Bangalore District Court
Sri Kumar vs Sri Jaganathshetty on 3 May, 2017
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
Dated this the 3rd day of May, 2017
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M., BENGALURU.
Case No: C.C. No.8458/2014
Complainant: Sri Kumar
S/o. Late Gangaiah,
Aged about 36 years,
No.89, Ground Floor,
2nd Main Road,
Subramanyanagar,
Bengaluru.
Accused: Sri Jaganathshetty
Proprietor of New Karavali Delux Bar
& Restaurant,
Opp. to Savitha Theatre,
Malleswaram,
Bengaluru -560 020.
And also at:
R/at No.81, 5th Main Road,
5th Cross, Ground Floor,
Ganganagar,
Bengaluru - 560 032.
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found guilty
Date of order: 3rd May 2017
JUDGEMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act. 2 C.C. 8458/2014
2. The brief facts of the complaint that;
The Complainant stated that the Accused had obtained a hand loan of Rs.3,00,000/- from this Complainant in the month of May 2012 by undertaking to repay the same within tree months. But the accused has not keep up his promise and as such, on the repeated request and demand made by this Complainant, finally the accused towards repayment of the part-payment of the loan amount, had issued his cheque bearing No.922694, dtd.10.5.2013 for Rs.2,00,000/- drawn on Corporation Bank, Malleswaram Main branch, Bengaluru with a request to present the cheque for encashment and it will be honoured on its presentation.
3. It is further submitted by the Complainant that on assurance of the Accused, the Complainant presented the said cheque for encashment before his banker State Bank of India, Malleswaram branch, Bengaluru but the said cheque returned dishonoured with an endorsement "funds insufficient" on 28.5.2013 and the same was informed to this Accused.
4. The Complainant further stated that as the Accused has failed to make payment of the cheque amount, the Complainant got issued the Legal Notice on 21.6.2013 to the accused through his advocate by RPAD, calling upon the Accused to make payment of the 3 C.C. 8458/2014 cheque amount within 15 days from the date of receipt of notice and the said notice was duly served upon this accused. The Accused even inspite of receipt of Legal Notice, has neither chosen to make payment of the cheque amount nor he has replied the notice by denying the transaction. The Accused knowing fully well that he has no sufficient funds in his bank account, had issued a bogus cheque only with an intention to cheat this Complainant and thereby the Accused has committed an offence punishable u/Sec.138 of N.I. Act.
5. After recording of sworn statement of the complainant the Private Complaint lodged by the complainant was registered as a Criminal Case, summons was issued as against the accused. The accused appeared through his counsel and he was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claimed to be tried.
6. The complainant got himself examined as PW1 and he got produced 8 documents marked as Ex.P1 to Ex.P8 and closed his side of evidence.
7. After closure of the complainant side evidence, accused Statement u/Sec.313 of Cr.P.C. recorded. The accused denied the incriminating evidence in toto and he intended to lead his evidence. The Accused got himself examined as DW1 and he got produced 4 documents marked as Ex.D1 to Ex.D4 and closed his side of evidence. 4 C.C. 8458/2014
8. I have heard the arguments and also perused the entire records.
9. The only point arise for my consideration is:
i. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts? ii. What order?
10. My findings to the above point are as under:
Point No.1 : In the Affirmative
Point No.2 : As per final order
for the following:
REASONS:
11. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, the complainant stepped into the witness box, got examined as PW-1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
12. PW1 deposed that the Accused had borrowed a hand loan of Rs.3,00,000/- from him in the month of May 2012 by way of cash by undertaking to repay the same within tree months, but however, he did not keep up his promise and therefore, on his repeated request and demand, the accused towards repayment of the part-payment of the loan amount, had issued his cheque bearing No.922694, dtd.10.5.2013 for Rs.2,00,000/- drawn on Corporation Bank, Malleswaram Main branch, Bengaluru with a request to present the cheque for encashment and it will be honoured on its presentation. 5 C.C. 8458/2014
13. PW1 further deposed that on assurance of the Accused, he presented the said cheque for encashment before his banker but the said cheque returned dishonoured with an endorsement "funds insufficient" on 28.5.2013 and the same was informed to this Accused.
14. He further deposed that as the Accused has failed to make payment of the cheque amount, he got issued the Legal Notice on 21.6.2013 to the accused through his advocate by RPAD, calling upon the Accused to make payment of the cheque amount and the said notice was duly served upon this accused. He deposed that the Accused even inspite of receipt of Legal Notice, has neither chosen to make payment of the cheque amount nor he has replied the notice by denying the transaction. He deposed that the Accused knowing fully well that he has no sufficient funds in his bank account, had issued his bogus cheque only with an intention to cheat him and thereby the Accused has committed an offence.
15. PW1 in order to prove his case, got produced the original cheque issued by this accused marked as Ex.P1. He deposed that the signature found on Ex.P1 is that of this accused and he got identified the signature found on the cheque marked as Ex.P1(a). He got produced the bank endorsement marked as Ex.P2. He got produced the copy of the legal notice along with two Postal receipts marked as Ex.P3 to Ex.P5 respectively. He got produced the Postal 6 C.C. 8458/2014 Acknowledgment Due Card for having served the notice to the accused marked as Ex.P6. He got produced one unserved postal cover marked as Ex.P.7 and the notice kept in the said cover is marked as Ex.P.7(a). He got identified the complaint marked as Ex.P.8.
16. The accused has denied the entire case of the Complainant and denied the very fact that he had borrowed a sum of Rs.3,00,000/- from this Complainant and towards part payment of the loan amount, had issued his Ex.P1 cheque and the same was bounced on its presentation for encashment. The accused has denied his liability to pay the cheque amount. The learned Counsel for the accused subjected PW1 for cross-examination and he extensively cross-examined the PW1.
17. PW1 in his cross-examination stated that he is working as an Electrician and getting income of Rs.20,000/- to Rs.25,000/- per month and he required a sum of Rs.10,000/- for his family maintenance for every month and after the expenditure he was making savings and out of his savings, he had advanced a sum of Rs.3,00,000/- to this accused on his request. PW1 admitted that the accused was running a Bar & Restaurant business at Malleswaram and also stated that about 6 years back, he went to the Bar & Restaurant of this accused for the Electrician work and since from six years he is regularly visiting to the Bar & Restaurant of this accused for electrical 7 C.C. 8458/2014 work and as such, he well acquainted to this accused. PW1 stated that the accused approached him for the loan amount of Rs.3,00,000/- for the educational expenses of his daughter, but he without any verification, advanced the loan amount of Rs.3,00,000/- to this accused in the month of May 2012 but he is not remembered the exact date of loan transaction. He further stated that he advanced the entire loan amount of Rs.3,00,000/- by way of cash at the business place of this accused but he has not obtained any documents for the security of the loan amount of Rs.3,00,000/- and even he has not demanded any interest from this accused on the loan amount of Rs.3,00,000/-. PW1 stated that he is having bank account in his name and in his bank account, he is having a sum of Rs.2.50,000/-. PW1 stated that he is not aware whether any transaction made above Rs.20,000/-, it shall be made through Cheque/D.D. However, PW1 stated that as this accused was well acquainted to him, he immediately advanced the loan amount on his request.
18. PW1 further stated that he has not collected any document for the security of the loan amount from this accused and even there was no any other independent witnesses were present on the spot when he advanced the loan amount. However, he has categorically denied the suggestion that at no point of time, this accused approached him for the loan amount of Rs.3,00,000/- for any purpose 8 C.C. 8458/2014 and even he has not advanced a sum of Rs.3,00,000/- to this accused. He denied the suggestion that the accused has not issued his Ex.P1 cheque towards the part-payment of the loan amount.
19. PW1 admitted that he has not produced any documents to prove the transaction and also to prove that the accused had borrowed a sum of Rs.3,00,000/- from him by agreeing to repay the loan amount. PW1 stated that he is not an Income Tax Assessee and as such, he is not submitting his income tax returns to the concerned authority. PW1 in his cross-examination categorically denied the suggestion that there was no any loan transaction in between him with this accused and even he had not advanced any kind of amount to this accused for any purpose. PW1 denied the suggestion that he himself for his convenience, written all the contents of the cheque by misusing the duly signed blank cheque of this accused, issued in his favour to pay the electricity bill amount and by writing the contents of the cheque for his convenience, presented the cheque for encashment even though the accused is not liable to pay any kind of amount to him.
20. Though the accused has denied the very fact that he had borrowed a hand loan of Rs.3,00,000/- from this Complainant and towards repayment of the loan amount, he had issued his Ex.P1 - Cheque and the same was bounced on its presentation for encashment for the reason "insufficient funds". No doubt, the PW1 has not 9 C.C. 8458/2014 chosen to produce any documents before this court to prove that he had with him a sum of Rs.3,00,000/- to advance the same in favour of this accused. On the contrary, the PW1 has categorically denied the suggestion that the accused is not liable to pay Ex.P1 cheque amount.
21. The accused except putting some suggestion to PW1 that he is not liable to pay cheque amount, which has been categorically denied by PW1, nothing has been elicited from his mouth to disbelieve his testimony or to discard his evidence.
22. The accused has not chosen to deny a fact that Ex.P1 is belong to him. The accused even did not chosen to deny his signature found on Ex.P1 - Cheque marked as Ex.P.1(a). However, the accused has taken up the defence that he had issued his duly signed blank cheque in favour of this Complainant to pay the electricity bill amount of his Bar & Restaurant business. The Complainant instead of paying the electricity bill charges, misused his cheques and created the cheque as Ex.P1 for Rs.2,00,000/- and presented for encashment even though he is not liable to pay any kind of amount to this Complainant.
23. The accused during the cross-examination of PW1 put his defence to PW1 by suggesting that he was frequently visiting the Bar & Restaurant of this accused for the electrician work and due to this reason, the accused had developed a good faith with him and due to 10 C.C. 8458/2014 this reason, the accused had given his duly signed blank cheque to pay his electricity consumption charges bill of his Bar & Restaurant business. However, PW1 in his cross-examination denied the entire suggestions put to him and denied that he by misusing the duly signed blank cheque of this accused and created the cheque as Ex.P1 for Rs.2,00,000/- and presented the cheque for encashment even though the accused is not liable to pay any kind of amount in his favour.
24. Though the accused has denied the issuance of Ex.P1 cheque in favour of this Complainant towards part-payment of the loan amount, however, he did not chosen to deny a fact that his Ex.P1
- cheque was bounced on its presentation for encashment with a specific reason "insufficient funds". The accused did not chosen to deny a fact that his Ex.P1 - Cheque was produced before this court by PW1. No doubt, the accused during the cross-examination of PW1 put a suggestion that he has issued his Ex.P1 duly signed blank cheque in his favour to pay the electricity consumption charges of his Bar & Restaurant business.
25. As I have discussed supra, PW1 during his cross- examination denied the entire suggestions put to him and denied that the accused is not liable to pay the cheque amount. The accused except putting some suggestions to PW1 during his cross-examination that he 11 C.C. 8458/2014 has not written the contents of Ex.P1 - Cheque and the contents written in Ex.P1 - Cheque and the signature disclosed on Ex.P1- Cheque are different and it is not in his hand-writing, has not chosen to convince this court, who has written the contents of the cheque and it is in whose hand-writing.
26. Even though much has been put to PW1 during his cross- examination regarding the loan transaction and also issuance of cheque by this accused towards part-payment of the loan amount However, the accused has not chosen to deny a fact that the Complainant got issued Ex.P3 notice calling upon him to make payment of the cheque amount and also by intimating the dishonour of the cheque. No suggestion was put to PW1 either by denying the issuance of Ex.P3 notice or by denying the receipt of the Legal Notice as per Ex.P6.
27. However, PW1 has categorically deposed that immediately after receipt of Ex.P2 bank endorsement, he got issued Ex.P3 notice u/Sec.138 (b) of N.I.Act calling upon the accused to make payment of the cheque amount and also by intimating the dishonour of the cheque to both the residential and business address of this accused and the notice sent to the residential address was duly served. However the notice issued to the business address returned unserved with a shara "not claimed by the addressee" even though the 12 C.C. 8458/2014 intimation was delivered as per Ex.P7. PW1 has deposed that the accused personally received the notice.
28. Admittedly, the accused has not chosen to deny his address found on these documents. Moreover, the accused has not chosen to deny the testimony of PW1 regarding issuance of Ex.P3 notice and also service of Ex.P3 notice nor he has denied the documentary evidence marked as Ex.P.3 to Ex.P7. In such situation, mere a suggestion to PW1 that the accused has not received the notice prior to filing of this complaint and no notice is served on him, is itself is not sufficient to hold that the notice issued as Ex.P3 was not personally served on this accused.
29. As I have discussed supra, the accused except denying the transaction and also by denying the issuance of cheque towards the repayment of the loan amount, has failed to convince the court what is impediment on him to send a reply to Ex.P3 - Notice immediately after receipt of Ex.P3 - Notice. However, PW1 has deposed that the accused even after receipt of the Legal Notice as per Ex.P3, has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction and also by denying the contents of the notice. In such situation, an adverse inference has to be drawn against this accused that he after receipt of the Legal Notice, has failed 13 C.C. 8458/2014 to make payment of the cheque amount nor he has sent his reply by denying the transaction.
30. The oral and documentary evidence adduced before this court by the Complainant clearly proves that the accused even inspite of receipt of Legal Notice, has failed to make payment of the cheque amount.
31. In such situation, mere a suggestion to PW1 during his cross-examination that the Ex.P3 notice is not served on him, that itself is not sufficient to hold that the notice was not properly served on this accused and as such, the very complaint is a defective in nature.
32. However, the PW1 by adducing oral and documentary evidence before this court, proved that the notice issued u/Sec.138 (b) of N.I. Act was duly served on this accused and even after completion of statutory period of limitation, the accused has failed to make payment of the cheque amount. Admittedly, the entire burden is on this accused to rebut the case of the Complainant and also to rebut the presumption available to this Complainant u/Sec.139 of N.I Act.
33. The accused in order to rebut the presumption available to this Complainant u/Sec.139 of N.I Act and also to prove his defence, stepped into the witness-box and got examined as DW1. He deposed 14 C.C. 8458/2014 that there was no any loan transaction in between him with this Complainant and at no point of time he had borrowed any amount much less sum of Rs.3,00,000/- from this Complainant. He deposed that he is running a Bar & Restaurant business since from the year 1999 under the name of New Karavali Bar & Restaurant and he is getting income for more than Rs.2,00,000/- to Rs.3,00,000/- per annum after deducting the expenditures. He deposed that since from the year 2006 the Complainant was frequently coming to his Bar & Restaurant for the electrician work. He further deposed that he has not issued Ex.P1 - Cheque in favour of this Complainant towards part-payment of the loan amount. He has categorically deposed that he had given his duly signed blank cheque in favour of this Complainant to pay the electricity consumption charges bill amount of his Bar & Restaurant by requesting the Complainant to help him by paying the bill amount to the concerned department.
34. He deposed that the Complainant instead of paying the electricity bill amount, misused his duly signed blank cheque and created his cheque as Ex.P1 for a sum of Rs.,00,000/-and presented the cheque for encashment even though he is not liable to pay any kind of amount to this Complainant. He deposed that he has not received any notice from his Complainant prior to filing of this complaint and as such, he was not aware of the fact that his cheque was misused by this 15 C.C. 8458/2014 Complainant till he received the summons from this court. He got produced his bank account extract of the State Bank of Mysore marked as Ex.D.1. He further deposed that he is an Income Tax Asessee and he is getting more than taxable income and as such, every year he is submitting his income tax returns to the concerned department and he got produced his income tax returns submitted for the assessment year of 2012-13 and 2013-14 marked as Ex.D.2 and Ex.D3 respectively. He got produced the Ledger Account Extract of his Bar & Restaurant for trading and profit and loss account of his business and the said document was marked subject to objection to produce the original register as Ex.D4.
35. DW1 except producing and marking Ex.D4 document, has not chosen to comply the objections raised during the stage of marking of Ex.D4 document and he has not produced the original register before this court. As such, Ex.D4 document has no evidential value in the eye of law and it cannot be looked into. DW1 deposed that he is not liable to pay the cheque amount to this Complainant. DW1 prays to dismiss the complaint.
36. The Complainant has denied the testimony of DW1 and his learned Counsel subjected DW1 for cross-examination. DW1 in his cross-examination categorically admitted that the address disclosed in Ex.P3 and Ex.P6 documents and also admitted that the address 16 C.C. 8458/2014 disclosed in Ex.P6 is his residential address. Even though he denied the suggestion that the signature found on Ex.P6 is that of his wife's signature. DW1 admitted that both Ex.D2 and Ex.D3 documents were dated 28.3.2014 and 29.3.2014 and stated that he submitted both these documents in a same year and admitted that in these two documents, he has not stated the banking details of Corporation Bank and State Bank of Mysore. Moreover, the DW1 stated that on his behalf his Auditor has submitted these documents to the concerned authority and as such, he is not aware of the contents of Ex.D2 and Ex.D3 documents and even he has no documents with him to substantiate the contents of Ex.D2 and Ex.D3.
37. Even though DW1 denied the suggestion that in Ex.D1 Account Extract dtd. 22.4.2013 it has been clearly disclosed regarding dishonour of Ex.P1 however, admittedly, Ex.D1 document discloses that a sum of Rs.100 was deducted towards the dishonour of cheque dtd. 22.4.2013. In such situation, it can safely be hold that the DW1 was very much aware of the fact that his Ex.P1 cheque was dishonoured on its presentation for encashment by this Complainant and even inspite of knowledge of dishonour of the cheque, he neither initiated any proceedings against this Complainant for misuse of his duly signed blank cheque nor he has issued any notice to the Complainant calling upon him to return his cheque issued towards the payment of the 17 C.C. 8458/2014 electricity charges bill amount. DW1 admitted the suggestion that he has not produced any documents before this court to prove that he had given his duly signed blank cheque in favour of this Complainant to pay the electricity consumption charges bill amount. Moreover, DW1 stated that he is not aware what is the exact electricity bill amount to which he has issued his duly signed blank cheque.
38. Even though he denied the suggestion that he has not issued his duly signed Ex.P1 blank cheque in favour of this Complainant towards payment of the electricity charges bill amount, however, admittedly, the DW1 in order to prove that he in order to pay the electricity consumption charges bill amount of his Bar & Restaurant, had issued his duly signed blank cheque, has utterly failed to prove this fact to the satisfaction of the court by adducing convincing evidence before this court. On the contrary, DW1 has categorically admitted that the Ex.P1 cheque is belong to his bank account and also admitted his signature found on Ex.P1 marked as Ex.P.1(a). Though he denied the suggestion that he had issued his Ex.P1 cheque towards part-payment of the loan amount of Rs.2,00,000/- to this Complainant after receipt of the loan amount of Rs.3,00,000/- and he only with an intention to ran away from his liability to pay the cheque amount, is deposing false before this court. 18 C.C. 8458/2014
39. The cross-examination of DW1 clearly proves that the notice issued by this Complainant as per Ex.P3 was served on this accused and even after receipt of Legal Notice, the DW1 did not came forward to pay the cheque amount nor he has sent his reply by denying the transaction.
40. Admittedly, till this day, the DW1 has not initiated any legal action against this Complainant for misusing his blank cheque collected by this Complainant towards the payment of the electricity consumption bill amount of the Bar & Restaurant. The accused during the stage of cross-examination of PW1, admitted his signature found on Ex.P1 and admitted that Ex.P1(a) signature is that of him.
41. Admittedly, the DW1 has not chosen to produce any documents before this court to corroborate his testimony and to believe his defence. There is no sufficient evidence on record to believe the testimony of DW1 that the Complainant collected a duly signed blank cheque from the accused to pay the electricity consumption charges bill amount and subsequently by misusing the duly signed blank cheque, created same as Ex.P1 for Rs.2,00,000/- and filed this false complaint. Likewise, there is no convincing evidence before this court to believe the defence of the accused that the Complainant has misused the blank cheque of this accused and created the cheque for Rs.2,00,000/- and filed this false complaint.
19 C.C. 8458/2014
42. Admittedly, the accused has not produced any piece of document before this court to believe his defence and to believe his testimony. The oral evidence of DW1 itself is not sufficient and convincing to believe his defence and to discard the case of the Complainant.
43. As I have discussed supra, the DW1 has utterly failed to prove his defence that he had given his blank cheque in favour of the Complainant to pay the electricity consumption charges of the Bar & Restaurant business and his cheque was misused by this Complainant and his blank cheque was misused by this Complainant and filed this false complaint. The Ex.D1 to Ex.D4 documents does not prove the defence of the accused. Moreover, these documents will not take away the entire case of the Complainant. The accused has utterly failed to prove his defence to the satisfaction of the court. The entire burden is on this accused to prove that he had issued his duly signed blank cheque in favour of this Complainant towards the payment of the electricity consumption charges bill amount.
44. The oral and documentary evidence adduced before this court by the accused, is not convinced this court and it will not rebut the case of the Complainant and also his oral and documentary evidence as well as it will not rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. The accused has utterly failed to 20 C.C. 8458/2014 prove that there was no any loan transaction in between him with this Complainant much less amounting to Rs.3,00,000/- and he has not issued the Ex.P1 cheque towards part-payment of the debt or other liability. In such situation, the defence taken by the accused during the course of trial, cannot be believable and acceptable. Even when this accused was questioned u/Sec.313 of Cr.P.C. by this court, accused except denying incriminating evidence deposed against him by PW1, has not chosen to put forth any defence from his side. Likewise, the Accused has utterly failed to rebut the presumption available to this Complainant u/Sec.118 and also u/Sec.139 of N.I. Act it reads thus respectively.
45. As per the provisions of Sec.118, which reads thus:
a. Of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
b. As to date - that every negotiable instrument bearing a date was made or drawn on such date;
c. As to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
d. As to time of transfer - that every transfer of a negotiable instrument was made before its maturity;
e. As to order of endorsements - that the endorsements appearing upon a negotiable 21 C.C. 8458/2014 instrument were made in the order in which they appear thereon;
f. As to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped; g. That holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course;
46. Likewise, the accused also failed to rebut the presumption available to this Complainant u/s.139 of N.I. Act which reads:
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
47. The learned Counsel for the accused has vehemently argued before this court that no notice is served on this accused prior to filing of this complaint and as such, the accused has no occasion to send his reply by denying the transaction and also issuance of cheque towards repayment of debt or other liability, is not convinced this court and cannot be acceptable. As I have discussed supra, the DW1 during his cross-examination admitted the address disclosed on Ex.P3 and Ex.P6 documents. These facts clearly proves that the wife of this accused has received the Ex.P3 notice after making her signature on Ex.P6 and accordingly, the Ex.P3 notice was duly served upon the accused.
22 C.C. 8458/2014
48. The oral and documentary evidence adduced by PW1 regarding service of notice clearly proves that the Ex.P3 notices was served on this accused and even the signature found on Ex.P6 that of the wife of this accused and even after receipt of Legal Notice, the accused has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. In such situation, an adverse inference has to be drawn against this accused that after receipt of the Ex.P3 - Notice, he after admitting the contents of the notice, did not resist the claim of the Complainant by sending his reply.
49. The learned Counsel for the accused further argued that the Complainant has not proved his case beyond all reasonable doubts, as there are lot of doubts and confusion in the case of the Complainant regarding source of income, financial capacity of the Complainant to advance huge loan amount and also regarding service of notice and by considering that the Complainant has not cleared all the doubts beyond all reasonable doubts, by adducing convincing evidence before this court, the benefit of doubt has to be given in favour of this accused and he has to be acquitted from the above said offence. The arguments canvassed by the learned Counsel for the accused, is not convinced this court and it cannot be acceptable.
23 C.C. 8458/2014
50. Likewise, his further arguments that the accused need not prove his defence beyond all reasonable doubts and this accused can very well discharge his burden by preponderance of probabilities and even by cross-examining PW1 and this accused by cross-examining PW1 and also by leading his evidence and by marking Ex.D1 to Ex.D4 documents, has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I.Act and by considering the evidence adduced before this court by the accused, the accused has to be acquitted, is also not convinced this court and it holds no merit. Likewise, the judgments relied by the learned Counsel for the accused in support of his arguments reported 2015 AIR SCW Page 64 between K. Subramani Vs.K. Damodara Naidu by Hon'ble Apex Court, wherein it is held that;
"The Complainant has failed to prove his financial capacity to advance the loan amount and if he fails to furnish the date of loan transaction and also furnish the details regarding who has wrote the cheque and where exactly the transaction took place for which the cheque came in to existence, it amounts to serious lacuna and creates a doubt and on this ground, the accused is entitled for acquittal."
I2014 AIR SCW 2158 between John K. Abraham vs. Simon C. Abraham and another wherein it is held that;
"For drawing presumption u/Sec.118 r/w 139 of N.I. Act, the burden is heavily upon the Complainant - Complainant not sure as to who wrote cheque nor aware as to when and where existing transaction took place for which cheque was issued by the Accused. Defects in evidence of Complainant leads to an acquittal."24 C.C. 8458/2014
AIR 2008 Supreme Court 1325 between Krishna Janardhan Bhat Vs. Dattatraya G. Hedge wherein it is held that;
"Accused not required to step into witness-box to prove his defence. He may discharge his burden on the basis of materials already brought on record - Question whether statutory presumption rebutted or not - Must be determined in view of other evidences on record."
The law laid down in these judgements is not applicable to the facts of the present case on hand and moreover, it is not helpful to the defencc taken by the accused in this case before this court. However, the law laid down in IV (2007) BC 213(Karnataka High Court) between Umraz Khan Vs A. Jameel Ahmed and another wherein it is held that;
"Notice of Sec 138 (b) of N.I. Act served on the family members of the accused - Notice deemed to have been served on the accused."
is amply applicable to the facts of the present case on hand and it is help to the case of the Complainant.
51. On the contrary, the learned Counsel for the Complainant has vehemently argued that the Complainant before filing of this complaint has followed all the procedures prescribed u/Sec.138 of N.I. Act and this Accused even after receipt of the Legal Notice, neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction and by drawing an adverse inference against this Accused, he after receipt of the Legal Notice, by admitting 25 C.C. 8458/2014 the contents of the notice, kept quite without resisting the claim of the Complainant and therefore, the Accused has to be convicted in accordance with law, is fully convinced this court. Likewise, his arguments that the accused only with an intention to ran away from his liability to make payment of the cheque amount, has taken up the false defence during the stage of trial that he had given his duly signed blank cheque in favour of this Complainant to pay the electricity consumption charges bill amount of his Bar & Restaurant business and he ha utterly failed to prove this defence by adducing convincing evidence before this court, is also convinced this court and therefore, it is accepted. Likewise, the judgements relied by the learned Counsel for the Complainant in support of his arguments, is applicable to the facts of the present case on hand and also helpful to the case of the Complainant.
52. The complainant by adducing oral and documentary evidence before this court has proved the guilt of the accused beyond all reasonable doubt. There is no whatsoever doubt in the mind of court about the case of the complainant. The oral and documentary evidence adduced before this court by the complainant is fully corroborating with each other and convinced this court about his case. The complainant by adducing oral and documentary evidence before this court, bring home the guilt of the accused beyond all reasonable doubt. Therefore, by taking into consideration the facts and 26 C.C. 8458/2014 circumstances and evidence available on record, I answer the Point No.1 in the affirmative.
53. Point No.2. In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255 (2) of Cr.P.C., the accused is hereby convicted for the offence punishable u/Sec. 138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.2,75,000/- (Rupees Two Lakhs and Seventy-five Thousand only). In any default to pay fine amount shall undergo simple imprisonment for 6 months.
Out of fine amount recovered under Section 357 of Cr.P.C. a sum of Rs.2,70,000/- (Rupees Two Lakhs and Seventy Thousand only) shall be paid to the complainant which includes the cheque amount and also costs of the proceedings. Remaining fine amount of Rs.5,000/- shall be forfeited to State.
The bail bond and surety bonds of the accused stands cancelled.
Office to furnish free copy of the judgement to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 3rd day of May, 2017) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bengaluru 27 C.C. 8458/2014 ANNEXURE:
Witnesses examined on behalf of the Complainant: PW.1 Mr. G. Kumar Witnesses examined on behalf of the Accused: D.W.1 Mr. Jaganathshetty Documents marked on behalf of the 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 & Ex.P.5 RPAD receipts
Ex.P.6 Postal Acknowledgement Due Card
Ex.P.7 Unserved postal cover
Ex.P.8 Complaint
Documents marked on behalf of the Accused:
Ex.D1 Bank statement
Ex.D2 Income tax returns for the year 2012-13
Ex.D3 Income tax returns for the year 2013-14
Ex.D4 Ledger Account Extract
XIX ACMM, B'lore.