Bangalore District Court
Ranjith Kumar vs Umesha.D on 1 March, 2025
KABC020073102022
IN THE COURT OF THE XXII ADDL. JUDGE, COURT OF
SMALL CAUSES AND ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
(SCCH-24)
Presided Over by Smt. Roopashri, B.Com., LL.B.,
XXII ADDL., SCJ & ACJM,
MEMBER - MACT,
BENGALURU.
Dated: On this 1st day of March 2025
C.C.3476/2022
1. Sl.No. of the Case : C.C.No.3476 of 2022.
2. The date of : 14-02-2022
commission of the
offence
3. Name of the : Sri. Ranjithkumar,
Complainant S/o Late. Gangadhar.J,
Aged about 24 yeas,
R/at Rajana Building,
C/o Raghavendra,J,
1st A main road,
Mohankumar Nagara,
Yeswanthapura,
Bangaluru - 560022.
(By Sri.M.N.Krishnappa,
Advocate)
SCCH-24 2 C.C.3476/2022
4. Name of the Sri. Umesha.D,
Accused S/o D.Channappa,
Aged about 45 years,
Residing at Khanahosahalli,
Ujjini Road, Koodlagi taluk,
Vijayanagara
District-583218,
(By Sri.Chethana.S.U,
Advocate)
5. The offence complained : Under Section 138 of the
of or proves Negotiable Instrument Act.
6. Plea of the accused and : Pleaded not guilty.
his examination
7. Final Order : Accused is found guilty
8. Date of such order for : 01-03-2025
the following
JUDGMENT
This complaint is filed under Sec. 200 of Cr. P. C., for the offence punishable under Section 138 of the Negotiable Instruments Act.
2. It is the case of the complainant that: The complainant and accused are known to each other since several years. The accused is running provision store in his native village under the name and style Sri. Channakeswara Provision Store at Khanahosahalli, Ujjini Road, Kudligi Tlauk, Vijayanagar District. On 05.01.2021 the accused requested the complainant to provide hand loan of Rs.2,50,000/- for his domestic SCCH-24 3 C.C.3476/2022 purpose and to improve his business. The complainant agreed to pay the hand loan of Rs.2,01,000/- on 05.01.2021. The accused assured that, he will return the said amount within 3 months from the date of receipt of the amount. In the second week of April 2021, the complainant demanded the accused to repay the hand loan amount, at that time the accused issued the post dated cheque bearing no. 035066 dated 30.10.2021, drawn on Karnataka Gramin Bank, Hosahalli branch, Kodligi for a sum of Rs.2,01,000/-. As per the instructions of the accused, the complainant has presented the said cheque for encashment through his banker i.e., State Bank of India, Sampige road, Malleswaram branch on 10.11.2021 but same was dishonored for the reason "Insufficient Funds" (but as per endorsement Drawers Signature differs) on 08.11.2021. Thereafter, the complainant got issued legal notice to the accused on 04.12.2021 through RPAD. The said notice was served to the accused, but he has failed to make payment to the complainant. Accordingly, the accused has committed an offence punishable under Sec.138 of N.I Act.
3. After recording the sworn statement of the complainant and also verifying the documents, cognizance was taken against the accused for the offence SCCH-24 4 C.C.3476/2022 punishable under Sec. 138 of N.I. Act. The accused on receiving the summons appeared before this Court through his counsel and was enlarged on bail and his plea was recorded. The accused pleaded not guilty and claimed to be tried. Hence, the case was posted for evidence of the complainant.
4. The complainant got examined himself as PW.1, and got marked documents as Exs.P1 to Ex.P5. One witness got examined as PW.2. During the cross- examination of DW.1 the learned counsel for the complainant confronted the documents and got marked as Ex.P6. Then, the case was posted for recording the statement of accused under Sec.313 Cr.P.C. In the statement U/s 313 Cr.P.C. the accused has denied all the incriminating evidence appearing against him and claimed to be tried. The accused has examined himself as DW.1 and one witness got examined as DW.2 and got marked document as Ex.D1. The Scientific officer got examined as DW.3. Hence, the case was posted for arguments.
5. Heard the arguments of both side and perused the records.
SCCH-24 5 C.C.3476/20226. The following points arise for my consideration:
1. Whether the complainant proves that accused has committed an offence punishable under Sec.138 of N.I. Act?
2. What order?
7. My findings on the above points are as under
Point No.1: In the Affirmative Point No.2: As per final order for the following:
-: R E A S O N S :-
8. POINT NO.1:- This is a private complaint filed under Section 200 of Cr.P.C. for the offence punishable under Section 138 of N.I. Act.
9. It is the definite case of the complainant that, towards the discharge of the hand loan of Rs.2,01,000/- availed by the accused, he has issued disputed cheque and when the cheque was presented, same was dishonoued for the reason " Drawers Signature differs". Though the said fact was brought notice of the accused by issuing legal notice but accused has failed to repay the cheque amount.
10. In order to substantiate the contention, the complainant got examined himself as Pw1 and got SCCH-24 6 C.C.3476/2022 marked in 6 documents as ExP1 to Ex.P6. If the documents produced by the complainant are perused, ExP1 to 6 are the cheques which bears the signature of accused. It is deposed by Pw1 that cheque in question was issued by the accused for discharge of liability. The cheque in question was presented by the complainant through his banker which was returned with memo as per ExP.2 stating 'Drawers Signature differs' on 08.11.2021. Hence, he got issued legal notice to the accused through RPAD, which is produced at Ex.P.3. Postal receipt at Ex.P.4, postal track consignment at Ex.P5 and postal acknowledgment at Ex.P6.
11. The learned counsel for the accused at this juncture has referred by judgment reported in 2009 SC 568 between P Venugopal Vs. Madan P Sarathi wherein it was held that "The presumption raised in favour of the holder of the cheque must be kept confined to the matters covered thereby. The presumption raised does not extend to the extent that the cheque was issued for the discharge of any debt or liability which is required to be proved by the complainant. In a case of this nature, however, it is essentially a question of fact".
12. In (2019) 5 SCC 418 between Basalingappa Vs. Mudibasappa wherein by referring to drawing SCCH-24 7 C.C.3476/2022 presumption u/Sec. 118 , 138 and 139 and how the said presumption rebutted. It was observed that "while prosecution must establish its case beyond reasonable doubt, accused to prove his defence must only meet stranded of preponderance of probabilities".
13. In view of the principles enunciated in the catena of decisions of Hon'ble High Court and Hon'ble Supreme Court, it is evident that when once issuance of cheque with signature of accused on the account maintained by him/her is admitted or proved then statutory presumption in terms of Sections 118 and 139 of N.I. Act will have to draw. Now, it is up to the accused to place rebuttal evidence to displace the statutory presumption available in favour of complainant in terms of Sections 118 and 139 of N.I. Act. The burden of placing rebuttal evidence to displace the statutory presumption is on the accused.
14. The accused in his defence at first has denied the identity of the complainant and denied the money transaction at any time allegedly held between him and the complainant leave apart the money transaction of Rs.2,50,000/- which is the subject matter in the present case. It is stated by the accused that he is economically sound enough having sufficient income and assets and SCCH-24 8 C.C.3476/2022 at no point of time he had come across any Financial crisis. The complainant had no financial capacity to give such a huge amount. He has not been serving with copy of the legal notice.
15. It is the specific defence taken by the accused that he is the resident of Khanahosahalli village, Kodligi Taluk Vijayanagar District and the mother of the complainant by name Hemakashi is also from the said village as it is her parental home town. Earlier to one year of the death of the father of complainant, Hemakashi came down to Khanahosahalli village and settled there. The complainant never resided with his mother. The father of Hemakashi by name Adivappa Barmanna is well known to the accused since several years and so many transaction weere held between the accused and Adivappa Barmanna. The mother of the complainant sought for financial assistance from the accused in the presence of witnesses. The accused intimated her that after clearing all his commitments he will give money to her as needed by her. Since, Hemakashi forced him to extend financial assistance to meet her commitments, with no other alternative, prior to the clearing of his commitments, he issued cheque in question without any signature and date in the presence of the witnesses and informed her to obtain the signature SCCH-24 9 C.C.3476/2022 after two weeks and present the cheque. The complainant misused the said cheque by forging the signature of the accused and presented before the bank. It is categorically stated by the accused that there is no legally recoverable debt so as to issue cheque in question to the complainant.
16. In order to probablise the defense, the accused got examined himself as Dw1 and one witness is examined as DW.2 and got marked document as Ex.D1. The Scientific officer is examined as DW.3.
17. If the defence taken by the accused is summarized, the accused has disputed the financial capacity of the complainant, service of legal notice, issuance of cheque for discharge of liability, his signature in the disputed cheque etc.
18. In the light of the first and for most defence taken by the accused regarding the financial stability of the complainant is concerned, if the evidence of the PW.1 is appreciated, as per the evidence of PW.1 he has studied up to 10th standard. He is the native of Khanahosahalli village but he is born and brought up at Bangalore and has schooling at Bangalore. Earlier he was working in Mobile shop and earning Rs.17,000/- per SCCH-24 10 C.C.3476/2022 month and now he is working as delivery boy and earning sum of Rs.20,000/- per month. The date of birth of complainant is 13-07-1997. From the aforesaid evidence it can be gathered that after completion of his 10th std., he started working and earning income. As per the evidence of PW.1, out of his salary, every month he is saving sum of Rs.5,000/- and out of the savings amount he has given Rs.2,01,000/- to the accused. It is nowhere the case of the complainant that he is an income tax assessee. Further income earned by the complainant it is not assessable to tax. Hence, no need to produce the income tax returns. It is true that the complainant has not produced his bank statement. It is nowhere the case of the complainant that by withdrawing money from the bank he has given sum of Rs.2,01,000/- to the accused. When it is the case of the complainant that out of the amount of Rs.5,000/- saved by him in every month, he has given sum of Rs.2,01,000/- to the accused. Though the accused has posed suggestion to the PW.1 that he has no financial capacity but nowhere has denied the avocation and income of the PW.1 and also the savings made by the complainant. The accused has deposed that he is economical sound and there was no necessity for him to borrow money from any one. It is true that the accused has produced his bank statement as per Ex.D1 but the said statement is for the period 14-09-2021 to SCCH-24 11 C.C.3476/2022 31-12-2021. The disputed transaction is dated 05-01- 2021. As per the case of complainant, to meet the financial crisis the accused has borrowed sum of Rs.2,01,000/- on 05-01-2021. Under such circumstances in order to prove that as on 05-01-2021 the accused had sufficient money in his account and there was no necessity for him to borrow money from the complainant, he ought to have produced the bank statement depicting the entry dated 05-01-2021 or earlier to the said date. Ex.D1 would no way help full to the case of the accused to prove his defence.
19. The learned counsel for the accused at this juncture has referred judgment rendered in Basalingappa Vs. Mudibasappa wherein it was observed that "if the accused disputes the financial capacity of the complainant to pay the amount and leads evidence to prove the same it can be said that accused has led probable defence. Under such conditions, burden would be on complainant to establish his financial capacity.
20. In Rangappa Vs. Sri Mohan reported in (2010) 11 SCC 441 it was observed that "presumption u/Sec. 139 of NI Act is a rebuttal presumption. The contention of the accused as to the financial capacity of the complainant to grant a loan in his favour was to be SCCH-24 12 C.C.3476/2022 discharged by the complainant and if he faills to prove the same it shall be presumed that the loan transaction has not taken place.
21. Coming to the case in hand, it is true that accused has posed suggestion that complainant had no money to pay the cheque amount. It is also true that complainant has not produced any document to prove his financial capacity, but he has given oral evidence regarding his avocation, income and savings and that evidence has not been denied by the accused. Under such circumstances it can be said that the complainant has proved his financially stability. Hence, the observation made in the aforesaid judgment has no application to the case in hand.
22. When the amount allegedly lend by the complainant is a meager amount of Rs.2,01,000/- and when the avocation and income stated by the complainant is not denied by the accused, under such circumstances it can be said that the complainant is financially stable to lend sum of Rs.2,01,000/- to the accused.
23. Now coming to the defence taken by the accused as to non service of legal notice is concerned, it SCCH-24 13 C.C.3476/2022 is vehemently submitted by the learned counsel for accused that the legal notice is not served to the accused and that the signature in the postal acknowledgment marked as Ex.P6 is not the signature of the accused. If the entire cross examination of PW.1 is perused, nowhere the accused has disputed his address mentioned either in the legal notice or in the complaint. Further if the address of the accused mentioned in the evidence in chief by way of affidavit is perused, wherein also the accused has stated his address which tallies with the address mentioned in the legal notice and complaint. As accused has disputed his signature in the postal acknowledgment and thereby disputed the service of legal notice, the learned counsel for complainant referred the disputed signature of accused in the postal acknowledgment so also disputed signature in the cheque for comparison with the admitted signature of the accused and specimen signature of the accused obtained in the court. The handwriting expert has given report stating that the disputed signature of accused in the postal acknowledgment and cheque tallies with the admitted signature of the accused. The accused has summoned the hand writing expert and examined her as DW.3. Though the learned counsel for accused by treating the DW.3 as hostile has cross examined him but nothing worth has been elicited to disprove the report SCCH-24 14 C.C.3476/2022 given by the handwriting expert. The DW.3 is qualified officer having experience in the field of comparison of handwriting. Hence, the report of handwriting expert can be relied upon to say that the signature in the Ex.P6 is the signature of the accused himself and accused personally has received the Ex.P6 by endorsing his signature. Even otherwise also when legal notice is issued to the correct address of the accused through RPAD, presumption shall be drawn u/Sec. 27 of General Clauses Act regarding due service of legal notice. Hence, it can be said that legal notice is duly served to the accused. Admittedly having served the legal notice, the accused has not given reply and by not giving reply he has not taken the defence at the first instance.
24. So far as the defence taken by the accused that he has issued the unsigned blank cheque to the mother of the complainant and the complainant in turn has misused the said cheque is concerned, it is deposed by DW.1 that the mother of complainant for her necessities has asked for financial assistance from the accused and as accused has some commitments, he promised the mother of the complainant to extend the financial assistance to her after clearing his commitments but when the mother of the complainant forced to pay the amount immediately, it constrained the accused to issue SCCH-24 15 C.C.3476/2022 unsigned blank cheque to the mother of the complainant asking her to get his signature after two weeks from the said date and then to present the cheque .
25. If the aforesaid defence of the accused is carefully perused, nowhere in the evidence the accused has stated the date, month and year in which the mother of the complainant approached him for financial assistance and nowhere has stated what was the amount the mother of the complainant had sought from the accused and the date on which the accused had issued the blank unsigned cheque to the mother of the complainant etc. The accused has vaguely submitted that he has issued blank unsigned cheque to the mother of the complainant. When as per the case of the accused the mother of the complainant was in dire necessity of money and she insisted the accused to extend the financial help immediately even prior to the clearance of the commitments which accused had, under such circumstances the accused would have given immediately the money demanded by the mother of the complainant in cash or he would have given signed and filled cheque to the mother of the complainant so as to en-cash the cheque and utilize the amount for the dire necessities of the mother, instead of issuing unsigned blank cheque asking her to get his signature after two SCCH-24 16 C.C.3476/2022 weeks from the date of issuance of cheque . If really, the accused has given unsigned blank cheque to the mother of the complainant and complainant in turn has misused the said cheque then the accused could have summoned the mother of the complainant. The complainant has deposed that his relationship with the mother is not cordial one. Even if the relationship of complainant with his mother is cordial one and even if there is every possibility that the mother of the complainant will not give evidence against to the case of complainant, then also the accused could have examined the mother of complainant and if the mother of the complainant gives evidence against to the case of the accused under such circumstances, the accused could have cross examined the mother of the complainant by treating her as hostile and could have elicited some evidence favorable to the defence taken by the accused. But he has not taken any such steps to examine the mother of the complainant. It is further relevant to state here that though the accused in his evidence in chief has deposed that he has given blank signed cheque to the mother of the complainant but during the cross examination of Pw1 he has posed suggestion that he has given unsigned and undated cheque by writing only the amount in the cheque. When it is nowhere stated by the accused as to how much of the amount the mother of the complainant had SCCH-24 17 C.C.3476/2022 demanded from the accused, under such circumstances there is no reason to say that by writing the amount , the accused has issued cheque to the mother of the complainant. It is further relevant to state here that even though according to the accused the mother of the complainant has misused the cheque by giving it to the complainant but admittedly he has not lodged any complaint either against the complainant or against his mother for alleged misuse of the cheque. He even has not given stop payment instruction to the bank.
26. Though the accused has bent upon stated about the mother of complainant, the grandfather of the complainant and about the residence of the mother of complainant at Khanahosahalli and has stated about the year in which the father of the complainant was died etc., but denied to identify the complainant. Hence, the said evidence of accused clearly goes to show that in order to escape from the liability, he has gone to the extent of denying the identity of the complainant.
27. Though the learned counsel for accused has submitted that complainant has failed to examine his uncle who as per the case of complainant was present at the time of lending sum of Rs.2,01,000/- to the accused and also at the time of issuance of cheque in question by SCCH-24 18 C.C.3476/2022 the accused and though it is the argument of the learned defense counsel that with holding of material witness adverse inference has to be drawn against the case of the complainant but it appears that the accused has lost sight of the evidence given by the uncle of the complainant by name Raghavendra as PW.2. The PW.2 has given evidence regarding sum of Rs.2,01,000/- received by the accused on 05-01-2021 and cheque in question issued by the accused on 29-10-2021. It is categorically deposed by PW.2 that the amount received by the accused and cheque in question issued by the complainant was held in his presence and he was the eye witness to the said two transactions. Though the learned counsel for accused has cross examined the PW.2 at length but nothing worth has been elicited from the mouth of PW.2 to disprove the evidence given by way of examination in chief and in turn the case of the complainant.
28. The accused in support of his case has examined one witness as DW2. DW.2 has given evidence stating about the mother of complainant sought financial assistance from the accused and in that regard the accused has issued unsigned blank cheque to the mother of the complainant with instruction to obtain the signature of the accused after two weeks and present the SCCH-24 19 C.C.3476/2022 cheque there after. He further deposed about the complainant's mother misused the said cheque etc., It is relevant to state here that though the DW.2 has deposed that he is the resident of Khanahosahalli village and accused and mother of the complainant are known to him but Dw.2 has not produced any document to prove his identity. During the cross examination of Dw.2 the learned counsel for complainant has denied the residence of DW.2 at Khanahosahalli. It is true that even PW.2 has not produced his identity card to prove his identity but the accused nowhere during the cross examination either of the PW.1 or PW.2 has disputed the identity of the PW.2 so as to produce the identity card of the Pw2.
29. As observed supra, the accused nowhere in his evidence has stated the year in which the alleged transaction with the accused and mother of the complainant was held but Dw.2 deposed that the said transaction was held during the year 2022. It is relevant to state here that if really the alleged transaction between the mother of the complainant and accused was held in the year 2022 an if really cheque in question was issued to the mother of the complainant during the year 2022 then there is no reason to believe that the disputed cheque ie., Ex.P1 itself is the cheque given by the SCCH-24 20 C.C.3476/2022 accused to the mother of the complainant because the disputed cheque is dated 30-01-2021 and it was presented on 30-10-2021 and same was dishonoured on 08-11-2021. Hence, there is no reason to believe that the cheque in question itself is the cheque issued by the accused to the mother of the complainant and the said cheque itself was misused by the complainant. Hence, the accused has failed to give explanation as to how the cheque in question has reached the hands of the complainant.
30. As observed supra, the expert has given opinion stating that disputed signature in the Ex.P1 and Ex.P5 is the signature of the accused. The expert by using scientific method has compared the disputed signature of the accused with admitted signature and arrived at the conclusion that the disputed signature and admitted signature are of the same person.
31. The learned counsel for the accused at this juncture has submitted that even if the expert opinion is before the court the court can form its own opinion by discarding the opinion of the expert by comparing the signature as provided u/Sec.73 of Evidence Act.
SCCH-24 21 C.C.3476/202232. The learned counsel for the accused at this juncture has referred the judgment reported in (2017) 5 SCC 817 between S.P.S Rathore Vs. Central Bureau of Investigation & Anr., wherein it was observed that "Held, sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not a court is competent to compare the disputed writing of a person with others which are admitted or proved to be his writings. It may not be safe for a court to record a finding about a person's writing in a certain document merely on basis of expert comparison, but a court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. It is not essential that the handwriting expert must be examined in a case to prove or disprove the disputed writing. It is opinion evidence and it can rarely, if ever, take the place of substantive evidence. It is thus clear, that uncorroborated evidence of a handwriting expert is an extremely weak type of evidence and the same should not be relied upon either for the conviction or for acquittal -Courts should, therefore, be wary to give too much weight to the evidence of handwriting expert. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence".
SCCH-24 22 C.C.3476/202233. In 2020 0 Supreme (AP) 414 between Yelampalli Madhusudhan Reddy Vs., Jakkam Sreenatha Reddy. It was observed that "Expert opinion comparing the signature is not required unless the Court is unable to come to a just conclusion on much comparison. It is always open to the Court to compare signatures on pronote as admitted signatures of defendant to find out its genuineness.
34. From the above law laid down in the above decisions, it is clear that the opinion of the hand writing expert is nothing but a piece of evidence and it is for the Court to arrive its own decision on appreciation of the entire material available on record".
35. In Rajiv Kumar Vs. Suresh Kumar wherein it was observed that "the law as to the expert testimony is fairly well settled that before acting upon the opinion of the hand writing expert, prudence requires that the court must see that such evidence is corroborated by other evidence either direct of circumstantial evidence".
36. Further in Crl. Appeal 251-252/2020 between Rajeshbhai Muljibhai Patel & Ors., Vs. State of Gujaraj & Anr., It was observed that "in terms of Section 45 of the SCCH-24 23 C.C.3476/2022 Indian Evidence Act, the opinion of handwriting expert is a relevant piece of evidence, but is not conclusive evidence. It is always open to the party to adduce appropriate evidence to disprove the opinion of the handwriting expert. That apart, Section 73 of the India Evidence Act empowers the Court to compare the admitted and disputed writings for the purpose of forming its own opinion.
37. If the observation made in the aforesaid ruling is applied to the case in hand, even if expert opinion which favours the case of the complainant is excluded and the court by exercising power u/Sec.73 of the Indian Evidence Act compares the disputed signature and admitted signature of the accused it tallies with each other. Hence, there is no ground to discard the opinion of the expert and it can be said that the signature in the Ex.P1 and Ex.P5 is of the signature of accused himself.
38. The learned counsel for the accused has vehemently submitted that the complainant lodged by the complainant is barred by limitation. It is submitted that in the Ex.P5 i.e., postal track consignment the date of service of notice is mentioned as 06-12-2021 but in the complaint the complainant has stated that notice is served to the accused on 08-12-2021 which is contrary SCCH-24 24 C.C.3476/2022 to the materials available on record. According to the learned counsel the limitation begins to run from 21-12- 2021 and the complainant ought to have filed the complaint on or before 20-01-2022 i.e., within 30 days. Hence, complaint is barred by limitation.
39. Per contra, it is vehemently submitted by the learned counsel for complainant that as per track consignment dated 04-01-2022, the legal notice booked and posted on 04-12-2021 at about 11.57.34 and same was delivered on 06-12-2021 at about 14.45.17 and it is after two days of booking of the notice, it was served to the accused on 06-12-2021. The address of the accused is 300 kilo meter away from Bangalore city and that when notice reached the accused after two days it is to be presumed that the said acknowledgment returned to the complainant after two days ie., 08-12-2021 and it is on 08-12-2021 it came to the knowledge of the complainant about the return of the notice. Hence, the period of limitation starts from the date of knowledge of the service of notice. Hence, the complaint filed by the complainant is well within the period of limitation.
40. If the materials placed on record are perused, notice is issued to the accused on 04-12-2021. If the postal acknowledgment is perused, wherein there is seal SCCH-24 25 C.C.3476/2022 of service of notice on 06-12-2021. As rightly argued by the learned counsel for complainant when two days time has taken for service of notice, definitely it would take two days time for the return of the acknowledgment and it can be said that it is on or after 08-12-2021 it came to the knowledge of the complainant about service of notice. If proviso to Sec. 138 of NI Act is perused, it provides that Sec. 138 of NI act cannot apply unless:
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheue, within fifteen days of the receipt of the said notice.SCCH-24 26 C.C.3476/2022
41. If the provision of law referred above and the date of issuance of notice, the postal acknowledgment and track consignment is carefully perused, it can be said that the complainant has filed the complaint within 45 days from the date of receiving the acknowledgment. Hence, it can be said that the complaint filed by the complainant is within time and it is not barred by limitation.
42. When the complainant has proved that cheque in question is issued by the accused and it bears the signature of the accused presumption shall have to be drawn u/Sec. 118 and 139 of NI Act. Though the accused has taken the defence but he has not probablized his defence. Hence, there is no ground to believe the version of the accused. When complainant has proved his financial status, proved the service of legal notice and proved the cheque in question issued by the accused towards discharge of debt under such circumstances it can be said that the complainant has proved the case beyond on reasonable doubt. Hence, point no.1 is answered in the Affirmative.
43. POINT No.2 :- In the light of the reasons on the point No.1 and 2, I proceed to pass the following;
SCCH-24 27 C.C.3476/2022ORDER Acting under Sec.255(2) of Cr.PC, the accused is found guilty of the o/p/u/s 138 read with section 142 of NI Act.
The accused is sentenced to pay fine of Rs.2,11,000/- (Rupees Two Lakh Eleven Thousand only) out of which Rs.2,06,000/-
shall be paid as compensation to the complainant under sec. 357 of CRPC and Rs.5,000/- shall be payable to the State.
In the event of default in payment within a period of 2 months, the accused shall be convicted to simple imprisonment for a period of 3 months.
The bail bond of accused and that of surety stands cancelled.
Office to furnish the copy of this judgment, free of cost to the accused.
(Dictated to the stenographer on line, revised, corrected and then pronounced in the open court this the 1st day of March 2025.) (ROOPASHRI) XXII Addl.SCJ & ACJM Bengaluru.
SCCH-24 28 C.C.3476/2022:ANNEXTURE:
LIST OF WITNESSES EXAMINED ON BEHALF THE COMPLAINANT P.W.1 : Sri. Ranjithkumar PW.2 : Sri. Raghavendra J LIST OF DOCUMENTS MARKED ON BEHALF COMPLAINANT:
Ex.P.1 : Original Cheque Ex.P.1(a) : Signature of the accused. Ex.P.2 : Copy of Bank memo Ex.P.3 : Copy of legal notice Ex.P.4 : Postal receipt Ex.P.5 : Postal track consignment Ex.P.6 : Postal acknowledgment
LIST OF WITNESSES EXAMINED BY THE ACCUSED DW.1 : Sri. Umesha.D DW.2 : Sri. Basavesha.V DW.3 : Dr. Pushpavathi.N LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
Ex.D1 : Statement of Account
XXII Addl. SCJ & ACJM
Bengaluru.