Bangalore District Court
Sri. Ajay Kumar vs Sri.Francis Alis on 16 January, 2020
1 C.C.No.22297/2014 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
i. Dated:- This the 16th day of January, 2020
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.22297/2014
Complainant : Sri. Ajay Kumar,
S/o. Mr.G. Shantilal,
Residing at No. 19/1,
'Anil Mansion",
Kanakapura Road,
Basavanagudi,
Bengaluru - 560 004.
(Rep. by Smt.D.N.Mamata., Adv.,)
- Vs -
Accused : Sri.Francis Alis
S/o. Mr.Sowrubhaidu
Anthonyswamy,
No.86, Dodda Basavapura,
Seegehalli,
Bengaluru East,
Bengaluru -560 049.
(Rep. by Sri. N.S.Sanjay Kumar,
Adv.,)
Case instituted : 8.7.2014
2 C.C.No.22297/2014 J
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 16.1.2020
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused and his wife Mrs.Bhagya Jothi Vimala are known to him for the last several years and the Accused wife Mrs.Bhagya Jothi Vimala had offered to sell her two immovable properties i.e. site No.1 and 2 situated at Doddabasavanapura Village, K.R.Puram Hobli, Bengaluru East Taluk to him and his sister Mrs. Anju Bhaiya, accordingly Mrs.Bhagya Jothi Vimala has executed two registered Agreement of Sale in his and his sister's favour and has received advance sale consideration from them, therefore they are known and familiar to him. It is further contended that, during the last week of February 3 C.C.No.22297/2014 J 2014, the Accused along with his wife Mrs.Bhagya Jothi Vimala approached him at his office for a loan of Rs.15 Lakhs as the Accused needed urgently and was under going financial constraints and had to clear certain commitments and family debts, he lent a sum of Rs.15 Lakhs by way of cash to them and same was received and acknowledged by the Accused and his wife Mrs.Bhagya Jothi Vimala and also promised to repay the said amount forthwith, accordingly the Accused's wife Mrs.Bhagya Jothi Vimala issued one post dated cheque for Rs.13 Lakhs and Accused has issued one post dated cheque for Rs.2 Lakhs, cheque bearing No. 341511 dated: 5.5.2014 drawn on State Bank of India, Ajith Layout, Basavanapur Main Road, Battarahalli, K.R.Puram, Bengaluru to him towards discharge of the legally and lawfully enforceable debt. Thereafter upon assurance, representation and promise the said cheque would be honoured by the Accused, he presented the said cheque on 7.5.2014 through his banker M/s. Bank of Maharashtra, Basavanagudi, Bengaluru and the said cheque was came to be dishonoured on 8.5.2014 for the reasons "Funds Insufficient' as per Bank intimation dated:
4 C.C.No.22297/2014 J9.5.2014. Thereafter again in the first week of March 2014, the Accused along with his wife Mrs.Bhagya Jothi Vimala had also approached his sister Mrs. Anju Bhaiya and had taken a sum of Rs.24,50,000/= as a loan and issued cheques toward repayment and the same has been presented and dishonoured, thus the Accused dishonestly, deliberately with fraudulent intent not paid the amount under the cheque to him, hence he got issued legal notice date: 6.6.2014 through RPAD, calling upon the Accused to pay the amount due under the cheque, and the said notice was duly served on the Accused on 7.6.2014, the Accused has not replied to the notice and the conduct appears that, the Accused has no intention to pay the cheque amount. Hence the complainant has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the averments of the complaint along with original 5 C.C.No.22297/2014 J documents.
4. Prima-facie case has been made out against the accused and summons was issued against the accused in turn he has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to him, to which he pleaded not guilty and claims to be tried.
5. Thereafter the complainant himself examined as PW.1 by filing his affidavit in lieu of examination in chief. In support of his oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.12 i.e, Original Cheque dated:-
5.5.2014 as per Ex.P.1, the signatures on the said cheque identified by P.W.1 as that of the accused are as per Ex.P.1(a) the Bank Memo as per Ex.P.2, the office copy of the Legal Notice as per Ex.P.3, the Postal Receipt as per Ex.P.4, postal acknowledgement as per Ex.P.5, Income Tax Returns documents for the Assessment year 2014-15 as per Ex.P.6 and certificate filed U/s.65B of the Evidence Act in the form of affidavit as per Ex.P.7,certified copy of the Agreements of sale as per Ex.P.8 and P.9 6 C.C.No.22297/2014 J (Marked through DW.1), certified copy of the Reply Notice issued by the Accused herein to the complainant is as per Ex.P.10, certified copy of the order sheet in PCR No. 60252/2013 filed by the Accused against the complainant herein before the 10th Addl.CMM , is as per Ex.P.11, certified copy of the "B' report filed by the PSI of K.R. Puram PS, in Crime No. 227/2018 is as per Ex.P.12 and closed his side.
6. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence appearing against him and has chosen to lead his rebuttal evidence.
7. Accused himself examined as DW.1 and has produced the documents i.e., certified copies of the complaints dated: 12.2.2016 given by the Accused and his wife as per Ex.D.1 and D.2 respectively, copy of the notice given by the Accused to the complainant as per Ex.D.3, the certified copy of the Order sheet and Complaint in PCR No. 60253/2017 as per Ex.D.4 ad D.5 respectively, the certified copy 7 C.C.No.22297/2014 J of the order sheet and complaint filed by the wife of the Accused in PCR No.51089/2018 as per Ex.D.6 and D.7 respectively, the certified copies of the FIR in Crime No.226/2018 and 227/2018 as per Ex.D.8 and D.9 respectively and private complaint filed by the sister of the complainant against the Accused in C.C. No. 22482/2014 as per D.10, the certified copy of the letter dated: 17.1.2019 given to bank as per Ex.D.11, the certified copy of the Bank statement as per Ex.D.12, Notice published in Udayavani dated: 11.6.2017 as per Ex.D.13, relevant portion of the paper publication as per Ex.D.13(a) and closed side.
8. Heard and perused the written arguments submitted by both learned counsels for the complainant and Accused and perused the materials on record.
9. On the basis of complaint, evidence of complainant and documents and having heard the arguments of both learned counsels for the complainant and the accused, the following points that are arise for consideration are:-8 C.C.No.22297/2014 J
1. Whether the complainant proves that the accused has issued cheque for Rs.2,00,000/= bearing No.341511 dated:-5.5.2014 drawn on State Bank of India, Ajith Layout, Basavanapur Main Road, Battarahalli, K.R.Puram, Bengaluru.
to discharge legally recoverable debt to the complainant and when the complainant has presented a cheque for encashment through his banker but the said cheques have been dishonoured for the reasons "Funds Insufficient" on 8.5.2014 and the complainant issued legal notice to the accused on 6.6.2014 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
10. The above points are answered as under:
Point No.1: In the Affirmative Point No.2:As per final order for the following:
REASONS
11. Point No.1: Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish 9 C.C.No.22297/2014 J guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act pre-supposes three conditions for prosecution of an offence which are as under:
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.10 C.C.No.22297/2014 J
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
12. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e., U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena 11 C.C.No.22297/2014 J of decisions.
13. In the present case the complainant got examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire averments of the complaint and in his evidence testified regarding the lending of loan amount of Rs.15 Lakhs to the Accused and his wife for their financial constraints and to clear commitments and family debts and the Accused and his wife were received the said loan amount and acknowledged by them and in order to repay the said amount the Accused had issued a post dated cheque for Rs.2 Lakhs i.e Ex.P.1 and his wife was also issued one post dated cheque for discharging remaining amount of Rs.13 Lakhs. The complainant further testified that, as per the assurance of the Accused, he has re-presented the cheque in dispute through her banker and same was came to be dishonoured on 7.5.2014 for the reasons "Funds Insufficient" vide intimation dated:
8.5.2014 thereafter he got issued legal notice to the Accused through RPAD on 6.6.2014 and same was served on the Accused on 7.6.2014 but Accused neither replied to the notice nor complied the 12 C.C.No.22297/2014 J demand made by him.
14. In support of her oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.12 i.e., Original Cheque dated:-5.5.2014 as per Ex.P.1, the signatures on the said cheque identified by P.W.1 as those of the accused are as per Ex.P.1(a), the Bank Memo as per Ex.P.2, the office copy of the Legal Notice as per Ex.P.3, the Postal Receipt as per Ex.P.4, postal acknowledgement as per Ex.P.5, Income Tax Returns documents for the Assessment year 2014-15 as per Ex.P.6 and certificate filed U/s.65B of the Evidence Act in the form of affidavit as per Ex.P.7,certified copy of the Agreements of sale as per Ex.P.8 and P.9 (Marked through DW.1), certified copy of the Reply Notice issued by the Accused herein to the sister of complainant is as per Ex.P.10, certified copy of the order sheet in PCR No. 60252/2013 filed by the Accused against the complainant herein before the 10th Addl.CMM, is as per Ex.P.11, certified copy of the "B' report filed by the PSI of K.R. Puram PS, in Crime No. 227/2018 is as per Ex.P.12 and closed his side.
13 C.C.No.22297/2014 J15. In the present case, there is no dispute between the complainant and Accused with regard to their acquaintance. It is also not in dispute by the accused that, the cheque in question i.e Ex.P.1 presented for encashment and dishonoured for the reason of "Funds Insufficient" since as matter on record, proved by return memo i.e. P.2 issued by the concerned bank dated: 8.5.2014 therefore it is a matter on record and has been proved that, the cheque in question was presented within its validity period and dishonoured as per the bank endorsement issued by the banker of accused. It is also not in dispute that, the cheque in question i.e. Ex.P.1 belongs to the account of the accused and has not denied her signatures which are appearing at Ex.P.1(a) and P.1(b). In relation to the service of notice the Accused in his evidence and in the cross- examination of complainant has not disputed the service of notice on him. In addition to that, the complainant has produced postal receipt and postal acknowledgement which are at Ex.P.4 and P.5 and also produced certified copy of the reply notice dated: 27.8.2014 i.e. marked as Ex.P.10, hence it goes to show that, the legal notice dated: 6.6.2014 14 C.C.No.22297/2014 J issued by the complainant through RPAD was served upon the Accused.
16. It is the specific defence of the Accused that, in the year September 2013 he has approached the complainant for seeking hand loan of Rs.8 Lakhs at that time complainant insisted to repay the said amount within three months along with additional amount of Rs.2 Lakh as interest for that, he was agreed to pay the total amount of Rs.10 Lakhs in the month of January 2014, at the time of receiving the said loan amount of Rs.8 Lakhs the complainant insisted him and his wife to give the blank signed cheques and signed blank bond papers for security purpose and also execute a sale agreement in favour of his sister by name Smt.Anju Bhaiya at his instance his wife has executed sale agreement in favour of complainant's sister and also he and his wife had given signed blank cheques and bond papers i.e. cheques bearing No. 341509 to 341513 pertains to the SB account drawn on State Bank of India, Battarahalli Branch, Bengaluru and also he had given cheques bearing No.244981 to 244990 pertains to his SB Account, drawn on Apex 15 C.C.No.22297/2014 J Bank, Indiranagar Branch, Bengaluru i.e., their Joint Account and the said cheques have been misused by the complainant by colluding with his sister has filed the present complaint and other cases against him and his wife. Hence, on these back grounds now the oral and documentary evidence adduced by the complainant and Accused have to be examined.
17. The Accused during the course of cross- examination of the complainant though he has questioned the financial capacity of the complainant to lend the loan transaction in question and also declaration of the loan transaction in question in his Income tax Returns and also non production of the documents to prove his financial capacity. It is a relevant here to mention that, the Accused during the course of cross-examination of the complainant and in his evidence has specifically admitted that, he had borrowed a loan of Rs.8 Lakhs from the complainant in the month of September 2013 by agreeing to repay the said amount along with interest of Rs. 2 Lakhs within three months i.e in total Rs.10 Lakhs in the month of January 2014.
16 C.C.No.22297/2014 JHence, the very admission of the Accused sufficient to hold that, in the year 2013 the complainant was having sufficient funds or income to lend the loan amount in question to the Accused and his wife. It is true that, the complainant has admitted in his cross- examination that, he has not mentioned the loan amount lend to the Accused in his I.T. Returns. The complainant has produced his I.T. Returns document for the Assessment year 2014-15 which is at Ex.P.6. No doubt in Ex.P.6 there is no separate mentioning of lending of loan amount in question to the Accused and his wife but it is mentioned in Ex.P.16 that, an amount of Rs.23 Lakhs as sundry loan and the total income of Rs.18,90,529/= and opening balance as on 1.4.2013 shown as Rs.40,73,239/= and total income shown as Rs.50,13,529/=, hence as per Ex.P.6, it can be held that, as on the date of loan transaction in question the complainant was having sufficient source of income to lend loan amount to the Accused. It is also relevant here to mention that, when the Accused himself admitted that, he had borrowed a loan of Rs.8 Lakhs in the year 2013 from the complainant in such circumstances, the cross-examination made by 17 C.C.No.22297/2014 J the Accused with regard to questioning of financial capacity of the complainant is of no use for the Accused to disprove the financial capacity of the complainant.
18. The learned counsel for the Accused in his written arguments has referred the cross- examination of the complainant at para No.4 and 5 and argued that, in view of the admissions of the complainant, he has not proved the loan transaction in question. It is true that, the complainant in his cross-examination has admitted that, he has 800 clients in his business and he do not remember the last day transaction and also admitted that, there is no impediment to produce the ledger book/Accounts maintained by him. But the complainant in his cross-examination has specifically denied that, he has no impediment in producing the ledger book as he had lent Rs.15 Lakhs to the Accused in cash, in such circumstances, even though ledger book or accounts are not produced by the complainant it cannot be held that, the loan transaction in question have not been taken place between the complainant and the Accused. It is not the case of the 18 C.C.No.22297/2014 J complainant that, he has mentioned the loan amount lent by him to the Accused in his account or ledger book, therefore non production of the ledger book by the complainant is not fatal to the case of the complainant. It is also true that, the complainant admitted that, he do not remember the last day transaction but on that ground only the entire evidence of the complainant cannot be discarded, evidence of the complainant has to be read in its entirety but not by picking up particular word or sentence from the entire deposition. It is also held in the above that, though the complainant has not mentioned the loan amount in transaction in his I.T. Returns but in the I.T. Returns i.e Ex.P.6 he has mentioned the entire loan amount given by him during the year 2013-14 under the head of Sundry Loan, in such circumstances, also the non mentioning of the name of the Accused with regard to alleged loan transaction will not invalidates the transaction in question, therefore for the above said reasons the arguments canvassed by the learned counsel for the Accused at para No.4 and 5 in the written argument cannot be acceptable one.
19 C.C.No.22297/2014 J19. The learned counsel for the Accused though has cross examined in length but nothing has been elicited to discard or discredit the evidence of complainant. It is true that, the complainant has admitted that as per Ex.D.1 and D.2 i.e. Agreement of Sales the wife of the Accused has executed Agreement of Sales in his favour and infavour of his sister by name Anju Bhaiya, but he has specifically denied the suggestions made to him that, the Accused approached him in September 2013 and asked loan of Rs.8 Lakhs and at that time he insisted to the wife of the Accused to execute Agreement of sale of property for security and to give blank signed cheques and e-stamp papers to lend loan amount and as per his instructions, the wife of Accused has executed Agreement of Sale in respect of site No.1 of Doddabasavapura village, K.R. Puram in favour of his sister and on the same day he has given Rs.8 Lakhs to the Accused by cheque and on the same day he has received blank signed cheques leafs bearing Nos. 244982 to 244990 of Joint Account of the Accused and his wife pertaining to the Karnataka State Co-operative Apex Bank, Indiranagara branch and blank signed cheques leafs 20 C.C.No.22297/2014 J bearing Nos. 341509 to 341513 pertaining to the wife of Accused bank account of SBI Battrahalli branch, and blank signed e-stamp papers for the purpose of security of loan amount. The complainant has also denied the suggestions that, as per mutual understanding between him and the Accused and the Accused has to pay Rs.10,00,000/= including Rs.2 Lakhs interest out of Rs.8 Lakhs loans in the month of January 2014, but the Accused was failed to re-pay the said amount at that time he has presented the cheques and got dishonoured them and also threatened to the Accused to file case against Accused and his wife and to execute anther sale of agreement, hence the wife of Accused has executed another agreement of sale on 13.1.2014 in his favour. The complainant though has admitted that, his sister Anju Bhaiya has filed another cheque bounce case in Cr.No.22482/2014 for sum of Rs.24,50,000/= before SCCH-2nd court but he stated that, this case and said case are different one and also denied the suggestions that, the Accused and his wife are due of Rs.8 Lakhs only to the complainant out of all cases i.e. this case, C.C.No.22296/2014, C.C.No.22482/2014 and 21 C.C.No.22297/2014 J O.S.3028/2015 and O.S.3039/2015 filed by him and his sister except the said amount the Accused and his wife are not liable to pay any amount and the cheques which were given security at the time of execution of agreement of sale in favour of his sister have been misused by him and his sister. Hence on entire perusal of the cross-examination of complainant of complainant, nothing has been elicited to accept or believe the defence of the Accused.
20. It is relevant here to mention that, the learned counsel for defence during the cross- examination of complainant though has denied the financial capacity of the complainant but has admitted that, he has availed loan of Rs.8 Lakhs from him and they are also still due of the said amount and complainant has also proved his financial capacity by producing Ex.P.6. I.T. Returns document. The Accused has also denied the loan amount lend by the complainant to him and his wife and has not issued the cheque in question i.e. Ex.P.1 towards discharge of said loan amount, but the said suggestions are denied by the complainant 22 C.C.No.22297/2014 J but the Accused has admitted that, the subject cheque belongs to his account and signatures found on the subject cheque is of his signature, in such circumstances presumptions can be drawn with regard to existence of legal recoverable debt or liability and the cheque in question was issued only towards discharge of the said debt or liability No doubt, the said presumptions are rebuttable one but unless and until they are rebutted by the Accused. It can be presumed that, the subject cheque is issued towards discharge of loan or liability in question, even in the absence of documents or documents are not produced by the complainant in respect of loan transaction in questing. In this regard, it is relevant here to refer the decisions reported in 2001 AIR Karnataka HCR 2154 between 'M/s.Devi Tyres V/s.Navab Jan' and in 2011 ACD 1521 (KAR) between 'Smt. Usha Suresh V/s. Shashidharn', in 2010 SC 1898 between 'Rangappa Vs. Mohan' and 2011 ACD 1412 (KAR) between 'N.Hasainar Vs. M.Hasainar, S/o. Ibrahim'. The Hon'ble High Court of Karnataka in the above decision i.e., 2001 AIR Karnataka HCR 2154 at para No.6 was pleased to hold that issuance 23 C.C.No.22297/2014 J of cheque itself was adequate proof of existence of debt or liability. In another decision of Hon'ble Apex Court of India i.e. Hon'ble Three Judges Bench Decision reported in (2010) 11 SCC 441 in the case of Rangappa Vs. Sri. Mohan ., wherein the Hon'ble Apex Court held that " A. Negotiable Instruments Act, 1881 - S.139 - Presumption under - scope of - Held, presumption mandated by S. 139 includes a presumption that there exists a legally enforceable debt or liability - However such presumption is rebuttable in nature - Criminal Trial - Proof - Presumptions - Generally. Further held that "Signature on the cheque was his, statutory presumption under S.139 comes into play and the same was not rebutted even with regard to the materials submitted by complainant Appellant not able to prove "lost cheque" theory - Apart from not raising a probable defence appellant was also not able to contest the existence of a legally enforceable debt or liability - hence, his conviction by High Court, held, proper. In another decision of Hon'ble Apex Court of India, reported in CRIMINAL APPEAL NO. 508 OF 2018 DT 24 C.C.No.22297/2014 J 15-03-2018 between ROHITBHAI JIVANLAL PATEL Vs STATE OF GUJARAT AND ANR held that "Negotiable Instruments Act facts like source of funds are not relevant if the Accused has not been able to rebut the presumption. It is further held that "
When such a presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the Accused has been able to rebut the presumption or not". In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, " Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer - even a blank cheque 25 C.C.No.22297/2014 J leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. It is also held that, " the accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the Trial Court and High Court. Both courts not only erred in law but also committed perversity when the due amount is said to be disputed only on the account of discrepancy in the cartons, packing materials or the rate to determine the total liability as if the appellant was proving his debt before the civil court. Therefore it is presumed that, the cheque in question were drawn for consideration and the holder of the cheques received the same in existing debt". It is also held that, " the Trial court and the High Court proceeded as if, the appellant is to prove a debt before civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. A dishonour of 26 C.C.No.22297/2014 J cheque carries statutory presumption of consideration. The holder of cheque in due course is required to prove that, the cheque was issued by the Accused and that when the same presented , it was not honoured Since there is a statutory presumption of consideration, the burden is on the Accused to rebut the presumption that, the cheque was issued not for any debt or other liability ". It is also relevant here to refer the decision of Hon'ble High Court of Karnataka reported in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption mandated by Sec.139 of N.I Act includes the presumption that, there existed a legally enforceable debt or liability, however such presumption is rebuttable in nature". In another decision of Hon'ble High Court of Karnataka in the case of Shri.V.R.Shresti Vs. Shri. Bhaskara.P. in Crl. Appeal No. 2109/2017 dated: 15.10.2019 wherein the Hon'ble High Court of Karnataka held that "the Accused has not given any reply to the notice and also in the cross- examination, he categorically admits that, the 27 C.C.No.22297/2014 J cheque has bounced on account of no sufficient fund in the bank account of the Accused. Mere non producing of the document before the court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The Accused ought to have rebutted the contention of the complainant by producing cogent evidence before the court and mere denial is not enough".
21. Therefore on careful reading of the principles of law laid down by the Hon'ble Apex Court of India and High Court of Karnataka in the above referred decisions makes it very clear that, once the holder in due course i.e. the complainant proved that, the cheque in question belongs to the drawer and signature appearing on the cheque is that of the drawer i.e., Accused and complied the mandatory requirements as required U/s.138 of N.I.Act, a presumptions U/s.118a and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt and when such a presumption is drawn the facts relating to the want of documentary evidence in the form of receipts or accounts or want 28 C.C.No.22297/2014 J of evidence regarding source of funds were not of relevant unless the Accused rebutted the presumption available to the complainant as held by the Hon'ble Apex Court and High Court of Karnataka in the above decisions. In the present case also the complainant has complied a mandatory requirements and has proved that, the Accused has issued the cheque in question in his favour and the Accused has admitted the cheque belongs to him and signature appearing on the cheque is that of his signature and even the service of legal notice to the Accused has not given any reply or complied the terms of the notice, in such circumstances, presumptions have to be drawn towards existence of legally enforceable debt as per Sec.139 of N.I.Act.
22. The Accused in the cross-examination of the complainant has also taken defence that, at the instance of the complainant, at the time of borrowing loan of Rs.8 Lakhs, has given blank signed cheques belongs to him and same has been misused by the complainant and has filed this complaint, but the complainant has denied the said suggestions. It is relevant here to mention that, even for sake of 29 C.C.No.22297/2014 J discussion, it is a relevant here to refer the decision of Hon'ble Apex Court of India reported in AIR 2019 SC 2446 in the case of Birsingh Vs. Mukesh Kumar., wherein the Hon'ble apex Court held that, "presumption U/s.139 is presumption of law, distinguished from presumption of facts and also held that, presumptions are rules of evidence and do not conflict with presumption of innocence which requires prosecution to prove case against the Accused and also held that obligation on the prosecution may discharged with the help of presumptions of law and presumption of fact unless the accused adduces evidence showing reasonable plausibility of non existence of presumed fact." In the present case though the Accused has denied the contents of the cheque in question except his signature but he has failed to prove his defence or produced any documents or satisfactory evidence to rebut the presumptions as available U/s.139 of the N.I.Act, under such circumstances in view of the above principles of law, it can be presumed even on fact also that the complainant has proved his case by discharging his burden and complying the 30 C.C.No.22297/2014 J mandatory provisions. In the said decision the Hon'ble Apex court has also held that, "presumption as to legally enforceable debt is rebuttable, the signed blank cheque if voluntarily presented to payee towards payment payee may fill up amount and other particulars and it in itself would not invalidate cheque and onus would still be on the accused to prove that, cheque was not issued or discharge of debt or liability by adducing evidence." In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, "
Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is 31 C.C.No.22297/2014 J towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. In such circumstances even if it is assumed that, the Accused has issued blank signed cheque to the complainant and the contents of cheque in question were not filled in by him and the contents of the cheque were filled in by the person other than the Accused, in such circumstances also, in view of the principles of law laid down in the above decision that itself would not invalidates the cheque in question and it can be presumed that, the cheque was filled in by the person in the presence of the Accused at his consent and the said cheque has been issued towards discharge of legally recoverable debt.
23. The learned counsel for the defence has also contended in the written arguments that, the complainant has admitted in his cross-examination that, he has not disclosed or declared the alleged loan amount lend to the Accused and his wife in his Income Tax returns. In this regard, it is necessary here to refer the decision of our Hon'ble High court 32 C.C.No.22297/2014 J of Karnataka reported in 2019(1) Kar. L.R.185 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat in the said case the Hon'ble High Court of Karnataka held that " Negotiable Instruments Act, 1881 - Sections 138 and 139 - Endorsement 'payment stopped by drawer' - The trial court in the instant case, merely considered a suggestion made from the Accused side in the cross-examination of PW-1 that the complainant was an income tax assessee and that he has not declared the alleged loan transaction in his returns and disbelieved the case of the complainant that too, ignoring that legal presumption under section 139 of the N.I. Act, was operating in favour of the complainant- For these reasons, it has to be held that the complainant has beyond reasonable doubt proved the guilt of the Accused punishable under Section 138 of the N.I. Act. As such, the impugned judgment of acquittal passed by the trial court deserves to be set aside and respondent/Accused is liable to be convicted for the offence punishable under Section 138 of the N.I. Act. Hence in view of the principles of law laid 33 C.C.No.22297/2014 J down by the Hon'ble High court of Karnataka in the above referred decisions, in the present case also the complainant admitted that, he has not declared the loan transaction in question in his I.T. Returns but as it is already held that, the complainant has discharged his primary burden by complying the mandatory provisions of Sec.138 of N.I. Act, therefore it is for the accused to rebut the presumption existing infavour of the complainant U/s.139 of Negotiable Instruments Act. Apart from that, the admissions of the complainant with regard to non declaration of loan transaction in I.T. Returns for the concerned year could not by itself draw an adverse inference and to hold that, there was no existence of legally enforceable debt or the presumption as envisaged U/s.139 of N.I.Act is successfully rebutted by the accused. In another decision of Hon'ble Madhya Pradesh High Court decided in C.R.R No.5263/2018 dated: 7.3.2019 in the case of Smt. Ragini Gupta Vs. Piyush Dutt Sharma Gwalior., wherein the Hon'ble High Court held that, mere non filing of income tax return would not automatically dislodge the source of income of the complainant and non payment of 34 C.C.No.22297/2014 J income tax is a matter between the revenue and assessee and if the assessee has not disclosed his income in the income tax return, then the income tax department is well within its right to reopen the assessment of income of the assessee and to take action as per provisions of Income Tax Act, however non filing of income tax return by itself would not mean that, the complainant had no source of income and thus no adverse inference can be drawn in this regard only because of absence of income tax return. Hence in view of the principles of law laid down by Hon'ble High Court of Madya Pradesh in the above said decision in the present case also though the complainant has admitted that, he has not disclosed his income and transaction in question in his income tax return that itself would not automatically dislodge the source of income of the complainant. Therefore the admissions of the complainant which are elicited in his cross-examination are not helpful for the accused to prove his defence that, in view of non disclosure of source of income of the complainant and transaction in question in his income tax returns that itself sufficient to hold that, the complainant has no source of income and has 35 C.C.No.22297/2014 J not lend loan amount to the Accused and her husband cannot be acceptable one.
24. Hence, from careful perusal of the oral and documentary evidence of the complainant i.e., Ex.P.1 to P.5 and admitted facts by the Accused in respect of the subject cheque in question and signature found on the subject cheque is that of the Accused and dishonour of the subject cheque for want of insufficient funds and thereafter notice issued to the Accused was served on them, hence the complainant has proved that, the subject cheque in question i.e. Ex.P.1 is belongs to the Accused and signature ie..Ex.P.1(a) is that of the Accused and the subject cheque was presented within its validity period as per Ex.P.2 and thereafter dishonour of the said cheque within 30 days legal notice was issued to the Accused as per Ex.P.3 and same was served on the Accused as per Ex.P.5 and even then the Accused did not pay the amount covered under the cheque inspite of service of said notice, hence the complainant has discharged initial burden that was casted on him and a presumption can be drawn in his favour as required U/s.118 and 139 of the N.I. 36 C.C.No.22297/2014 J Act. Consequently it is for the Accused to rebut the said presumption Accused has to show that, the subject cheque in question was not issued to either complainant or towards any legally recoverable debt or liability by producing cogent and convincible evidence but not mere suggestions or denial or by plausible explanations.
25. In order to rebut the presumptions available to the complainant, the Accused herself examined as DW.1 who in his evidence has specifically deposed that, in the year September 2013 he approached the complainant borrowing hand loan of Rs.8 Lakhs at that time the complainant insisted him to repay the said amount along with amount of Rs.2 Lakhs towards interest and also insisted him and his wife to give signed blank cheques and signed bond papers and his wife has to execute a sale agreement in favour of the sister of the complainant by name Smt. Anju Bhaiya since the site property was stands in her name for that, he agreed to repay the entire amount of Rs.10 lakh in the month of January 2014 and as per the demand made by the complainant, he has given the 37 C.C.No.22297/2014 J signed blank cheque leafs bearing cheque nos. 341509 to 341513 pertains to his SB account No. 20143892612 drawn on State Bank of India, Battarahalli Branch, Bengaluru and signed blank bond papers and his wife has also given her signed blank cheque leafs bearing No. 244981 to 244990 pertains to her SB account No. 6121 drawn on Apex Bank, Indiranagar Branch, Bengaluru and also signed blank bond papers to the complainant and in favour of his sister for security of the loan borrowed by her husband. The Accused /DW.1 has also stated that as per the mutual understanding between him and complainant, he was unable to pay the amount of Rs.10 Lakhs in the month of January 2014 , at that time the complainant and his sister were presented the cheques which were given for security and threatened him and his wife to execute another sale agreement in favour of the complainant otherwise they will file criminal cases against him and his wife, hence his wife was executed another sale agreement infavour of the complainant in respect of her residential property, though there was a loan taken from the Apex Co-operative Bank, Indiranagar Branch, Bengaluru on the said property.
38 C.C.No.22297/2014 JThe Accused/DW.1 further deposed that, complainant and his sister have already field suit or specific performance cases in O.S.No.3028/2015 and O.S.3039/2015 before the City Civil Judge, (CCH 13) Court Bengaluru and his sister also filed cheque bounce case against him in C.C.No. 22482/2014 before the SCCH 2 court. The Accused /DW.1 further stated that, he borrowed an amount of Rs.8 Lakhs on interest under the sale agreement dated: 26.9.2013 from the complainant's sister the said fact was true and only security purpose his wife has executed the sale agreements dated: 26.9.2013 and 13.1.2014 and at the same time he and his wife were given the signed blank cheques and signed blank stamp papers at the time of borrowing the hand loan amount of Rs.8 Lakhs which was paid by the sister of the complainant by way of cheque bearing No. 415673 dated: 26.9.2013 drawn on Indian Bank, BSK II Stage, Bengaluru and after that, the complainant and his sister are colluded to each other and filed false cases against him and his wife, therefore all the cases filed against him and his wife are jointly liable to pay an amount of Rs.8 Lakhs which was received under the agreement of sale 39 C.C.No.22297/2014 J date: 26.9.2013 and if the complainant and his sister by name Smt.Anju Bhaiya are withdraw the said five cases and returned the original remaining cheques and blank stamp papers to them they are ready to pay the amount of Rs.8 Lakhs to the complainant and his sister.
26. In support of oral evidence the Accused has produced certified copies of the complaints dated: 12.2.2016 given by the Accused and his wife as per Ex.D.1 and D.2 respectively, the notice given by the Accused to the complainant as per Ex.D.3, the certified copy of the Order sheet and Complaint in PCR No. 60253/2017 as per Ex.D.4 ad D.5 respectively, the certified copy of the order sheet and complaint filed by the wife of the Accused in PCR No.51089/2018 as per Ex.D.6 and D.7 respectively, the certified copies of the FIR in Crime No.226/2018 and 227/2018 as per Ex.D.8 and D.9 and private complaint filed by the sister of the complainant against the Accused in C.C. No. 22482/2014 as per D.10, the certified copy of the letter dated:
17.1.2019 given to bank as per Ex.D.11, the certified copy of the Bank statement as per Ex.D.12, 40 C.C.No.22297/2014 J Notice published in Udayavani dated: 11.6.2017 as per Ex.D.13, relevant portion of the paper publication as per Ex.D.13(a) and closed side.
27. On careful perusal of the oral and documentary evidence of the Accused it appears that, according to the Accused in the month of September 2013 her husband had borrowed a loan of Rs.8 Lakhs from the complainant and at the instance of the complainant he was agreed to pay the said amount along with Rs.2 Lakhs interest in all an amount of Rs.10 Lakhs to the complainant in the month of January 2014 and towards security of the said loan amount her husband has given signed blank cheque leafs bearing nos. 341509 to 341513 pertains to his SB Account in State Bank of India, Battarahalli Branch and bond papers and the Accused had also given her signed blank cheque leafs bearing No. 244981 to 244990 pertains to her SB account in Apex bank, Indiranagar Branch, Bengaluru and bond papers and also executed a Sale Agreement in favour of complainant's sister by name Smt.Anju Bhaiya, i.e. as per Ex.D.1 as agreed by the husband of the Accused he was unable to pay 41 C.C.No.22297/2014 J the amount of Rs.10 Lakhs in the month of January 2014, the complainant and his sister presented the security cheques given to them and threatened the Accused and her husband to execute one more agreement of sale, otherwise they will going to file criminal cases against her and her husband , for that one more agreement was executed by her infavour of the complainant i.e. Ex.D.2, as agreed by the husband of the Accused he was unable to repay the amount of Rs.10 Lakhs to the complainant , for that, the complainant and his sister colluded each other and have filed the present case and also suit for specific performance in O.S.No.3028/2015 and 3039/2015 and C.C.No.22482/2014 and CC.22297/2014 against her and her husband i.e. as per Ex.D.1(A) to D.12.
28. On careful perusal of the documents produced by the complainant i.e Ex.P.8 and P.9 i.e. Agreements of Sale dated: 26.9.2013 and 13.1.2014, it appears that, as per Ex.P.8 the wife of the Accused has executed an Agreement of sale infavour of the sister of the complainant by name Anju Bhaiya in respect of the scheduled property therein 42 C.C.No.22297/2014 J by agreeing to sell for sum of Rs.10 Lakhs towards sale consideration amount and also received an amount of Rs.8 Lakhs by way of cheque and sum of Rs.1 Lakh by way of cash as advance sale consideration and agreed to receive remaining sale consideration amount at the time of registration of the sale deed. As per Ex.P.9 the wife of the Accused has executed an Agreement of sale infavour of the complainant in respect of the scheduled property therein by agreeing to pay sale consideration amount of Rs.13 Lakhs and also received an amount of Rs.12 Lakhs as advance sale consideration and agreed to receive remaining sale consideration amount at the time of registration of the sale deed. It is important to note here to the recitals of the Ex.P.8 and P.9 does not reveals the fact that, the Accused has borrowed a loan amount of Rs.8 Lakhs from the complainant and at the instance of complainant only the wife of the Accused has executed an Agreement of Sale in favour of the sister of the complainant as per Ex.P.8 and it is nowhere mentioned that, at the time of execution of the agreement of sale or prior to the execution of the agreement of sale i.e Ex.P.8 the Accused and his wife had given blank signed cheque 43 C.C.No.22297/2014 J leaves and blank signed bond papers in favour of the complainant or his sister as alleged by the Accused in his defence evidence. It is also relevant here to mention that, the admissions of the Accused discloses that, the complainant and his sister have filed original suits in O.S.No.3028/2015 and O.S.No.3039/2015 before the City Civil Court, Bengaluru for enforcement of Agreement of Sale executed by the Accused in their favour i.e for specific performance of the contract and the said suits are pending for consideration before the Civil court. It is also relevant here to mention that, it is admitted by the Accused in the cross-examination that, as on this day, neither he or his wife have filed any suit or case against the complainant or his sister for cancellation of the registered agreement of sale executed by the wife of the Accused as per Ex.P.8 and P.9 in favour of the complainant and his sister, hence it goes to show that, as on today the Ex.P.8 and P.9 were not challenged by the Accused by alleging that, his wife has executed Ex.P.8 and P.9 only for the purpose of security to the loan obtained by him at the instance of the complainant.
44 C.C.No.22297/2014 J29. It is also relevant here to mention that, the Accused/DW.1 in his cross-examination has admitted that, there is a reference in Ex.P.8 that, his wife had received an amount of Rs.8 Lakhs by way of cheque and Rs.1 lakh by way of cash from Smt. Anju Bhaiya, hence the said admission makes it clear that, as per the recitals of the Ex.P.8 the wife of the Accused had received an amount of Rs.9 Lakhs as advance sale consideration amount from the sister of the complainant.
30. It is relevant here to mention that, the Accused/DW.1 in his cross-examination has admitted that, as per Ex.P.9 his wife has executed the agreement of sale in favour of the complainant and also stated that, his wife has filed a complaint against the complainant alleging that, the Ex.P.9 got executed by his wife due to threat given by the complainant but he further admits that, there is no mentioning of execution of Ex.P.9 that, it has been executed for the purpose of security to the loan obtained by him, hence it appears from the said admissions that, the wife of the Accused may not have executed Ex.P.9 under the alleged threat 45 C.C.No.22297/2014 J given by the complainant. Hence, in view of civil suits filed by the complainant and his sister in O.S.No.3028/2015 and 3039/2015 before the City Civil court, Bengaluru city, the defence taken by the Accused that, he has received an amount of Rs.8 Lakhs from the complainant and at that time his wife has executed Ex.P.8 and himself and his wife had given signed blank cheques and bond papers to the complainant and also executed Agreement of Sale as per Ex.P.9 in favour of the complainant cannot be acceptable one. This court cannot decide the issue of execution of the Ex.P.8 and P.9 by the wife of the Accused in favour of the complainant's sister and complainant respectively for the sale consideration amount mentioned therein and advance amount received by the wife of the Accused. But on the basis of Ex.P.8 and P.9 the Accused failed to prove his defence that, the cheque in question was given by him to the complainant towards security of loan borrowed by him from the complainant as alleged by him in his defence.
31. It is relevant here to mention that, the Accused in support of his defence evidence has 46 C.C.No.22297/2014 J produced the certified copy of the complaint filed by him and his wife before the Commissioner of Police Bengaluru and notice dated: 7.11.2016 issued by him to the complainant and his sister for return of signed blank cheques and signed blank bond papers and private complaint filed by him in PCR No. 60253/2017 before the 10th ACMM Bengaluru against the complainant and his sister and copy of the FIR in Crime No.226/2018, K.R.Puram PS, registered against the complainant as per the PCR No.51088/2018 and FIR in Crime No. 227/2018 K.R. Puram PS, registered against the Accused as per PCR No.60252/2017 and copy of the letter given by him to the Manager of State Bank of India, Bhattarahalli Branch, which are at Ex.D.1 to D.12. On careful perusal of the Ex.D..1 to D.12 it appears that, the Accused and his wife have lodged the complaint before the Commissioner of police Bengaluru as well as before the 10th ACMM Court at Bengaluru alleging that, the complainant and his sister have collected 5 signed blank cheques from the him and 5 blank signed cheques from his wife security towards the loan amount of Rs.8 Lakhs borrowed by him and inspite of returning the said 47 C.C.No.22297/2014 J amount to the complainant but the complainant and his sister have colluded to each other and have filed criminal cases against them. It is also seen that, the private complaint filed by the Accused and his wife were referred U/s.156(3) of Cr.P.C. to the concerned Jurisdictional police by the court and the concerned jurisdictional police i.e. K.R.Puram police have registered the cases against the complainant in Crime No. 226/2018 and 227/2018 of their PS.
32. It is important to note here that, the Accused has not produced any document to show that, whether the concerned police in crime No. 226/2018 and 227/2018 have investigated the complaint and filed the charge sheet against the complainant. But the complainant has produced the certified copy of the order sheet of PCR No. 51088/2018 and B report filed by the concerned police in C.C.No. 226/2018 which are at Ex.P.11 and P.12 respectively. On careful perusal of the Ex.P.11 and 12 makes it clear that, the concerned jurisdictional police have filed B report in PCR No. 51088/2018 filed by the Accused before the 10th ACMM Court at Bengaluru after conducting the 48 C.C.No.22297/2014 J detailed investigation stating that, there was a financial transaction between the complainant and Accused relating to the financial transactions and in respect of the site property, therefore the allegations made are appears to be civil in nature, therefore the concerned police have filed B report to the court. It is true that, during the course of cross-examination of the complainant, the learned counsel for the Accused suggested that, the complainant by colluding with the concerned police got filed B report in Crime No. 226/2018 and 227/2018 and the said report was not received by the court and court has not issued any notice to the Accused. In order to believe the said defence i.e. the court has not accepted the B report submitted by the concerned police in Crime No. 226/2018 and 227/2018 the Accused has not produced any documents, except the suggestion no documentary proofs have been produced by the Accused, therefore in the absence of the documentary evidence, it cannot be held that, the Accused has challenged the B report submitted by the concerned police in the private complaint filed by him. If really the allegations made by the Accused in respect of collecting of blanks signed cheques and 49 C.C.No.22297/2014 J blank signed bond papers and registered Agreement of sale towards security of the alleged loan amount borrowed by him, the Accused would have produced the documentary proof by challenging the B report submitted by the concerned police. The Accused in this case except copy of the complaint filed before the commissioner of police has not filed any documents to show that, whether the police have investigated his complaint or not and the allegations made by him in the complaint are true and an action has been initiated against the complainant herein, therefore only on the basis of Ex.D.1 and D.2 i.e the complaint dated: 12.2.2016 it cannot be held that, the complainant had collected his five signed blank cheques and bond papers and agreement of sale towards security of the alleged loan borrowed by him, therefore the documents which are produced by the Accused i.e., Ex.D.1 to 12 are not helpful for him to prove his defence that, the complainant had collected blank signed cheques and blank signed bond papers and agreement of sale i.e Ex.P.8 and P.9 towards security of the loan transaction in question as alleged by the Accused in his defence. It is also relevant here to mention that, if really the 50 C.C.No.22297/2014 J complainant had collected his blank signed cheques and bond papers and has presented to the bank without his consent and knowledge, the Accused would have issued notice to his bank for stopping of payment i.e Stop Payment Instructions but no such efforts have been made by the Accused till today, in such circumstances also the defence of the Accused cannot be acceptable one. It is also relevant here to mention that, on careful perusal of the Ex.D.1 to D.12, it appears that, the Accused and his wife after presentation of the cheque in dispute i.e Ex.P.1 by the complainant to the bank and after its dishonour and after issuance of the legal notice by the complainant, have lodged the complaint against the complainant and his sister and he has also filed private complaint against the complainant by alleging that, the complainant and his sister have collected their blank signed cheques and blank signed bond papers and colluding to each other and have filed cases against him and his wife, but after conducting the investigation by the concerned police they had filed "B" report on the allegations made by the Accused and his wife stating that, the allegations made by the Accused and his wife are all 51 C.C.No.22297/2014 J false and they are relating to the financial transactions made by them and in respect of site property and the allegations are purely in civil nature¸ in such circumstances, it can be held that, the Accused has got knowledge about the dishonour of the cheque in question as on the date of filing of the complaint by him and also by his wife. Thereafter the Accused and his wife have not produced any documents to show that the B report filed by the concerned police is challenged by them before the court, in such circumstances, it can be held that, the Accused and his wife have admitted the 'B' report submitted by the concerned jurisdictional police and the defence taken by the Accused cannot be acceptable one.
33. It is also relevant here to mention that, the Accused has produced certified copies of paper publication as per Ex.D.13 dated:-15.10.2015 wherein it has clearly stated that, he has cleared the entire loan amount to the complainant inspite of it, till today the complainant and his sister have not returned the signed blank cheques and blank signed bond papers to him and his wife inspite of requests 52 C.C.No.22297/2014 J made by them for return of the same but one or other reason they are postponing to return of the signed cheques and bond papers. If really the Accused and his wife have repaid the loan amount of Rs.8 Lakhs and Rs.2 Lakhs interest i.e in total Rs.10 Lakhs to the complainant, then the Accused in his defence evidence has to state the said fact but instead of that, the Accused has stated that, if the complainant and his sister are withdraw the five cases filed against them and returned the original remaining cheques and blank stamp papers to him and his wife then they are ready to pay the amount of Rs.8 Lakhs to the complainant and his sister, therefore the two versions of the Accused itself sufficient to falsify their defence that, the alleged loan of Rs.8 Lakhs borrowed by the Accused from the complainant, in such circumstances the contradictory statement made by the Accused in relating to the paper publication i.e Ex.D.13 cannot be acceptable one.
34. It is also relevant here to mention that, as per the documents produced by the Accused i.e Ex.D.1 to D.12 and also in view of the admissions 53 C.C.No.22297/2014 J of the Accused in his cross-examination, it appears that, as on the date of filing of the complaint by the him and his wife, they had knowledge about the cheque in dispute was presented by the complainant to the bank and even though the concerned police have filed B report, the Accused or his wife have not challenged the said report or have made any efforts to take any action against the complainant in respect of alleged misuse of the agreement of sale i.e Ex.P.8 and P.9 and also the subject cheque in question from the date of filing of this complaint by the complainant against the Accused. If really the Accused has given his blank signed cheques, blank signed bond papers and his wife executed Ex.P.8 and P.9 towards security of the alleged loan amount borrowed by him in favour of the sister of the complainant and complainant and even after alleged misuse of their blank signed cheques and bond papers and agreements of sale by the complainant ad his sister, the Accused or his wife have not made any efforts for getting return of their alleged blank signed cheques and blank signed bond papers and execution of agreement of sales, if that was the real fact, the Accused or his wife could have initiated 54 C.C.No.22297/2014 J any action against the complainant or his sister towards alleged misuse of their blank signed cheques but no such efforts have been made by the Accused or his wife, in such circumstances the defence taken by the Accused appears to be mere denial one and even not plausible explanation and the unnatural conduct of the Accused in non taking of action, an adverse inference can be drawn against him that, in order to avoid liability to pay the cheque amount the Accused has taken such defence and same cannot be acceptable one. In this regard, it is relevant here to refer the decision of Hon'ble Apex Court of India reported in AIR 2018 SC 3601 in a case of T.P.Murugan(dead) Thr. Lrs.V. Bhojan Vs. Posa Nandi, rep. Thr. Lrs. PA holder, T.P. Murugan V. Bhojan, wherein the Hon'ble apex Court held that "Negotiable Instruments Act (26 of 1881) Ss.118, 138, 139 - Dishonour of cheque - Presumption as to enforceable debt- cheques allegedly issued by accused towards repayment of debt- Defence of accused that 10 cheques issued towards repayment of loan back in 1995 - behavior of accused in allegedly issuing 10 blank cheques back in 1995 and 55 C.C.No.22297/2014 J never asking their return for 7 years, unnatural
- Accused admitting his signature on cheques and pronote, presumption under S.139 would operate against him - Complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt - Conviction, Proper". In view of the principles of law laid down by the Hon'ble Apex Court are aptly applicable to the case on hand since in the present case also the accused has not made any efforts to get return of cheque alleged to have been given to the complainant at the time of borrowing loan of Rs.8 Lakhs by him from the complainant, under such circumstances, the said unnatural conduct of the accused in non taking of action, an adverse inference can be drawn against the accused that, the cheque in question issued by the accused towards discharge of the liability and presumption U/s.139 of N.I.Act would operate against him, as he has admitted the signature and cheque in question is belongs to him.
35. In another decision reported in 2015 (4) KCCR 2881 (SC) in the case of T. Vasanthakumar 56 C.C.No.22297/2014 J Vs. Vijayakumari wherein the Hon'ble Apex court held that, " NEGOTIABLE ISNTRUCEMTNS Act, 1881- Section 138 and 139 - acquittal - If justified- Accused not disputing issuance of cheque and his signature on it - Plea that it was issued long back as security and that loan amount was repaid - Not supported by any evidence - Fact that date was printed, would not lend any evidence to case of accused- Acquittal not proper. Hence in the present case also it is the main defence of the Accused that the cheque in dispute alleged to have been issued towards security to the complainant and the complainant by misusing the said cheque has filed this complaint but the Accused has admitted the issuance of cheque and his signature on the said cheque and also taken defence that, the cheque was issued towards security but no documents or proof given by the Accused to prove his defence in such circumstances by applying the principles of law laid down in the above decision the defence of the Accused cannot be acceptable one. It is true that, the above principles of law pertains to the case 57 C.C.No.22297/2014 J of different set of facts but the preposition of law held by the Hon'ble Apex Court is aptly applicable to the case on hand, since in this case also the complainant proved the fact that he has lent an amount of Rs.15,00,000/= to the Accused and his wife and in turn he has issued cheque for Rs. 2 Lakhs towards discharge of the part of the said amount as per Ex.P.1. The accused has also failed to produce cogent and convincible evidence to rebut the statutory presumption in support of his defense in such circumstances the defense taken by the accused cannot be acceptable one.
36. It is also important to note here that, the Accused has not denied or disputed that the cheque in question as well as the signature therein do belong to him and though he has taken the specific defence that, the complainant had collected his blank signed cheques and bond papers and Agreement of Sales towards security of the loan amount of Rs.8 Lakhs borrowed by him but the Accused has not proved the said defence by producing cogent and convincible evidence , in such circumstances it can be held that, the Accused has 58 C.C.No.22297/2014 J failed to explain and proved how the cheque in question has come to the possession of the complainant, this would also give rise to an adverse inference against him. This preposition of law finds support from the decisions of Hon'ble High Court of Karnataka reported in 2010(1) KCCR 176 in the case of "Siddappa Vs. Manjappa" and in the decision of Hon'ble Apex court of India decided in Crl.A.No.664 of 2012 dated: 19.9.2019 in the case of "M.Abbas Haji Vs. T.M.Chennakeshava"
held that, " the Accused has to explain how the cheque entered into the hands of complainant".
Therefore for the above said reasons the defense taken by the accused cannot be acceptable one and accused has miserably failed to rebut the presumption available in favour of the complainant by producing cogent and convincible evidence.
37. Therefore for the above said reasons arguments canvassed by the learned counsel for the Accused in the written argument cannot be acceptable and are not sustainable, in view of the discussions made and findings given by the court while appreciating the oral and documentary 59 C.C.No.22297/2014 J evidence of the complainant and Accused and the Accused has miserably failed to rebut the presumption available to the complainant as U/s.118a and 139 of N.I. Act.
38. Therefore considering all these aspects of the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant and accused the complainant has successfully established beyond all reasonable doubt that, he has lent a sum of Rs.15,00,000/= to the accused and his wife as a hand loan and the accused in turn has issued cheque in question i.e. Ex.P.1 to the complainant towards repayment of the part of the loan borrowed by them, thereafter the complainant has presented the said cheque through his banker and same was returned dishonoured with an endorsement of "Funds Insufficient" and thereafter he got issued legal notice to the accused and the said notice was served on the Accused inspite of it, the Accused did not repaid loan amount borrowed by them, hence the complainant filed the present complaint against the accused. On the other hand, the accused has 60 C.C.No.22297/2014 J failed to rebut the presumption available infavour of the complainant with regard to the existence of legally recoverable debt under Ex.P.1 Cheque. Therefore accused has committed an offence punishable U/s.138 of N.I. Act, accordingly for the above said reasons this point is answered in the Affirmative.
39. Point No.2: Negotiable Instrument Act was enacted to bring credibility to the cheque and the very purpose of enactment is to promote the use of negotiable instrument, while to discourage the issuance of cheque without having sufficient funds in their accounts. Such being the case the intention of the legislature is that, complainant be suitable compensated while accused be punished for his act. Hence while awarding the compensation the said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly it will not cause injustice to the accused, accordingly the complainant is entitled for the compensation as ordered by the court and for the said reasons, it is just and proper to pass the following :-
61 C.C.No.22297/2014 JORDER Acting U/sec.255(2) of Cr.P.C.
the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.2,15,000/= (Rupees Two Lakhs and Fifteen Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.2,10,000/= (Rupees Two Lakhs and Ten Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
The Bail bond and surety bond of the Accused stands cancelled.62 C.C.No.22297/2014 J
Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 16th day of January 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.Ajay Kumar;
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 : Original Cheque;
Ex.P-1(a) : Signature of the Accused;
Ex.P-2 : Bank Memo;
Ex.P-3 : Office copy of the Legal Notice;
Ex.P-4 : Postal Receipt;
Ex.P-5 : Postal acknowledgement;
Ex.P-6 : Income Tax Returns documents for the
Assessment year 2014-15
Ex.P-7 : certificate filed U/s.65B of the Evidence
Act in the form of affidavit ;
Ex.P-8 & P-9 : certified copies of the Agreements of sale
(Marked through DW.1)
Ex.P-10 : certified copy of the Reply Notice issued
63 C.C.No.22297/2014 J
by the Accused herein to the
complainant ;
Ex.P-11 : certified copy of the order sheet in PCR
No. 60252/2013 filed by the Accused
against the complainant herein before the 10th Addl.CMM , Ex.P-12 : certified copy of the "B' report filed by the PSI of K.R. Puram PS, in Crime No. 227/2018
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Sri.Francis Alis;
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 & D.2 : certified copies of the complaints dated:
12.2.2016 given by the Accused and his wife Ex.D.3 Copy of the notice given by the Accused to the complainant Ex.D.4 & D.5 : the certified copy of the Order sheet and Complaint in PCR No. 60253/2017 Ex.D.6 & D.7 the certified copy of the order sheet and complaint filed by the wife of the Accused in PCR No.51089/2018 Ex.D.8 & D.9 : The certified copies of the FIR in Crime No.226/2018 and 227/2018 Ex.D.10 : private complaint filed by the sister of the complainant against the Accused in C.C. No. 22482/2014;64 C.C.No.22297/2014 J
Ex.D.11 The letter dated: 17.1.2019 given to bank;
Ex.D.12 : Certified copy of the Bank statement; Ex.D.13 : Notice published in Udayavani dated:
11.6.2017;
Ex.D.13(a) : Relevant portion of the paper publication.
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
65 C.C.No.22297/2014 J16.1.2020 Judgment pronounced in the open court vide separate order.
ORDER Acting U/sec.255(2) of Cr.P.C.
the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.2,15,000/= (Rupees Two Lakhs and Fifteen Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.2,10,000/= (Rupees Two Lakhs and Ten Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
The Bail bond and surety bond of the Accused stands cancelled.
Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
XVI ACMM, B'luru.
66 C.C.No.22297/2014 J