Sri. Maqsood Ali @ Lucky Ali vs Sri. Syed Rizwan
2023 Latest Caselaw 7228 Kant

                            1




    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 12TH DAY OF OCTOBER, 2023

                        BEFORE

            THE HON'BLE MRS.JUSTICE M.G. UMA

       CRIMINAL REVISION PETITION NO.243/2020
BETWEEN:
SRI. MAQSOOD ALI @ LUCKY ALI,
S/O LATE MEHMOOD ALI,
AGED ABOUT 50 YEARS,
RESIDING AT ALI ESTATE,
DODDABALLAPURA VILLAGE,
VASUDEVAPURA VILLAGE,
YELAHANKA HOBLI,
BANGALORE NORTH TALUK.
BANGALORE - 560 064
                                               ... PETITIONER

(BY SRI: ASHWIN VAISH FOR
    SRI: MOHAMMED SALEHA MUKARRAM AND
    SMT: NAZIMA TASNEEM, ADVOCATES)

AND:
SRI. SYED RIZWAN,
S/O LATE SYED KAREEM,
AGED ABOUT 55 YEARS,
R/AT NO.15-2-5-2, RRN COLONY
MADANAPALLI
DIST: CHITTOR (A.P.)
NOW R/AT NO.110,
NIRANTARA LAYOUT, BAGALUR ROAD,
POST: JALA HOBLI, YELAHANKA,
BENGALURU - 560 064
                                            ... RESPONDENT
(BY SRI: GURURAJ JOSHI A/W
    SRI: NACHIKET JOSHI, ADVOCATES)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO
SET ASIDE THE JUDGMENT DATED 27.07.2018 PASSED BY THE XXI
ADDL. C.M.M., BENGALURU IN C.C.NO.170/2014 AND THE
JUDGMENT DATED 23.12.2019 PASSED BY THE LVI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE (CCH-57), BENGALURU IN
CRL.A.NO.1678/2018  BY   ALLOWING    THIS   CRL.RP.  AND
                                2




CONSEQUENTLY     RECORD    FINDING     OF   ACQUITTAL    OF    THE
ACCUSED.

     THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 27.09.2023 COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT PASSED THE
FOLLOWING:

                             ORDER

The accused in CC No.170/2014 on the file of the learned

XXI Additional Chief Metropolitan Magistrate, Bengaluru City,

(hereinafter referred to as 'the trial Court' for brevity) is

impugning the judgment of conviction and order of sentence

dated 27.07.2018, convicting him for the offence punishable

under Section 138 of Negotiable Instrument Act ('NI Act' for

short) and sentencing to pay fine of Rs.92,10,000/-, in

default, to undergo simple imprisonment for a period of six

months, which was confirmed in Crl.A.No.1678/2018 on the

file of the learned LVI Additional City Civil and Sessions Judge,

Bengaluru, CCH-57) (hereinafter referred to as the 'First

Appellate Court' for brevity), vide judgment dated

23.12.2019.

2. Brief facts of the case are that, the complainant

filed private complaint in PCR No.16462/2013 before the trial

Court against the accused alleging commission of offence

punishable under Section 138 of NI Act. It is contended that

the accused introduced himself as son of Veteran artist

Mehmood Ali and that one Masoom Ali is his elder brother. He

also proclaimed that his elder brother Masoom Ali is the

absolute owner in possession of the land bearing Sy.Nos.2

and 3 of Kenchenahally Village, Yelahanka Hobli, Bengaluru

North Taluk, measuring 9.221/2 acres. He fraudulently

claimed that he is the GPA holder of his brother and he is

having authority to dispose of or transfer or enter into any

agreement for sale with prospective buyers. Believing the

words of the accused, the complainant agreed to purchase the

said land for a total consideration amount of Rs.92 lakhs and

agreement for sale dated 17.12.2002 was executed by the

accused and the complainant paid a sum of Rs.22 lakhs in

cash in the presence of the witnesses. The accused promised

to produce the original documents including the original GPA

deed, said to have been executed by his brother and to

execute the sale deed in favour of the complainant. It is

stated that the accused had postponed execution of sale deed

on one pretext or the other claiming that, he being the

professional, engaged at different parts of India. On

23.08.2009, he induced the plaintiff to pay another sum of

Rs.5 lakhs as additional advance for agreement of sale dated

17.12.2002. The accused agreed to receive the balance

amount of Rs.65 lakhs and to execute the registered sale

deed. The further agreement for sale dated 23.08.2009 was

also executed.

3. It is contended that the accused went on evading

the complainant and postponing execution of sale deed and

therefore, the complainant issued the legal notice on

12.06.2010 calling upon the accused to execute the sale deed

by accepting the balance consideration amount. The said

notice was served on the accused, but inspite of that, he had

not executed the sale deed. Therefore, the complainant filed

the suit O.S.No.599/2010 against the accused before the

learned Principal Civil Judge, Senior Division, Bengaluru Rural

District, seeking specific performance of the contract. The

accused being the defendant in the said suit, appeared before

the trial Court and filed his written statement. Thereafter,

started persuading the complainant to withdraw the suit. As if

the matter is amicably settled between the parties, the

complainant being the plaintiff in the said suit could get back

the Court fee paid, he agreed to withdraw the suit

O.S.No.599/2010. But however, the accused went on

postponing to settle the dispute till December 2012. Just

before Christmas in 2012, the accused approached the

complainant for settlement and offered to pay Rs.92 lakhs as

compensation amount to the complainant, which includes the

advance amount of Rs.27 lakhs paid by the complainant. The

appreciation in the market value of the land was taken into

consideration to fix compensation as damages from 2002 to

2012. The accused sought for three more months time to pay

the amount of Rs.92 lakhs. Finally, the accused received back

the original agreement for sale, further agreement for sale,

legal notice and reply notice from the complainant and

handed over the cheque bearing No.022854 dated

16.03.2013, drawn on Corporation Bank, Yelahanka Branch,

Bengaluru for Rs.92 lakshs. The cheque was presented by the

complainant for encashment, but it was dishonoured as there

was insufficient funds in the account of the accused. The

complainant issued the legal notice informing the accused

regarding dishonour of the cheque and calling upon him to

pay the cheque amount. Inspite of service of notice, the

accused neither complied with the demands made therein, nor

replied to the notice. Thereby, he has committed the offence

punishable under Section 138 of NI Act.

4. It is contended that the complainant came to

know that the brother of the accused was not the owner of

the land bearing Sy.Nos.2 and 3 of Kenchenahally Village, nor

he had executed any GPA deed in favour of the accused.

Therefore, the accused fraudulently induced the complainant

to part with the amount of Rs.27 lakhs and cheated him.

Even after issuance of the cheque, he has not made

arrangements to honour the same. Therefore, the accused is

liable for conviction. Accordingly, he prayed the trial Court to

take cognizance of the offence and to initiate legal action

against the accused.

5. The trial Court took cognizance of the offence and

the accused appeared before the Court in response to the

summons, pleaded not guilty for the accusation made against

him and claimed to be tried. The complainant examined

himself as PW-1 and got marked Exs.P1 to 12 in support of

his contention. The defendant denied all the incriminating

materials available on record, while examining himself as DW-

1 and got marked Exs.D1 to D7 in support of his defence.

The trial Court after taking into consideration all these

materials, came to the conclusion that the complainant is

successful in proving the guilt of the accused beyond

reasonable doubt and accordingly, passed the impugned

judgment of conviction and order of sentence against the

accused. Being aggrieved by the same, the accused has

preferred Crl.A.No.1678/2018. The First Appellate Court on

re-appreciation of the materials on record, dismissed the

appeal and confirmed the impugned judgment of conviction

and order of sentence passed by the trial Court.

6. Being aggrieved by the same, the accused is before

this Court.

7. The accused has filed I.A.No.1/2021 under Section

482 of Cr.PC, seeking an order directing to release the

accused on probation on executing the bond as contemplated

under Section 360 of Cr.PC or Section 4 r/w Section 11 of

Probation of Offenders Act, 1958 (hereinafter referred to as

'the P.O. Act' for brevity). It is contended that the accused is

not sentenced with substantial sentence, but only in default of

payment of fine amount, he was directed to undergo simple

imprisonment for a period of six months. The petitioner is

having a prima-facie case. Therefore, the petitioner shall be

released on probation, in the interest of justice.

8. Heard learned counsel Sri Ashwin Vaish for Sri

Mohammed Saleha Mukarram and Smt. Nazima Tasneem,

learned counsel for the revision petitioner/accused and Sri

Gururaj Joshi along with Sri Nachiket Joshi, learned counsel

for the respondent/complainant both on I.A.No.1/2021 and on

merits. Perused the materials including the trial Court

records.

9. Learned counsel for the revision petitioner

contended that the complainant has not produced any

document in support of his contention that the accused had

entered into an agreement for sale and he had paid advance

of Rs.27 lakhs in cash. However, the complainant had filed

the suit O.S.No.599/2010 against the accused for specific

performance of the contract. The accused had filed written

statement in the said suit, admitting receipt of Rs.27 lakhs

from the complainant. Therefore, the accused is not denying

the said fact of receipt of Rs.27 lakhs. The said suit

O.S.No.599/2010 was unilaterally withdrawn by the

complainant by filing a memo as per Ex.P9 and accordingly,

the suit came to be dismissed as withdrawn on 19.11.2010.

The accused is not a party to the said memo for withdrawal of

the suit, nor there was any agreement between the parties

settling the dispute in terms of compromise. However, the

complainant off late started contending that during December

2012 i.e., after morethan two years, the accused came and

offered to pay Rs.92 lakhs for having received Rs.27 lakhs

and also issued the cheque in question. The said contention

of the complainant cannot be accepted even for a while.

There is absolutely no reason as to why the accused

voluntarily came forward and issued the cheque for Rs.92

lakhs, when according to the complainant, he had paid only

Rs.27 lakhs, that to, when the suit was already withdrawn by

the complainant.

10. Learned counsel further submitted that during

cross-examination of PW-1, he categorically admitted that

after compromise and withdrawal of the suit

O.S.No.599/2010, he had no conversation with the accused.

Under such circumstances, it cannot be believed that the

accused had offered to pay a sum of Rs.92 lakhs and had

issued the cheque in question. The complainant categorically

denied the suggestion that the cheque in question was issued

during 2010, which is against the contentions taken by the

complainant in the complaint. Moreover, PW-1 admits that

the postal acknowledgment Ex.P5 does not bear the signature

of the accused, but it was signed by some other person.

Under such circumstances, the legal notice said to have been

issued by the complainant was never served on the accused.

When the notice as required is not served on the accused, the

complainant cannot invoke Section 138 of NI Act.

11. Learned counsel further submitted that even

though the accused admits that the cheque Ex.P1 belongs to

his bank account and he signed it, he categorically denied

issuance of the same in favour of the complainant agreeing to

pay Rs.92 lakhs. The writings in the cheque are not that of

the accused. It must have been written by the complainant.

A specific defence was taken by the accused that he was

having a Manager by name Mr.Lucose, who in fact, handed

over the blank cheque to the complainant. The complainant

misused the same by writing the contents and presenting it

for encashment. Therefore, no offence under Section 138 of

NI Act is made out against the accused.

12. Even though the accused was cross-examined at

length by learned counsel for the complainant, nothing has

been elicited from him to believe the version of the

complainant. Learned counsel further submitted that no one

can believe the version of the complainant that he had

withdrawn the suit O.S.No.599/2010 without receiving any

money from the accused. Infact, the accused had paid Rs.27

lakhs in cash and only thereafter, the suit came to be

withdrawn. But the blank cheque belonging to the accused

was misused by the complainant and he is claiming Rs.92

lakhs without any basis. The trial Court and the First

Appellate Court have committed grave error in convicting the

accused without properly appreciating the materials on

record. The First Appellate Court gone to the extent of

observing that admittedly the accused had agreed to pay

Rs.92 lakhs to the complainant as per the compromise

entered into in O.S.No.599/2010. The First Appellate Court

also made an observation that the suit O.S.No.599/2010

came to be withdrawn as per Ex.P9 as the accused issued the

cheque Ex.P1, which was not the contention of the

complainant at all.

13. He further contended that the complainant

withdrawn the suit O.S.No.599/2010 only after the third party

filed an application under Order 1 Rule 10 of CPC, seeking to

implead him in the said suit. The said application is produced

as per Ex.D3 which is dated 01.10.2010. Immediately

thereafter, the plaintiff withdrawn the suit which makes it

clear that all was not well with the complainant and therefore,

he was forced to withdraw the suit filed against the accused.

None of these facts were considered either by the trial Court

or by the First Appellate Court. Therefore, the impugned

judgment of conviction and order of sentence passed against

the accused is liable to be set aside.

14. Learned counsel alternatively submitted that, if for

any reasons, this Court does not agree with his contention,

I.A.No.1/2023 filed under Section 482 of Cr.PC may be

considered favorably. The accused was not sentenced either

by the trial Court or by the First Appellate Court by imposing

substantive sentence. Only in default of payment of the fine

amount, he was directed to undergo simple imprisonment for

a period of six months. Therefore, the accused may be

released on probation, in the interest of justice.

15. Learned counsel further submits that the accused

has already deposited Rs.46 lakhs before the trial Court and

the same is to be refunded to the accused in the ends of

justice. Accordingly, he prays for allowing the revision

petition.

16. Per contra, learned counsel for the

respondent/complainant opposing the revision submitted that

the complainant as plaintiff filed the suit O.S.No.599/2010

before the trial Court and the plaint in the same is produced

as per Ex.P8. It was a suit for specific performance of

contract filed against the accused. The accused had appeared

before the trial Court in the said suit and filed his written

statement as per Ex.P6. While filing the written statement,

he categorically admitted that he is the owner of 9.22 and 1/2

acres of land and he has received Rs.27 lakhs in cash as

advance under the agreement for sale. The accused is the son

of famous actor Mehmood Ali and the accused is also a singer

popularly known as Lucky Ali. With this background to his

credit, he could easily induce the complainant in entering into

an agreement in respect of the land which was never

belonging to him and part with huge amount of Rs.27 lakhs.

But thereafter, he started avoiding the complainant and never

came forward to execute the sale deed. Therefore, the suit

O.S.No.599/2010 came to be filed. Luckily for the

complainant, the accused admitted receipt of Rs.27 lakhs and

execution of the agreement for sale.

17. As per Ex.D3, one Sri Sathish Pai filed an

application under Order 1 Rule 10 of CPC, seeking his

impleadment in the suit. He contended that Mohamood Ali,

father of the accused sold the property in question in his

favour and he is in possession and enjoyment of the same.

The said application was filed on 01.10.2010 and immediately

thereafter, the accused started pressurising the plaintiff to

withdraw the suit and to return the original documents in his

favour and promised to pay the advance amount along with

compensation or damages. Believing his words, the

complainant withdrawn the suit before Lok-adalath as could

be seen from Ex.P11. Thereafter, the accused could avoid the

complainant for two more years and finally, during Christmas

in 2012, he agreed to pay Rs.92 lakhs and accordingly, he

issued the cheque Ex.P1. But on presentation of the cheque,

the same was dishonoured as there was insufficient funds in

his account. Legal notice issued by the complainant was

served on the accused. Inspite of that, he has not paid the

cheque amount. Thereby, he has committed the offence

punishable under Section 138 of NI Act.

18. Learned counsel further contended that even

though advance amount of only Rs.27 lakhs was paid to the

accused, he agreed to pay Rs.92 lakhs after ten long years, as

the advance amount was paid during 2002. The cheque was

issued during 2013 towards repayment of advance amount of

Rs.27 lakhs along with appreciation of the land value and

compensation/damages. Therefore the accused agreed to pay

additional amount of Rs.65 lakhs.

19. Learned counsel submitted that the accused

categorically admitted that the cheque in question belongs to

his bank account and he signed it. The only defence taken by

the accused is that he had issued the blank cheque in favour

of the complainant. At later point of time, he started

contending that his Manager one Mr.Lucose must have

handed over the blank cheque. Admittedly, the said Mr.Lucose

continued to be an employee under the accused till his death.

Only after filing the present complaint before the trial Court,

the accused has filed a complaint against the said Lucose.

But, 'B' report came to be filed. Therefore, virtually no action

was taken against Lucose, even though it is contended that he

has issued the blank cheque with the signature of the accused

to the complainant without his instructions.

20. Learned counsel contended that while filing the

written statement as per Ex.P6, the accused admitted that he

knew the complainant since 2002. But during cross-

examination, he has stated that he came in contact with the

complainant only during 2012 or 2013. This shows the

conduct of the accused, who can go to any extent in denying

his liability.

21. Learned counsel for the complainant submitted

that even if the contention of the accused that he had issued

the blank cheque with his signature is to be accepted, even

then, Section 138 of NI Act would operate against him and he

is liable for conviction. When the accused admits that Ex.P1

cheque belongs to him and it bears his signature, the

presumption under Sections 118 and 139 of NI Act would

operate and the burden shifts on the accused to rebut the

same. The accused has taken inconsistent stand and failed to

rebut the legal presumption. The trial Court has referred to

various decisions of the Hon'ble Apex Court in support of its

decision and both the trial Court as well as the First Appellate

Court have came to proper conclusion and convicted the

accused as stated above. There are absolutely no reasons to

interfere with the impugned judgment of conviction and order

of sentence. Hence, he prays for dismissal of the revision

petition.

22. Regarding the application I.A.No.1/2023 filed by

the accused, learned counsel for the complainant submitted

that only in respect of the substantial sentence, the accused

could be released on probation. But in the present case, no

substantial sentence was imposed, but he was sentenced to

pay fine. Only in default of payment of fine amount, he is

ordered to undergo simple imprisonment. Under such

circumstances, the provisions of Probation of Offenders Act or

Section 360 of Cr.PC would not be applicable. Hence, he

prays for dismissal of the said application, in the interest of

justice.

23. In view of the rival contentions urged by learned

counsel for both the parties, the points that would arise for

my consideration is;

1. "Whether the impugned judgment of conviction and order of sentence passed by the trial Court, which is confirmed by the First Appellate Court suffers from perversity or illegality and calls for interference by this Court?"

2. Whether the petitioner has made out any ground to allow I.A.No.1/2023, seeking his release on probation?"

My answer to the above points is in the 'Negative' for the

following;

REASONS

24. It is the contention of the complainant that he

entered into an agreement for sale in respect of 9.22 and 1/2

acres of land in Sy.Nos.2 and 3 of Kenchenahally Village,

Bengaluru North Taluk on 17.12.2002. He paid Rs.22 lakhs

as advance to the accused and thereafter, on 23.08.2009, the

accused again requested and received Rs.5 lakhs as additional

advance from the complainant. However, the accused

managed to postpone execution of the sale deed. Thereafter,

the complainant filed the suit O.S.No.599/2010 before the

trial Court for specific performance of the contract. The

complainant has produced copy of the plaint as per Ex.P8.

The accused being the defendant in the said suit, filed written

statement as per Ex.P6. In the written statement, the

accused stated that he is the attorney of his brother who are

the sons of well known actor Mohamood Ali. He also stated

that his brother Masoom Ali stays in USA and had executed

GPA on 03.09.2002. On the basis of the same, he entered

into an agreement for sale with the complainant in respect of

9.22 and 1/2 acres of land. He admits receipt of Rs.27 lakhs

as advance and balance amount is Rs.65 lakhs to be paid by

the complainant. It is stated that the plaintiff was not ready

and willing to perform his part of the contract and therefore,

the defendant has put into irreparable loss. Thus, entering

into an agreement for sale with the complainant and receiving

the advance amount of Rs.27 lakhs is categorically admitted

by the accused in Ex.P6.

25. It is also admitted that the suit O.S.No.599/2010

came to be withdrawn as settled out of the Court and a memo

for withdrawal of the said suit was filed by the plaintiff before

Lok-adalath. The order sheet is as per Ex.P11 and the memo

is as per Ex.P9 dated 19.11.2010. As per the memo of

withdrawal filed by the plaintiff and his counsel, the plaintiff

and the defendant terminated the agreement of sale and

settled the dispute at the intervention of the elders and well-

wishers out of the Court and therefore, the suit is to be

dismissed as not pressed. Accordingly, the suit came to be

dismissed.

26. Now it is the contention of the complainant that

after almost two years i.e., during Christmas in 2012, the

accused agreed to pay Rs.92 lakhs to the complainant i.e.,

towards repayment of the advance amount of Rs.27 lakhs and

additional amount of Rs.65 lakhs towards appreciation of the

land value and as compensation or damages to the plaintiff.

Accordingly, he issued Ex.P1 dated 16.03.2013. When the

cheque was presented for encashment, same was

dishonoured as there was insufficient funds in the account of

the accused. Inspite of issuing legal notice, the accused has

not repaid the amount. Thereby, he has committed the

offence punishable under Section 138 of NI Act.

27. The accused admits that Ex.P1 cheque belongs to

his bank account and it bears his signature. However, he

disputes the writings found on the cheque and contends that

it was the complainant who might have written the contents

of the cheque. Even though an attempt was made to contend

that the accused was not aware of handing over the blank

cheque to the complainant, as it was his manager who handed

over the cheque, it would not get support to accept the same.

Even during cross-examination of PW1, nothing has been

elicited in support of such defence. Section 20 of the NI Act

refers to an inchoate Negotiable Instrument and, if a person

signs and delivers such a negotiable instrument, either wholly

blank or having written thereon, the drawer gives prima-facie

authority to the holder thereof to make or complete as the

case may be, upon which, the negotiable instrument for any

amount specified therein and the person so signing shall be

liable to the holder in due course.

28. It is also relevant to refer the decision of the

Hon'ble Apex Court in Bir Singh Vs. Mukesh Kumar1, where

the Hon'ble Apex Court referred to a similar situation, where it

was contended that a blank cheque with the signature of the

accused was issued and held as under;

"Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."

29. Therefore, the contention taken by the accused

that the cheque Ex.P1 bears only his signature and he is not

the author of other contents of the cheque, would not keep

him in a better position as legally he is liable, once it is proved

(2019) 4 SCC 197

that the cheque belongs to him and it bears his signature.

Once this primary evidence is lead by the complainant, the

presumption under Sections 118 and 139 of NI Act comes into

operation. The burden shifts on the accused to rebut the

presumption. Of course, the standard of proof to rebut the

presumption is only a preponderance of probability and not

the proof beyond reasonable doubt. Therefore, now it is to be

considered as to whether the accused is successful in

probabilising his defence to avoid conviction.

30. PW-1 was cross-examined by learned counsel for

the accused on various dates. It is interesting to note that

during cross-examination of PW-1, learned counsel for the

accused suggested to the witness that Ex.P1 cheque was

issued to the complainant in the year 2010. The said

suggestion was denied by the witness. The suggestion put to

the witness by learned counsel for the accused binds the

accused that the accused had issued the cheque and he

cannot disown the same. However, it is not the contention of

the complainant that the cheque in question was issued by

the accused during 2010.

31. Even under Section 4 of P.O. Act, the Court

having power to release the offender on probation of good

conduct is required to consider regard to the circumstances of

the case, including the nature of the offence and the character

of the offender. Moreover, under Section 5 of P.O. Act, the

Court is having power to require the offender to pay

compensation which is reasonable for loss or injury caused by

commission of the offence and the amount so ordered as

compensation could be recovered as fine in accordance with

the provisions of Cr.PC.

32. As rightly contended by learned counsel for the

respondent, the accused is not sentenced with substantive

sentence. On the other hand, he was sentenced to pay fine of

Rs.92,10,000/-. The cheque amount is Rs.92 lakhs which was

ordered to be paid to the complainant as compensation.

Under such circumstances, the petitioner is not entitled for

the benefit of either Section 360 of Cr.PC or Section 4 of P.O.

Act. Hence the application filed by the petitioner in that

regard is liable to be dismissed.

33. Learned counsel for the accused placed reliance

on the decision of the Hon'ble Apex Court in Sarav

Investment & Financial Consultancy Pvt. Ltd.,2 in support

of his contention that the suggestion put to PW-1 by learned

counsel for the accused during his cross-examination is not

sufficient to hold that the accused has admitted issuance of

cheque in question. But the complainant is not relying only

on the fatal suggestion put to PW-1 which was denied by him.

But the accused himself has admitted that the cheque belongs

to him and it bears his signature. Such admission on the part

of the accused goes a long way in raising the presumption in

favour of the complainant and the burden is on the accused to

rebut the same.

34. During cross-examination, PW-1 admitted that the

signature on Ex.P5 is not that of the accused. Somebody else

had singed the postal acknowledgment. On the basis of the

same, learned counsel for the accused contended that legal

notice was never served on the accused as admitted.

35. In this regard, learned counsel for the

complainant placed reliance on the decision of the Hon'ble

Apex Court in N.Paramesharan Unni Vs. G. Kannan3,

(2007) 14 SCC 753

2017 STPL 3391 SC

wherein the Hon'ble Apex Court referring to Section 27 of

General Clauses Act, 1897 held in para No.13 as under;

"13. It is clear from Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act, 1972, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. Then requirements under proviso (b) of Section 138 stands complied, if notice is sent in the prescribed manner. However, the drawer is at liberty to rebut this presumption."

36. Admittedly, the legal notice as per Ex.P3 was

addressed to the accused and it was sent through RPAD as

the postal receipt is produced as per Ex.P4. The postal

acknowledgment also bears the address of the accused and

that of the complainant. However, the same was signed by

some other person and not the accused. When the notice is

properly addressed to the accused and the postal authority

returns the acknowledgment in proof of service of notice, the

presumption under Section 114(e) of Indian Evidence Act

comes into operation. Again, the burden will be on the

accused to rebut the said presumption. Except eliciting from

the mouth of PW-1 that the postal acknowledgment does not

bear the signature of the accused, the accused has not made

any effort to rebut the said presumption. Under such

circumstances, I am of the opinion that the said defence is not

available to the accused.

37. It is contended by learned counsel for the

complainant that the suit O.S.No.599/2010 came to be

withdrawn by the complainant immediately after Ex.D3 the

application under Order 1 Rule 10 of CPC filed by a third party

before the trial Court. According to the learned counsel for

the accused, there must be some strong reason for the

plaintiff to withdraw the said suit. But, apparently there is

nothing on record to contend that the plaintiff has taken

extreme step of withdrawing the suit merely on filing Ex.D3

by a third party, seeking his impleadment. But on the other

hand, it is the contention of learned counsel for the

complainant that the third party Sri Satish Pai made

allegations against the defendant in Ex.D3 and asserted that it

is the applicant Sri Satish Pai who is in possession and

enjoyment of the property in question in Sy.Nos.2 and 3 as he

acquired the same from the father of the accused and

therefore, the accused was worried that the complainant will

come to know about the fraud he has committed and that is

the reason why the accused approached the complainant and

insisted for withdrawal of the suit.

38. On going through the affidavit sworn by Sri Satish

Pai who is the applicant in Ex.D3, the contention taken by

learned counsel for the complainant is more probable than the

contention raised by the accused. Otherwise, there would not

have been any reason for the plaintiff to withdraw the suit for

specific performance of the contract which he had filed by

paying more than Rs.2 lakhs as Court fees. This conduct of

the accused coupled with his admission that Ex.P1 cheque

belongs to his bank account, which bears his signature

probabilises the contention of the complainant rather the

defence taken by the accused.

39. The contention taken by the complainant that the

accused had agreed to repay Rs.92 lakhs during 2012 for

having received Rs.22 lakhs during 2002 and Rs.5 lakhs in

2009 and the additional amount is towards

compensation/damages suffered by the complainant due to

appreciation in the land value is more probable and could be

accepted as reasonable explanation. Therefore, I am of the

opinion that the complainant is successful in proving his

contention regarding existence of legally recoverable debt and

issuance of cheque Ex.P1 by the accused towards repayment

of the same. The cheque was dishonoured as there was

insufficient funds in the account of the accused. Inspite of

service of legal notice, the accused has not repaid the cheque

amount, nor he has replied to the legal notice and thereby, he

has committed the offence punishable under Section 138 of NI

Act. The accused even though made half hearted attempts to

take defence in his favour, he has not probabilised the same

and thereby, failed to rebut the legal presumption. Hence, he

is liable for conviction.

40. Regarding the alternative submission made by

learned counsel for the accused that the accused is entitled to

be released on probation either under Section 360 of Cr.PC or

under Section 4 r/w Section 11 of Probation of Offenders Act,

Section 360 of Cr.PC refers to an order to release on

probation of good conduct. When a person under the age 21

years is convicted of an offence punishable with fine only or

with imprisonment for a term of 7 years or less or the accused

is a women, convicted for the offence punishable with death

or imprisonment for life, when there is no previous conviction,

the Court can proceed to release the accused on probation,

instead of sentencing him at once to any punishment. But the

accused does not fall under any of these category to apply

Section 360 of Cr.PC.

41. I have gone through the impugned judgment of

conviction and order of sentence passed by the Trial Court,

which was confirmed by the First Appellate Court. Both the

Courts have taken into consideration all the materials on

record in a proper perspective and arrived at a right

conclusion. I do not find any reason to interfere with the

same. Hence, I answer the above points in the 'Negative' and

proceed to pass the following:

ORDER

The application IA No.1/2023 is dismissed.

The criminal revision petition is dismissed.

The amount in deposit, if any, be transmitted to the

Trial Court to appropriate towards fine and compensation.

Registry is directed to send back the Trial Court records

along with copy of this order.

Sd/-

JUDGE

PN