Bangalore District Court
Mrs.Bharathi Devi vs M/S.Inter Trans Services on 13 February, 2020
1 C.C.No9445/2018 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 13th day of February, 2020
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl. C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.9445/2018
Complainant : Mrs.Bharathi Devi,
W/o.Rathan Kumar Aravind
Aged about 38 years
R/at.No.9, 10, Doddanna
Garden, Magadi Main Road,
Kottige Palya,
Bengaluru -560 091.
Rep. by Sri Sathyanarayana Chalke
and others Adv.,)
- Vs -
Accused : 1. M/s.Inter Trans Services
(India) Pvt.Ltd.,
No.4/5, New No.5/1,
3rd Floor, 1st Cross,
Raja Ram Mohan Roy Extn.,
K.H.Road (Double Road),
Bengaluru -560 025.
Represented by its Authorized
Representatives.
Email id:[email protected].
2 C.C.No9445/2018 J
2. Sri.Mani Vinonath
Director,
M/s. Inter Trans Services
(I) Pvt., Ltd.,
No.4/5, New No.5/1,
3rd Floor, 1st Cross,
Raja Ram Mohan Roy Extn.,
K.H.Road,
Bengaluru-560025.
Email id:[email protected].
3. Sri.Kamath Vishwanath
Chandrahas
Director
M/s.Inter Trans Services
(I) Pvt.Ltd.,
No.4/5, New No.5/1,
3rd Floor, 1st Cross,
Raja Ram Mohan Roy Extn.,
K.H.Road,
Bengaluru- 560 025.
Also available at:
M/s. Source Hub India
Pvt.Ltd.,
No.29, "Sri Krishna",
3rd & 4th Floor,
Opp.Raheja Park,
Magadi Main Road,
Govindaraja Nagar,
Bengaluru - 560 040.
Email id:[email protected].
(Rep. by Sri. B.Rajashekhara,
Adv.,)
3 C.C.No9445/2018 J
Case instituted : 16.1.2018
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused No.1 to 3 are convicted
Date of order : 13.02.2020
JUDGMENT
The Complainant has filed this complaint against the Accused No.1 to 3 for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the first accused is a company duly registered under the provisions the companies Act and the accused No.2 and 3 are directors of the first accused company, as a directors and or otherwise the accused No.2 and 3 are responsible for business and affairs of the first accused company in its day to today functioning and affairs. It is further contended that while acknowledging payment and towards the discharge of liability towards her, the accused issued a cheque bearing No.100137 dated 4 C.C.No9445/2018 J 11-11-2017 for a sum of 11,70,00,000/- (Rupees Eleven Crores Seventy Lakhs only) drawn on account maintained by first accused and signed by the second accused in the capacity as a director of the first accused company with Punjab and National Bank, Mahalakshmi Layout Branch, Bengaluru to her and while issuing the cheque in her favour, the accused assured her that the said cheque would be honoured on its presentation either on the date appearing on the cheque or at any time subsequent thereto, within the period of its validity. It is further contended that, as per the instructions received from the accused she has presented the said cheque for encashment though her banker i.e., M/s. State Bank of India, KSRTC Layout Branch, Uttarhalli, Bengaluru, but the said cheque came to be dishonoured for the reasons "Funds Insufficient"
dated 15.11.2017 and the endorsement was communicated to her on 16.11.2017 thereafter she got issued a notice of demand on 29-11-2017 to the accused by RPAD demanding amongst other things, the payment of the amount due under the cheque and the said notice was served on the accused on 04-12-2017, inspite of it, the accused have not
5 C.C.No9445/2018 J complied with the demands made in the notice, however they have send false frivolous and baseless reply dated; 19.12.2017. Hence the complainant has filed this present complainant against the Accused No.1 to 3 for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed her affidavit-in-lieu of her sworn statement, in which, she has reiterated the averments of the complaint. In support of her sworn statement, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.12 i.e, Original Cheque dated:-11.11.2017 as per Ex.P.1, the signature of the accused No.2 on the said cheque identified by P.W.1 as that of the accused No.2 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, Four Postal Receipts as per Ex.P.4 to P.7, four postal acknowledgements as per Ex.P.8 to P.11 and reply notice as per Ex.P.12,
4. Prima facie case has been made against the Accused and summons were issued against the accused No.1 to 3 in turn the Accused No.1 to 3 6 C.C.No9445/2018 J have appeared before the Court and the accused No.2 & 3 have been enlarged on bail and the substance of the accusation has been read over to them, to which they have pleaded not guilty and have claimed the trial.
5. Thereafter the husband of the complainant examined as a PW.2 as a SPA holder of the complainant and has produced the Special Power of Attorney Deed executed by the complainant as per Ex.P13 and also produced two settlement receipts dated: 24.12.2015 marked as Ex.P.14 & P.15 and signatures of the Accused as per Ex.P.14(a) and P.15(a) and signatures of the complainant as per Ex.P.14(b), 15(b) and signature of the husband of the complainant as per Ex.P.14(c) and P.15(c) respectively, also produced cheque issued receipt dated:01.10.2017 as per Ex.P16 and signature of the Accused as per Ex.P.16(a), signature of the complainant as per Ex.P.16(b) and signature of the husband of the complainant as per Ex.P.16(c), complaint as per Ex.P.17 and signature of the complainant as per Ex.P.17(a) and thereafter the PW.2 been cross-examined by the accused and 7 C.C.No9445/2018 J closed his side.
6. Thereafter the statement of the Accused as required U/s.313 of Cr.P.C. has been recorded, the Accused No.2 and 3 have denied the incriminating evidence appearing against them and have chosen to lead their rebuttal evidence. The Accused No.2 himself examined as DW.1 on behalf of the accused and closed their side.
7. Heard the arguments by both sides and perused the written argument submitted by the learned counsel for the Accused and complainant and perused the materials on record and decisions submitted by the learned counsel for the complainant i.e., 1) Delhi High Court order dated:
17.7.2019; M/s. Shivom Minerals Ltd., and Other Vs. State and another; 2) (2015) 15 SCC 693- Omniplast (P) Ltd., Vs. Standard Chartered Bank and others; 3) (2014) 12 SCC 539 - Indus Airways (P) Ltd., and others Vs. Magnum Aviation Pvt. Ltd., and another; 4) LAWS (KAR) 2011 1135 - Veerayya Vs. G.K. Madivalakar; 5) (2014) 2 SCC 236 - John K. Abraham Vs. simon
8 C.C.No9445/2018 J C. Abraham and another 6) (2015) 1 SCC 99- K. Subramani Vs. K.Damodara Naidu; 7) (2006) 6 SCC39 - M.S. Narayana Menon Alias Mani Vs. State of Kerala and antoher; 8) (2008) 4 SCC 54- Krishna Janardan Bhat Vs. Dattatraya G. Hegde; 9) (2009) 2 SCC 513 - Kumar Exports vs. Sharma Carpets; 10) ILR 2008 KAR 4629 - Shiva Murthy Vs. Amrth Raj; 11) ILR 2009 KAR 2331 - B. Indiramma vs. Sri Eshwar; 12) ILR 2009 KAR 172- Sri.Visvanath Pai Vs. Vivekananda S. Bhat.
I have perused the decisions relied upon by the learned counsel for the Accused i.e.,1) Crl.Appeal No.1020/2010 in the case of Rangappa Vs. Mohan; 2) Crl. Appeal No.230- 231/2019 in the case of Birsingh Vs. Mukesh Kumar 3) Crl. Appeal No. 950-951/2018 in case of T.P. Muguran (Dead) Ther. LRs. And ors., Vs. Bojan; 4) Crl. Appeal No. 2571/2010 in the case of Kowdi Yalameli Enterprises Vs. V.G. Bhat and Ors., 5) Crl. Rev. Petition No.293/2017 in the case of Harishkumar T. Vs. Mahadeva 6) Crl. Appeal No. /2019 SLP 3858/2019 in the case of Pavan Diliprao Dike Vs.Vishal NarendraBhai 9 C.C.No9445/2018 J Parmar; 7) Crl. Appeal No. 664/2012 in case of M. Abbas Haji Vs. T.N.Channakeshava.
8. On the basis of complaint, evidence of complainant and documents the following points that are arise for consideration are:-
1. Whether the complainant proves that the accused have issued cheque bearing No.100137 dated:
11.11.2017 for sum of Rs.11,70,00,000/- drawn on M/s.
Punjab and National Bank,
Mahalakshmi Layout Branch
Bengaluru, to discharge legally
recoverable debt to the complainant and when the complainant has presented cheque for encashment through her banker but the said cheque has been dishonoured for the reasons "Funds Insufficient" on 15.11.2017 and the complainant issued legal notice to the accused on 29.11.2017 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
9. The above points are answered as under:
Point No.1: In the Affirmative
10 C.C.No9445/2018 J Point No.2:As per final order for the following:
REASONS
10. 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 encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act pre-supposes conditions for prosecution of an offence which are as under:
1. Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
11 C.C.No9445/2018 J
2. Cheque shall be presented for payment within specified time i.e., from the date of issue before expiry of its validity.
3. 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
4. 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 conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer in respect of bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
11. It is also one of the essential ingredient 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 12 C.C.No9445/2018 J 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 or 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.
12. In the present case the SPA Holder of the complainant i.e. her husband got examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire averments of the complaint, the SPA Holder of complainant/PW.1 in his evidence testified that, the first accused is a company and second and third accused are Directors of the first accused company and are responsible for business and affairs of the first accused company and towards payment and discharge of their liability to the complainant, the accused No.2 & 3 in their capacities as Director of the first accused issued 13 C.C.No9445/2018 J cheque bearing No.100137 dated 11-11-2017 for a sum of 11,70,00,000/- drawn on M/s. Punjab National Bank, Mahalakshmi Layout Branch, Bengaluru and while issuing the cheque in favour of the complainant, the accused assured that the said cheque will be honoured on its presentation either on the date appearing on the cheque or at any time subsequent thereto, within the period of its validity. The SPA holder of complainant/PW.1 further testified that, upon receiving the insufficient fund of the accused the complainant has presented the said cheque for encashment though her banker i.e., M/s. State Bank of India, KSRTC Layout Branch, Bengaluru, but the said cheque came to be dishonoured for the reasons of "Funds Insufficient"
dated 15-11-2017, and it was communicated to her on 16.11.2017, thereafter she got issued legal notice dated 29-11-2017 to the accused No.1 to 3 by RPAD and the said notices were served on the accused on 04-12-2017, inspite of receipt of the said notice the accused have not complied with the demands made in the notice.
13. In support of the oral evidence of the 14 C.C.No9445/2018 J complainant, the complainant has produced the documents i.e. Ex.P.1 to P.12 i.e, Original Cheque dated:-11.11.2017 as per Ex.P.1, the signature of the accused No.2 on the said cheque identified by P.W.1 as that of the accused No.2 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, Four Postal Receipts as per Ex.P.4 to 7, four postal acknowledgements as per Ex.P.8 to 11 and reply notice as per ExP.12, subsequently the SPA holder of the complainant has produced the Special Power of Attorney Deed executed by the complainant as per Ex.P13 and also produced two settlement receipts dated: 24.12.2015 marked as Ex.P14 & 15 and also produced cheque issued receipt dated:01.10.2017 as per Ex.P16, and signature of the Accused as per Ex.P.16(a), signature of the complainant as per Ex.P.16(b) and signature of the husband of the complainant as per Ex.P.16(c), complaint as per Ex.P.17 and signature of the complainant as per Ex.P.17(a).
14. In the present case, the Accused have not disputed their acquaintance with the complainant and also her SPA holder i.e. PW.2 and the Accused 15 C.C.No9445/2018 J No.1 to 3 have not disputed the issuance of cheque i.e Ex.P.1 infavour of the complainant by the Accused No. 2 & 3 on behalf of the Accused No.1 company. It is also not in dispute that, signature found at Ex.P.1(a) is the signature of Accused No.2 in the capacity of Director of Accused No.1 company. It is also not in dispute by the accused that, the cheque in question presented for encashment and dishonoured for the reason of "Funds Insufficient" since as matter on record, proved by return memo i.e.P.2 issued by the concerned bank dated: 15.11.2017, therefore it is a matter on record and has been proved that, the cheque in question was presented within its validity period and dishonoured as per the bank endorsement issued by the banker of accused. It is also not in dispute that, the cheque in question i.e. Ex.P.1 belongs to the account of the accused No.1 company and Accused No.2 is the signatory of the cheque and Accused No.2 and 3 are the directors of the Accused No.1 company and Accused No.2 has not denied his signature which is appearing at Ex.P.1(a). It is also not disputed by the Accused No.1 to 3 with regard to service of legal notice issued by 16 C.C.No9445/2018 J the complainant as per Ex.P.3 and receipt of the said notice as per Ex.P.8 to P.11. i.e., postal acknowledgements, and the Accused 2 and 3 have given reply to the said notice as per Ex.P.12 in the capacity of Directors of Accused No.1 company hence the complainant has proved that, he has complied the mandatory requirements as required U/s.138(a) to (c) of N.I.Act.
15. It is the specific defence of the Accused that, they have denied the claim made by the complainant and also issuance of the cheque towards discharge of the liability in question. It is also specific defence of the Accused that, the complainant is the wife of one Mr. Rathan Kumar Aravind i.e. PW.2 and she was one of the partners along with the Accused No.2 in the Accused No.1 company and she was not taking part in day to day affairs of the said partnership business and the Accused No.2 used to take care of the affairs of the said company and when ever there was requirement any discussions, the husband of the complainant used to be present and whenever there was requirements of funds the husband of the 17 C.C.No9445/2018 J complainant used to take the cheques of the Accused No.1 company's account and the individual accounts of the directors of the said company, in good faith he had given his signed blank cheques of Accused No.1 company's account and several signed blank papers to the husband of the complainant to raise loan for the purpose of the business of business of their company but the complainant has misused his signed blank cheques and his company's account cheques and signed blank papers and filed this false case. Hence on this back ground the oral and documentary evidence adduced by the complainant and Accused has to be examined by the court.
16. The complainant in this case examined her husband as her SPA holder as PW.2. The PW.2 in his evidence has stated that, complainant is his wife and he was involved in all the transaction which his wife did and he was personally involved in all transaction which his wife did with the Accused and he has personal knowledge of all transaction and under what circumstances the cheque in question was issued by the Accused, hence he is 18 C.C.No9445/2018 J competent to give evidence in this case. In support of his evidence, has produced the special power of attorney executed by the complainant which is at Ex.P.13. The Accused during the course of cross- examination though they have cross examined on Ex.P.13 in respect of date of its execution and wrong mentioning of date in Ex.P.13 and much cross examined on Ex.p.13 with regard to who and where the stamp papers have been purchased to prepare Ex.P.13 and execution of the Ex.p.13 by the complainant before the notary . But the cross- examination made by the Accused and arguments made by the learned counsel for the Accused in respect of Ex.P.13 i.e., written argument cannot be taken into consideration for the simple reasons that, the Accused has no right to question the execution of Ex.P.13 by the complainant infavour of the PW.2 i.e. her husband, as law permits the complainant to represent her case through her power of attorney holder, in such circumstances the Accused cannot question the execution of Ex.P.13 by the complainant to represent her case through her power of attorney holder. Therefore the discrepancies which have been elicited by the Accused during the 19 C.C.No9445/2018 J course of cross-examination of the PW.2 with regard to date and signature of the complainant on Ex.P.13 cannot be acceptable one, since the complainant herself has not disputed the execution of Ex.P.13 infavour of her husband. It is true that the PW.2 in his cross-examination admitted that, his wife is hale and healthy but he has specifically stated the reason for her non appearance in this case that, she is running around for income and because of it she is not in a position to attend the court and also running around for her new job and business and she is doing real estate and commission business and she was partner and director, in such circumstances it cannot be held that, the complainant in order to avoid appearing before the court to face the cross-examination has executed the Ex.p.13 power of attorney to her husband i.e PW.2. In addition to that, the Accused No.2 in his evidence himself admitted that her husband i.e PW.2 is used to attend whenever there were discussions held between the partners of the company and also used to take cheques of the Accused No.1 company's and his cheques so as to raise loan for the purpose of business of the Accused No.1 company, in such 20 C.C.No9445/2018 J circumstances also it can be held that, the Accused have admitted that, SPA holder of the complainant is having knowledge of the all transaction done by his wife i.e. complainant in the Accused No.1 company along with other partners, therefore the evidence of the PW.2 i.e SPA holder and Ex.P.13 and admissions of the Accused No.2 are sufficient to hold that, the PW.2 i.e. SPA holder of the complainant is having personal knowledge of the all transaction including the transaction in question and he is the competent person to give evidence in this case. Therefore for the said reasons the arguments canvassed by the learned counsel for the Accused with regard to execution of the Ex.p.13 and competency of PW.2 to represent the case as a SPA holder of the complainant cannot be acceptable one.
17. The learned counsel for the Accused in the written argument contended that, the averments made in the complaint is bald without disclosing the back ground/facts as to how, when and in what connection the round figure huge liability of Rs.11,70,00,000 arose, and the averments with regard to liability is only one line i.e. while 21 C.C.No9445/2018 J acknowledging payment towards discharge of his liability towards the complainant the cheque is issued but the CW.1 in his cross-examination narrates the business story saying that, liability is on account of sale of shares of M/s. ITS India Pvt. Ltd., by the complainant to the Accused.
18. It is also contended in the written argument that, the complainant in his complaint has not disclosed the nature of business transaction between him and the Accused, which date/dates the liability arose, quantum of liability, to whom and when the cheque was given and for what purpose the cheque was given and thus in the absence of clear and specific averments in the complaint it cannot be said that, there was existence of legally enforceable debt or liability, just by stating in the complaint the word legally enforceable debt or liability will not become legally enforceable debt or liability that too when the debt/liability is so huge and to the tune of Rs.11,70,00,000/=, the complainant ought to have produced the contract or agreement, book of accounts, balance sheet, partnership deed, I.T. Returns to prove legally enforceable debt or liability 22 C.C.No9445/2018 J but nothing is produced.
19. On careful considering the arguments canvassed by the learned counsel for the Accused and averments of the complaint and evidence of the complainant makes it clear that, the complainant in the complaint has not disclosed the nature of business transaction between him and the Accused and on which date or dates the liability arose and it is also true that, the complainant in his complaint stated that, "that while acknowledging payments and towards discharge of his liability towards the complainant (which is legally enforceable) the Accused issued the cheque bearing No. 100137 dated: 11.11.2017 for an amount of Rs.11,70,00,000/= drawn on an account maintained by the 1st Accused and signed by the 2nd Accused in the capacity as the Director of the 1st Accused with M/s. Punjab national Bank, Mahalakshmi Layout branch, Bengaluru to the complainant". Now the question is whether non mentioning of the nature of business transaction in the complaint itself invalidates the transaction in question or it can be held that, there was no existence of legally 23 C.C.No9445/2018 J enforceable debt or liability as against the Accused.
20. The SPA holder of the complainant i.e PW.2 during the course of his cross-examination has categorically stated that, the Accused have issued Ex.P.1 cheque in question to his wife i.e. complainant and earlier M/s.I.T.S India Pvt. Ltd., company has started in the name of his wife and at the time of incorporation of the said company she held 99% shares and thereafter his wife had transferred her 48% of shares in favour of the Accused and thereafter the remaining 51% of shares were also transferred in favour of Accused. In addition to that, the Accused No.2/DW.1 during the course of his cross-examination has specifically admitted certain facts with regard to nature of transaction held between the complainant and Accused which are relevant here to refer the same which reads as under:
" It is true to suggest that, the Accused No.1 company is registered under the Companies Act. It was incorporated in the year 2010 with the complainant and her mother-in-law Smt .Sarawathi as its 24 C.C.No9445/2018 J directors. I know Hemanth Agarwal who is the brother-in-law of the complainant".
" It is true that, the complainant held 99% of shares but as per my knowledge it was smt. Saraswathi who was the other director of the said company"
"It is true to suggest that, after Mr. Hemanth Agarwal resigned from the post of director ship to the company, I was inducted to his place with 1% share in the said company. It is true to suggest that, during the year 2011-12 the complainant transferred her 48% of shares in my favour. It is true to suggest that, I am the active director managing the day to day affairs and the business of the Accused No.1 company. It is true to suggest that, during the year 2015 the remaining 51% shares were transferred in my favour. It is true to suggest that, the complainant resigned from her post of director ship of the complainant. It is true to suggest that, 25 C.C.No9445/2018 J after the resignation of the complainant I inducted the Accused No.3 as the director of the Accused No.1 company. It is true to suggest that, after having inducted the Accused No.3 as one of the directors of the Accused No.1 company , I transferred 50% of the shares to his name. it is true to suggest that, Accused No.3 is also an active director in charge of day to day affairs of the company".
" I have received the balance sheet and books of accounts".
"The 49% of shares which were transferred by the complainant to my name in the year 2011-12 was by way of sale".
" The PW.2 was looking after the affairs of the Accused No.1 company when the complainant was one of the partner".
Earlier I and the complainant were signatory to the bank account of the 1st 26 C.C.No9445/2018 J Accused company. But after the 3rd Accused became director of the 1st Accused company I do not know whether his name updated with the bank account as authorized signatory. On the same date of induction of Accused No.3 was the director of the 1st Accused company, the complainant seized to be authorized signatory of the bank, the witness volunteers that, I have check the documents to that effect.
" It may be true to suggest that, prior to 4 years of I taking shares and good will of complainant the 1st Accused company turn over was in crores".
21. It is true that, the complainant has not produced the documents at the time of filing of complaint to show that, the liability on account of shares of M/s. ITS India Pvt. Ltd., by the complainant to the Accused. The complainant has also not produced the documents to show that, the Accused has issued the cheque in question towards purchase of share of 51% plus previously purchased 27 C.C.No9445/2018 J shares during the period of 2011-12 including the good will of the company towards the complainant was holding in M/s. ITS India Pvt.Ltd. The complainant has also not produced the document to show that, Accused has agreed to pay 11,70,00,000/= to the complainant towards purchase of the above said shares and good will of the company . But the SPA holder of the complainant at the later stage i.e during his evidence has produced Ex.P.14 i.e., the settlement receipt dated: 24.12.2015 and Ex.P.15 settlement receipt dated: 24.12.2015 and Ex.P.16 i.e. cheque issued receipt dated: 1.10.2017. On careful perusal of the contents of Ex.P.14 and P.16 wherein it is clearly mentioned that, the Accused being the director of M/s.ITS India Pvt. Ltd., have entered into full and final settlement for purchase of share of 51% plus previously purchased share in the period of 2011-12 and including good will of the company and all other ac together towards Miss. Bharathis Devi i.e., the complainant herein was holding in M/s. inter Trans services (I) Pvt. Ltd., in between him and Miss.
Bharathi Devi and has agreed to pay Rs.11,70,00,000/- and issued cheque as soon as 28 C.C.No9445/2018 J possible for the same with 18% interest p.a., till clear the dues from September 2015 and agreed to issue the cheque infavour of Mrs. Bharathi Devi or her authorized person and he had signed the settlement receipt in front of Mr.Rathan kumar Aravind (husband of the Complainant herein) and he has received back all three cheques which have issued towards sale consideration of 51% shares which was rejected by Smt.Bharathi Devi i.e. the complainant as demanded full and final settlement and has assured to sign the few board resolutions which kept pending due to full and final settlement dues. It is also seen from Ex.P.16 i.e .cheque issued receipt wherein the Accused has issued three cheques bearing Nos. 100137, dated: 11.11.2017, for sum of Rs.11,70,00,000/= infavour of Bharathi Devi i.e. the complainant, cheque bearing No. 000128 dated: 19.10.2017 for sum of Rs.15,00,00,000/= infavour of one Rathan Kumar Aravind ie. husband of the complainant and also another cheque baring No. 000126 dated:
11.11.2017 for sum of Rs.2 Lakhs in the name of husband of the complainant in pursuance of the settlement receipt dated 24.12.2015 and also
29 C.C.No9445/2018 J promising to honour the said cheques and acknowledged that, he has received all other cheques which have issued previously in this regard infavour of Mrs.Bharathi Devi and complainant.
22. It is relevant here to mention that, the Accused No.2 during the course of his cross- examination has admitted his signature found on Ex.P.14 to P.16 which are marked as and P.14(a), 15(a) and 16(a) and also contends that, when he was signed the documents i.e. Ex.P.14 to P.16 the said documents were blank sheets. Hence it goes to show that, though the Accused No.2 has admitted his signatures on Ex. Ex.P.14 to P.16 but he denies the contents of Ex.P.14 to P.16 by contending that, at the time of signing the said documents, the said documents were blank sheets. But it is relevant here to mention that, the Accused No.2 in his evidence stated that, he had given blank signed cheque and stamp papers to raise the loan to the Accused No.1 company to the complainant. Hence, the admissions of the Accused No.2 makes it clear that, though he has denied the contents of Ex.P.14 to P.16 and admitted that, when he was signed the Ex.P.14 to 30 C.C.No9445/2018 J P.16 the said documents were blank sheets, but the Accused have not produced any satisfactory evidence or documents to show that, the husband of the complainant used to take the cheques of Accused No.1 company's and individual accounts of the directors of the company and Accused No.2 had given signed blank cheque of Accused No.1. company's account and several stamp papers to him, in such circumstances, the contentions of the Accused No.2 that, when he was signed to the Ex.P.14 to P.16 they were blank sheets cannot be acceptable one. On the contrary an adverse inference can be drawn against the Accused that, for the purpose of their defence the Accused have intentionally denying the contents of the Ex.P.14 to P.16.
23. Hence on careful considering the statement made by the complainant in his cross examination and the admissions of the accused No.2 during the course of his cross examination and careful perusal of the Ex.P.14 and P.16 documents i.e. the settlement receipt and cheque issued receipt makes it very clear that the accused No.2 has 31 C.C.No9445/2018 J admitted that he is the Managing Director and the wife of the complainant is the Chairman of M/s.Inter Trans Services Pvt., Ltd., company and also admitted that, Accused No.1 company was incorporated in the year 2010 with the complainant and her mother-in- law and the complainant held 99% of the shares at the time of incorporation of the Accused no1. company and during the year 2011-12 the complainant has transferred her 48% of share in his favour and thereafter he became active director managing the day to day affairs and business of the Accused No.1 company and during the year 2015 the remaining 51% shares were transferred by the complainant in his favour and complainant resigned from her post of directorship of company and after her resignation he inducted the Accused No.3 as a director of the Accused no1. company and after induction of Accused No.3 he transferred 50% of the shares to his name and the Accused No.3 is also an active director in-charge of day to day affairs of the company and also admitted that, he has received the balance sheet and books of accounts when he had taken over the Accused No.1 company during the year 2015. It is true that the complainant in his 32 C.C.No9445/2018 J complaint has not disclosed the nature of business transaction between him and the accused No.1 to 3, liability and the purpose of the cheque given by the accused, but during the course of cross examination of the complainant he also specifically stated about the nature of the business transaction between him and the accused, the liability arose and quantum of liability and the cheque is given towards the discharge of the liability i.e. the complainant has specifically stated that as per Ex.P.14 and P.16 i.e. settlement receipts and cheque issued receipt, the accused No.2 in the capacity of Managing Director of M/s. ITS India Pvt. Ltd., has entered into the settlement with the complainant for purchase of share of 51% plus previously purchased share for the period of 2011-12 and including good will of the company and all other ac together towards the complainant was holding in m/s. Inter Trans (I) Pvt. Ltd. and also agreed to pay Rs.11,70,00,000/= and to issue the cheque as soon as possible for the same with 18% interest per annum till clearance of the dues and also signed to the said settlement receipt and agreed to issue cheques as soon as possible in favour of the complainant or her authorized person 33 C.C.No9445/2018 J and as per Ex.P.16 the accused No.2 has issued three cheques out of the said cheques the Ex.P1 is also cheque issued for sum of Rs.11,70,00,000/= crores in the name of complainant. Hence though the complainant has not averred in the complaint regarding nature of business transaction in question and liability of the accused in question and issuance of the cheque towards the liability in question by the accused but the SPA holder of the complainant has specifically disclosed the above said facts not only in his cross examination but also by producing Ex.P.14 and P.16. The accused has in his cross examination denied the purchase of the shares of the complainant and additional good will and agreed to pay an amount of Rs.11,70,00,000/= and issuance of the cheque i.e Ex..P.1 to the complainant towards purchase of her shares and good will and also execution of the settlement receipt and issuance of the cheque in question, but the accused No.2 has admitted that the complainant earlier was the director of the Accused No.1 company and holding of 99% share and out of the said shares he has purchased 48% of shares in the year 2011-12 and 51% of shares in the year 2015 and also admitted 34 C.C.No9445/2018 J his signature found at Ex.P.14 and P.16 it cannot be held that no specific averments in the complaint there was no existence of legally enforceable debt or liability or liability will not become legally enforceable debt/ liability as contended by the learned counsel for the accused in his written argument.
24. The learned counsel for the accused during the course of argument has relied upon the decision of Hon'ble Apex Court of India reported in (2015) 15 SCC 693 in the case of "OMNIPLAST (P) Ltd., V/s. STANDARD CHARTERED BANK AND OTHERS" and argued that in the said decision Hon'ble Apex Court held that absence of requite pleading in respect of transaction concern - quashment of complaint, confirmed and also relied upon the decision of Hon'ble High Court of Delhi ordered dated 17.07.2019 in the case of "M /s. Shivom Minurals Ltd., and other V/s. State and another" and argued that in the said decision the Hon'ble High Court held that it is required to be aware in the complaint of Sec.138 of NI Act as to what is the factual basis to show existing debt or 35 C.C.No9445/2018 J liability or necessary ingredients to maintain the complaint in question or lacking and also argued that in the present case also the complainant has not averred in the complaint in respect of the transaction in question and existence of legally recoverable debt and liability arose, quantum of liability and to whom and when the cheque was given, in such circumstances the complaint is liable to be dismissed.
25. As it is already held the above that the complainant during the course of his cross examination has specifically stated the nature of transaction between complainant and the accused and also liability of the accused arose and also the quantum of the liability and also the issuance of the cheque in question by the accused towards discharge of liability by producing documentary evidence. In this regard it is relevant here to refer the recent decision of Hon'ble Apex Court of India reported in LAWS (SC) - 2019 -8-82 SUPREME COURT OF INDIA (FROM BOMBEY) decided on 21.08.2019 in the case of "SHREE DANESHWARI TRADERS V/S. SANJAY JAIN" wherein the Hon'ble 36 C.C.No9445/2018 J Apex Court held that "N.I.ACT SEC.138 DISHONOUR OF CHEQUE - Appeal against acquittal- Though complaint contents no specific averments that cheques were issued or purchase made on credit, in his evidence, complainant clearly stated that cheques were issued for commodities purchased on credit - oral and documentary evidence adduced by the complainant are sufficient to prove that it was a legally enforceable debt and that cheques were issued to discharge the legally enforceable debt- with evidence adduced by the complainant, the Courts below ought to have raised the presumption under section 139 of NI Act. Evidence adduced by respondent - accused is not sufficient to rebut the presumption raised under Sec.139 of the Act - acquittal of respondent accused set aside. Appeals allowed." Hence the principals of the law laid down by Hon'ble Apex Court of India in the above referred decision are aptly applicable to the facts of the present case on hand, in this case also the complainant though she has not averred specific averments in the complaint with regard to nature of 37 C.C.No9445/2018 J transaction and purpose of issuance of cheque in question but the SPA holder of the complainant during the course of his cross examination has clearly stated about the transaction in question and also purpose of issuance of the cheque by the accused and also produced documentary evidence, in such circumstances the arguments canvassed by the learned counsel for the accused cannot be acceptable one.
26. The learned counsel for the Accused in the written argument specifically contended that, the complainant has produced two documents i.e., Ex. P.14 settlement receipt dated: 24.12.2015 and Ex.P.16 cheque issued receipt dated: 1.10.2017 and the Ex.P.14 is in the form of a letter written by the Accused and name of the addressee is not written in Ex.P.14 and which is on document sheet of Rs.2 and no stamp duty is paid on Ex.P.14 and there is no mentioning of liability of Rs. 11,70,00,000/- and there is no acknowledgement of payment of Rs.11,70,00,000/- and complainant admitted that, as per Ex.P.14 he cannot say what is the value of 51% share in the same way he also cannot say what 38 C.C.No9445/2018 J is the value of shares purchased during the year 2011-12 and what is the value of goodwill mentioned in Ex.P.14 and also admits that, Ex.P.15 has no relevance to this case, therefore Ex.P.14 is not an agreement and only a letter that too without referring the name of addressee and there was no legal requirement to sign the Ex.P.14 by the complainant and her husband. It is also argued that, Ex.P.14 and P.16 are not at all existing as on the date of issuing of legal notice and filing of the complaint as the complainant admitted in his cross- examination that, they were in possession of Ex.P.14 even before issuing of legal notice and filing of the case. If really Ex.P.14 and P.16 were in the possession of the complainant as on 24.12.2015, he could have averred about the settlement report dated: 24.12.2015 i.e.Ex.P.14 and cheque issued receipt i.e. Ex.P.16 and the contents of the said documents in the legal notice and complaint but the complainant has not produced Ex.P.14 and P.16 at the time of filing of complaint but later during the course of his evidence the complainant has produced Ex.P.14 to P.16 therefore the complainant has created Ex.P.14 to P.16 for the purpose of this case 39 C.C.No9445/2018 J and cannot be relied upon to prove his claim. It is also contended that, no liability can be fastened on the Accused on the basis of Ex.P.14 as it pertains to purchase of shares of M/s. ITS India Pvt. Ltd., and when the liability is huge to the tune of Rs.11,70,00,000/= the complainant ought to have produce the share transfer agreement, books of accounts of the company, records of the register of the company, balance sheet of the company, transfer register, minutes of the company pertaining to sale and transfer of shares but the complainant has not chosen to produce any of those documents, hence, in the absence of said documents the claim made by the complainant cannot be acceptable one and the complainant falsely claiming huge amount against the Accused.
27. It is true that, the complainant has not produced Ex.P.14 to P.16 at the time of filing of the complaint and has also not referred about them either in the legal notice or in the complaint but he has produced Ex.P.14 to P.16 at the time of evidence of SPA holder of complainant. It is relevant here to mention that, during the course of cross-
40 C.C.No9445/2018 J examination of the complainant he has categorically stated about the existence of the Ex.P.14 to P.16 as on 24.2.2015 and the Accused is only elicited the existence of Ex.P.14 during the course of his cross- examination i.e. SPA holder of the complainant in his cross-examination has stated to the suggestions made on behalf of the Accused that, Ex.P.14 is came in to their possession in the month of December 2015 and the said document has been given by Accused No.2 and Ex.p.14 is written by Accused No.2 but the Accused No.2 has not stated where and who has prepared the Ex.P.14 but they are not happy with the contents of Ex.P.14 however, the Ex.p.14 retained by them only for the purpose of evidence. The SPA holder of complainant has also stated that, he do not remember as to whether he had given instructions to his advocate about Ex.P.14 at the time of preparing the legal notice. it is also stated by the SPA holder of the complainant that, since no final settlement arrived between the Accused and them the Accused has taken back of his three cheques from them. The SPA holder of complainant has denied the suggestions made to him that, as on the date of issuance of the legal 41 C.C.No9445/2018 J notice Ex.P.14 was not in existence and the same has been created subsequently and has produced before the court. He also denied a suggestions that, Ex.P.15 is nowhere connected to this case and it was also not in existence as on the date of filign of the complaint in C.C.No.1907/2018 and C.C.No. 9443/2018. the SPA holder of the complainant has also stated that, he do not know the exact date on which the Accused was signed to Ex.P.14 to P.16 but the Accused has put his signature to Ex.P.14 to P.16 and handed over the same to him.
28. Hence, the above statement made by the SPA holder of the complainant in his cross- examination are not his voluntary statements, on the contrary the existence of receipt i.e. Ex.P.14 and cheque issued receipt i.e., Ex.P.16 are elicited by the Accused only, therefore the entire perusal of the cross-examination of PW.2 i.e. SPA holder of the complainant makes it clear that, the Ex.P.14 was in existence only in the year 2015 itself. No doubt, the complainant has not produced Ex.P.14 to P.16 at the earliest point of time, however the said documents have been produced at the time of evidence of SPA 42 C.C.No9445/2018 J holder of the complainant, therefore mere production of the document at later stage that too during the course of trial cannot be held that, the said documents are created and produced before the court, unless the said defence has been proved by the Accused. It is also relevant here to mention that, the Accused himself admitted his signatures on the Ex.P.14 to P.16 but he contends that, when he was signed to the said documents the said documents were blank sheets, hence it goes to show that, the Ex.P.14 to P.16 were in existence in the year 2015 itself, in such circumstances, it cannot be held that, Ex.P.14 to P.16 were created subsequently as alleged by the Accused. It is also relevant here to mention that, when the Accused himself admitted that, he was signed to Ex.P.14 to P.16 but he contends that, the said documents were blank sheets when he was signed, hence it goes to show that, the Accused has admitted his signatures found on Ex.P.14 to P.16 but he denies the contents of the Ex.P.14 to P.16 were not appearing when he was signed to the Ex.P.14 to P.16, therefore the burden of proving the said defence i.e. when he was signed the Ex.P.14 to P.16 they were blank sheets is upon 43 C.C.No9445/2018 J the Accused but except the denial Accused has not produced any satisfactory evidence to show that, when he was signed to Ex.P.14 to P.16 they were blank sheets and subsequently they were got created by the complainant as alleged by him. Therefore the allegations made by the Accused with regard to contents of Ex.P.14 to P.16 against the complainant are remained as allegations but the same have not been proved by the Accused either by producing the documentary evidence or by eliciting the materials from the evidence produced by the complainant, in such circumstances also the defence taken by the Accused that, the complainant got created Ex.P.14 to P.16 for the purpose of this complaint cannot be acceptable one as the Accused has miserably failed to prove his defence.
29. It is also relevant here to mention that, it is true that, there is no mentioning of name and address of the addressee in Ex.P.14 and there is no mentioning of liability of Rs.11,70,00,000/- and there is no acknowledgement of payment of Rs.11,70,00,000/- and Ex.P.14 is not an agreement and it is prepared on document sheet of Rs.2, no 44 C.C.No9445/2018 J stamp duty has been paid, but the perusal of Ex.P.14, according to the complainant it is not an agreement between him and the Accused and he has produced Ex.P.14 stating that, it is a settlement receipt but not as an agreement deed. It is also seen from Ex.P.16 i.e. the cheque issued receipt wherein it is seen that, in pursuance of Ex.P.14 i.e. settlement receipt the cheque in question and other two cheques have been issued by the Accused in favour of the complainant and her husband, therefore the discrepancies which have been raised by the learned counsel for the Accused in the written argument cannot be acceptable one, as during the course of cross-examination of the SPA holder of the complainant nothing has elicited on Ex.P.14 about the discrepancies raised in the written argument and even the Accused during the course of his cross- examination except bare denial nothing has been stated about the Ex.P.14. It is also relevant here to mention that, even for sake of discussion if it is assumed that, Ex.P.14 is not an agreement in accordance with law as contended by the learned counsel for the defence but from the Ex.P.14 to P.16 it can be held that, there was a settlement between 45 C.C.No9445/2018 J the complainant and Accused in respect of the liability in question and in order to discharge the said liability the Accused has issued the cheque in question to the complainant, therefore from Ex.P.14 and P.16 it can be inferred that, the cheque in question has been entered into the hands of the complainant by virtue of the Ex.P.14 and P.16. It is also relevant here to mention that, the argument canvassed by the learned counsel for the Accused in respect of Ex.P.14 & P.16 appears to be as if the complainant is required to be proved debt before the Civil court wherein the plaintiff is required to prove his claim on the basis of evidence tobe led in support of his claim for recovery of the amount due, but when dishonour of cheque carries statutory presumption of consideration, under such circumstances the holder of the cheque in due course is only required to prove that, the Accused has issued cheque in question in his favour and when the same was presented it was dishonoured since there is a statutory ;presumption of consideration, but the burden is on the Accused to rebut the presumption that, the cheque was issued not for any other debt or liability as held by the 46 C.C.No9445/2018 J Hon'ble Apex court of India in the decision of "
Uttam Ram Vs. Devinder Singh Hudan and Anr.,"
as referred in the above. In this case also the complainant has proved that the cheque in question issued by the Accused and when it was presented same was dishonoured, in such circumstances in view of the principles of law laid down by the Hon'ble Apex court the complainant cannot be insisted to prove a debt in question as it required tobe proved before the Civil Court, therefore for the said reasons the arguments canvassed by the learned counsel for the defence in respect of Ex.P.14 to P.16 cannot be acceptable one.
30. It is true that, the complainant has not produced the document at the time of leading his evidence to show that, the liability on account of shares of M/s.ITS India Pvt. Ltd., by the complainant to the Accused and the Accused has issued the cheque in question towards purchase of 51% plus previously purchased shares during the period of 2011-12 including the good will of the company towards the complainant was holding in M/s. ITS India Pvt. Ltd., and also not produced the document 47 C.C.No9445/2018 J to show that, Accused has agreed to pay Rs.11,70,00,000/= to the complainant towards purchase of said shares and goodwill of the company. However as it is already held the above that the complainant has produced Ex.P.14 and P.16 to show that accused No.2 on behalf of the Accused No.1 company has entered into settlement with the complainant on 24.12.2015 and agreed for purchase the share of 51% plus previously purchased shares in the period of 2011-12 and including goodwill of the company and all other ac account together towards Mrs. Bharathi Devi. i.e complainant was holding in M/s. Inter Trans services (I) Pvt. Ltd., and agreed to pay 11,70,00,000/- and issued the cheque as soon as possible for the same with 18% interest p.a. till clearance of the dues from September 2015 and agreed to issue the cheque in favour of the complainant or her authorized person. It is also seen from Ex.P.16 that, the Accused No.2 as a managing Director of Accused No.1 company handed over the three cheques to the complainant and her husband out of the said three cheques the Ex.P.1 in this case is also one of the cheque issued in favour of 48 C.C.No9445/2018 J the complainant in pursuance of settlement receipt dated 24.12.2015 for Rs.11,70,00,000/- in the name of complainant. Even for sake of discussion if it is assumed that the complainant has not produced the documents to show that the accused has issued the cheque in question was legally recoverable debt in question or there is a due of Rs.11,70,00,000/- by the accused No.1 to 3 and in order to discharge the said due the accused No.2 has issued cheque in question on behalf of the Accused No.1 company infavour of the complainant, but as it is already held in the above that the complainant proved that the cheque in question i.e. Ex.P1 belongs to the account of the Accused no1. company and signature found at Ex.P.1(a) is that of the signature of the Accused No.2 as a Managing Director of the Accused No.1 company and Accused No.2 and 3 are the Directors of the Accused No.1 company and also proved that, the cheque in question was presented within its validity period and it was dishonoured for the reason of "Funds Insufficient" as per Ex.P.2 and thereafter the legal notice caused by him through RPAD to the Accused No.1 to 3 was served on them, in such circumstances, it can be held 49 C.C.No9445/2018 J that, the complainant has discharged her initial burden by complying the mandatory requirements as required U/s.138 of N.I. Act and initial presumptions can be drawn in favour of the complainant U/s.118a and 139 of the N.I. Act. Consequently it is for the Accused to rebut the said presumptions available in favour of the complainant to show that, the cheque in question was not issued either to the complainant or towards discharge of any legally recoverable debt by producing cogent and convincible evidence but not mere suggestions or even by plausible explanation. In such circumstances, when the presumptions U/s.118 and 139 of N.I.Act are available to the complainant, even presumption can be drawn to the extent of existence of legally recoverable debt or liability against the Accused unless and until the said presumptions are rebutted by the Accused even in the absence of documents of the complainant in respect of liability in question. 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 50 C.C.No9445/2018 J 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 adequate proof of existence of debt or liability. In another decision of Hon'ble Apex Court of India i.e. Hon'ble Three Judges Bench Decision reported in (2010) 11 SCC 441 in the case of Rangappa Vs. Sri. Mohan ., wherein the Hon'ble Apex Court held that "
A. Negotiable Instruments Act, 1881 - S.139 - Presumption under - scope of - Held, presumption mandated by S. 139 includes a presumption that there exists a legally enforceable debt or liability - However such presumption is rebuttable in nature - Criminal Trial - Proof - Presumptions - Generally. Further held that "Signature on the cheque was his, statutory presumption under S.139 comes into play and the same was not rebutted even with regard to the materials submitted by complainant Appellant not able to prove "lost cheque" theory - Apart from not raising a
51 C.C.No9445/2018 J 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 15-03-2018 between ROHITBHAI JIVANLAL PATEL Vs STATE OF GUJARAT AND ANR held that "Negotiable Instruments Act facts like source of funds are not relevant if the Accused has not been able to rebut the presumption. It is further held that " When such a presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the Accused has been able to rebut the presumption or not". In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, "
Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the
52 C.C.No9445/2018 J 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 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 53 C.C.No9445/2018 J 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 presented , it was not honoured Since there is a statutory presumption of consideration, the burden is on the Accused to rebut the presumption that, the cheque was issued not for any debt or other liability ". It is also relevant here to refer the decision of Hon'ble High Court of Karnataka reported in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption mandated by Sec.139 of N.I Act includes the presumption that, there existed a legally enforceable debt or liability, however such presumption is rebuttable in nature". In another decision of Hon'ble High Court of Karnataka 54 C.C.No9445/2018 J in the case of Shri.V.R.Shresti Vs. Shri. Bhaskara.P. in Crl. Appeal No. 2109/2017 dated: 15.10.2019 wherein the Hon'ble High Court of Karnataka held that "the Accused has not given any reply to the notice and also in the cross- examination, he categorically admits that, the cheque has bounced on account of no sufficient fund in the bank account of the Accused. Mere non producing of the document before the court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The Accused ought to have rebutted the contention of the complainant by producing cogent evidence before the court and mere denial is not enough". In another decision of Hon'ble Apex Court of India in Crl. Appeal Nos. 132/220 in the case of D.K.Chandel Vs. M/s. Wockhardt (L) wherein the Hon'ble Apex Court held that "production of the account books/cash book may be relevant in the civil court, may not be so in the criminal case filed under section 138 of NI Act while restoring the trial court judgment, the High Court observed that "the reason given by the lower appellate court that he did not bring 55 C.C.No9445/2018 J 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 section 138 of NI Act. This is because of the presumption raised in favour of the holder of cheque.
31. Therefore on careful reading of the principles of law laid down by the Hon'ble Apex Court of India and High Court of Karnataka in the above referred decisions makes it very clear that, once the holder in due course i.e. the complainant proved that, the cheque in question belongs to the drawer and signature appearing on the cheque is that of the drawer i.e., Accused and complied the mandatory requirements as required U/s.138 of N.I.Act, presumptions U/s.118a and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt and when such a presumption is drawn the facts relating to the want of documentary evidence in the form of receipts or accounts or want 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 56 C.C.No9445/2018 J in the above decisions. In the present case also the complainant has complied mandatory requirements and has proved that, the Accused No.2 has issued the cheque in question on behalf of the Accused No.1 company in her favour and the Accused No.2 and 3 have has admitted the cheque belongs to Accused No.1 company and signature appearing on the cheque is that of signature of the Managing Director of the Accused No.1 company i.e. Accused No.2 in such circumstances, presumptions have to be drawn towards existence of legally enforceable debt as per Sec.139 of N.I.Act.
32. Therefore, for the above said reasons the arguments canvassed by the learned counsel for the defence in the written argument with regard to legally recoverable debt is not existence cannot be acceptable one and the arguments canvassed with regard to non production of the documents to show that, the Accused No.1 to 3 are due of Rs.11,70,00,000/- to the complainant and complainant has not produced any document i.e. agreement to show that, the Accused are liable to pay an amount of Rs.11,70,00,000/- to the 57 C.C.No9445/2018 J complainant cannot be acceptable one, unless the Accused rebutted the presumptions available to the complainant. In this case also the learned defence counsel argued that, the complainant has to prove her claim by producing her evidence as if it is required for proving her debt before the Civil Court, but the said line of argument cannot be acceptable one since in view of the principles of law laid down by the Hon'ble Apex court of India in the above referred decisions, 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 have admitted the cheque in question belongs to account of the Accused No.1 company and signature found on the cheque in question is also belongs to the Managing Director of the Accused No.1 company. It is also relevant here to mention that, on careful reading of the principles of law laid down by the Hon'ble Apex court of India and Hon'ble High Court relied upon by the learned counsel for the Accused with due respect to the principles of law the same are not helpful for the Accused in this case to prove their defence, as the facts and circumstances of the present case and 58 C.C.No9445/2018 J facts and circumstances of the decided case are not one and the same.
33. It is relevant here to mention that, the Accused No.1 to 3 in order to rebut the presumption available to the complainant U/s.118 and 139 of N.I.Act the Accused No.2 examined as DW.1, in his evidence has stated that, he know the complainant since 2012 and complainant has not paid any amount and has not issued the cheque in dispute to her towards his alleged liability of Rs.11,70,00,000/- as claimed by her in the present case. The Accused No.2/DW.1 further stated that, the complainant is the wife of Mr. Rathan Kumar Aravind and she was one of the directors along with him in the Accused no1. company i.e M/s. Inter Trans Services (I) Pvt. Ltd., and she was not taking part in the day to day affairs of the said company and he used to take care of the affairs of the said company and whenever there were requirements of discussions, the husband of the complainant used to be present and whenever requirements of the funds for the business of the company, the husband of the complainant used to take the cheques of the Accused No.1 company's 59 C.C.No9445/2018 J account and the individual accounts of the partners of the said company and in good faith he had given his signed blank cheque of the Accused No.1 company's account and several signed blank papers to him so as to enable him to raise loan for the purpose of business of the company but the complainant has misused his signed blank cheques and signed blank stamp papers and filed this false case against him.
34. The Accused No.2 in order to substantiate his oral evidence has not produced single piece of document and except his oral self serving statement nothing has been placed before the court. If really the Accused has given his signed blank cheques and signed blank stamp papers to the husband of the complainant to raise loan for the purpose of business of Accused No.1 company and the complainant has raised the loan, definitely the Accused No.2 would have produced the documentary evidence but no such documents have been produced by the Accused. In addition to that, the Accused No.2 during the course of his cross- examination, categorically admitted that, the Ex.P.1 60 C.C.No9445/2018 J might be given to the husband of the complainant for the purpose of securing the loan the said cheque has been issued and the said cheque was collected by PW.2 stating that, he would get the loan from some private finance but no such loan was given and he came to know about misuse of the cheque in question i.e. Ex.P.1 only when he appeared in this case and the account was in active as on the date of cheque and he has received SMS regarding bouncing of cheque in question i.e. Ex.P.1 after receiving SMS he realized that, Ex.P.1 was misused and he had not issued any intimation to his bank for stop payment and he had not enquired either with the complainant or her husband with regard to misuse of cheque even after receiving the intimation from the bank and has not issued any notice either to the complainant or her husband with regard to misuse of Ex.P.1 cheque stating that, the said cheque was not issued towards discharge of ay liability and he has not approached jurisdictional police or court and filed any complaint against the complainant or her husband with regard to misuse of cheque in question and after receiving the notice he realized that, complainant is intending to file 61 C.C.No9445/2018 J complaint against him for the offence U/s.138 of N.I. Act and he have mentioned in reply that, the cheque in question was not issued to the complainant other than that he did not make any averments in the said reply and for the first time in the examination-in- chief he has stated the complainant and her husband collected signed blank cheque, signed blank papers and signed blank sheets of papers. Therefore, the said admissions of the complainant itself goes to show that even though he is aware of the cheque in question was dishonoured when it was presented by the complainant through SMS and even he realized that, Ex.P.1 cheque was misused by the complainant but he did not choose to take any action against the complainant or her husband, hence the conduct of the Accused itself goes to show that, if really the cheque in question was given by the Accused to the husband of the complainant as blank signed cheque and the said cheque has been misused by the husband of the complainant or by the complainant, definitely the Accused would have made an efforts to take action against the complainant or her husband but no such efforts have been made by the Accused ¸in such 62 C.C.No9445/2018 J circumstances an adverse inference can be drawn against the Accused that, the defence taken by the Accused appears to be mere denial in nature and Accused has miserably failed to rebut the presumptions available to the complainant U/s.118a and 139 of N.I. Act.
35. It is also relevant here to mention that, though the Accused No.2 has taken specific defence that, the husband of the complainant used to take the blank signed cheques of the account Accused No.1 company and individual account of the partners of the said company and he had given signed blank cheque of Accused No.1 company's account and several blank stamp papers to him to raise the loan for the purpose of business of company but the Accused has not specifically stated on which date, month and year the husband of the complainant had collected blank signed cheque and blank signed stamp papers from him so as to raise the loan for business of the company and whether the loan has been secured or not and if not secured whether any action has been taken against the husband of the complainant or not, therefore in the 63 C.C.No9445/2018 J absence of these materials only on the basis of oral say of the Accused No.2, it is very difficult to accept the defence of the Accused No.2 and to hold that, the Accused have rebutted the presumption raised U/s.139 of N.I. Act in favour of the complainant, as the Accused No.2 has categorically admitted the issuance of cheque in question infavour of the complainant and his signature found on the cheque is that of his signature and the signature appearing on the settlement receipt i.e. Ex.P.14 and also the cheque issued receipt i.e., Ex.P.16, in such circumstances also the defence of the Accused cannot be acceptable one.
36. It is also relevant here to mention that, the Accused during the course of his cross-examination has categorically admitted that, he has given many blank cheques to the husband of the complainant and also admitted that, he came to know about the misuse of Ex.P.1 cheque when he received SMS regarding bouncing of cheque in question and even after misuse of cheque he has not entered the complainant or her husband and has not issued any notice either to the complainant or her husband and 64 C.C.No9445/2018 J has not approached jurisdictional police or court and filed any complaint against the complainant or her husband with regard to misuse of cheque in question and for the first time in the chief examination he has stated that, complainant and her husband collected signed blank cheque, papers and sheets from him. Hence, the said categorical admissions of the Accused makes it clear that, the Accused himself admitted that, even after misuse of his cheque in question he did not issue any notice to the complainant or her husband and has not approached jurisdictional police or court and filed complaint against the complainant or her husband about alleged misuse of cheque in question by the complainant, in such circumstances, if really the husband of complainant has collected blank singed cheque of Accused no1. company's account and blank signed stamp papers of Accused No.2 for securing loan to the business of company, in such circumstances the Accused No.2 would have taken action against the complainant either by lodging the complaint before the police or court or atleast issuing notice to the complainant or her husband for return and misuse of his alleged blank signed 65 C.C.No9445/2018 J cheque handed over to him or issuing stop payment instructions to his banker, but no such efforts have been made by the Accused even after receipt of the legal notice by him and after his appearance in this case, therefore except the bare denial of the Accused is not sufficient to hold that, he has rebutted the presumptions available to the complainant U/s.118 and 139 of the N.I. Act. It is also relevant here to mention that, the conduct of the Accused in not taking the action against the complainant for alleged misuse of blank signed cheque of Accused No.1 company's account and blank signed stamp papers of Accused No.2, an adverse inference can be drawn against him that, the Accused No.2 has not initiated any action against the complainant since the cheque in question has been issued by the Accused No.2 to the complainant towards discharge of the liability in question but not for any other purpose. In this regard it is relevant here to refer the decision of Hon'ble Apex Court of India reported in AIR 2018 SC 3601 in a case of T.P.Murugan(dead) Thr. Lrs.V. Bhojan Vs. Posa Nandi, rep. Thr. Lrs. PA holder, T.P. Murugan V. Bhojan, wherein the Hon'ble apex Court held that "Negotiable 66 C.C.No9445/2018 J 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". It is true that, the above principles of law pertains to the case of different set of facts but the proposition of law held by the Hon'ble Apex Court is aptly applicable to the case on hand since in the present case also the accused No.2 has not made any efforts to get return of cheque alleged to have been given to the husband of complainant for securing loan to the business of the firm, under such circumstances, the said unnatural conduct of the accused No.2 in non taking of action, an adverse 67 C.C.No9445/2018 J inference can be drawn against the accused No.2 that, the cheque in question issued by the accused No.2 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 o the Accused No.1 company. In another decision reported in 2015 (4) KCCR 2881 (SC) in the case of T. Vasanthakumar Vs. Vijayakumari wherein the Hon'ble Apex court held that, " NEGOTIABLE ISNTRUCEMTNS Act, 1881- Section 138 and 139
- acquittal - If justified- Accused not disputing issuance of cheque and his signature on it - Plea that it was issued long back as security and that loan amount was repaid - Not supported by any evidence - Fact that date was printed, would not lend any evidence to case of accused- Acquittal not proper. Hence in the present case also it is the main defence of the Accused that the cheque in dispute alleged to have been issued towards security to the complainant and the complainant by misusing the said cheque has filed this complaint but the Accused has admitted the issuance of cheque and his 68 C.C.No9445/2018 J signature on the said cheque and also taken defence that, the cheque was issued towards security but no documents or proof given by the Accused to prove his defence in such circumstances by applying the principles of law laid down in the above decision the defence of the Accused cannot be acceptable one. It is true that, the above principles of law pertains to the case of different set of facts but the principles of law held by the Hon'ble Apex Court are aptly applicable to the case on hand, since in this case also the complainant proved the fact that, the Accused No. has issued cheque in question on behalf of the Accused No.1 company towards discharge of liability in question. The accused have also failed to produce cogent and convincible evidence to rebut the statutory presumption in support of their defense in such circumstances the defense taken by the accused cannot be acceptable one.
37. The Accused No.2 has also taken the defence that, the husband of the complainant whenever the funds are required for the business of Accused No.1 company he used to collect cheques 69 C.C.No9445/2018 J from the company's account and also individual accounts of the partners and in good faith he had given signed blank cheque of Accused No.1 company's account and several signed blank stamp papers to him so as to enable him to raise loan for the purpose of business of the company and except his signature on the cheque in dispute the rest of the contents in it is not of his handwriting and the complainant has misused his signed blank cheque and stamp papers and filed this false case. Even for sake of discussions, if the defence of the Accused is taken into consideration that, the Accused No.2 has issued the blank signed cheque, even in such circumstances, if it is assumed that, the contents of the subject cheque are not filled in by the Accused No.2, unless and until the Accused No.2 has proved the said defence by producing cogent and convincible evidence, it cannot be held that, the contents of the cheque have been filled in by the complainant. In this regard, it is a relevant here to refer a decision of Hon'ble High Court of Karnataka at Bengaluru in a case of Crl. Appeal No. 1664/2003 C/w. Crl.Apeepal No. 1663/2003 dated: 18.6.2008 in the case of R.Mallikarjuna 70 C.C.No9445/2018 J 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 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 71 C.C.No9445/2018 J 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 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 72 C.C.No9445/2018 J and the other handwritten contents.
Hence, in view of the principles of law laid down by the Hon'ble High Court of Karnataka, the same were aptly applicable to the case on hand and the defence of the Accused cannot be acceptable one as the instrument i.e., cheque in 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.
38. It is also relevant here to refer another decision of Hon'ble Apex Court of India reported in AIR 2019 SC 2446 in the case of Birsingh Vs. Mukesh Kumar., wherein the Hon'ble apex Court held that, "presumption U/s.139 is presumption of law, distinguished from presumption of facts and also held that, presumptions are rules of evidence and do not conflict with presumption of innocence which requires prosecution to prove case against the Accused and also held that obligation on the prosecution may discharged with the help of presumptions of law and 73 C.C.No9445/2018 J presumption of fact unless the accused adduces evidence showing reasonable plausibility of non existence of presumed fact." In the present case though the Accused No.2 has denied the contents of the cheque in question except his 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 and 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 decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by 74 C.C.No9445/2018 J 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 such circumstances even if it is assumed that, the complainant admitted that, he is not aware of the contents of cheque in question were filled in by the Accused No.2, in such circumstances also in view of the principles of law laid down in the above decision that itself would not invalidates the cheque in question and it can be presumed that, the said cheque has been issued towards discharge of legally recoverable debt.
75 C.C.No9445/2018 J
39. It is also important to note here that, the Accused No.2 has not denied or disputed that the cheque in question as well as the signature therein do belong to the account of Accused No.1 company and has signed as a Managing Director of the Accused No.1 company and though he has taken the specific defence that, the husband of the complainant used to collect blank signed cheques of company's account and also individual account of the partners of the for raising loans to the business of company and in good faith he had given blank signed cheques and several blank signed stamp papers to the husband complainant so as to raise the loan for the purpose of company's business but he misused the cheques and filed this false case against him but the Accused No.2 has not proved the said defence by producing cogent and convincible evidence , in such circumstances it can be held that, the Accused No.2 has failed to explain and prove how the cheque in question has come to the possession of the complainant, this would also give rise to an adverse inference against him, this proposition of law finds support from the decisions of Hon'ble High Court of Karnataka reported in 76 C.C.No9445/2018 J 2010(1) KCCR 176 in the case of "Siddappa Vs. Manjappa" and in the decision of Hon'ble Apex court of India decided in Crl.A.No.664 of 2012 dated: 19.9.2019 in the case of "M.Abbas Haji Vs. T.M.Chennakeshava" held that, " the Accused has to explain how the cheque entered into the hands of complainant". Therefore for the above said reasons the defense taken by the accused cannot be acceptable one and accused has miserably failed to rebut the presumption available in favour of the complainant by producing cogent and convincible evidence.
40. Therefore for the above said reasons arguments canvassed by the learned counsel for the Accused in the written argument cannot be acceptable and are not sustainable since in view of the discussions made and findings given by the court while appreciating the oral and documentary evidence of the complainant and Accused and the Accused has miserably failed to rebut the presumption available to the complainant as U/s.118a and 139 of N.I. Act.
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41. 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, the Accused No.2 and 3 in their capacities as a directors of the Accused No.1 company have issued the Ex.P.1 cheque in question in her favour towards discharge of the liability i.e., for purchase of 51% plus previously purchased shares and including good will of the company and all other ac towards she was holding in M/s. Inter Trans Services (I) Pvt.Ltd., and also agreed to pay Rs.11,70,00,000/- to her and thereafter the complainant has presented the said cheque through her banker and same was returned dishonoured with an endorsement of "Funds Insufficient" and thereafter he got issued legal notice to the accused and the said notice was served on 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 have failed to rebut the presumption available infavour of the complainant with regard to the existence of 78 C.C.No9445/2018 J legally recoverable debt under Ex.P.1 Cheque. The Accused No.2 and 3 being the Directors of the Accused No1 company and have issued the cheque in question in the capacity of the directors of the Accused No.1 company, therefore the Accused No.2 and 3 vicariously liable for the offence punishable U/s.138 and 141 of the Negotiable Instruments Act and the Accused No.2 and 3 representing the Accused No.1 company as a directors and Accused No.2 being a Managing Director of the Accused No.1 company and authorized signatory to the Accused No.1 company and has issued the cheque in question in the capacity of the managing Director of the Accused No.1 company, in such circumstances the Accused No.1 to 3 have committed an offence punishable U/s.138 of N.I. Act, and Accused No.2 and 3 are liable to pay the fine amount to the complainant, accordingly for the above said reasons this point is answered in the Affirmative.
42. 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 79 C.C.No9445/2018 J issuance of cheque without having sufficient funds in their accounts. Such being the case the intention of the legislature is that, complainant be suitable compensated while accused be punished for their 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 No.2 and 3, 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 No.1 to 3 are convicted for the offence punishable U/sec.138 of N.I.Act. The accused No.2 and 3 are sentenced to pay a fine of Rs.11,75,25,000/= (Rupees Eleven Crores Seventy Five Lakhs and Twenty Five Thousand only) within one month from the date of order, in default she shall under go simple imprisonment for a period of (6) Six months for the offence punishable U/sec.138 of N.I.Act.
80 C.C.No9445/2018 J Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.11,75,00,000/= (Rupees Eleven Crores Seventy Five Lakhs 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.25,000/= (Rupees Twenty Five Thousand only) shall be defrayed as prosecution expenses to the state.
Bail bond of Accused No.2 and 3 stands cancelled.
. Office is directed to furnish free certified copy of this judgment to the Accused No.2 and 3 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 13th day of February 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Mrs.Bharathi Devi
81 C.C.No9445/2018 J
PW.2 : Sri.Rathan Kumar Aravind;(SPA holder)
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 : Original Cheque; Ex.P-1(a) : Signature of the Accused No.2; Ex.P-2 : Bank Memo; Ex.P-3 : Office copy of the Legal Notice; Ex.P-4 to 7 : Postal Receipts; Ex.P-8 to 11 : postal Acknowledgements Ex.P-12 : Reply Notice Ex.P-13 : Special power of Attorney; Ex.P-14 & 15 : Settlement Receipts Ex.P-14(a) & : Signatures of accused ; 15(a)
Ex. P-14(b) & : signatures of the complainant 14(c) Ex.P.14(c) signature of the husband of the &15(c) complainant;
Ex.P-16 : Cheque issued receipt
Ex.P-16(a) : Signatures of accused
Ex.P-16(b) : Signature of the complainant;
Ex.P-16(c) : Signature of the husband of the
complainant
Ex.P-17 : complaint
Ex.P-17(a) : Signature of complainant
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Sri. Mani Vinonath;
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4. List of documents exhibited on behalf of the Accused:-
- Nil-
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
83 C.C.No9445/2018 J 13.2.2020 Judgment pronounced in the open court vide separate order.
ORDER Acting U/sec.255(2) of Cr.P.C.
the accused No.1 to 3 are convicted for the offence punishable U/sec.138 of N.I.Act.
The accused No.2 and 3 are sentenced to pay a fine of Rs.11,75,25,000/= (Rupees Eleven Crores Seventy Five Lakhs and Twenty Five Thousand only) within one month from the date of order, in default she shall under go simple imprisonment for a period of (6) Six 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.11,75,00,000/= (Rupees Eleven Crores Seventy Five Lakhs 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.25,000/= (Rupees Twenty Five Thousand only) shall be defrayed as prosecution expenses to the state.
84 C.C.No9445/2018 J Bail bond of Accused No.2 and 3 stands cancelled.
. Office is directed to furnish free certified copy of this judgment to the Accused No.2 and 3 incompliance of Sec.363(1) of Cr.P.C.
XVI ACMM, B'luru.