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TMI Blog2020 (11) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... as returned with the endorsement account closed . The respondent in his notice Ex.P7 had given all the particulars of the Cheque number, if the Cheque was issued to Chennappa, the petitioner could have taken such defence at the earliest point of time in his reply notice. Further though the accused in the evidence claimed that he has taken action against Chennappa by filing complaint before Nelamangala Police, no evidence was adduced to substantiate the same. Therefore the trial Court and the first appellate Court rightly rejected the theory of Cheque being issued to Chennappa. Rebuttal of Presumption - HELD THAT:- In the cross-examination of PW1, petitioner only asked whether PW1 could produce his SB account passbook or the account extract. There was no specific denial of respondent's autorickshow business. In the later part of the cross-examination, it was only suggested that the respondent was not possessing the funds of ₹ 2,75,000/- which he denied. When possession of 5 - 6 autorickshaws and running of the business etc was not disputed, the mere suggestion that he was not possessing funds does not rebut the presumption under Section 139 of the NI Act. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oan from the respondent and claimed that the respondent is a total stranger to him and he does not know how the respondent came in possession of the said Cheque. In the reply notice he claimed that the respondent in collusion with some people who were inimically disposed against him has filed the complaint and called upon him to return the Cheque within 15 days failing which he will initiate the legal action. 5. On receipt of such reply, the respondent filed complaint under Section 200 Cr.P.C. before XVI A.C.M.M., Bengaluru seeking persecution of the petitioner for the offences punishable under Section 138 of NI Act. Learned Magistrate took cognizance of the offence and registered the case in C.C.No.15873/2003. The records disclose that by an administrative order of the Principal City Civil Judge, Bengaluru the case was then transferred to XXII A.C.M.M. and XXIV Additional Small Causes Court, Bengaluru. On securing the petitioner, since he denied the substance of accusation, learned XXII A.C.M.M tried the petitioner. 6. The trial Court by the judgment dated 10.06.2005 convicted the petitioner and sentenced him to pay ₹ 4,00,000/-. The petitioner challenged the said judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the contention. The accused has not issued any notice to Chennappa or Chennegowda alleging fraud. That circumstances goes against the accused. 10. In support of its judgment, the Trial Court relied upon the judgment of the Hon'ble Supreme Court in Rangappa vs. Mohan (AIR 2010 SC 1898) whereunder it was held that when the Cheque and signature on the Cheque are admitted, the presumption that Cheque was issued to discharge debt or liability arises. 11. The petitioner/accused challenged the order of conviction and sentence passed by the trial Court before the District and Sessions Judge, Fast Track Court-IV Bengaluru city in Crl.A.No.863/2010. The first appellate concurring with the Trial Court by the impugned order dismissed the appeal on 11.04.2011 and confirmed the judgment and order of the trial Court. Therefore, the petitioner is before this Court in the above revision petition. 12. This being revision petition under Section 397 of Cr.P.C. the scope for re-appreciation of the evidence and interference in the impugned order is very limited. Unless it is shown that the impugned judgments and orders of the Courts below suffer perversity, illegality or impropriety, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as closed in the year 2001 itself, therefore, there was no occasion or chance for him to issue Cheque in 2003 on that account or requesting the complainant to present the same for the second time. Ex.P4 does not state that the account was closed in 2001. When the accused took a specific defence that his account was closed in 2001 itself, the burden was on him to prove the said fact. Except his self serving testimony and Ex.D1 the alleged passbook of the said account the petitioner did not adduce any other evidence. 19. In Ex.D1 the alleged passbook there is nothing to show that the account was closed in the year 2001. Respondent disputed that Ex.D1. Despite that the petitioner did not summon any records of the bank or bank authorities to prove that the account in question was closed in the year 2001. 20. In reply notice Ex.P11 such defence of closure of the account in the year 2001 was conspicuously absent. If his account was closed in the year 2001 and Cheques were claimed to be issued subsequently on 12.06.2003, certainly the petitioner could have asserted the same in his reply Ex.P11. Therefore, the trial Court and the first appellate Court rightly rejected the contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efence that the respondent was a total stranger is unacceptable. Further in his examination under Section 313 Cr.P.C. also petitioner did not claim that the petitioner had no lending capacity. 26. Since the defence of the petitioner regarding lack of lending capacity of the complainant was unacceptable, the judgment in Mudibasappa's case is not applicable. The Hon'ble Supreme Court in APS Forex Services Pvt. Ltd. Vs. Shakti International Fashion Linkers and others2 distinguished the judgment in Mudibasappa's case and further held that once the accused admits his signature on the Cheque and the Cheque pertains to his account, the presumption under Section 139 of the NI Act comes to the support of the complainant. It was further held that unless the accused rebuts the said presumption by acceptable evidence, he is liable to be convicted for the offence under Section 138 of the NI Act. Having regard to the aforesaid facts and circumstances of the case and the judgment of the Hon'ble Supreme Court in APS Forex Services Pvt. Ltd. referred to supra, this Court does not find any illegality, impropriety or incorrectness in the impugned orders of the Courts below. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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