Bangalore District Court
Sri. M.Ravikumar vs Sri.H.Nanjappa on 21 October, 2021
1
C.C.No..8490/2018 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 21st day of October 2021
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. 8490/2018
Complainant : Sri. M.Ravikumar,
S/o. Late Mudappa,
Major, Resident of No.184/F,
3rd Cross, Muneshwara Temple
Road, Girinagara,
Bangalore 85,
Rep. by Sri. Mahesh & Co. Adv.,)
Vs
Accused : Sri.H.Nanjappa,
S/o. Not known to the
complainant,Major,
Banashankari Tours and
Travels,
# 33/8, 1st Main E Cross,
Near ST Micheal School,
Byatarayanapura New Ext.
Bangalore South,
Government Electric Factory,
Bangalore 560 026.
(Rep. by Sri. Nagesh K.V. Adv.,)
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C.C.No..8490/2018 J
Case instituted : 16.3.2018
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 21.10.2021
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, he was doing the business of transport and its related business and the accused and his son were also in the same business thus the accused and his son were acquainted with him from many years and during the course his business, accused and his son have approached him as they are in urgent requirement of finance, to register certain vehicles required for their business and accused also informed him that, if he do not assist them financially, they would not be able to get the vehicles registered and it would have negative effect on their business resulting in huge financial losses, both 3 C.C.No..8490/2018 J accused and his son promised that they would return the money immediately. The complainant further contends that, believing the words and promises made by the accused and his son, he agreed to help the accused and his son financially, infact, accused requested for an amount of Rs.5 Lakhs in his name while his son have requested for Rs.20 Lakhs in his name, accordingly he made a payment of Rs.5 Lakhs to the accused and Rs.20 Lakhs to his son, both accused and his son have acknowledged receipt of the same. The complainant further contends that, the accused as well as his son have failed to return the amounts within the given time, despite of several requests made by him, apart from evading, failed to make the payment to him, thereafter he informed that he would be constrained to initiate legal action against accused and his son, they requested not to do so, thereafter both of them issued cheques as a mode of repayment.
3. The complainant further contends that, to discharge his debt and liability, accused and his son has issued a cheque bearing No.009124 dated: 4 C.C.No..8490/2018 J 26.12.2017 for a sum of Rs.5 Lakhs drawn on Bengaluru City CoOp Bank Ltd., Avalahalli Branch, Muneshwara Block, Bengaluru in his favour promising that, the same would be honoured as accused had ensured sufficient funds in his account and as per his instructions, when he presented the said cheque for encashment through his banker ie Karnataka Bank, Banashankari III Stage, Bangalore, the same came to be returned dishonoured as "Funds Insufficient' vide bank endorsement dated: 16.2.2018, thereafter he got issued a legal notice to the accused on 20.2.2018 through RPAD calling upon the accused to pay the cheque amount to him within 15 days from the date of the receipt of the said legal notice, the notice was duly served on the accused on 24.2.2018, inspite of that, accused have failed to make payment to him. Hence the complainant has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
4. Before issuing process against the accused, the Complainant has filed his affidavitinlieu of his sworn statement, in which, he has reiterated the 5 C.C.No..8490/2018 J averments of the complaint. In support of his sworn statement, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to Ex.P.7 i.e, original Cheque dt: 26.12.2017 as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused 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. During the course of trial the complainant has produced statement of account pertaining to joint account of himself and his wife which is at Ex.P.6 and statement of his wife's bank account as per Ex.P.7.
5 Primafacie 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.
6. In view of the principles of law laid down and as per the directions of the Hon'ble Apex Court in 6 C.C.No..8490/2018 J the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the accused, as he intended to set out his defence, and the case was posted for cross examination of complainant.
7. 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 not chosen to lead his rebuttal evidence.
8. Heard the arguments by learned counsel for the complainant and accused and perused the written argument submitted by the learned counsel for the complainant and materials on record and perused the decisions relied upon by the learned counsel for the complainant ie.,
1) Bir singh Vs. Mukesh Kumar - Crl. Appeal No's. 230231/2019 decided on 06.02.2019 reported in 2019(4) SCC 197, 2) 2001(8) SCC 458
3) 2010(11) SCC 441 Rangappa Vs. Sri Mohan;
4) 2008(7) SCC 655 Mallavarapu
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C.C.No..8490/2018 J
Kasivisweshwara Rao Vs. Thadikonda Ramulu Firm and Others.,, 5) ILR 2006 KAR 1730 Dr.B.V. Sampathkumar Vs. Dr.K.G.V.Lakshmi 6) 2015(8) SCC 378 T. Vasanthakumar Vs. Vijayakumari.
The decision relied upon by the learned counsel for the accused ie., AIR 1991 SC 1346 in case of Mohanlal Shamji Soni Vs. Union of India and another.
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:
1. Whether the complainant proves that the accused has issued cheque bearing No.009124 dated:26.12.2017 for a sum of Rs.5 Lakhs drawn on Bengaluru City CoOp Bank Ltd., Avalahalli Branch, Muneshwara Block, Bengaluru to discharge legally recoverable debt to the complainant and when the complainant has presented the above said cheques for encashment through his banker but the said cheques have been dishonoured for 8 C.C.No..8490/2018 J the reasons "Funds Insufficient" on 16.2.2018 and the complainant issued legal notice to the accused on 20.2.2018 and inspite of it the accused has not paid the cheques 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 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 9 C.C.No..8490/2018 J 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 presupposes 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.
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 10 C.C.No..8490/2018 J 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 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 11 C.C.No..8490/2018 J complaint and in his evidence testified that, he was doing the business of transport and its related business and the accused and his son were also in the same business thus the accused and his son were acquainted with him from many years and during the course his business, accused and his son have approached him as they are in urgent requirement of finance, to register certain vehicles required for their business and accused also informed him that, if he do not assist them financially, they would not be able to get the vehicles registered and it would have negative effect on their business resulting in huge financial losses, both accused and his son promised that they would return the money immediately. The complainant/PW.1 further testified that, believing the words and promises made by the accused and his son, he agreed to help the accused and his son financially, infact, accused requested for an amount of Rs.5 Lakhs in his name while his son have requested for Rs.20 Lakhs in his name, accordingly he made a payment of Rs.5 Lakhs to the accused and Rs.20 Lakhs to his son, both accused and his son have acknowledged receipt of the same. The 12 C.C.No..8490/2018 J complainant/PW.1 further testified that, the accused as well as his son have failed to return the amounts within the given time, despite of several requests made by him, apart from evading, failed to make the payment to him, thereafter he informed that he would be constrained to initiate legal action against accused and his son, they requested not to do so, thereafter both of them issued cheques as a mode of repayment.
14. The complainant/PW.1 further testified that, to discharge his debt and liability, accused and his son has issued a cheque bearing No.009124 dated:26.12.2017 for a sum of Rs.5 Lakhs drawn on Bengaluru City CoOp Bank Ltd., Avalahalli Branch, Muneshwara Block, Bengaluru in his favour promising that, the same would be honoured as accused had ensured sufficient funds in his account and as per his instructions, when he presented the said cheque for encashment through his banker ie Karnataka Bank, Banashankari III Stage, Bangalore, the same came to be returned dishonoured as "Funds Insufficient' vide bank endorsement dated: 16.2.2018, thereafter he got issued a legal notice to 13 C.C.No..8490/2018 J the accused on 20.2.2018 through RPAD calling upon the accused to pay the cheque amount to him within 15 days from the date of the receipt of the said legal notice, the notice was duly served on the accused on 24.2.2018, inspite of that, accused have failed to make payment to him.
15. In support of his sworn statement, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to Ex.P.7 i.e, original Cheque dt:
26.12.2017 as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused 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. During thecourse of trial the complainant has produced statement of account pertaining to joint account of himself and his wife which is at Ex.P.6 and statement of his wife's bank account as per Ex.P.7 and closed his side.
16. In the present case, there is no dispute between the complainant and Accused with regard to their acquaintance. It is also not disputed by the 14 C.C.No..8490/2018 J accused that, the cheque in question ie Ex.P.1 belongs to his account and signature found at Ex.P.1(a) is that of his signature. The accused has also not disputed that, the cheque in question was presented to the encashment within its validity period and the said cheque has been returned as dishonoured for the reason of "Funds Insufficient" as per the returned memo issued by the concerned bank i.e Ex.P.2, hence as a matter on record it is proved by the complainant that, the cheque in question was dishonoured for the reason of Funds Insufficient. It is also not in dispute by the accused that, the legal notice caused by the complainant was within 30 days from the date of receipt of bank memo but the accused has disputed the service of notice upon him.
17. In order to prove the service of legal notice ie., Ex.P.3 upon the accused, the complainant has produced copy of legal notice, postal receipt and postal acknowledgement which are at Ex.P.3 to P.5 respectively. The accused during the course of cross examination of the complainant and in his evidence has denied the service of legal notice upon him but 15 C.C.No..8490/2018 J the accused has not denied his address found at legal notice and postal acknowledgement as the said address is not of his correct address. Hence, it goes to show that, the complainant has issued legal notice to the accused to his correct address by way of RPAD and the said notice was returned served. It is true that, the complainant in his cross examination admitted that, the signature found at Ex.P.5 postal acknowledgement is not of the accused but it is not denied by the accused that, the address mentioned in Ex.P.5 is not of his correct address or even it is not the defence of the accused that, the complainant by colluding with the postal authorities has got created the signature found at Ex.P.5, in such circumstances though the complainant has admitted that, the signature found at Ex.P.5 is not that of the accused but the legal notice caused by the complainant was to the correct address of the accused. Hence even otherwise the accused has not denied that, the legal notice i.e., Ex.P.3 was issued to his correct address through RPAD by his advocate, in such circumstances, it can be held that, the notice sent by the complainant to the correct address of the Accused is presumed to have been 16 C.C.No..8490/2018 J served on him U/s. 27 of General Clauses Act. In this regard, it is relevant here to refer the decision of Hon'ble High Court of Karnataka reported in 2011 ACD 1572 (KAR) in the case of Jayamma Vs. Lingamma, wherein the Hon'ble High Court held that, "Notice sent at correct address returned unclaimed - is deemed to be served. It is also relevant here to refer the decision reported in 2008(4) Civil code cases 027 (SC) "M/s. Indo Automobiles Vs., M/s. Jai Durga Enterprises and others." wherein the Hon'ble Apex Court held that, "notice sent by registered post with acknowledgement to a correct addressservice of notice has to be presumed". Therefore in view of the principles of law in the above decisions, it can be safely held that, the service of notice on accused in this case is presumed to have been served on him. Hence the notice issued by the complainant through registered post is held to be proper. In addition to that, it is also relevant here to refer the decision reported in 2007 AIR SCW 3578 in the case of C.C.Alavi Haji Vs. Palapetty Muhammed 17 C.C.No..8490/2018 J and another., wherein the Hon'ble Apex court held that " the drawer of the cheque is permitted to deposit the cheque amount within 15 days from the date of his appearance before the court in pursuance of the service of summons on him and in such situation, his defence of non service of the legal notice cannot be available to him'. Hence, in view of the said principles of law, even for sake of discussion, though there is no cogent and reliable documentary proof to substantiate the claim of the complainant with regard to address of the Accused to show there is due service of the legal notice on the Accused, in view of settled position of law by virtue of the above said decision of Hon'ble Apex Court of India, the Accused is not entitled to the technical defence of the alleged non service of the legal notice. Therefore, the argument canvassed by the learned counsel for the accused that, the notice issued by the complainant was not served on the accused and the complainant has not complied the mandatory requirements of Sec.138(b) of N.I.Act and complaint is not maintainable cannot be acceptable and are not sustainable in law.
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18. The accused during the course of cross examination of the complainant has questioned the financial capacity and income of the complainant, but at para No. 6 in page No.3 of the cross examination of the complainant the learned counsel for the accused suggested that, the accused had received an amount of Rs.13 Lakhs from the complainant by way of cheque in order to close the loan amount borrowed from the bank and at page No.5 also suggested that, the said amount has been repaid to the complainant from the account of the accused to the account of the complainant, hence it goes to show that, the accused himself admitted that, he and his son have borrowed a loan amount of Rs.13 Lakhs from the complainant, therefore the very suggestions and admitted facts by the accused itself sufficient to hold that, complainant was having sufficient source of fund and income to lend the loan amount in transaction to the accused. In addition to that, the complainant has produced statement of bank account pertains to him and his wife which are at Ex.P.6 and P.7 the perusal of the Ex.P.6 and P.7 it appears that, the complainant was having sufficient source of funds to lend the loan amount in 19 C.C.No..8490/2018 J question to the accused. It is stated by the complainant in his cross examination that, he has paid an amount of Rs.4,80,000/ on 18.6.2016 and an amount of Rs.96,000/ on 11.8.2016 and an amount of Rs.5,03,500/ from his account and an amount of Rs.90,000/ on 15.12.2016 through the account of his wife in favour of the accused. Hence, on careful perusal of the entries found at Ex.P.6 and P.7 and also the facts stated by the complainant in his crossexamination are corroborates with each other and the complainant has proved his financial capacity and income to lend the loan amount in question. The perusal of entire cross examination of the complainant nothing has been elicited either to discard of discredit the oral and documentary evidence of the complainant.
19. It is also relevant here to mention that, though the accused has denied the lending of loan amounts by the complainant and has taken specific defence that, the complainant has not produced the document to show that, he has lend the loan amount in question to the accused and the cheque in question has been issued towards discharge of the 20 C.C.No..8490/2018 J debt in question. As it is held in the above that, the complainant has proved that, he has lend an amount of Rs.5,00,000/ to the accused and also issued the Ex.P.1 cheque towards discharge of the said loan amount. Apart from that, as it is already held in the above that, the complainant has complied the mandatory requirements as required U/s.138(a) to (c) N.I.Act by producing oral and documentary evidence and the accused has also admitted that, the cheque in question belongs to the account and the signature found on cheque in question is that of the signature of the accused and the cheque in question issued in favour of the complainant. It is also proved by the complainant that, the cheque in question has been presented to the bank within its validity period and same has been dishonored for want of sufficient funds and thereafter the complainant got issued legal notice to the accused and in turn the said notice was served on the accused, despite of that, the accused has not issued reply to the said notice, in such circumstance even in the absence of documentary evidence with regard to source of funds, a presumption can be drawn in favour of the complainant with regard to 21 C.C.No..8490/2018 J existence of debt or legally recoverable debt. 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 of cheque itself was an 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 22 C.C.No..8490/2018 J such presumption is rebuttable in nature - Criminal Trial - Proof - Presumptions - Generally. Further held that "Signature on the cheque is 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 15032018 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 23 C.C.No..8490/2018 J 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 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.138 of NI Act. It is also held that, " the accused has failed to lead any 24 C.C.No..8490/2018 J 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 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 25 C.C.No..8490/2018 J 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 Apex Court of India reported in ICL 2021(2) SC 529 in the case of M/s Kalamani Tex Vs. P. Balasubramanian, dt:
10.02.2021, wherein the Hon'ble Apex Court held that, "once the accused had admitted his signatures on the cheque and deed, the trial court ought to have presumed that, the cheque was issued as consideration for legally enforceable debt." In another decision of Hon'ble 26 C.C.No..8490/2018 J Apex Court of Indian in Crl. Appeal No.132/2020 in the case of D. K. Chandel Vs. M/s Wockhardt (L) wherein it is held that, "Production of account books / cash book may be relevant in the civil court, may not be so in the criminal case filed under Sec.138 of N.I. Act while restoring the trial court judgments, the High Court observed that "the reason given by the lower Appellate Court that, he did not bring the cash book or order book etc., could well be understood, if civil suit is tried." But may not be so in the criminal case filed under Sec.138 of N.I. Act. This is because of presumption raised in favour of holder of cheque. 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 27 C.C.No..8490/2018 J N.I.Act, presumptions U/s.118a and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt and when such presumption is drawn the facts relating to the want of documentary evidence in the form of receipts or accounts or want 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 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 his account and signature appearing on the cheque is that of his signature, in such circumstances, presumptions have to be drawn towards existence of legally enforceable debt as per Sec.139 of N.I.Act. Therefore, for the above said reasons the arguments canvassed by the learned counsel for the accused that, the complainant has not produced the documents to show that, he has lent an amount of Rs.5,00,000/ to him and Rs.20 Lakhs to his son and the documents produced by the complainant are not 28 C.C.No..8490/2018 J sufficient to prove that, complainant was having financial capacity to lend the money and complainant has not examined any witnesses to prove that, he has lent the loan amount to the accused cannot be acceptable one. The defence taken by the Accused appears that, the complainant has to prove his claim by producing his evidence as if it is required for proving of his debt before the Civil Court, but same cannot be permissible in a proceedings initiated U/s.138 of N.I. Act, as held by the Hon'ble Apex court of India in the above referred decision, therefore in view of the principles of law laid down in the above referred decisions it is presumed that, cheque in question was drawn for consideration as the Accused has admitted the cheque in question belongs to him and signature found on the cheque in question is that of his signature. Therefore for the above said reasons the arguments canvassed by the learned counsel for the accused cannot be acceptable one as the accused in this case has unequivocally admitted the receipt of loan amount from the complainant and also admitted the issuance of cheque in favour of the complainant and the facts.29
C.C.No..8490/2018 J
20. It is also true that, the complainant has admitted that, he has no hindrance to lend the loan amount by way of cheque to the accused but he volunteers that, as the accused requested him to pay the loan amount by way of cash at his request he has paid the loan amount by way of cash and as on the date he is not able to say the exact dates on which he has lent the loan amount to the accused by way of cash. The learned counsel for the accused in the written argument has argued that, the complainant did not produced any acknowledgement or cash payment receipt by the accused and his son to show that, the accused and his son has received cheque amount of Rs.5 Lakhs and Rs.20 Lakhs and it is a violation of Sec.269 SS of the Income tax Act as per which loan of more than Rs.20,000/ should be given only by way of Account payee cheque. It is true that, of course Sec.269 SS of Income Tax Act mandates that, any advance made by way of loan of more than Rs.20,000/ should be made by way of cheque or bank draft only, but at the same time in the said provision it is nowhere stated that, noncompliance of the provision will makes the transaction invalidates or void. The same is fortified 30 C.C.No..8490/2018 J by the Hon'ble High Court of Karnataka in the decision reported in 2008 (5) KCCR 3371 in a case of Kempanarasimhaiah Vs. P. Rangaraju and others wherein it is held that, "on careful reading of the above observations and also all other observations in the said juddment I could not find the Hon'ble Supreme Court having laid down that, the transactions in contravention of the said provision of Income Tax Act could be termed as the transactions opposed to the public policy so as to bring within the ambit of nonenforceable transactions. The Hon'ble Supreme Court has not laid down in the said decision that, the transactions of this nature could be termed as opposed to pubic policy and as such the same would be became legally not enforceable." Hence in the light of principal of law laid down by the Hon'ble High Court of Karnataka in the above said decision it is for the income tax authority to take the action against the person who had transacted in contravention to Sec.269 SS of Income Tax Act, but the transaction cannot be 31 C.C.No..8490/2018 J termed as opposed to public policy and legally not enforceable. In another decision of Hon'ble Bomby High Court in Crl. Appeal No.322 of 2017 decided on 25.11.2020 in a case of Pushpa Sanchala Kothari Vs. Aarti Uttam Chavan wherein it is held that, Negotiable Instrument Act 1881, Sec.138 - Income Tax Act 1961, Sec.269 SS - Criminal Procedure Code 1973, Sec.378 (4) - Cheque dishonored - Appeal against acquittal - the complainant has not shown the transaction in her income tax returns
- no provision in Income Tax Act which makes an amount not shown in the Income Tax Returns unrecovarable - Sec.269 SS of Act 1961, does not declare all transactions of loan, by cash in excess of Rs.20,000/ as invalid, illegal or null and void - the accused cannot take benefit of such infraction by complainant to show the transaction in income tax returns - The judgment of acquittal rendered by the learned Trial Court is perverse - The impugned judgment needs to set aside - Appeal deserves to be 32 C.C.No..8490/2018 J allowed." Hence in the light of principal of law laid down by the Hon'ble High Court of Bombay, the defence of the accused in the present case cannot be acceptable one as under Sec.269 SS of the Income Tax Act does not declare all the transactions of the loan by cash in excess of Rs.20,000/ as invalid, illegal or null and void and the accused cannot take benefit of the same to escape from the liability in question. Therefore for the above said reasons the arguments canvassed by the learned counsel for the accused cannot be acceptable one.
21. It is also elicited in the crossexamination of the complainant that, he have been an Income tax Assessee since 1988 and has not declared about the transaction in question in I.T. returns but only on the above admissions of the complainant, it cannot be held that, the transaction in question becomes invalidate. It is also important to note here that, whether non declaration of amount lent to the accused in Income tax returns that itself invalidates the transaction in question or not is to be taken into consideration. In this regard, it is necessary here to refer the decision of our Hon'ble High court of 33 C.C.No..8490/2018 J 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 PW1 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 34 C.C.No..8490/2018 J the offence punishable under Section 138 of the N.I. Act. Hence in view of the principles of law laid down by the Hon'ble High court of Karnataka in the above referred decision, in the present case the complainant has admitted that, he is an income tax assessee and has not declared the loan transaction in question in his I.T. returns, but as it is already held in the above that, the complainant has discharged her 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 transaction in question in his I.T. Returns, 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 35 C.C.No..8490/2018 J 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 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 is an income tax assessee and has not declared the loan transaction in question in his I.T. returns that itself would not automatically dislodge the source of income of the 36 C.C.No..8490/2018 J complainant. Therefore the admissions of the complainant which are elicited in his cross examination are not helpful for the accused to prove her defence that, in view of non declaration of loan transaction in question in his income tax returns that itself sufficient to hold that, the complainant has no source of income cannot be acceptable one and the arguments canvassed by the learned counsel for the accused at para No.5(g) of the written argument cannot be acceptable one and not sustainable in law.
22. The learned counsel for the accused during the course of crossexamination of PW.1 has elicited that, there may be a change in ink ie., the ink in respect of signature on the cheque in dispute , while the rest of the contents in it is in different ink, but the complainant never admitted that, the accused has not issued the cheque in question and the contents of the cheque are not in the handwriting of the accused. The learned counsel for the accused argued that, in view of the admissions of the complainant makes it clear that, except signature all other entries in different handwritings, different ink 37 C.C.No..8490/2018 J and undoubtedly made at different time, therefore it is very difficult to accept the version of the complainant, therefore the complainant has failed to establish a case U/s.138 of N.I.Act. But in order to substantiate the said defence of the accused except the oral suggestions made to the complainant, nothing has been placed before the court to show that, the writings of the contents in the cheque in question are filled up by the complainant and misused the cheque in question, therefore only on the basis of oral evidence it is very difficult to accept the defence of the accused that the cheque in question has been misused by the complainant. Even for sake of discussion, if it is assumed that, the accused had given blank signed cheque, unless and until he proved that, the said cheque was not given towards discharge of any debt or liability, in such circumstances also it can be presumed that, the cheque in question issued towards discharge of the liability or debt in question. In this regard it is relevant here to refer the decision of Hon'ble Apex court to India reported in (2002) 7 SCC in the case of P.K. Manmadhan Karthra Vs.Sanjeeva 38 C.C.No..8490/2018 J Raj., wherein it is held that " As long as signature on the cheque is admitted, whether the ink with which the other particulars are filled up is different or that the hand writing is not that of drawer does not matter. Until rebutted, the presumption that, cheque was issued for consideration exists". In another decision of Hon'ble High Court of Karnataka at Bengaluru in a case of Crl. Appeal No. 1664/2003 C/w. Crl.Appeal No.1663/2003 dated:
18.6.2008 in the case of R.Mallikarjuna Vs. H.R.Sadashivaiah wherein the Hon'ble High Court at para No.19 held that " But, the question is, whether that renders instrument unenforceable. In this regard, it must be observed that, this court similar circumstances in the case of S.R. Muralidar Vs. Ashok G.Y. reported in 3001 (4) KAR. LJ K. 122 referring to the provisions of Sections 20, 138, 139, and 140 of the Act and after interpreting alteration and filling up of the cheque observed thus " The trial court has made much about the difference 39 C.C.No..8490/2018 J in ink. Admittedly, Accused cheque is issued bearing signature of the Accused. It is the contention of the defence that, blank cheques issued for the business transactions have been illegally converted as a subject matter to this case fastening false liability........ It is not objectionable or illegal in law to receive a inchoate negotiable instrument duly signed by the maker despite the material particulars are kept blank if done with an understanding and giving full authority to the payee to fill up the material contents as agreed upon. Such a course of action in law cannot vitiate the transaction nor can invalidate the negotiable instrument issued and such transaction fully begins the maker of the negotiable instrument to the extent it purports to declare........ The fact that, a document executed is inchoate with regard to some of the material particulars would not render such contract invalid nor make the instrument illegal or inadmissible.
Voluntarily, if a person were to deliver an 40 C.C.No..8490/2018 J inchoate instrument authorizing the receiver to fill up the material contents as agreed upon, the cheque does not get tainted as in admissible nor it amounts to tampering with the material particulars...... In the present case there is no categorical defence version, it is only by conjunctures and surmises, a case is made out from the difference in ink between the signature of the cheque and the other handwritten contents. Therefore in view of the principles of law laid down by Hon'ble Apex court of India and also Hon'ble High Court of Karnataka referred above and in the present case also the Accused has admitted his signature on Negotiable Instrument i.e. cheque and he also admitted issuance of the cheque to the complainant, it is primafacie proof of authorizing the holder in due course i.e. the complainant to fill up the remaining contents of the Negotiable Instrument, therefore it cannot lie in the mouth of the Accused that, the complainant had misused or fabricated the cheque in question given by her and the defence of the Accused cannot be acceptable one as the instrument i.e., cheque in 41 C.C.No..8490/2018 J question cannot be rendered unenforceable merely because the contents have been filled by different ink, as it would not render such instrument illegal or inadmissible, the complainant certainly can base action on it. Therefore for the above said reasons the arguments canvassed by the learned counsel for the accused are not acceptable one. In addition to that, even for sake of discussion if it is assumed that, Accused has given cheque in question without mentioning the name of the payee and date to the complainant in such circumstances also it attracts the penal liability as contemplated U/s.138 of N.I. Act. In this regard, it is relevant here to refer 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 42 C.C.No..8490/2018 J 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 her signature but he did not proved 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 by complying the 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 43 C.C.No..8490/2018 J 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 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 view of the principles of law laid down as above, even if it is assumed that, the complainant has written his name and date on the cheque in question in such circumstances also in view of the principles of law laid down in the above 44 C.C.No..8490/2018 J decision that itself would not invalidates the cheque in question and it can be presumed that, the said cheque has been issued towards discharge of legally recoverable debt, therefore for the above said reasons the arguments canvassed by the learned counsel for the accused are not sustainable in law and cannot be acceptable.
23. It is relevant here to mention that, though the accused in his defence has stated himself and his son have borrowed a loan amount of Rs.13 Lakhs from the complainant but the accused has not stated on which date they have borrowed the loan amount of Rs.13 Lakhs from the complainant but he has stated that, the said amount was repaid on 4.5.2016 to the complainant. But the accused has not produced any documentary evidence to that effect, hence it goes to show that, the said transaction and the transaction in question are not one and the same and they are entirely different transactions, therefore the defence taken by the accused cannot be taken into consideration unless it is proved that, the said transaction is related to the transaction in question.
45C.C.No..8490/2018 J
24. It is also the specific defence of the accused that, he and his son have borrowed a loan of Rs. 13 Lakhs from the complainant at that time the complainant had collected the cheques bearing No. 798220, 798221 pertains to the Canara Bank account and cheques bearing No.910056, 910057 and 910058 pertains to Corporation Bank and cheques bearing No. 010191, 010192, 010194 and 010195 pertains to Bengaluru City Cooperative Bank account belongs to the son of the accused and also received the cheques bearing No.009124 , 009125, 009126 and 009129 pertains to the Bengaluru City Cooperative bank account of the accused and also two blank signed stamp papers as security towards the said loan amount and thereafter the accused had repaid the said loan amount of Rs.13 Lakhs along with interest an amount of Rs.39,000/ to the complainant by way of bank transfer from the account of the accused to the account of the complainant. But, the accused has not produced any oral or documentary evidence to to prove his defence that, the complainant had collected blank signed cheques and stamp papers as stated in the above. If really 46 C.C.No..8490/2018 J the complainant had collected the blank signed cheques of the accused and misused the same by filing this complaint even inspite of repayment of the alleged loan amount to the complainant by him, definitely the accused would have taken legal action against the complainant for nonreturn of his and his son's blank signed cheques either by issuing legal notice to the complainant or by filing complaint before the concerned police or by filing complaint before the courts of law, but no such efforts have been made by the accused or his son since immediate after repayment made by the accused, therefore the conduct of the accused in nontaking of action for nonreturn of his blank signed cheques from the complainant may leads to drawn an adverse inference against the accused that, the Accused has not initiated any action against the complainant since the cheque in question has been issued by him to the complainant towards discharge of the liability in question but not for any other reasons. 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.
47C.C.No..8490/2018 J 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 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". Hence 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 48 C.C.No..8490/2018 J complainant for alleged loan transaction, 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 the account of accused.
25. It is also relevant here to mention that, It is the specific defence of the Accused that, the cheque in question and other blank signed cheques and stamp papers were issued by him and his son to the complainant at the time of availing loan of Rs.13,00,000/= from him as security, however this court has come to the conclusion that, the Accused has miserably failed to prove the defence that, the cheque in question i.e Ex.P.1 was issued in blank signed to the complainant and the Accused has not produced any concrete evidence to prove his defence or to disprove the loan transaction in question, in such circumstances, in the absence of evidence, cannot be held that, the cheque was issued at the 49 C.C.No..8490/2018 J time of lending of loan amount of Rs.13 Lakhs by the complainant as alleged by the Accused. In this regard, it is relevant here to refer the decision of Hon'ble Apex court of India reported in AIR 2015 SC 2240 in the case of T. Vasanthakumar Vs. Vijayakumari wherein the Hon'ble Apex court held that "NEGOTIABLE ISNTRUMENTS Act, 1881 Section 138 and 139 - Dishonour of cheque - appeal against acquittal cheque as well as signature on it not disputed by Accused /respondent presumption U/s.139 would be attracted - story brought out by Accused that cheque was given to the complainant long back in 1999 as security to a loan : the loan was repaid but complainant did not return security cheque Is unworthy of credit , apart from being unsupported by any evidence - mere printed date on cheque by itself cannot be conclusive of fact that, cheque was issued in 1999". Hence in the present case also it is the main defence of the Accused that the cheque in dispute and other blank signed cheques and stamp papers were given 50 C.C.No..8490/2018 J as security to the complainant in respect of the loan amount of Rs.13 Lakhs borrowed by him and his son the 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 has not produced any documents or proof 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. Therefore for the above said reasons, the arguments canvassed by the learned counsel for the defence to that effect cannot be acceptable one and are not sustainable in law.
26. It is settled law that, the accused can rebut the presumption only on the basis of materials produced by the complainant even without entering into the witness box. In the present case also the Accused has failed to substantiate his defence version in order to rebut the presumption available to the complainant and to prove the defense of the accused, under such circumstance, it is for the accused to disprove the case of the complainant or rebut the presumption then only the onus will be 51 C.C.No..8490/2018 J shifted on the complainant to prove his case. Admittedly the accused did not entered in to the witness box, therefore an adverse inference can be drawn against him that he has failed to rebut the presumption available to the complainant. Therefore it is clear that, except having denial of the case of the Complainant in the cross examination of complainant, the Accused has not taken any interest so as to prove his defence. In this regard it is relevant here to refer the decision of Hon'ble Apex Court of India reported in 2001 (4) crimes 376 in the case of K.N.Beena Vs. Muniappan wherein it is held that " Negotiable Instruments Act, 1881, Sections 139, 138 and 118 Debt or liability Dishonour of cheque - complaint under section 138 of Negotiable Instruments Act In complaints under section 138, the court has to presume that the cheque had been issued for a debt or liability This presumption is rebuttable However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused Denial by accused is not sufficient 52 C.C.No..8490/2018 J to shift the burden on complainantAccused has to prove by leading cogent evidence, that there was no debt or liability." and in another decision of Hon'ble Apex Court of India reported in "AIR 2018 SC 3173 in a case of Kishan Rao Vs. Shankargouda" wherein the Hon'ble Apex Court held that " Negotiable Instruments Act (26 of 1881), Ss. 138, 139 Dishonour of cheque - Presumption as to - Accused issuing cheque of Rs.2 Lakhs towards repayment of loan to Complainant said cheque dishonoured on account of insufficiency of funds Complainant proving issuance of cheque having signatures of Accused - Accused failing to rebut presumption raised against him and no evidence led by him in his support - Acquittal of Accused by High Court in revisional jurisdiction on ground of doubt in mind of Court with regard to existence of loan, improper Accused, liable to be convicted. In another decision decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of 53 C.C.No..8490/2018 J 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 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 54 C.C.No..8490/2018 J 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. Therefore the principles of law laid down in the above decisions are aptly applicable to the case on hand, since in this case also the complainant proved the fact that he has lend an amount of Rs.5 Lakhs to the accused as hand loan and in turn the accused has issued cheque in question towards repayment of the said amount as per Ex.P.1. The accused has also failed to enter into witness box to rebut the statutory presumption in support of his defense in such circumstances the defense taken by the accused during the course of crossexamination cannot be acceptable one.
27. 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 he has failed to prove his defence and how the cheque in question have come to the 55 C.C.No..8490/2018 J 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". In another 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 adducing cogent and convincible evidence.
28. 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 an amount of 56 C.C.No..8490/2018 J Rs.5,00,000/ and in turn the Accused has issued the Ex.P.1 for Rs.5 lakhs in his favour towards discharge of the said loan amount and thereafter the complainant has presented the said cheque through his banker and same were returned dishonored with an endorsement of "Funds Insufficient" and thereafter he got issued legal notice to the accused and the said notice was served on him, inspite of it, the Accused did not paid the cheque amount, hence the complainant filed the present complaint against the accused. On the other hand, the accused has failed to rebut the presumption available in favour 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.
29. 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 cheques without having sufficient funds 57 C.C.No..8490/2018 J 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 : 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.5,15,000/= (Rupees Five Lakhs and Fifteen Thousand only) within one month from the date of order, in default accused 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.5,10,000/= 58 C.C.No..8490/2018 J (Rupees Five 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.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 21st day of October 021).
.
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant: P.W.1 : Sri. M.Ravikumar,
2. List of documents exhibited on behalf of the Complainant: Ex.P.1 : Original Cheque 59 C.C.No..8490/2018 J 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 & : statement of account pertaining to joint account of complainant and his wife Ex.P..7 : statement of accounts of complainant's wife
3. List of witness/s examined on behalf of the Accused: : Nil
4. List of documents exhibited on behalf of the Accused: Nil (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
60 C.C.No..8490/2018 J 21.10.2021 case called, complainant present, counsel for complainant absent, both accused and counsel for accused present. Judgment pronounced in the open court, (vide separate judgment). 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.5,15,000/= (Rupees Five Lakhs and Fifteen Thousand only) within one month from the date of order, in default accused 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.5,10,000/= (Rupees Five Lakhs and Ten Thousand only) shall be paid as compensation to the complainant. 61 C.C.No..8490/2018 J 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.