This criminal appeal is filed under Section 374(3) of the 2 Crl.Apl.No.973/2022 JUDGMENT Code of Criminal Procedure , 1973, challenging the judgment and order dated 18.07.2022 passed by the Hon'ble XX Addl. Small Causes Judge and ACMM, Bengaluru, in C.C. No. 4687/2020, convicting the appellant (hereinafter referred to as the "accused") for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as " NI Act "). The trial court sentenced the accused to pay a fine of Rs.10,10,000/- (Rupees Ten lakhs Ten Thousand only), with a default sentence of six months simple imprisonment, directing that Rs.10,00,000/-(Rupees Ten Lakhs only) be paid to the complainant as compensation under Section 357(1) of Cr.P.C., and Rs.10,000/-(Rupees Ten Thousand only) be remitted to the State.

2. The accused in CC No 4687/2020 before the trial court having preferred the instant appeal against the complainant as appellant and the respondent are hereby assigned with their original ranks before the trial court that is the appellant as accused and the respondent as 3 Crl.Apl.No.973/2022 JUDGMENT complainant in CC No. 4687/2020 in the instant discussion for the purpose of brevity and convenience to avoid con- foundation and perplexity.

3. The epitomized facts of the complainant`s case in CC No. 4687/2020 before the trial court run thus; 3(a). The complainant, M/s Eshwari Chemtech, represented by its proprietor, Mr. M.C.M. Aradhya, and the accused, who were close friends for over 25 years, shared mutual trust. The accused, engaged in the business of film production and distribution, sought a loan of Rs.20,50,000/- from the complainant. Accordingly, the complainant transferred Rs.20,00,000/-(Rupees Twenty Lakhs only) through RTGS on two occasions and Rs.50,000/-(Rupees Fifty Thousand only) in cash. The accused assured repayment within one year but defaulted despite repeated requests.

3.(b) To partially discharge his liability, the accused issued a cheque bearing No. 517007, dated 18.08.2020, for Rs.10,00,000/-(Rupees Ten Lakhs only), drawn on Indian 4 Crl.Apl.No.973/2022 JUDGMENT Overseas Bank, Nagapura Main Road Branch. The cheque was presented by the complainant through Karnataka Bank, Sanjaynagar Branch, but was dishonored on 20.08.2020 for the reason "Funds Insufficient."

3.(c) Subsequently, the complainant issued a legal notice dated 19.09.2020, demanding payment. However, the accused neither complied with the demand nor replied to the notice. Consequently, the complainant initiated proceedings under Section 138 of the NI Act.

3.(d). The trial court, upon taking cognizance of the complaint, issued summons to the accused, who entered appearance and pleaded not guilty. The complainant examined himself as PW1 and produced documentary evidence marked as Exhibits P1 to P5, including the cheque, bank endorsement, legal notice, and postal acknowledgment.

3.(e) The statement of the accused under Section 313 of Cr.P.C. was recorded, wherein he denied the allegations but failed to cross-examine PW1 or lead any defense 5 Crl.Apl.No.973/2022 JUDGMENT evidence. After hearing the arguments and perusing the evidence, the trial court convicted the accused under Section 138 of the NI Act.

4. Being aggrieved by the impugned judgment passed by the trial court, the appellant being accused before the trial court has preferred the instant appeal against the respondent who was the complainant before the trial court on the following;

GROUNDS OF APPEAL A. The Appellant submits that, the impugned Judgment and order of conviction are contrary to law, facts and material borne out by records They are also contrary to the established principles of criminal jurisprudence. B. The trial court has failed to consider the facts in its whole as the judgment is being passed relying solely on the case of the complaint allegation without having regard to the evidence and documents on record which itself is against the principles of natural justice requiring to be set aside. C. The facts reveals that the complainant has got 6 Crl.Apl.No.973/2022 JUDGMENT presented the cheque on 18/08/2020 and the same came to be dishonoured on 19/08/2020. Therefore the complainant required to be issue legal notice within a period of 30 days from the date of return of the cheque. But the legal notice is said to have been issued on 19/09/2020, which as per the complaint averments itself is beyond the period of 30 days. Hence non fulfillment of mandatory provisions of section 138 of NI Act, would from filing of the above complaint before the trial Court. Therefore the same liable to dismissed in lime.

D. Moreover, the complaint averments could not be believed at all, as the complaint averments states that the complainant had lent a loan of Rs. 20,50,000/- But he does not aver the repayment schedule and only claims about the Rs. 10,000,00/, but there is no utterance about the balance amount whether it is payable or already paid. Hence the same cannot be believed or accepted. Hence demeanour of witness it would crystallise the conduct of the parties. Therefore, the man who comes with unclean hands should not be entertained.

E. The trial court has failed to consider about the documents and pleadings in its correct perspective, which has lead to passing of the Judgment. Hence on this ground alone the same is liable to set at 7 Crl.Apl.No.973/2022 JUDGMENT naught at the hands of this Hon'ble Court. F. That apart the hand writing on the cheque which symbolises two different hand writing as the signature on the cheque is by the Appellant and the writing is by someone else. Hence this ground alone the Judgment is to be set at naught.

G. In this regard it would be appropriate to refer to the decision of the Hon'ble Supreme Court reported in 2002 (7) Supreme 598 "Held: This Court in a number of cases has held that though the appellate court has full power to review the evidence upon which the order of acquittal is founded, still while exercising such an appellate power in a case of acquittal, the appellate court, should not only consider every matter on record having a bearing on the question of fact and the reasons given by the courts below in support of its order of acquittal, it must express its reasons in the judgment which led it to hold that the acquittal is not justified. In those line of cases this Court has also held that the- appellate court must also bear in mind the fact that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of acquittal, and in such cases if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of 8 Crl.Apl.No.973/2022 JUDGMENT the trial court. See Bhim Singh Rup Singh v. State of Maharashtra (1974 3 SCC 762) and Dharamdeo Singh & Ors. v. The State of Bihar (1976(1) SCC

610). (Para 6).

H. Therefore in the present when the accused has brought about the contradictory statement regard the very existence about the factum the loan transaction, there could be reasonably held that there is no legally enforceable debt or liability. Hence the trial court was justified in considering the fact whether there exist any legal enforceable debt or liability, therefore on this score alone the judgment suffers from proper appreciation liable to be set aside.

I. In the case of the Basalingappa vs. Mudibasappa reported 2019 0 ( Supreme (SC) 423 wherein the Hon'ble Supreme Court has held as (b) Negotiable Instruments Act, 1881 Sections 118 and 139- Rebuttal of presumption Standard of proof is preponderance of probabilities - Accused not required to examine himself - Section 139 imposes an evidentiary burden and not a persuasive burden Presumption of date of loan/debt/liability as the date of cheque Instantly cheque drawn on 27.02.2012 and presented on 01.03.2012 but complainant stating he gave loan in November, 2011

- Presumption u/s 139 rebutted. (Para 18, 23, 26). 9

Crl.Apl.No.973/2022 JUDGMENT J. The Appellant submits that, the impugned Judgment and order of conviction are contrary to law, facts and material borne out by records. They are also contrary to the established principles of criminal jurisprudence.

K. That being so the issuance of notice by the complainant on 19/09/2020 is a after the lapse of mandatory period, therefore is in contrary to proviso

(b) of Section 138 of NI act, which is mandatory. L. For the sake of convenience section 138 (b) of NI act is quoted hereunder, Section 138 . Dishonour of cheque for insufficiency, etc., of funds in the account.Provided that nothing contained in this section shall apply unless (a).......................(b)The payee or the holder in due course of the cheque, as the case may be, makes a demand for payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; M. The said proviso (b) to section 138 of NI act clearly mandates that the notice of demand shall be made only after the receipt of information by payee or the holder in due course from the Bank, anything done other than that which is mandated under section 138 and proviso therein, shall not attract any legal 10 Crl.Apl.No.973/2022 JUDGMENT implication. Thereupon the complaint filed itself would not be maintainable. Therefore the order of conviction by the trial court and upheld first appellate court is in contravention of section 138 of NI Act.

N. It is pertinent here to mention the well known principle of interpretation that when the word(s) employed by a particular legislation is plain, clear and unambiguous, the Court is not entitled to delete anything therefrom or to add something thereto and such a interpretation is founded on the maxim "expressum facit cessare tacitum" ("when there is express mention of certain things, then anything not mentioned is excluded").

O. The trial court without proper appreciation of complaint and the documents on record has faulted in taking cognizance of the offence punishable under section 138 of CrPC, without there being proper compliance of the provision set down under section 138 of NI Act.

P. The trial court has not properly appreciated the material on record and assessed the evidence placed by the complainant and the contradictions therein for holding the accused guilty, which suffers from the dearth of cogent, corroborative and convincing evidence, therefore liable to be set aside. Q. The trial court has faulted in not affording proper and appropriate opportunity for the accused to put 11 Crl.Apl.No.973/2022 JUDGMENT forth his case, therefore the same is hit by by principles of natural justice and Doctrine of Audi Altrum pattern, hence the same is required to set at naught remanding the matter for fresh consideration.

R. The Trial Court without appreciating the documents i.e., the notice was issued after the lapse of mandatory period of endorsement from the bank, therefore there was no cause of action for filing the above complaint in accordance with section 138 of Ni Act.

S. The impugned order is illegal, unjust and arbitrary warranting indulgence of this Hon'ble court in its Revisional jurisdiction for setting right the injustice. T. In the case of Sri. H Manjunath vs. Sri A.M. Basavaraju reported in ILR 2014 KAR 6572 the Hon'ble High Court held as NEGOTIABLE INSTRUMENTS ACT 1881 Section 138 Offence under Judgment of Acquittal Appealed against Absence of Statement in the complainant as to when the amount of actually given to the accused Absence of material particulars of the transaction in the complaint Except signature all other entries are in different handwriting, different ink and undoubtedly made at different time Mentioning of merely the date of issue of cheque without any material particulars HELD, Judgment of Acquittal is justified As seen 12 Crl.Apl.No.973/2022 JUDGMENT from the complaint there is no statement as to when the amount was actually given to the accused. The complainant has merely mentioned the date of issuance of cheque in question without any material particulars of the transaction. The cheque in question is undoubtedly is signed by the accused. The dispute raised is entries made in the cheque are not in his handwriting. It is not the case of the complainant that cheque was issued in blank and filled up later with the consent of the accused. - FURTHER HELD, Perusal of the cheque at Ex. P1 makes it manifest that except signature all other entries are in different handwriting. different ink and undoubtedly made at different time. In this it is difficult to accept the version of the complaint." U. The trial court without proper appreciation of complaint and the documents on record has faulted in taking cognizance of the offence punishable under section 138 of CrPC, without there being proper compliance of the provision set down under section 138 of NI act.

V. That apart the complainant has failed to prove the author of the cheque in dispute as it is not in the writing of the accused, which is against the case of the complainant, therefore the complainant has not made any effort to bring the said author before the trial court to adduce evidence. Therefore without 13 Crl.Apl.No.973/2022 JUDGMENT examining the author of the cheque it could be held that the said cheque was issued for any subsisting legally enforceable debt.

W. The impugned order is illegal, unjust and arbitrary warranting indulgence of this Hon'ble court in its Appellate jurisdiction for setting right the injustice.

Hence, For all the grounds the appellant prays before this court to set aside the impugned judgment and order of conviction dated 18/07/2022 in CC No. 4867/2020, passed by the Trial court and acquit the appellant accused to meet the ends of justice

5. After registering the case on issuing the notice to the respondent, the respondent appeared through their counsel. The trial court records were secured. .

6. Heard both the sides both the sides. Perused the court records, impugned judgment.

7. Out of the above said facts and circumstances of the case the points that arises for due consideration are;

1. Whether the judgment and order of 14 Crl.Apl.No.973/2022 JUDGMENT conviction passed by the learned XXIII Additional Chief Metropolitan Magistrate, Bengaluru, convicting the appellant for the offence punishable under Section 138 of the NI Act is unsustainable in law?

2. What order?

8. This court upon re-appreciation of available materials in the file with reference to prevailing law of land, My finding to the above points are as follows:-

9. POINT NO.1 :- The status and the ranking assigned in the trial court to the complainant and the accused are being adopted and adhered-to in the instant discussion for the purpose of brevity and convenience to avoid the con-foundation and perplexity.

10. The accused has challenged the judgment of the trial court on the following grounds:

11. At the outset, it is imperative to examine whether the statutory requirements under Section 138 of the NI Act have been fulfilled. The essential ingredients of the offence under Section 138 are:

12. In the present case, the complainant presented the cheque dated 18.08.2020 for encashment, and the bank dishonored it on 20.08.2020. The legal notice was issued on 19.09.2020, which is within the statutory period of 30 days. Therefore, the contention of the accused that the notice was time-barred is factually incorrect and contrary to the record.

13. The appellant contended that the handwriting on the cheque differs from his signature, implying fabrication. However, the Hon'ble Supreme Court in Bir Singh v. Mukesh Kumar (2019 SCC Online SC 142) has categorically held that once the drawer admits his signature on the cheque, the presumption under Section 139 of the NI Act applies, and the drawer cannot escape liability by disputing the contents of the cheque. The accused in this case 17 Crl.Apl.No.973/2022 JUDGMENT admitted his signature on the cheque but failed to produce any evidence to substantiate his claim of fabrication.

14. The presumption under Section 139 of the NI Act extends to the existence of a legally enforceable debt or liability. In Rangappa v. Mohan (AIR 2010 SC 1898), the Hon'ble Supreme Court held that this presumption is rebuttable and the accused can rebut it by raising a probable defense through preponderance of probabilities. However, in the present case, the accused neither cross- examined the complainant nor led any evidence to rebut the presumption. The mere assertion that the complainant's claim lacked clarity regarding the repayment schedule does not amount to a probable defense.

15. The appellant further contended that he was denied an opportunity to defend himself. However, the trial court provided ample opportunities to the accused to cross- examine the complainant and present his defense, which he failed to utilize. Therefore, the plea of violation of natural justice is baseless.

16. The reliance of the appellant on Basalingappa v. 18

Crl.Apl.No.973/2022 JUDGMENT Mudibasappa [(2019) 5 SCC 418] is misplaced. In that case, the Hon'ble Supreme Court held that the presumption under Section 139 is rebuttable, but the accused must discharge the burden of proof through cogent evidence. The accused in the present case failed to discharge this burden.

17. The trial court has meticulously evaluated the evidence and correctly applied the principles laid down in K.N. Beena v. Muniyappan [( 2001) 8 SCC 458] and Rangappa v. Mohan . The complainant's case is supported by uncontroverted evidence, including the dishonored cheque, bank memo, legal notice, and postal acknowledgment.

18. The judgment of the trial court does not suffer from any perversity or illegality. The findings are based on sound principles of law and are well-supported by evidence.

19. It is apparent that the trial court has thoroughly evaluated the oral and documentary evidence presented by both sides. The appellant has not succeeded in dislodging the presumption under Sections 118(a) and 139 of the Act, nor has he presented a plausible or substantiated defense. 19

Crl.Apl.No.973/2022 JUDGMENT Consequently, the conviction recorded by the trial court is based on sound principles of law, supported by credible evidence, and warrants no interference by this appellate court.

20. In light of the foregoing discussion, this court is of the firm opinion that the judgment and order of conviction passed by the learned XXIII Additional Chief Metropolitan Magistrate, Bengaluru, are in consonance with the settled principles of law. The trial court has correctly applied the statutory presumptions under the Negotiable Instruments Act and evaluated the evidence in a judicious and logical manner. There is no merit in the contentions raised by the appellant, and the grounds of appeal are devoid of substance. Hence, in view of this, point No. 1 is answered in the Negative,

21. Point No. 2 : In View of the reasons assigned above and findings arrived at on point No. 1, I proceed to pass the following:

The of fice is hereby directed to forward a copy of this judgment to the trial court for further needful action.

( D i c t a t e d t o t h e S t e n o g r a p h e r G r a d e - 1 d i r e c t l y o n t h e c o m p u t e r, corrected, signed and then pronounced by me in open court on t h i s t h e 1 3 t h d a y o f D e c e m b e r, 2 0 2 4 ) (Shirin Javeed Ansari) LXIX Addl.C.C. & Sessions Judge, Bengaluru.

Crl.Apl.No.973/2022 JUDGMENT Judgment pronounced in the open court (vide separate Judgment ORDER The appeal filed by the appellant u/s. 374(3) of Cr.P.C is here by dismissed.

The judgment of the trial court passed in C.C.No.4687/2020 dated:

The of fice is hereby directed to forward a copy of this judgment to the trial court for further needful action.

(SHIRIN JAVEED ANSARI) 22 Crl.Apl.No.973/2022 JUDGMENT LXIX Addl.C.C. & Sessions Judge, Bengaluru.