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TMI Blog2021 (6) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... in adopting delay tactics rather than assisting the Court in the disposal of the case on its merit. Still, the Trial Court had given him sufficient opportunities to lead defence evidence after recording the statement of the accused under Section 313 of the Cr.P.C. and also subsequently by allowing his application filed under Section 311 read with Section 91 of the Cr.P.C. Since the accused failed to make use of the opportunities which was sufficiently given to him, the Trial Court has proceeded to reject the similar application filed under Section 311 of the Cr.P.C. and proceeded to pass the impugned judgment - even by rejecting the second similar application filed by the accused under Section 311 of the Cr.P.C., no prejudice has caused to the interest of the accused. As such, the only argument of the learned counsel for the revision petitioner that the accused did not get sufficient opportunity to challenge the subsequent similar application filed under section 311 of the Cr.P.C., is not acceptable. Since the cheque at Ex.P-1 is drawn by the accused, which has been dis-honoured for the reason of insufficiency of funds and since the accused did not pay the cheque amount prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot repay the loan amount within the agreed time and when demanded for its payment by the complainant, the accused issued a cheque bearing No.550334 dated 20-12-2011, drawn on Bank of India, Bangalore Main Branch, Bangalore, drawn in his favour, for a sum of ₹ 2,50,000/- towards the repayment of the loan amount. When the said cheque was presented for its realisation by the complainant through his banker, the same came to be returned unpaid with the banker's endorsement 'funds insufficient'. Thereafter, the complainant got issued a statutory notice dated 27-01-2012 to the accused, demanding the cheque amount. However, the notices sent through Registered Post both to the residence as well to the work place address of the accused were returned with a postal shara I/D -not claimed . Since the accused did not pay the cheque amount, the same constrained the complainant to file the present criminal case against him in the Trial Court. 3. The accused appeared through his counsel and contested the matter. 4. To prove his case, the complainant got himself examined as PW-1 and got marked documents from Exs.P-1 to P-5 and closed his side. The accused neither got hims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uage whereas the cheque is bearing the signature in English language, as such, he intended to summon the Branch Manager of the concerned Bank in which the accused was maintaining his account and to examine him as a witness, but the accused could not get any opportunity in that regard. However, learned counsel fairly conceded that he would not dispute that the drawer of the cheque at Ex.P-1 is the accused. 12. Learned counsel for the respondent/complainant in his arguments submitted that the brother of the complainant by name Sri. Veerabhadraiah was a conductor in Bengaluru Metropolitan Transport Corporation (BMTC) wherein the accused was a driver, as such, they were known to each other. It is through his brother Sri. Veerabhadraiah, the complainant came to know about the accused. He further submitted that the accused did not file any application in the Trial Court, seeking reference of his signature on the cheque for an expert's opinion. He also submitted that the cheque was not returned by his banker for the reason of any difference in the signature, but it was returned for insufficiency of funds, as such, the belated contention of the learned counsel for the petitioner/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t) with the postal shara I.D (intimation delivered) not claimed . Therefore, when the complainant has sent the legal notices as required under Section 138 of the N.I. Act to both the available correct and complete addresses of the accused under Registered Post Acknowledgement Due (RPAD) and since the accused even after the postal authorities delivering him an intimation about the arrival of the articles, has not claimed the same, it has to be taken that there is a deemed service of notice upon the accused. Therefore, when the cheque drawn by the accused in favour of the complainant has been returned for the reason of insufficiency of funds and since the accused has not paid the cheque amount to the complainant even after the complainant making a demand by sending the legal notices, a presumption under Section 139 of the N.I. Act forms in favour of the complainant about the existence of a legally enforceable debt. However, the said presumption is rebuttable. 14. In order to rebut the presumption formed in favour of the complainant, the accused had taken a defence from his side in the form of a suggestion made to PW-1 in his cross- examination suggesting to the witness that, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c 91 of the Cr.P.C. to summon the Branch Manager, Bank of India, Bangalore, which application came to be allowed by the Trial Court and opportunity was given to him to summon the witness from his side. It was ordered for issuing witness summons to the said witness who was also directed to produce account opening form and specimen signature card of the savings bank account of the accused in his branch. However, the accused was required to pay the process for summoning the said witness. On the subsequent date, at the request of the accused, witness summons was permitted to be served upon the witness by hand. Though the witness summons was reported to be served on the witness, however, on the next date of hearing, the witness did not turn up. The matter was adjourned at the request of the accused to 26-03-2015 and thereafter to 27-03-2015 and 30-03-2015. On all those dates, since the witness did not turn up, the Trial Court took that the accused has not led evidence from his side and the matter was posted to hear the arguments from both side. The arguments of the learned counsel for the complainant were also heard by the Trial Court on 08-04-2015. At that time, the accused filed the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it can be seen that the purpose for which the accused wanted the Bank Manager to examine as a witness was only for the reason to show that, the signature on the cheque at Ex.P-1 does not pertain to him. In that regard, two aspects can be noticed. The first and foremost aspect is that the accused did not move any application in the Trial Court seeking reference of his signature to any handwriting expert. Secondly, the cheque at Ex.P-1 was not dis-honoured by the banker for the reason of any alleged difference in the signature. On the other hand, the said cheque was dis-honoured by the banker only for the reason of insufficiency of funds. Had really the signature on the cheque at Ex.P-1 did not pertain to the accused or if there was any difference in the said signature of the accused, then the banker would have definitely returned the cheque with its endorsement of mentioning that there was difference in the signature of the drawer. Admittedly, the cheque was dis-honoured not for that reason, but due to insufficiency of funds. Therefore, even by rejecting the second similar application filed by the accused under Section 311 of the Cr.P.C., no prejudice has caused to the interest of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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