' and the same was communicated on 16.07.2006. The complainant got issued legal notice through RPAD and UCP on 10.08.2006 calling upon the accused to pay the cheque amount. The notice sent through RPAD and UCP were duly served on the accused. Inspite of receipt of legal notice, the accused neither replied nor came forward to comply the demand. Hence, the complaint came to be filed.4. In pursuance of the summons issued by the Court, the accused appeared and did not plead guilty. Hence, the complainant got examined herself as P.W.1 and got marked the documents at Exs.P.1 to 14. The statement of the accused was recorded under Section 313 of Cr.P.C. The accused got examined herself as D.W.1 and got marked the documents at Exs.D.1 to 9. The Trial Judge after hearing the respective counsel and considering the material available on record, acquitted the accused. Hence, the present appeal is filed before this Court.5. The grounds urged in the appeal are that the Trial Judge has committed an error in acquitting the accused, which leads to miscarriage of justice. Unimpeachable oral and documentary evidence brought on record would manifestly indicate that the accused had issued the subject matter of the cheques in question. Inspite of that, the Trial Court has committed an error in acquitting the accused. The Trial Judge ought to have drawn an initial presumption in favour of the complainant. Even though the accused did not rebut the evidence of the complainant, the Trial Judge committed an error in acquitting the accused. The evidence on record led by the accused is that she does not know any activities/affairs of the factory and the entire administration and the business transactions are taken care of by her husband and her son and she was not at all concerned with any of the activities. Without adverting to this vital piece of evidence available on record, the Trial Judge for unjustifiable reasons, has given a finding in favour of the accused. The misreading of the evidence has resulted in acquitting the accused. The accused went on changing her colours from time to time. The cheques were filled except the name of the drawer and it was signed and kept ready for being issued to the party from whom they intended to purchase the raw materials and the said cheques were stolen by the complainant in the chambers of the factory of the accused. During the course of her examination-in-chief, the accused has given total go by to what she has stated earlier. She has even gone to the extent of denying the signature found on the cheques. Nothing prevented the accused to get the cheques referred to the handwriting expert for examination and opinion, if the cheques were forged. The accused could not have kept the cheques filled by even filling the amount column, signing the same and mentioning the date. It is evident that the accused was having the habit of issuing the cheques to their creditors for the discharge of their liability. The Trial Judge has chosen to place reliance on the uncorroborated, contradictory, false and fabricated evidence brought on record by the accused. Without adverting to the material available on record, the Trial Judge has acquitted the accused on the basis of surmises and inferences and failed to take note of the fact that one more civil suit is filed in connection with the transaction.6. The learned counsel appearing for the appellant/complainant would submit that in respect of other cheque, a suit was filed and the same was decreed. Against the decree, the accused had filed RFA and the same is also dismissed. The accused after receipt of the notice, has filed the PCR and the same was also dismissed for non-prosecution. Even though the accused has not rebutted the case of the complainant, the Trial Judge has wrongly appreciated the material available on record and erroneously came to the conclusion that the complainant has not approached the Court with clean hands. The very approach of the Trial Court is erroneous.7. In support of his contentions, the learned counsel appearing for the appellant/complainant relied upon the judgment of this Court passed in RFA No.1111/2010 dated 11.03.2014. Referring this judgment, the learned counsel would submit that the accused had given three cheques and in respect of one cheque, civil suit is filed and the same is decreed and thereafter appeal is also filed and this Court dismissed the appeal of the accused on merits. The case of the accused is that other two cheques were stolen and in order to substantiate the same, no cogent evidence is placed on record.8. The learned counsel also relied upon the judgment of the Hon'ble Apex Court in the case of KISHAN RAO v. SHANKARGOUDA reported in (2018) 8 SCC 165. Referring this judgment, the learned counsel would submit that the Apex Court in paragraph Nos.18 to 22 discussed in detail with regard to the presumption in coming to the conclusion that it can draw the presumption in favour of holder of the cheque. If the same is not rebutted by the accused by leading cogent evidence, the Court cannot accept the defence of the accused. Referring this judgment, the learned counsel would submit that the accused was convicted by the Trial Court and the same was reversed by the High Court while exercising revisional jurisdiction for setting aside the said conviction and the judgment was reversed and conviction was restored. In the case on hand also, inspite of material placed with regard to the transaction, the Trial Judge has committed an error in coming to the conclusion that the evidence of the complainant has been rebutted.9. The learned counsel also relied upon the judgment of the Apex Court in the case of APS FOREX SERVICES PVT. LTD. v. SHAKTI INTERNATIONAL FASHION LINKERS AND OTHERS reported in 2020 SCC ONLINE SC 193. Referring this judgment, the learned counsel would submit that if the issuance of cheque is admitted and the cheque in question was issued, there is always a presumption in favour of the complainant that there exists a legally enforceable debt or liability. If the evidence led by the complainant is not rebutted, the evidence of the accused that the cheque has been misused by the complainant, is not tenable.10. Per contra, the learned counsel appearing for the respondent/accused would submit that the complainant in the cross-examination has admitted that while lending the money, she had collected the receipt from the husband of the accused. Though, she admits that she can produce the said receipt before the Court, she did not produce the same. The other defence is that the cheques are stolen from the factory and a complaint is filed before the Court. The stop payment instructions was also given requesting the bank not to honour the cheques on the ground that the cheques were misplaced. Ex.D.1 is with regard to the cheques are stolen. The learned counsel would submit that Ex.D.5 discloses that she was having over draft facility to the tune of Rs.8,00,000/- in her account. When the notice was given, reply was given in terms of Ex.D.2 specifically contending that the cheques were stolen. The complainant in the cross- examination admits that she paid the amount by cash as well as through the cheque of her son and no material is placed before the Court that the cheque of the son of the complainant was honoured and no bank statement is produced. When the complainant fails to produce the receipt as well as bank statement with regard to having paid the amount, the case of the complainant cannot be believed. The accused leading the cogent evidence before the Trial Court, rebutted the case of the complainant. Hence, the complainant cannot contend that the evidence of the complainant has not been rebutted.11. In reply to the arguments of the learned counsel for the accused, the learned counsel for the complainant would submit that the date of loan is dated 19.08.2003 and the notice is also evident with regard to the same. Even though the defence claims that the cheques are stolen, no action was taken and the Appellate Court in RFA in paragraph No.6 made a categoricall observation. The learned counsel also reiterated the principles laid down in the judgments referred supra. Hence, prayed this Court to set aside the judgment of the Trial Court.12. Having heard the arguments of the respective learned counsel and also on perusal of the grounds of the appeal, the points that arise for the consideration of this Court are:(i) Whether the Trial Court has committed an error in acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act?(ii) What order?Point Nos.(i) and (ii):13. Having heard the submissions of the respective learned counsel, this Court has to re-appreciate the evidence available on record, since the complainant has challenged the order of acquittal. This Court being the Appellate Court can reconsider the material available on record. Before considering both oral and documentary evidence placed on record, this Court would like to refer to the contents of the complaint. On perusal of the complaint, the complainant in the complaint has stated that the accused had given two cheques dated 30.06.2006 for a sum of Rs.5,90,000/- and Rs.60,000/- in discharge of the liability. When the said cheques were presented, the same were returned with an endorsement 'payment stopped'. Inspite of the receipt of notice, the accused did not choose to pay the amount. The complainant in her evidence reiterated the averments of the complaint and got marked the documents at Exs.P.1 to 14.14. P.W.1 was subjected to cross-examination. In the cross-examination, P.W.1 admits her elder son was working and drawing salary of Rs.10,000/- per month and her daughter was also working in the Call Centre and drawing salary of Rs.12,000/- per month. Except these two income, she was not having any other income. But she claims that her mother was economically helping her and also providing food articles to her house. She claims that her mother was working as Aya in the Government Hospital and also claims that she was staying in a leased house. Both the complainant and the accused were staying in Someshwaranagar and she was having acquaintance with the accused for the last 15 years and the accused is a friend. It is her evidence that on 19.08.2003, she gave an amount of Rs.2,40,000/- to the accused. Rs.1,70,000/- by way of cash and Rs.70,000/- through her son's cheque in the name of the husband of the accused. At that time, accused, husband of the accused, son of the accused Santhosh, daughters of the accused Mamatha and Sapna, herself, her children Mahesh and Vanitha were present. Except these persons, no other person were present. The complainant also says that when the amount was given, she obtained a receipt from the husband of the accused and she has not produced the same before the Court. The same is in her custody and there is no impediment to produce the same before the Court.15. P.W.1 also admits that she has filed a civil suit against the accused through advocate Shivaram for recovery of the amount. It is also elicited that in the said suit she has stated that the accused gave the cheque when she availed the loan for purchasing the site. P.W.1 says that she does not remember the cheque number, but claims that it is dated 30.05.2006 and for an amount of Rs.6,50,000/-. It is suggested that the accused had filed the complaint against her that she has stolen three cheques, and the same was denied, but she admits that the accused gave notice to her counsel Shivaram. P.W.1 says that the accused is claiming that the cheque was given in 2004, but the cheque was given in 2006. The accused gave the cheque in her house and the same is in the handwriting of the accused only. She also admits that the accused is her good friend. It is suggested that she used to visit the factory of the accused, and the same was denied. She admits that she used to visit the house of the accused. It is suggested that she went to the factory of the accused without the knowledge of the accused and stole the cheques and made use of Exs.P.1 and 2 in order to cheat the accused, and the same was denied. It is suggested that she has not produced any documents for having paid the amount to the accused, and the same was denied. It is also suggested that she has filed a false case against the accused and not having the source to keep the said amount in her house, and the said suggestions are denied.16. The accused examined herself as D.W.1. D.W.1 in her evidence says that the complainant is her friend and she was her neighbour and she frequently visiting her house and factory. The complainant taking undue advantage has manipulated these cheques and she never lent any money to her and she has no capacity to lend such huge money. D.W.1 says, as usual on 24.04.2006 at about 11.00 a.m., the complainant had visited her factory. When she gone to the working place to watch the factory workers, the complainant had entered her chamber and stole three cheques which were kept on her table, including the cheques in question, which are produced i.e., Exs.P.1 and 2 and also another cheque for Rs.6,50,000/- dated 30.04.2006. When she enquired the complainant about the cheques, the complainant pretended that she is an innocent. Failing to trace the abovementioned cheques, she had instructed her banker to stop the payment on 27.04.2006 in terms of Ex.D.1. Only the amount and date without any name was entered by her staff and not by her and the attestation of signature by her was also in confusion, to the safer side to avoid misuse, it was written as signed. When she received the legal notice dated 19.05.2006 from the complainant counsel, she confirmed that the stolen cheques were with the complainant and gave the reply to her counsel to return all the cheques, including the cheque in O.S.No.8540/2007. It is also her evidence that after the receipt of legal notice from the complainant, she filed PCR against the complainant and relied upon the documents - reply notice and copy of the complaint as Exs.D.2 and 3. It is also her case that she had sufficient balance on the date when the cheques were presented, more than both the cheques, passed for collection. But the said cheques were cancelled as per her request. Her account is a over draft account with a limit of Rs.8,00,000/- and payment will be made above that limit also and the copy of bank statement is produced as Ex.D.5. D.W.1 was subjected to cross- examination.17. In the cross-examination, she admits that she is the Proprietrix of Prem Industries. It is also elicited that while purchasing the raw materials, the employees of the factory used to go and bring the same by giving cheque and cash. It is also elicited that her husband and son were looking after the business and she was not looking after the business. She admits that Exs.P.1 and 2 belongs to her bank account, but claims that she has not signed Ex.P.1(a) and 2(a). She admits that she came to know about the theft of those cheques on the very same day and she did not give any complaint in the Police Station and there was no impediment to lodge the complaint on that day and also on the next day. However, she admits that till date she has not given any complaint in the police Station. When the question was put to her that in the stop payment letter, whether there was any difficulty to mention where she lost the cheques and on what date she lost the cheques, she replies she is not aware of the same.18. It is also elicited that raw materials worth lakhs of rupees were purchased for the factory and she is not aware of the same, but she claims that her husband is aware of it. D.W.1 also admits that unless the value of the raw material is known to her, it is not possible to give the amount towards the raw material. D.W.1 admits that Ex.D.2 does not bear her signature and also the signature of her advocate. It is also elicited that the complainant gave the complaint against her husband in connection with the financial transaction in Siddapura Police Station. But she claims that a false complaint is filed by the complainant. D.W.1 also admits that based on the said complaint, case is pending in II ACMM Court. D.W.1 also admits that earlier before the Court she had agreed to pay an amount of Rs.10,00,000/- to the complainant, but she volunteers that the complainant gave a false complaint against her husband and made galata and hence she agreed to pay the amount. It is suggested that the cheques were given towards discharge of liability and she is deposing falsely, and the said suggestion was denied. D.W.1 was further examined and got marked the documents Exs.D.6 to 9, complaint copy given to Siddapura Police Station, endorsement and two complaints given in Siddapura Police Station. In the cross-examination, copy of the judgment passed in O.S.No.8540/2007 was confronted to D.W.1 and the witness admits the same and the same is marked as Ex.P.14.19. Having perused both oral and documentary evidence placed on record, it is the case of the complainant that in discharge of the liability, the accused gave two cheques - Exs.P.1 and 2. The defence of the accused is that both the complainant and the accused are friends. Both P.W.1 and D.W.1 admit the same. D.W.1 claims that P.W.1 used to visit her house as well as factory. But P.W.1 claims that she used to visit the house of D.W.1 and not factory. It is important to note that in the cross-examination of P.W.1 she admits that her son and daughter are working and getting monthly salary of Rs.10,000/- and Rs.12.000/- respectively and other than that she was not having any source. She claims that her mother was helping her economically and also providing food articles, since her mother was also working in the Government Hospital. It is elicited in the cross-examination of P.W.1 that she gave an amount of Rs.1,70,000/- on 19.08.2003 by way of cash and an amount of Rs.70,000/- was paid through the cheque of her son. While advancing the amount, the family members of both the family were present. P.W.1 admits that she obtained the receipt from the husband of the accused. Though she claims that she is not having any impediment to produce the same, but she did not produce the same before the Court. It is elicited in the evidence of P.W.1 that she filed a civil suit in respect of cheque for an amount of Rs.6,50,000/-. P.W.1 claims that the cheque was given in the house of the accused and the same was filled up by the accused herself. Except these answers, nothing is elicited from the mouth of P.W.1.20. In the cross-examination of D.W.1 she says that the cheques were kept ready in the factory in order to buy the raw materials. She also admits that her husband and her son were taking care of the business. It is important to note that D.W.1 admits in the cross-examination that the cheques belong to her account, but denies the signature Exs.P.1(a) and 2(a). She admits the signature available on Ex.D.1. It is important to note that on perusal of signature available on Ex.D.1 and the signatures available on Exs.P.1 and 2, there is similarity in the signature. This Court can compare the same under Section 73 of the Evidence Act. Though the accused in her chief evidence in paragraph No.13 denies the signature and contends that the signatures are forged, she did not choose to send Exs.P.1 and 2 for handwriting expert to obtain the report and no such effort is made by the accused. Only denied the transaction. It is also important to note that with regard to these chequres are stolen, she has not given any compliant in the Police station, except sending the letter to the bank in terms of Ex.D.1. D.W.1 categorically admits that there was no impediment for her to give the complaint in the Police station. It is important to note that though she claims that her staff put the date and amount in those cheques, it is elicited that unless the value of the raw materials are known to her, it is not possible to make the payment.21. It is also important to note that the husband of the complainant gave the complainant against the husband of D.W.1 in Siddapura Police Station and based on the said complaint, a case was pending before the II ACMM. It is elicited in the cross- examination that before the Court D.W.1 had agreed to pay an amount of Rs.10,00,000/-, but she volunteers that when false complaint was given against her husband, she made such statement. If really the accused was not liable to pay any amount, what made her to pay Rs.10,00,000/- before the Court, there is no explanation on the part of the accused. It is also important to note that civil suit filed by the complainant is also decreed and the same is also challenged by the accused by filing an appeal and the same is also dismissed in RFA No.1111/2010 dated 11.03.2014. It is important to note that no doubt in the case on hand, the accused disputes the signature on Exs.P.1 and 2 and I have already pointed out that when the accused claims that those cheques are forged, she ought to have sent the documents for handwriting expert. In one breath she claims that cheques are stolen and in another breath admits that before the Court earlier she agreed to pay an amount of Rs.10,00,000/-. What made her to agree to pay Rs.10,00,000/- before the Court, there is no explanation except stating that a false complaint was given and agreed to pay. For mere filing of false complaint, the question of paying Rs.10,00,000/- does not arise.22. It is important to note that she claims that she kept the cheques ready in the factory to make the payment towards the raw materials. But she categorically admits that unless she knows the value of the raw materials, the amount cannot be filled. It has to be noted that the accused does not dispute the fact that the cheques belong to her account and also amount filled in the said cheque. On perusal of Ex.D.1, the accused while giving instructions to the bank, specifically mentioned the date of the respective cheques and also the amount. It is also elicited in the cross-examination that she has not given any complaint when she came to know about the theft of the cheques. But she had filed the complaint before the Court in terms of Ex.D.4 that too after receiving the notice. Ultimately the said complaint was also dismissed and the same did not reach any logical conclusion. Though the accused produced several documents before the Court to substantiate the defence, those documents are not helpful to the case in view of the admissions elicited from the mouth of the accused. No doubt, though the complainant admits that she is having receipt for having lent the money, but she has not produced the same. Mere non-production of the receipt and statement of account of her son are not a ground to disbelieve the case of the complainant. The very admission elicited from the mouth of the accused takes away the case of the defence. It is also highly impossible to believe that she kept the cheques filling the date as well as amount in the table of her factory. No ordinary prudent man will keep the cheques on the table putting the date and mentioning the amount. Taking note of both oral and documentary evidence placed on record, the accused has not rebutted the case of the complainant by placing cogent evidence before the Court. The judgment of the Apex Court in the case of UTTAM RAM v. DEVINDER SINGH HUDAN AND ANOTHER reported in (2019) 10 SCC 287 is aptly applicable to the case on hand. Mere contending that the cheques are stolen is not enough and there must be cogent evidence.23. The learned counsel for the appellant/complainant relied upon the judgment of Apex Court in the case of APS Forex Services (supra) with regard to presumption and rebuttal of the evidence and the principles laid down in the judgment is aptly applicable to the case on hand. It is important to note that the Apex Court in its judgment in the case of RANGAPPA v. SRI MOHAN reported in (2010) 11 SCC 441 held that the appellant was not able to prove the theory he lost the cheque. Apart from not raising a probable defence, the appellant was not able to contest the existence of legally enforceable debt. In the case on hand, though took the defence that the cheques are stolen and the same has not been substantiated. The Apex Court in the case of BASALINGAPPA v. MUDIBASAPPA reported in (2019) 5 SCC 418 held that the prosecution must establish it
Please Login To View The Full Judgment!
s case beyond reasonable doubt and the accused to prove the defence must meet the standard of preponderance of probabilities. No doubt, an effort is made in the present case, but the answers elicited from the mouth of the accused takes away the case of the defence of the accused. The theory of the cheques stolen also not substantiated by the accused. The Apex Court in its recent judgment in the case of ROHITBHAI JIVANLAL PATEL v. STATE OF GUJARAT AND ANOTHER reported in (2019) AIR SC 1876, held that unless onus is discharged by accused that preponderance of probabilities are tilting in his favour, doubt on the case of complainant cannot be raised for want of evidence regarding source of funds for advancing loan to the accused. In the case on hand also, the accused would contend that she was not having the source and unless the complainant's evidence is rebutted, the same cannot be accepted.24. Having perused the entire material available on record, the accused failed to rebut the case of the complainant. But the Trial Court completely ignored the answers elicited from the mouth of D.W.1 during the cross-examination. The answers elicited from the mouth of D.W.1 throughout in the cross- examination, does not inspire the confidence of the Court to accept the defence theory of the accused that she lost three cheques. Hence, I am of the opinion that the Trial judge has committed an error in not appreciating the evidence on record in its proper perspective, instead of given the perverse finding only on the ground that receipt is not produced for having lent the loan, when the cheques are given and though disputes the signatures on the cheques, not sent those cheques to the handwriting expert. Hence, the contention of the accused cannot be accepted. The evidence appreciated by the Trial Court is contrary to the admissions of D.W.1 given in the cross- examination. Hence, the same has to be set aside and the accused has to be convicted for the offence punishable under Section 138 of the Negotiable Instruments Act.25. In view of the discussions made above, I pass the following:ORDER(i) The appeal is allowed.(ii) The impugned judgment of acquittal dated 24.12.2010 passed in C.C.No.32811/2006, on the file of the XVIII ACMM and XX ASCJ, Bangalore 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.7,00,000/- 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 she fails to pay the amount and subject her to serve the sentence.(vi) The Registry is directed to transmit the Trial Court records to the Trial Court, forthwith.