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TMI Blog2020 (12) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant can be rebutted by two modes i.e., by effective cross-examination and also entering into the witness box. Though, the accused did not choose to enter into the witness box and in the cross-examination of PW.1 effectively cross-examined with regard to creating a doubt with regard to lending money to the tune of ₹ 2,04,000/-. There are no grounds to interfere with the findings of the Trial Court and there is no material to reverse the finding of the Trial Court - appeal dismissed. - CRIMINAL APPEAL No.404/2011 CRIMINAL APPEAL Nos.401/2011, 402/2011, 403/2011 - - - Dated:- 27-11-2020 - THE HON'BLE MR. JUSTICE H.P. SANDESH FOR THE PETITIONER : BY SRI SACHIN B.S., ADVOCATE FOR M/S.DHARMASHREE ASSOCIATES FOR THE RESPONDENT : BY SRI. P.P. HEGDE, ADVOCATE JUDGMENT These appeals are filed by the complainant who is common in all the appeals and the accused is also common and the Trial Judge has delivered the judgment independently in all the four cases. Having heard the arguments of respective learned counsel, the case of the complainant is only one transaction of availing the loan, but issued four cheques and all the four cheques are dishonour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to step into the witness box and no documents are marked. The Trial Judge ought to have convicted the accused, instead of erroneously appreciated the evidence of record. 6. The learned counsel for the complainant in all the appeals vehemently contend that the Trial Judge has committed an error in appreciating both oral and documentary evidence placed on record. The learned counsel would submit that there is no dispute with regard to the issuance of four cheques by the accused. The main defence raised by the accused is that the complainant is lending money and collecting the blank cheques as security and the complainant had obtained four cheques from the accused as security. The other defence is that he had borrowed an amount of ₹ 20,000/- and repaid the amount with interest. The complainant refused to return the cheques after the repayment of the amount and those cheques are misused by the complainant and filed the present case. 7. The learned counsel would also submit that the Trial Judge considering the defence of the accused gave an erroneous finding in coming to the conclusion that the complainant has not proved the case. The learned counsel would submit that the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... encies in the statement of the complainant and his witness, or that the witness of the complaint was more in know of facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complainant to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining, if the accused has been able to rebut the presumption or not. The other observations as regards any variance in the statement of complainant and witness; or want of knowledge about dates and other particulars of the cheques; or washing away of the earlier cheques in the rains though the office of the complainant being on the 8th floor had also been of irrelevant factors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrelevant so far as this case is concerned. The Trial Court has not appreciated the evidence on record led by the parties but swayed away by relying upon unimportant and irrelevant materials. 15. The learned counsel referring this judgment would contend that in the case on hand also the Trial Judge has culled out certain unimportant factors to come to a conclusion that the complainant has not proved the case. Hence, this judgment is aptly applicable to the case on hand. 16. The learned counsel also relied upon the judgment of this Court in the case of SRI YOGESH POOJARY v. SRI K. SHANKARA BHAT reported in ILR 2019 KAR 493 and brought to my notice paragraph Nos.8 to 10 with regard to the presumption. When the cheque is admitted, the Court is bound to draw the presumption and the presumption has to be rebutted by placing the material before the Court. There must be plausible evidence before the Court to accept the defence of the accused. Inspite of no circumstances are made out by the accused, the Trial Judge has committed an error in acquitting the accused. 17. Per contra, learned counsel appearing for the accused brought to the notice of this Court that Ex.P3-notice and fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued through cheque and also under Section 269SS of the Income Tax Act, there is a provision for penalty for non-compliance of the Income Tax Act. 21. In support of his contention, he relied upon the Judgment in the case of John K. Abraham v. Simon C.Abraham and another reported in (2014) 2 SCC 236, and brought to the notice of this Court in paragraph Nos.6.1, 6.2 and 6.3 with regard to source, date of transaction and nature of transaction. Though, the complainant admits that having documents to show that she was having the money, no documents are produced and also the learned counsel brought to the notice of this Court in paragraph No.9 of the Judgment with regard to rebuttal of the presumption and further contended that the burden was heavily upon the complainant to have shown that he had the funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant, the same has not been done by the complainant. Hence, the learned counsel would submit that the Judgment is aptly applicable to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplainant. 26. The learned Counsel also relied upon the unreported Judgment of this Court passed in Criminal Appeal No.2784/2012 and would submit that with regard to the capacities is concerned, this Court discussed the Judgment of the Apex Court in the case of BIR SINGH v. MUKESH KUMAR reported in (2019) 4 SCC 197 and assigned the reasons in paragraph No.17 of the Judgment and come to the conclusion that the complainant fails to prove the case. 27. The learned counsel also relied upon the judgment in the case of K. PRAKASHAN v. P.K. SURENDERAN reported in (2008) 1 SCC 258, and referring to this Judgment, the learned counsel would submit that in order to interfere with the Judgment of the Trial Court, there must be perversity or illegality, then only the Court can reverse the Judgment of acquittal. When two views are possible, Appellate Court cannot reverse the findings of the Trial Court and benefit of doubt goes in favour of the accused. 28. The learned counsel relied upon the Judgment of the Apex Court in the case of ANSS RAJASHEKAR V. AUGUSTUS JEBA ANANTH reported in 2019 SCC OnLine SC 185, and referring to this Judgment, the learned Counsel brought to the notice of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the clothes. It is also elicited that this transaction is not in respect of purchasing of clothes and she can produce the books of accounts in respect of her cloth business. The complainant also admits that she has paid the tax from 2003 to 2004 and she can produce those documents before the Court. It is elicited that she did not inform her advocate about her cloth business. The complainant admits that her husband is a Railway Police and she is not having any other document that the accused had purchased the clothes from her. The witness volunteers that she can produce those documents. It is elicited that she has given two more complaints other than this complaint. It is elicited that the accused had borrowed the amount in the month of October 2006 and she has not given the instructions to her Counsel while issuing the notice. It is elicited that she gave the money in cash and the said amount was in her residence and she used to keep the amount to the extent of ₹ 1 Lakh to ₹ 2 Lakhs and the said amount was kept for her business. It is elicited that she has filed five cheque bounce cases against Naveen, Mallesh, Balakrishna, Ramesh Kumar and Chandran. Naveen and Malles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DHAN BHAT v. DATTATRAYA G. HEGDE reported in 2008 (2) SCC (Cri) 166 and in RANGAPPA's case (supra) with regard to the presumption of legally recoverable amount is concerned held that the principles laid down in KRISHNA JANARDHAN BHAT's case (supra), regarding legally recoverable amount is concerned, held that, it is not a correct law in page-14 of the Judgment. The judgments referred by the accused Counsel are also with regard to the financial capacity and also with regard to inconsistency in the evidence of the complainant and also with regard to the presumption is rebuttable presumption. It is clear that the presumption under Section 139 of the NI Act is a rebuttable presumption. It is also settled law that the presumption is rebutted either by leading the evidence i.e., entering into the witness box or effectively cross-examining the complainant with regard to the transaction. There are two modes to rebut the same. 34. The learned counsel appearing for the accused also referred to the Judgment of Basalingappa's case (supra) with regard to the source and financial capacity. The Apex Court also recently held that if the complainant makes out a case that the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused has not been stated. In the cross-examination of PW.1 in one breadth, she says that the accused demanded a loan of ₹ 2,25,000/-, but she was able to pay the amount of ₹ 2,04,000/-. In one breadth, PW.1 claims that an amount of ₹ 1 Lakh was paid immediately in the month of October and within 3 to 4 days, she paid the remaining amount of ₹ 1,04,000/-. But in the further cross-examination in one breadth, she says that the amount of ₹ 1 Lakh was paid in the month of October and the remaining amount of ₹ 2,04,000/- was paid in the month of December. The answer elicited from the mouth of PW.1 is contrary to her own admission given earlier. No doubt, the Court can draw the presumption under Section 139 of the NI Act and the Court also to examine whether the accused has rebutted the evidence of the complainant. The answer elicited from the mouth of PW.1 regarding the very lending of an amount of ₹ 2,04,000/- to the accused is very doubtful. Though she claims that she is having the amount from the cloth business, no document is placed. For having lent the money also to the accused is also doubtful. PW.1 claims that the amount was given in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraph Nos.14 to 18 culled out the answers elicited from the mouth of PW.1 and dis- believed the evidence of the complainant from lending an amount of ₹ 2,04,000/- not only in respect of the transaction and also with regard to the financial capacity to lend the money of ₹ 2,04,000/-. It is rightly pointed out by the learned counsel appearing for the accused that referring to the Judgment of the Apex Court in K. PRAKASHAN's case (supra), that the Appellate Court while reversing the finding take note of the perversity if any and if no perversity, two views are possible, the benefit of doubt goes in favour of the accused. 39. In the case on hand to reverse the finding of the Trial Court, I do not find any error committed by the Trial Court in appreciating the evidence. First of all the very lending amount of ₹ 2,04,000/- that too by a wife of Railway Police is doubtful. The accused also did not dispute the fact that he availed the loan, but he claims that he availed the loan of ₹ 20,000/- and the same was re-paid. It is also important to note that PW.1 herself has categorically admitted that the cheques are four in number, which were in her custody, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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