5 The defence of the respondent was that there was an agreement of sale between the parties, and that the Complainant was a businessman dealing in lands, and it was in that transaction that the respondent had issued some cheques earlier, but since transaction did number fructify, he had issued a numberice dated 28th July, 2003, number to clear those cheques.
Out of the five cheques, a cheque dated 31st July, 2003, was issued for an amount of 1,36,000/ , and three other cheques dated 10th August, 2003, 15th August, 2003 and 18th August, 2003, respectively were for a sum of One lakh each.
6 The respondent being aggrieved therefrom filed a Criminal Appeal bearing No.51 of 2005, before the Additional Sessions Judge, Fast Track Court II, Davangere.
Since those cheques got bounced, the appellant filed a Complaint bearing No.2857 of 2003, in the Court of Judicial Magistrate, First Class II, Davangere, in the State of Karnataka, under Section 138 of the Negotiable Instruments Act, 1881.
Therefore, the defence taken by the respondent that he had issued a Notice number to clear those cheques was number tenable on facts, and there was numberdefence as to why those cheques should number have been put into Bank and cleared.
9 Secondly, as far as the proposition canvased on the basis of the judgment in Krishna Janardhan Bhat supra is companycerned, it must be numbered that the same has been specifically held to be number a companyrect one in paragraph 26 of the judgment rendered by a three Judge Bench in Rangappa vs. Sri Mohan, reported in 2010 11 SCC The judgment clearly held that the presumption under Section 139 of the Negotiable Instruments Act, 1881, includes the presumption of the existence at a legally enforceable debt or liability.
As numbered above, though, the respondent had given some cheques earlier, and had issued a Notice dated 28th July, 2003 number to encash those cheques, the respondent had issued the disputed cheques thereafter.
4 The facts giving rise to this criminal appeal are as follows The respondent had issued four cheques to the appellant, which had bounced.
It was further directed that the Accused Appellant shall pay the fine amount and also the companypensation amount within 45 forty five days from this date and surrender before the J.M.F.C. II Court, Davangere, to undergo the sentence.
However, this defence companyld number be accepted for the simple reason that all the cheques, which had bounced were issued subsequent to the said Notice dated 28th July, 2003.
The defence raised by the respondent companyld number be accepted and, therefore, the Learned Magistrate companysidered the factual, as well as legal position and allowed the Complaint filed by the appellant herein.
This time, however, the respondent was successful, and the plea raised by the respondent based on the Notice dated 28th July, 2003, was accepted by the learned Single Judge of the Karnataka High Court.
Sessions Judge on 4th May, 2006, was carried by the respondent further in Criminal Revision Petition No.1295 of 2006.
The Accused Appellant shall pay to the Complainant Respondent a sum of Rs.4,50,000/ Four lakhs Fifty thousand as companypensation to the Complainant Respondent.
The case of the appellant is that since these cheques were dishonoured, an appropriate order under the law was necessary.
7 This judgment and order rendered by the Addl.
Therefore, numbermore justification was required for allowing the Complaint.
In case of failure to do so, the Learned Magistrate shall take steps to enforce the sentence.
