Mr. Ashfaq Rasheed Shaik vs Smt. Meena Ullas
2022 Latest Caselaw 1165 Kant

                                            CRL.A.No.1470/2018 C/W
                                    Crl.A.Nos. 1471/2018, 1472/2018,
                                   1473/2018, 1474/2018, 1475/2018
                          1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 27TH DAY OF JANUARY 2022

                       BEFORE

       THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
                                                                       R
         CRIMINAL APPEAL NO.1470/2018
                        C/W
CRIMINAL APPEAL Nos.1471/2018, 1472/2018,
        1473/2018, 1474/2018, 1475/2018

BETWEEN:

MR.ASHFAQ RASHEED SHAIK
AGED ABOUT 39 YEARS
S/O ABDUL RASHEED SHAIK
RESIDING AT SNN RAJ SERENITY
D3 BLOCK, FLAT NO.701
BEGUR MAIN ROAD
BANGALORE - 560 068                        ... APPELLANT
                                               (COMMON)

(BY SRI.H.SUNIL KUMAR, ADVOCATE)

AND:

SMT.MEENA ULLAS
W/O ULLAS K
AGED ABOUT 39 YEARS
RESIDING AT SOLITAIRE NO.218,
ANNAPOORNESHWARI INDUSTRIAL AREA
DODDAKALLASANDRA
KANAKAPURA MAIN ROAD
BANGALORE - 560 062                        ... RESPONDENT
                                                 (COMMON)
                                                          CRL.A.No.1470/2018 C/W
                                                 Crl.A.Nos. 1471/2018, 1472/2018,
                                                1473/2018, 1474/2018, 1475/2018
                                     2




(BY SRI.M.ASHOK KUMAR, ADVOCATE)

      THESE CRIMINAL APPEALS ARE FILED UNDER SECTION
378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
ACQUITTAL DATED 07.06.2018 PASSED BY THE VI ADDITIONAL
SMALL CAUSES JUDGE AND XXXI ADDL.C.M.M., BENGALURU IN
C.C.NOS.11652/2017, 12227/2017, 13040/2017, 12629/2017,
13047/2017,      12527/2017       ACQUITTING       THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF N.I. ACT.

     THESE CRIMINAL APPEALS COMING ON FOR FURTHER
HEARING  THIS   DAY,  THE   COURT   THROUGH VIDEO
CONFERENCE DELIVERED THE FOLLOWING:


                             JUDGMENT

Since these appeals arise out of common order

passed by the trial Court in C.C.Nos.11652/2017,

12227/2017, 13040/2017, 12629/2017, 13047/2017,

12527/2017, they are taken up together for disposal by

this common judgment.

2. By the impugned order the trial Court has

acquitted the respondent-accused of the offence

punishable under Section 138 of the Negotiable

Instruments Act, 1881 ('NI Act' for short).

CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

3. The brief facts of the case are as follows:

The respondent is the wife of one Ullas K. Appellant

hails from Mangaluru city. He was working in UAE since

about 18 years. He presented 6 cheques mentioned in the

table below drawn on the account of the respondent for

various amounts. The said cheques were dishonoured with

the endorsement "insufficient funds". He got issued

statutory notices under Section 138 of the NI Act to the

respondent calling upon the respondent to pay the cheque

amounts. As per the postal acknowledgment, the said

notices were served on the respondent.

4. The CC numbers, dates of the cheques, the

amount of the cheques, drawee bank, date of dishonour

and the date of statutory legal notice are set out in the

table below:

Crl.A.No    C.C.No.    Amount      Date & No.    Date of        Date of       Drawee
                       Of cheque   Of cheque     dishonour      Notice        Bank
1470/18     11652/17   15,00,000   28.02.2017    10.03.2017     21.03.2017    Syndicate
                                   042128                                      Bank
1471/18     12227/17   40,00,000   17.03.2017    18.03.2017     25.03.2017    Canara
                                   830838                                      Bank
1472/18     13040/17   25,00,000   25.03.2017    28.03.2017     05.04.2017    Syndicate
                                   042131                                     Bank
1473/18     12629/17   40,00,000   20.03.2017    21.03l2017     30.03.2017    Canara
                                   830840                                     bank
                                                         CRL.A.No.1470/2018 C/W
                                                Crl.A.Nos. 1471/2018, 1472/2018,
                                               1473/2018, 1474/2018, 1475/2018



1474/18    13047/17   25,00,000   30.03.2017    31.03.2017     10.04.2017    Syndicate
                                  042142                                     bank
1475/18    12527/17   40,00,000   18.03.2017    20.03.2017     25.03.2017    Canara
                                  830839                                     Bank

5. The appellant filed complaints against the

respondent before the trial Court seeking prosecution of

the respondent for the offence punishable under Section

138 of the NI Act. The trial Court on taking cognizance of

the offence registered the said cases in the C.C.numbers

mentioned in the above table.

6. Appellant claimed that he was well acquainted

with the respondent and her husband since 15 years. He

further claimed that the respondent inducing him of

partnership in her business ventures between 2014 and

2016 received a sum of Rs.2 crores on different occasions

by way of bank transfer to her account and account of her

husband. He further alleged that the respondent neither

made him her business partner nor returned the money.

He alleged that when he insisted for return of money, she

issued subject cheques towards discharge of her legally

recoverable liability and they were dishonoured on CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

presentation for realization. He claimed that despite

receiving the statutory notice, the respondent did not pay

the money thereby cheated him.

7. The respondent on her appearance disputed

the accusations. To substantiate his case the appellant got

examined himself in all the cases as PW.1 and got marked

Exs.P1 to P5. After her examination under Section 313 of

Cr.P.C. the respondent did not lead any defence evidence.

Her defence in the cross examination of the appellant was

that her husband and the appellant were together doing

business and they suffered losses in the business. It was

her further contention that her husband has collected the

blank signed cheques and misused them. It was her

contention that since the appellant was not able to recover

the money from her husband, he has falsely implicated her

in the cases.

8. The trial Court on hearing the parties by the

impugned judgment acquitted the respondent on the

following grounds:

CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

i) The genuineness of the alleged transaction of

the appellant and respondent is doubtful as he has not

obtained any documentary proof for alleged payment of

Rs.2 crores.

ii) Existence of legally recoverable debt is not a

matter of presumption under Section 139 of the NI Act.

iii) The appellant has failed to establish that the

respondent has issued the cheques for legally recoverable

debt.

iv) As per the evidence, major part of the amount

was transferred to the account of the husband of the

respondent. She is not liable to be dealt with for the

amount paid to the husband.

Submissions of Sri H.Sunil Kumar, learned counsel for the appellant assailing the impugned judgment and order:

9. The moment the respondent admits the

signature on the cheque and that cheques were drawn on

her account, the presumption under Sections 118 and 139 CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

of the NI Act arises. The respondent did not rebut that

presumption by placing any probable material before the

Court. She did not choose to enter the witness box and

give an opportunity to the appellant to cross examine her

to demonstrate his case. The trial Court overlooked such

suppression of material evidence by the respondent. The

observation of the trial Court that Section 139 of the NI

Act does not raise the presumption regarding legally

recoverable debt is contrary to the said section as well as

the judgments of the Supreme Court. The respondent did

not probabilise her defence by producing any acceptable

material before the Court. The impugned order is wholly

unsustainable.

10. In support of his submissions, he relies on the

following judgments:

       i)      Kishan Rao vs. Shankargouda1
       ii)     T.P.Murugan vs. Bojan2
       iii)    Rohitbhai Jivanlal Patel          vs.    State      of
               Gujarat and another3

  (2018)8 SCC 165

  (2018)8 SCC 469

  (2019)18 SCC 106
                                                           CRL.A.No.1470/2018 C/W
                                                  Crl.A.Nos. 1471/2018, 1472/2018,
                                                 1473/2018, 1474/2018, 1475/2018



        iv)     Triyambak S.Hegde vs. Sripad4

        v)      Ruby Infralogistics Pvt.Ltd. vs. Rashmi

Enterprises (Pvt) Ltd. And another5

vi) M/s.Jammu & Kashmir Bank vs. Abhishek Mittal6

vii) Honavar Taluka Primary Co-operative Agricultural & Rural Development Bank, Honavar vs.Ganesh7

viii) M.Jaishankar and another vs. Sree Gokulam Chits and Finance Corporation Pvt. Ltd.8

ix) ICDS Ltd vs. Beena Shabeer and another9

x) Basalingappa vs. Mudibasappa10

Submissions of Sri M.Ashok Kumar, learned counsel for the respondent justifying the impugned order of acquittal:

11. Admittedly Rs.1,06,70,000/- was remitted to

the account of husband of the respondent. But the cheques

were purportedly issued for Rs.1 crore 85 lakhs which

exceeded the sum allegedly paid to the husband of the

2021 SCC Online SC 788

2021 SCC Online Cal 3070

Crl.A.No.294/2011 (DD 26.05.2011 Delhi High Court)

Crl.A.No.2535/2010 (D.D.14.03.2018)

2020 SCC Online Mad 5550

(2002)6 SCC 426

(2019)5 SCC 418 CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

respondent. On that count itself, the amount was not

legally recoverable liability. When the issuance of the

cheque itself was not established, the question of

presumption under Section 139 of the NI Act does not

arise. The initial burden of proving issuance of cheque was

on the appellant which he failed to discharge. The defence

of the respondent was established in the cross examination

of the appellant himself. Therefore, there was no need for

her to enter the witness box. The respondent was not

liable to be dealt with under Section 138 of the NI Act for

discharge of liability of her husband. Therefore, the trial

Court rightly acquitted her.

12. In support of his submissions he relied on the

following judgments:

i) Hiten Sagar and another vs. IMC Ltd and anr11

ii) Anant Bondre vs. Alfred David and anr12

iii) Krishna Janardhan Bhat vs. Dattatraya G.Hegde13

2001 Crl.L.J.4311

2014(2) Crimes 33 (Bom)

AIR 2008 SC 1325 CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

iv) A.Viswanatha Pai vs. Sri Vivekananda S.

                Bhat14

        v)      M/s.Kumar            Exports      vs.     M/s       Sharma
                Carpets15

        vi)     Nagisetty Nagaiah vs. State of A.P.& anr16

        vii)    Devender Kumar vs. Khem Chand17

13. Having regard to the rival submissions, the

question that arises for consideration is,

"whether the impugned order of acquittal passed by

the trial Court is sustainable in law?".

14. As per Section 138 of the NI Act, a person can

be prosecuted and convicted for the offence of cheating, if

any cheque drawn by him towards the discharge of any

debt or any other liability is returned unpaid for want of

sufficient funds and if he fails to pay the said amount

within 15 days from the date of receipt of notice

contemplated under Section 138(b).

ILR 2009 Kar 172

AIR 2009 SC 1518

2004 Crl.L.J.4107

Crl.R.P.679/2012 D.D.06.10.2015 CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

15. Though both side relied on host of judgments

referred above, the ratio in the said judgments is that as

per Section 118 of the NI Act until the contrary is proved,

the presumption shall be that the cheque or negotiable

instrument was drawn for consideration. It was further

held that as per Section 139 of the NI Act, unless the

contrary is proved it shall be presumed that the holder of

the cheque received the same for discharge of any debt or

any other liability.

16. The initial burden of establishing the issuance

of the cheque is on the complainant. Once such burden is

discharged, then burden shifts to the accused to show that

there was no legally recoverable debt for the cheque

issued or consideration was not received. If the accused

discharged that burden, then onus reverses to the

complainant to establish that there was legally recoverable

debt or other liability. It is held that the burden on the

accused is not as strict as on the complainant. But, he has

to probabilise his defence.

CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

17. In para 11 of the judgment in M/s Kumar

Exports' case, it was discussed how the accused has to

probabilise his defence to rebut the presumption under

Section 118 and 139 of the NI Act. The said paragraph

reads as follows:

"11. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist.

Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the non- existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue."

(Emphasis supplied)

18. The reading of the above paragraph shows that

bare denial of existence of debt would not serve the CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

purpose of the accused in rebutting the presumption. He

has to bring on record something probable for getting the

burden of proof shifted to the complainant. The accused

should bring on record such facts and circumstances which

persuade the Court to believe that the consideration or

debt did not exist or non-existence of the same was so

probable that a prudent man would under the

circumstances believe the non-existence of the debt or

liability. Therefore the test contemplated is the test of

belief of a prudent man.

19. No doubt it was held that the accused may rely

upon circumstantial evidence. But it was held that the

circumstances relied on by the accused should be so

compelling to shift the burden against the complainant.

Though it was held that the accused has an option to prove

non-existence of consideration and debt or liability without

letting in his evidence, it was held that only in clear

exceptional cases, the accused can do so from the case

set out by the complainant himself. Therefore, the other CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

test is whether there was exceptional or clear case for the

respondent to prove the non- existence of the liability from

the evidence of the complainant himself.

20. As already pointed out, the respondent did not

dispute her signatures on the cheques and that the

cheques pertain to her account. She did not even dispute

that she was running the business. She herself suggested

to PW.1 in the cross examination that only Rs.62,00,000/-

was credited to her account from the account of the

appellant. Ex.P5 is the bank account statement of the

appellant. In para 3 of the cross examination of the

appellant the particulars of the amount transferred from

the account of the appellant to the account of the accused

and her husband are elicited. The total amount

transferred from the appellant's account to respondent's

account is Rs.62,00,000/- In his cross examination the

said entries or the payments are not impeached. Similarly

in para No.2 of the cross examination of PW.1, the

particulars of the amounts transferred from the account of CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

the appellant to the account of the husband of the

respondent are elicited. That shows the transfer of

Rs.1,06,70,000/-. Even those entries were not disputed.

21. As against that, it was her specific case that

the appellant has paid the amount to her husband,

therefore, she is not liable to be dealt with under Section

138 of the NI Act for the liability of her husband. She

herself states that from the account of her husband a sum

of 24,30,000/- was transferred to the account of the

appellant. During the course of cross examination the

transaction under Ex.P5 was not impeached. If there was

no transaction between the appellant and the respondent,

why an amount of Rs.62,00,000/- was transferred to her

account, was not explained by the respondent.

22. Under section 114 illustration (f) of the Indian

Evidence Act, there is a presumption that common course

of business has been followed in particular case. The

account statement Ex.P5 is maintained and issued in the

common course of business of the bank. There was no CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

reason to disbelieve the entries in the said document.

Thereby by oral evidence of PW.1 and the entries in Ex.P5

coupled with the admission of signatures of accused on the

cheques and in view of Section 118 and 139 of the NI Act,

the appellant discharged his initial burden that the cheques

were issued towards the discharge of liability of the

respondent.

23. The next question is whether the respondent

rebutted the presumption. Much was argued relying on

the judgments in Janardan and Mudibasappa's cases

that the accused need not enter the witness box and she

has the right of silence. It was even argued that there is

no presumption under Section 139 of the NI Act about

legally recoverable debt or liability.

24. The larger bench of the Hon'ble Supreme Court

in para 14 of the judgment in Triyambak Hegde's case

referred to supra after referring to its several other earlier

judgments held that it is clear that signatures on the

cheque having been admitted, a presumption shall be CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

raised under Section 139 that the cheque was issued in

discharge of debt or liability. It was further held that the

question to be looked into is as to whether any probable

defence was raised by the accused. In para 16 of the said

judgment it was held that the legal position relating to

presumption arising under Sections 118 and 139 of the NI

Act has been reitereated in Basalingappa's case.

Therefore, whether there is rebuttal or not depends on the

facts of each case.

25. In the light of the said judgments, this Court

has to examine whether on the facts and circumstances of

this case, the presumption was rebutted. The defence of

the accused was that her husband and appellant were

doing business. It is her further case that her husband has

misused her cheques and passed them to the appellant to

falsely implicate her. She means that her husband has

colluded with the appellant. If that is the case, the

reaction or response of a person of ordinary prudence

when he receives notice claiming that the cheques were CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

issued for discharge of liability is to deny the same and put

forth such defence.

26. So far as the service of notice, only bald denial

was made in the cross examination of PW.1 which he

denied. The notice was issued to the respondent to the

address mentioned in the complaint itself. The summons

was served on the respondent in the said address. As per

Section 27 of the General Clauses Act as well as Section

114 illustration (f) of the Indian Evidence Act once a letter

is posted under the Registered Post Acknowledgment Due,

the service is effected by properly addressing, pre-paying

and posting the registered post to the ordinary residence

of the addressee, the presumption is that the letter is

delivered.

27. Such presumption stands rebutted only when

the addressee enters the witness box and disputes the

delivery of the letter. That does not stand rebutted by

mere denial in the cross examination of PW1. If once the

service is imputed to the respondent, the contents of the CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

notice also stand imputed. As already pointed out, at the

first instance, if there was no liability and cheques were

not issued for discharge of liability, as a person of ordinary

prudence, she would have denied the same by issuing

reply notices.

28. Further if the appellant or husband of the

respondent misused the cheques or he facilitated the

appellant for false implication, the response of a person of

ordinary prudence is to file complaints against them to the

Police and bank authorities. She has not taken any such

steps. Nothing was placed to show that herself and her

husband have fallen out or residing separately. There

were not even such suggestions to PW.1 in his cross

examination. No legal proceedings between them were

brought on record. Therefore, it is clear that it is only a

connivance between husband and wife to evade the

liability.

29. The next contention was that under Section

138 of the NI Act, the respondent is liable to be prosecuted CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

or punished only if the cheque covered her liability and not

the liability of her husband. In that context, several

judgments of Bombay High Court and Madras High Court

were cited. But, the Hon'ble Supreme Court in para 9 to

11 of the judgment in ICDS limited's case referred to

supra while analyzing the provisions of Section 138 of the

NI Act held that Section 138 not only includes the cheques

issued towards the discharge of any debt, but other

liability also. The Hon'ble Supreme Court stressed on the

phrase 'other liability'

30. In para 10 and 11 of the judgment in ICDS

Limited's case it was held as follows:

"10. The language, however, has been rather specific as regards the intent of the legislature. The commencement of the Section stands with the words "Where any cheque". The above noted three words are of extreme significance, in particular, by reason of the user of the word "any" - the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

favour of another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment.

11. The issue as regards the co-extensive liability of the guarantor and the principal debtor, in our view, is totally out of the purview of Section 138 of the Act, neither the same calls for any discussion therein. The language of the Statute depicts the intent of the law-makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embargo in the matter of CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

application of the provisions of Section 138 of the Act: 'Any cheque' and 'other liability' are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the Statute. Any contra- interpretation would defeat the intent of the legislature. The High Court, it seems, got carried away by the issue of guarantee and guarantor's liability and thus has overlooked the true intent and purport of Section 138 of the Act. The judgments recorded in the order of the High Court do not have any relevance in the contextual facts and the same thus do not lend any assistance to the contentions raised by the respondents."

(Emphasis supplied)

31. Reading of the above paragraphs shows that

the Hon'ble Supreme Court interpreted that the term

'other liability' includes not only the liability of the drawer

of the cheque, but the other liability also. In that

judgment it was held that interpreting Section 138 of the

NI Act only to include the drawer's liability defeats the

intention of the legislature.

CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

32. This Court in Honavar Taluka Primary Co-

operative Agricultural and rural development Bank's

case referred to supra, in similar circumstances, held that

the cheques issued towards the discharge of debt of the

father is also covered under Section 138 of the NI Act.

33. In the case on hand, the contention of the

appellant was that the cheques were issued, the amount

was transferred to the account of the husband of the

respondent on her assurance that he will be made her

business partner. Even otherwise, in the light of the

entries in Ex.P5 there is a ring of truth that the cheques

were issued towards the repayment of the amount

transferred to the account of her husband. Therefore, the

presumption under Sections 118 and 139 of the NI Act do

arise.

34. Under such circumstances, the respondent was

bound to enter the witness box and explain the

circumstances. To claim that she can maintain silence and CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

need not enter the witness box, her case did not fall under

the category of exceptional cases as contemplated under

the judgment of the Hon'ble Supreme Court in Kumar

Exports' case. If everything was all right, her defence

was so firm and sustainable, the respondent could have

entered the witness box and exposed herself for the test of

cross examination. By evading that she deprived the

complainant of demonstrating his case by cross examining

her. Under such circumstances, the appellant is entitled to

the benefit of adverse inference as contemplated under

Section 114 illustration (g) of the Indian Evidence Act.

35. In the light of the aforesaid larger bench

judgment of the Hon'ble Supreme Court and the judgment

in Kumar Exports' case, the other judgments regarding

rebuttal of the presumption relied on by the learned

counsel for the respondent do not call for any further

discussion.

36. The trial Court failed to appreciate the

principles of law on rebutting the presumption under CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

Sections 118 and 139 of the NI Act. Unfortunately the trial

Court despite there being sound evidence of transfer of

amount, went on to hold that the appellant has not

produced any document, appellant should have taken

some document for transfer of such huge amount,

therefore, his case is doubtful. The impugned order of

acquittal is wholly unsustainable. Therefore, the appeals

are allowed.

The impugned orders of acquittal are hereby set

aside. The respondent is hereby convicted in C.C.Nos.

11652/2017, 12227/2017, 13040/2017, 12629/2017,

13047/2017, 12527/2017 for the offence punishable under

Section 138 of the NI Act.

The respondent accused is hereby sentenced to pay

double the cheque amounts in each case. In default to pay

the fine amount, she shall undergo simple imprisonment of

one month in each case.

Out of the fine amount, a sum of Rs.25,000/- in each

case shall be defrayed towards the cost of prosecution

payable to the state. The balance amount shall be paid to CRL.A.No.1470/2018 C/W Crl.A.Nos. 1471/2018, 1472/2018, 1473/2018, 1474/2018, 1475/2018

the appellant as compensation under Section 357 of

Cr.P.C.

Sd/-

JUDGE akc