Bangalore District Court
Sri.Umesh.B vs Sri.Srinivas on 3 March, 2023
KABC030256662019
IN THE COURT OF XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
PRESENT: BHOLA PANDIT,
B.Com.,LL.M.,
XX ADDL. C.M.M.
Bengaluru.
Dated this the 3rd day of March 2023
C.C.No.8367/2019
Complainant : Sri.Umesh.B,
S/o Basavaiah,
Age 35 years,
R/at.No.179, 2nd Cross,
Haralimara Road, Kamakshipalya,
Bengaluru- 560 079.
{ By Sri.H.M. Associates - Advocate }
Vs.
Accused : Sri.Srinivas,
S/o Gopal,
Age 39 years,
R/at Nanjundeshwaranilaya,
2nd Cross, Salapuradamma Layout,
2 C.C.8367/2019
Sunkadakatte,
Bengaluru- 560 091.
{ By Sri.Yogendra.H - Advocate }
Offence complained : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of Order : 03-03-2023
JUDGMENT
The present complaint is filed under section 2(d) read with section 200 of code of criminal procedure against the accused seeking to punish him for the offence punishable under section 138 of the Negotiable Instruments Act ( in short referred as "N.I. Act").
3 C.C.8367/2019
02. The facts which leads to present complaint are under;
It is averred in the complaint that, the accused and the complainant are friends and well known to each other from past several years. In view of the said relationship, in the month of February 2014, the accused had requested the complainant to lend a sum of Rs.10,00,000/- for the development of his business and also for personal need and commitments and agreed to repay the same within one year along with interest at the rate of 1.5% per month. The complainant had lent the aforesaid money to the accused in two dates i.e., Rs.3,50,000/- on 17.02.2014 and Rs.6,50,000/- on 12.05.2014 by way of cash as such, the complainant had money with him out of the sale consideration of his two properties. In order to repay the hand loan of Rs.10,00,000/- to the complainant, the accused has issued a cheque bearing No.000035 dated 28.01.2019 for a sum of Rs.10,00,000/-, drawn on 4 C.C.8367/2019 HDFC Bank, Basaweswarnagar Branch, Bengaluru in favour of the complainant. The complainant has presented the said cheque for encashment through his banker, but it returned unpaid with banker's endorsement dated 01.02.2019 as "Funds Insufficient". On 27.02.2019, demand notice was issued to the accused by RPAD, which was not served on the accused and the same was returned with shara 'insufficient address' on 07.03.2019. Thus, the cause of action to prosecute the accused a accrued against the accused. Accordingly, it is sought to convict the accused and passed the suitable order.
03. On presentation of complaint, this court has verified the averments of complaint along with records and thereby had taken cognizance for the offence punishable under section 138 of NI Act. Thereby, as per the verdict of the Hon'ble Apex court reported in AIR 2014 SC 1983 in the case of Indian Bank Association and others V/s Union 5 C.C.8367/2019 of India and others, the sworn statement of the complainant has been recorded as PW.1 and got exhibited eight documents at Ex.P.01 to 08. Having been made out the prima-facie case, the complaint has been registered in Register No. III and issued process against the accused.
04. In response to the summons, the accused put his appearance before the court through his counsel and filed bail application under section 436 of Code of Criminal Procedure, the accused has been enlarged on bail. The substance of accusation has been recorded and read over to the accused, he pleaded not guilty and intends to put forth his defense. On filing application by the complainant under section 145(1) of NI Act, sworn statement of the complainant has been treated as examination in chief. Similarly, on filing application under section 145(2) of NI Act, the accused has been permitted to cross examine PW.1. On completion of the trial of the complainant's side, the 6 C.C.8367/2019 statement of accused under section 313 of Code of Criminal Procedure has been recorded and read over to the accused, the incriminating material found in the trial of the case of the complainant. The accused has denied the same in toto and the accused also wants to lead his defense evidence. Similarly, the accused has entered in the witness box and adduced the defense as DW.1. In substantiate his defense, the accused examined one witness by name K.Gopal and he as has filed his evidence in the form of affidavit. As per the judgment of the Hon'ble High Court of Karnataka in Cr.Pet.No.9331/2017 dated 02.07.2019 in the case of Vittal Sambrekar Vs. Manjunath, the witness is permitted to lead his evidence by way of affidavit and no documents marked on behalf of defense side.
05. Heard the oral argument of Learned counsels for both the parties. Learned Defense Counsel has filed written argument. Perused the materials available on record. 7 C.C.8367/2019
In support of his oral argument, the Learned counsel for the complainant has relied the following verdicts;
1. (2001)8 SCC 458 K.N.Beena Vs. Muniyappan and Another
2. (2019)4 SCC 197 Bir Singh Vs. Mukesh Kumar
3. (2019)5 SCC 418 Basalingappa Vs. Mudibasappa
4. (2010)11 SCC 441 Rangappa Vs. Sri Mohan
5. (2015)9 SCC 622 Mainuddin Abdul Sattar Shaikh Vs. Vijay D.Salvi In support of his written argument, the Learned counsel for the accused relied the following verdicts;
1. Sri.Rajaram Vs. Sri.Aruthachalam judgment datd 18.01.2023.
2. Crl.A.No.939/2010 Judgment dated 07.08.2019 by the Hon'ble High Court of Karnataka at Bengaluru.
8 C.C.8367/2019
3. Crl.A.No.803/2018 (Krishna Rao Vs. Shankare Gowda)
4. Basalingappa Vs. Mudibasappa (2019)5 SCC 418 I have carefully and meticulously gone through the above relied precedents.
06. The following points that arise for my consideration are as under;
POINTS
1. Does the complainant proves beyond reasonable doubts that, the accused has issued a cheque bearing No.000035 dated 28.01.2019 for a sum of Rs.10,00,000/-, towards the discharge of his lawful liability of the complainant and when the said cheque was presented for encashment, it was returned unpaid due to "Funds Insufficient" in the account of the drawer as per banker's memo and inspite of issuance of demand notice , the accused has failed to pay the cheque amount, thereby has committed the 9 C.C.8367/2019 offence punishable under section 138 of NI Act?
2. What Order or sentence ?
07. My findings to the above points is as follows;
1. Point No.1: In the affirmative
2. Point No.2: As per final order for the following;
REASONS
08. POINT No.1: It is the specific case of the complainant that, the accused had borrowed hand loan of Rs.10,00,000/- in cash from the complainant on two occasions i.e., Rs.3,50,000/- on 17.02.2014 & Rs.6,50,000/- on 12.05.2014 to meet his business and personal necessities and towards discharge of the said hand loan amount, the accused has issued the disputed cheque and when the said cheque was presented for encashment, it returned unpaid due to "Funds Insufficient" in the account of the drawer and inspite of 10 C.C.8367/2019 receipt of demand notice, the accused has failed to make the payment of the cheque amount.
09. To substantiate and establish this fact before the court beyond reasonable doubts as per the verdict of the Hon'ble Apex court in the case of Indian Bank Association and others V/s Union of India and others , the sworn statement of the complainant has been treated as affidavit evidence. In his affidavit evidence, PW.1 has replicated the averments of the complainant. To corroborate the evidence of PW.1, the complainant has placed on record in all eight documents as per Ex.P.01 to 08. Ex.P.1 is the disputed cheque dated 28.01.2019, Ex.P.1 (a) is the signature of accused, Ex.P.2 is the banker's memo dated 01.02.2019, which shows the reasons for the return of the cheque at Ex.P.1 for unpaid is as "Funds Insufficient" , Ex.P.3 is the legal notice dated 27.02.2019 demanding for payment of cheque amount by replicating the averments of complaint. 11 C.C.8367/2019 Ex.P.4 is the the postal receipt about sending legal notice at Ex.P.3, Ex.P.5 is the returned postal cover and Ex.P.5(a) is the notice inside the returned postal cover and Ex.P.6 is the certified copy of the sale deed dated 07.05.2014, Ex.P.7 is the income tax return of the assessment year 2021-2022, Ex.P.7(a) is the certificate under section 65-B of the Evidence Act and Ex.P.8 is the bank account statement of the complainant. PW.1 has been substantially cross examined by the counsel of accused.
10. To disprove the case of the complainant as well as to rebut the statutory presumption which could be drawn in favour of the complainant and also to prove the probable defense to the touch stone of preponderance of probabilities, the accused entered in the witness box and adduced his evidence as DW.1. To corroborate his oral evidence, the accused had adduced the evidence of one witness by name K.Gopal. S/o Krishnappa as DW.2 and he has adduced his 12 C.C.8367/2019 oral evidence before the court by way of filing his affidavit in the form of examination of chief. The Learned Prosecuting Counsel has cross examined DW.1 & DW.2 substantially.
11. Learned Prosecuting Counsel while advancing his oral argument vehemently contended that, since the accused has admitted the cheque and his signature, the legal presumption lies in favour of the complainant and against the accused. It is further argued that, the accused has admitted his address in the demand notice mentioned under Ex.P.3, therefore the complainant has complied the requirements of section 138 of NI Act and the burden shifts on the accused to rebut the statutory presumption under section 118(a) & 139 of NI Act. It is further, contended that, the oral evidence of DW.1 & 2 are not cogent material evidences to disprove the case of the complainant. Hence, it is sought to convict the accused. In support of his 13 C.C.8367/2019 argument, the Learned Prosecuting Counsel has relied the authorities as stated above.
Per contra, Learned Defense Counsel has submitted in his written argument, wherein it is strenuously contended that, the complainant has failed to establish before the court about his financial capacity to advance the disputed loan amount. It is further contended that, the cheque in question belongs to partnership firm and the present complaint is not filed against firm. On these grounds itself the complaint is not maintainable. The Learned Prosecuting Counsel further argued that, the alleged hand loan was not at all shown in the capital gain tax column of the Income Tax return of the complainant in the year 2017 as such, it is mandatory as per the provisions of Income Tax Act. It is argued that, the legal presumption under section 118(a) & 139 of NI Act shall be drawn only when the complainant has established his case. The accused has successfully established his defense by 14 C.C.8367/2019 adducing his own evidence and also elicited material evidence during the cross examination of PW.1. Accordingly, it is sought to dismiss the complaint and acquit the accused. in support of his defense, the Learned Defense Counsel has relied the judgments as stated above.
12. Before to commence the appreciation of the oral and documentary evidences produced by the respective parties and also to consider the arguments advanced by both the Learned Advocates appearing for the parties, it is necessary to find out whether the present complaint has been filed in consonance with the provisions of section 138 of NI Act or not?. From the complainant side, in all eight documentary evidences have been produced before the court, which are marked at Ex.P.1 to 8. Upon considering the cheque, banker's memo, demand notice and postal records which are marked at Ex.P.1 to 5, it can be seen that, the cheque in question has presented before the bank for encashment 15 C.C.8367/2019 within its validity period. The demand notice at Ex.P.3 & Ex.P.5(a) have been issued within 30 days from the date of receipt of banker's endorsement. However, the postal cover produced at Ex.P.5 it appears the endorsement of postal authority as "insufficient address" for the return of said postal cover to the sender and has been pleaded in the complaint. The term "insufficient address" itself indicates that, the notice at Ex.P.3 and Ex.P.5(a) has not sent to the proper and correct address of the accused. But, on perusal of cross examination of DW.1 in para No.2 of page No.4 wherein the accused has clearly admitted that, in the year 2019, he was residing in the same address as shown on Ex.P.3. Ex.P.3 is the demand notice issued to the address of the accused. When the accused admitting that, he was residing in this address in the year 2019 then it shall be held that, the address shown on Ex.P.3 appears to be correct and proper address of the accused. Further, in the same para of cross examination, the accused admitted 16 C.C.8367/2019 that, he has appeared before the court and got released on bail only after receiving summons from the court. The summons of the court has been issued to the same address of the accused, which is found on Ex.P.5(a), which is the same address shown in the cause title of the complaint. Therefore, the denial of service of demand notice from the accused side holds no water and the shara made on Ex.P.5 appears to be not correct and proper shara and the same is not believable. By considering these material evidences, I am of the considered opinion that, as per section 27 of General Clauses Act, when the notice has been sent to the correct and proper address of the accused, the service of demand notice shall be treated as deemed service. On perusal of the date of presentation of the present complaint before the court, I am of the considered opinion that, the present has been filed within 30 days after accrual of the cause of action.
17 C.C.8367/2019
13. As per sections 118(a) & 139 of NI Act are two important provisions and they provides for raising mandatory presumptions in favour of the complainant until the contrary is proved by the accused. Even in the catena of decisions i.e., in the case of Rangappa Vs. Mohan reported in 2010(11) SCC 441, in the case of Bir Singh Vs. Mukesh Kumar reported in 2019(4) SCC 197, in the case of APS Forex Services (P) Ltd., Vs.Shakthi International Fashion Linkers reported in 2020(12) SCC 724, in the case of Rajeshbai Muljibhai Patel Vs. State of Gujarat, reported in 2020(3) SCC 794, in the case of Triyambak S. Hegde Vs. Sripad reported in Live Law 2021 SC 492 and it is laid down that, " Once the issuance of cheque and the signature thereon is admitted by the accused, the court is required to raise presumption in favour of the complainant stating that, the accused has issued the cheque for some consideration towards discharge of his legal debt or liability of the complainant and that the complainant is the 18 C.C.8367/2019 due holder of the said cheque. The burden shifts on the accused to rebut the statutory presumptions under sections 118(a) & 139 of NI Act." Now, it is well established law that, the presumption mandated by section 139 of NI Act, thus indeed includes the existence of legally enforceable debt or liability and it is open for the accused to raise a probable defense wherein the existence of legally enforceable debt or liability can be contested and he shall prove before the court on preponderance of probabilities, only thereupon a statutory presumption raised in favour of the complainant stands rebutted.
14. In the well known judgment of the Hon'ble Apex Court reported in AIR 2019 SC 1983 , in the case of Basalingappa Vs. Mudibasappa in para No.19, the top court of the country held that;
"Applying the rule of the word 'proved' under section 3 of Evidence Act, it became evident that in a trial under section 138, a prosecution will have to be made out every 19 C.C.8367/2019 negotiable instrument was made or drawn for consideration and that it was extended for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges burden to prove that instrument was executed by the accused, the rules of presumptions under section 118 & 139 help him to shift the burden on the accused.
The presumptions will live, exists & survive & shall and only when the contrary is proved by the accused, that is the cheque was not issued for consideration and in discharge of any debt or liability. A presumption itself is not evidence, but only makes a prima-facie case for a party to whose benefits it exists.
The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insists in every case the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated, but bare denial of the passing of consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is possible has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the 20 C.C.8367/2019 presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration & debt did not exists or their non- existence was so probable, that a prudent man would under the circumstances of the case act upon the plea that they did not exists."
Now, this proposition of law became well settled and even in the recent judgment of the Hon'ble Apex Court in the case of Sri.Rajaram Vs. Sri.Aruthachalam relied by the accused , the Hon'ble Apex Court held the same proposition of law. Thus, in the case on hand, since the accused has admitted cheque at Ex.P.1 and his signature on Ex.P.1(a). The legal presumptions under section 118(a) & 139 of NI Act favours the complainant and act against the accused that, the accused has issued the cheque at Ex.P.1 drawn from his account towards the payment of debt or liability of the complainant and that the complainant is the due holder of the said cheque as well as payee of the same. Now, the onus shifts on the accused to rebut the statutory 21 C.C.8367/2019 presumption operated in favour of the complainant and to establish before the court by producing cogent and acceptable evidence to the effect that, he has not issued the cheque in question at Ex.P.1 towards the discharge of the legal debt or liability of the complainant, but it was issued for some other purpose. In a latest judgment in the case of Tedhi Singh Vs. Narayan Das Mahant, wherein it is held that;
' The accused shall put forth his defense in the beginning itself, the burden shifts on the complainant to prove his case beyond all reasonable doubts."
This authority of the judgment is not applicable to the case on hand as such, the demand notice sent under Ex.P.3 & 5(a) was not personally served upon the accused and by relying section 27 of General Clauses Act, the service of demand notice has been treated as deemed service. In the case on hand, while recording the substance of accusation, the accused did not disclose his defense. The 22 C.C.8367/2019 accused has disclosed his defense first time during the cross examination of PW.1. On page No.7 during cross examination of PW.1, a suggestion has been made that, in the year 2017, the complainant has advanced loan of Rs.4,00,000/- to the father of accused with interest at the rate of 8% per annum and entire amount was repaid by the father of the accused in the year 2018. Though, PW.1 has denied this suggestion, but considering above making this suggestion to PW.1, it appears that, it is the only defense put forth by the accused to rebut the statutory presumption under section 118(a) & 139 of NI Act. In support of this defense, during further cross examination of PW.1, no worth material evidence has been elicited to support this defense of the accused. To prove this defense of the accused, the accused by name Srinivas S/o Gopal himself entered into the witness box and lead his evidence as DW.1. He testified that, about 4 years ago, his father had borrowed Rs.3,00,000/- loan from the complainant 23 C.C.8367/2019 and at that time, the disputed cheque was given to the complainant as a security and thereafter within one year, his father has repaid entire loan amount together with interest , but he did not return the security cheque to his father. DW.1 has denied about his borrowing any hand loan from the complainant. To corroborate his oral testimony, the accused has adduced evidence of his father by name K.Gopal, S/o Krishnappa as DW.2. DW.2 has deposed in his affidavit evidence that, he knows the complainant since past 10 years, who was running money lending business for interest. He stated that, in the month of February 2014, he borrowed hand loan of Rs.3,00,000/- from the complainant and he has repaid the said amount to the complainant. He further stated that, while getting hand loan of Rs.3,00,000/-, the complainant has taken two blank cheques from him and also taken one blank cheque of his son. He further testified that, from March 2014 to 2018, he has repaid entire loan amount together with interest to the 24 C.C.8367/2019 complainant and in respect of that, the complainant did not returned his security cheques, even though he has requested repeatedly for the return of the same. The Learned Prosecuting Counsel has cross examined DW.1 & 2 at length. DW.1 has admitted that, for the non return of security cheque, neither legal notice was issued to the complainant nor a police complaint has been lodged. Even DW.1 has admitted that, he has not issued stop payment intimation to the bank for not to release any amount if the said cheque is presented to the bank. During cross examination of DW.2, it is culled out from his mouth that, he has not obtained any document from the complainant to show that, while advancing alleged hand loan of Rs.3,00,000/-, he has issued disputed cheque as security document. DW.2 further admitted that, he has not issued any notice to the complainant demanding for the return of signed blank cheques of himself and his son, because the complainant was close friend to him. On the other hand, 25 C.C.8367/2019 DW.1 stated in his chief examination that, he just only knows the face of the complainant, but he has not close friend to him. DW.2 further admitted that, he has not filed any police complaint for the non return of his cheques against the complainant. By considering these material evidences culled out during the cross examination of DW.1 & 2, the chief evidence led before the court by DW.1 & 2 do not appears to be cogent and trust worthy and also their evidences do not inspires my confidence to believe the testimony as probable. Further, there is a contradictory evidence found in the evidence of DW.1 & 2, so also in the cross examination of PW.1. During cross examination of PW.1, a suggestion is made that, in the year 2017, father of accused has borrowed loan of Rs.4,00,000/- from the complainant with interest at the rate of 8% per annum. Whereas DW.1 being accused before the court he deposed that, four years ago his father borrowed Rs.3,00,000/- from the complainant, whereas DW.2 being father of accused 26 C.C.8367/2019 deposed that, during February 2014, he borrowed Rs.3,00,000/- from the complainant. So also, there is a clear contradiction during the cross examination of PW.1 and also in the chief evidences of DW.1 & 2. That apart, during cross examination of PW.1, no such suggestion has been made that, the father of accused i.e., DW.2 has given two blank cheques of his account and one blank cheque of his son, that evidence first time came from the mouth of DW.2 and even in his evidence of DW.2 do not find place in the oral evidence of DW.1. This is also a material contradiction found in the defense evidence. Furthermore, neither DW.1 nor DW.2 have specifically deposed before the court as to when DW.2 has borrowed Rs.3,00,000/- from the complainant and when and how he has repaid the said amount together with interest to the complainant. Further it is also argued from the defense side and also made suggestion to PW.1 during his cross examination, that the cheque at Ex.P.1 is belongs to the 27 C.C.8367/2019 company by name ' MCS Group', therefore the accused individually not liable to discharge the said cheque, this fact has been highlighted in the written argument from the defense side. When it is the dispute of accused that, ' MCS Group' is the partnership firm, then the burden shifts on the accused to establish before the court that, 'MCS Group' is the partnership firm. In order to prove the said fact, except by making suggestion to PW.1, no iota of evidences has been produced before the court from the accused side to accept their contention that, ' MCS Group' is a partnership firm. On the other hand, there may be a proprietory firm runned by the accused himself as a proprietor of ' MCS Group', some times in the name of proprietorship firm, there is a chance of opening an account and when the accused has failed to prove before the court any partnership deed standing in the name of ' MCS Group' then, it can be held that, ' MCS Group' appears to be proprietorship firm of accused. Hence, I do not find any 28 C.C.8367/2019 force in the contention of defense side in this regard. From the oral evidence of DW.1 & 2, the accused not placed on record any cogent and acceptable evidence to believe their defense as a probable to rebut the statutory presumption under section 118(a) & 139 of NI Act operating in favour of the complainant. On the other hand, in order to establish his financial capacity and also about lending of disputed hand loan amount, the complainant has placed on record his Income Tax Return of the year 2021-2022 and also his bank account statement marked at Ex.P.7 & 8. Ex.P.7 reflects that, he has loans and advances of Rs.10,00,000/- and the Ex.P.8 bank account statement discloses about the complainant having sufficient amount in his bank account while advancing the alleged hand loan amount. That apart, Ex.P.6 is the certified copy of sale deed further corroborates the oral evidence of PW.1 at his sale of two sites on 07.05.2014 for a consideration amount of Rs.12,40,000/- and the said consideration amount paid under Ex.P.6 leads 29 C.C.8367/2019 to believe the testimony of PW.1 that, while advancing disputed hand loan amount by the complainant had sufficient money in his hands to lend disputed loan amount.
15. Learned Defense Counsel has relied recent judgments of Hon'ble Apex Court in the case of Sri.Rajaram Vs. Sri.Aruthachalam in Crl.Appeal No.1978/2013 decided on 18.01.2023. With due respect to the law laid down in this judgment and the fact of this relied judgment was that, ' the respondent had took two chits from the appellant and has paid two chits amount after expiry of one after another and had not participated in the bid and also has given some cheques as security to the appellant and after closure of both two chits, when the respondent has requested the appellant for the payment of both the chits amount and also to return the security cheques. At that time, a tussle has taken place between both the parties, therefore in order to teach a lesson to the 30 C.C.8367/2019 respondent, the appellant has filed complaint against the respondent under section 138 of NI Act.' Based on the said facts and circumstances,the Hon'ble Apex Court has pronounced the said authority of law. But, the fact of the case on hand is totally different and in this case on hand, the complainant has shown the debt amount in his Income Tax Returns as loan and advance, hence the ratio of this relied judgment is not applicable to the case on hand. Further, the Learned Defense Counsel has relied other two judgments at Sl.No.2 & 3 and looking to the facts and circumstances of those cases and the the facts of the present case on hand do not appears to be one and the same. Therefore, those two relied verdicts are not applicable to the case on hand. The Learned Prosecuting Counsel also relied the judgment of Hon'ble Apex Court in the case of Basalingappa Vs. Mudibasappa wherein it is held that, 'once the accused has rebutted the legal presumption on preponderance of probabilities, the onus shifts on the 31 C.C.8367/2019 complainant to prove his case beyond all reasonable doubts.' So, the law laid down of this judgment became the law of the hand and unanimously applicable to all the cases, but in the case on hand, the accused has failed to raise probable defense and to prove the same on the touch stone of the preponderance of probabilities. Now, I carefully gone through the judgments relied by the Learned Prosecuting Counsel. With due respect to the ratio laid down for these judgments, I am of the considered opinion that, the authority of these judgments are applicable to all the cheque bounce cases whether the accused has admitted the issuance of cheque and the signature thereon to raise legal presumptions in favour of the complainant.
16. From the oral evidence coupled with the documentary evidences produced by the complainant so also, the oral testimonies of DW.1 & 2, I am of the considered opinion that, the accused has failed to rebut the statutory 32 C.C.8367/2019 presumptions under sections 118(a) & 139 of NI Act raised in favour of the complainant. Hence, the question of shifting onus on the complainant does not arise at all. Hence, I answered point No.1 in the affirmative.
17. POINT NO.2: In view of the reasons stated and discussed above, the complainant has proved the guilt of the accused punishable under section 138 of N.I. Act It is worth to note that, the offence is of the nature of civil wrong. Hence, it is proper to award sentence of fine, instead of awarding sentence of imprisonment. Accordingly, this court proceed to pass the following;
ORDER
Acting under section 255 (2) of
Criminal Procedure Code, accused is
hereby convicted for the offence
punishable under section 138 of
Negotiable Instrument Act and
33 C.C.8367/2019
sentenced to pay fine of
Rs.14,10,000/- (Rupees Fourteen
Lakhs Ten Thousand only). In
default, he shall undergo simple
imprisonment for 6 (Six) months.
Acting under section 357(1) of
code of criminal procedure, it is ordered that an amount of Rs.14,00,000/-
( Rupees Fourteen Lakhs only), there from shall be paid to the complainant as a compensation, remaining fine amount of Rs.10,000/-
(Rupees Ten Thousand only) is defrayed to the state for the expenses incurred in the prosecution.
34 C.C.8367/2019
The bail bond of accused stands canceled subject to appeal period.
Supply free copy of judgment to the accused.
{Dictated to the stenographer, transcribed and computerized by her, revised corrected and then pronounced in the open court on this 3rd day of March 2023}.
(BHOLA PANDIT) XX ACMM, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:
P.W.1 Umesh.B 35 C.C.8367/2019 List of documents produced on behalf of complainant:
Ex.P.1 Cheque
Ex.P. 1(a) Signature of the accused
Ex.P. 2 Bank endorsement
Ex.P. 3 Copy of the legal notice
Ex.P. 4 Postal receipt
Ex.P. 5 Returned postal cover
Ex.P.5(a) Notice inside the returned
postal cover.
Ex.P.6 Certified copy of the sale
deed dated 07.05.2014.
Ex.P.7 Income tax return of the
assessment year 2021-2022.
Ex.P.7(a) Certificate under section 65-
B of the Evidence Act.
Ex.P.8 Bank account statement of
the complainant.
36 C.C.8367/2019
List of witnesses examined on behalf of accused:
D.W.1 Srinivas DW.2 K.Gopal
List of documents produced on behalf of accused:
-Nil-
XX A.C.M.M., Bengaluru.