Bangalore District Court
Umesh.M vs Ravi Shivappa Yelevala on 4 February, 2025
1
C.C.No.19187/2018
KABC030517292018
Presented on : 13-07-2018
Registered on : 13-07-2018
Decided on : 04-02-2025
Duration : 6 years, 6 months, 22 days
IN THE COURT OF THE XXII ADDL.CHIEF JUDICIAL
MAGISTRATE, BENGALURU
PRESENT: SRI.JAI SHANKAR.J,
B.A.L., LL.B
XXII ADDL.C.J.M., BENGALURU.
DATED: THIS THE 4TH DAY OF FEBRUARY 2025
JUDGMENT U/s.278(2) of BNSS -2023
(OLD CORRESPONDENCE NO. 255(2) OF CODE OF
CRIMINAL PROCEDURE
C.C.NO. : 19187/2018
COMPLAINANT : Sri. Umesh. M,
S/o. S. Mohan,
Aged about 34 years,
Residing at No. 84,
13th Cross, 1st Main,
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C.C.No.19187/2018
Ashok Nagar,
Banashankari 1st Stage,
Bangalore - 560050.
(By Sri. K. Venkataramareddy, Adv.,)
V/s.
ACCUSED : Sri. Ravi Shivappa Yelevala,
S/o. Late Shivappa Yelevala,
Aged about 32 years,
Residing at No.50,
Sri. Krishna Nivas,
1st Main, 3rd A Cross,
Near Soundarya School,
Nagasandra, Bengaluru North,
Bengaluru - 560 073.
(By Sri. Maruthi.G.B, Adv., )
Offence complained : U/s.138 of N.I.Act
of
Plea of the Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 04.02.2025
JUDGMENT
This is a private complaint filed by the complainant against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. 3
C.C.No.19187/2018
2. The brief facts of the complainant's case is as under:
It is contended that, the complainant and the accused are friends from several years and both are the employees of the KSRTC department. Under such acquittance, the accused used to take financial assistance from the complainant and accordingly, Rs.43 Lakhs is being accumulated since 2015 to 2017. As the accused failed to return the receipt amount, he agreed to sell the property standing in the name of his wife in Sy.No.1007/6, measuring 10 guntas, situated at Harohalli village, Varuna Hobli, Mysore taluk and executed an agreement of sale dt:18.09.2017. As the accused failed to execute the sale deed as his wife did not agreed to execute the sale deed, the accused transferred Rs.16,56,700/- through RTGS and paid Rs.11,43,300/- by way of cash and issued the cheque 4 C.C.No.19187/2018 bearing no.528061 dt:25.05.2018, cheque bearing No.528062 dt:28.05.2018 and cheque bearing no.528063 dt:30.05.2018 for the sum of Rs.5 Lakhs each, drawn on Canara Bank, JP Nagar II phase branch, Bengaluru for the remaining balance amount of Rs.15 Lakhs assuring that, on its presentation, it would be honoured. Believing the representation, when the complainant presented the cheques through his banker ie., HDFC Bank, Jayanagar Branch, Bangalore, it dishonored with shara as "Funds Insufficient" dt:04.06.2018 respectively. Thereby, the complainant got issued the demand notice dt:14.06.2018 through RPAD, which served on accused, but not chosen to comply it, which has given cause of action to file the present complaint.
3. After filing of the complaint, this court has taken cognizance of the offence punishable U/s.138 of N.I.Act. 5
C.C.No.19187/2018 Sworn statement of the complainant was recorded. Being satisfied that, there are prima-facie materials to proceed against accused, summons was issued. After appearance of the accused, he was enlarged on bail and plea was recorded. The accused has not pleaded guilty, but submitted that, he would go for the trial.
4. From the basis of the pleadings, the following points that arise for my consideration are as follows:-
1. Whether the complainant proves that, the accused issued cheque bearing no.528061, dt:25.05.2018, cheque bearing no.528062, dt:28.05.2018& cheque bearing no.528063, dt:30.05.2018 for the sum of Rs.5 Lakhs each, drawn on Canara Bank, JP Nagar II phase branch, Bengaluru, towards discharge of his liability which was returned unpaid on presentation for the reason "Funds Insufficient" and despite of knowledge of the notice, he has not paid the said cheques amount and thereby, committed an offence punishable U/s.138 of N.I.Act?6
C.C.No.19187/2018
2. What order?
5. The sworn statement and the documents marked at Ex.P.1 to P.7(b) by the complainant is being treated as the complainant evidence as per the decision of the Hon'ble Apex Court in Indian Bank Association Vs. Union of India and Ors., reported in 2010 (5) SCC 590. Thereafter, the complainant further examined by marking Ex.P.8 document and also, got examined the Chief Manager of Canara Bank, Sri.Azad Kumar Boipai as PW.2 and got marked Ex.P.9 to P.11 documents and closed his side evidence. The statement of the accused as required U/s.313 of Cr.P.C. was read over and explained to accused, he denied the incriminating evidence appeared against him and submitted that, he has the evidence and accordingly, he is being examined as DW.1 and got marked Ex.D.1 & D.2 documents and closed his side evidence.
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6. Heard from both side. The defence counsel has relied upon the decisions ie., 1) LAWS [APH[ 1997 3 36 - A. Bhoosan Rao Vs. Purushothamdas Pantani, 2) 2011 Cri.L.J.552 - Amzad Pasha Vs. H.N. Lakshmana, 3) 2015 AIR SCW 64 - K. Subramani vs. K. Damodara Naidu, 4) 2014 AIR SCW 2158 - John K. Abraham Vs. Simon C Abraham and another, 5) AIR 2019 SC 942 - Anss Rajashekar Vs. Augustuts Jaba Ananth, 6) (2014) 2 SCC 236 - John K. Abraham Vs. Simon C. Abraham and another, 7) (2015) I SCC 99 - K. Surbamani Vs. K. Damodara Naidu, 8) 2015 SCC online Kar 9764 - A.M. Govinde Gowda Vs., B.V. Ravi, 9) ILR 2014 KAR 6572 - Sri. H. Manjunath Vs. Sri. A.M. Basavaraju, 10) Crl. Appeal (Stamp) 139/2009 - Anil Vs. Purushottam, 11) Crl. Appeal No. 1541/2021 - M. Shivamallegowda Vs. C. Kemparaju, 12) Crl. Appeal No. 1101/2019 - 8
C.C.No.19187/2018 Manjunath.R Vs. Annegowda, 13) CRLA No. 277/2010 - Sri. Naveen Chandra Vs. Sri. S. Ramesh, 14) LAWS (SC) 2008 -1-105 - Krishna Janardhan Bhat vs. S Dattatraya G. Hegde.
All these decisions are dealt on the point of the burden of proof, financial capacity, presumption and rebuttable presumption.
7. Perused the materials available on record.
8. My answer to the aforesaid points are as under:-
Point No.1 :- In the Affirmative Point No.2 :- As per the final order, for the following:-
REASONS
9. Point No.1:- The complainant has filed this complaint alleging that, the accused has committed an offence punishable U/s.138 of N.I.Act. He pleads and 9 C.C.No.19187/2018 asserts that, the accused in discharge of his liability has issued the cheque bearing no.528061 dt:25.05.2018, cheque bearing no.528062 dt:28.05.2018 and cheque bearing no. 528063 dt;30.05.2018 for the sum of Rs.5 Lakhs each, drawn on Canara Bank, JP Nagar II phase branch, Bengaluru, which is being dishonored with shara as Funds Insufficient. Thereby, he got issued the legal notice which is being served on the accused, but not chosen to comply it, which has given a cause of action to file the complaint.
10. In this scenario, if the documents placed by the complainant is scrutinized, the complainant in order to examine the compliance of statutory requirements as envisaged U/s.138 of NI Act, he got produced the Ex.P.1, P.3 & P.5 the cheques dt:28.05.2018, 30.05.2018 & 25.05.2018, respectively. The said cheques are returned 10 C.C.No.19187/2018 with an endorsement as Funds Insufficient as per Ex.P2, P.4 & P.6, respectively, the return advise dt:04.06.2016, the Ex.P.7 is the office copy of the legal notice dt:14.06.2018, Ex.P 7(a) is the postal receipt and Ex.P.8 is the postal acknowledgment which indicates the service dt; 15.06.2018. The present complaint is filed on 06.07.2018. A careful scrutiny of the documents relied by the complainant goes to show that, a statutory requirement of Sec.138 of NI Act is being complied with and this complaint is filed well in time. The complainant has discharged his initial burden by examining him as PW.1 and by producing the documents as referred above. Thus, complainant is entitled to rely on the statutory presumptions enshrined U/s.118 R/w. Sec. 138 of N.I.Act.
Sec. 118 of the Act reads as thus, that every Negotiable Instrument was made or drawn for consideration and that, 11 C.C.No.19187/2018 every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
Further Sec.139 of Negotiable Instrument Act provides for presumption infavour of PA holder. It reads like this, it shall be presumed, unless the contrary is proved, that, the holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, or any debt or any other liability.
11. A combined reading of the referred sections raises a presumption infavour of the holder of the cheque that, he has received the same for discharge in whole or in part of any debt or other liability. No doubt, the said presumptions of law are rebuttable in nature, the accused can take probable defense in the scale of preponderance of probabilities to rebut the presumption available to the 12 C.C.No.19187/2018 complainant. It is need less to say that, the evidence of the PW.1 can be rebutted even by effectively cross-examining the PW.1, rather entering the witness box.
12. So here, it is relevant to note that, whether the accused by cross examining the PW.1, PW.2 & by examining himself as DW.1 has really rebutted the presumption available under the law which requires due consideration. It is an undisputed fact that, the disputed cheques at Ex.P.1, P.3 & P.5 does belong to the accused and it is also not in dispute that, the disputed cheques are being dishonored for want of sufficient funds as per Ex.P.2, P.4 & P.6. Here, the complainant claims that, the accused is well acquainted with him had raised hand loan of Rs.43 lakhs from time to time. As the loan amount was accumulated at Rs.43 Lakhs, the accused had agreed to sell the property under the agreement of sale dt:18.09.2017 situated at Horahalli 13 C.C.No.19187/2018 Village, Mysore Taluk which was standing in the name of his wife and since, his wife had not agreed to sell it, he came forward to return back the receipt amount and accordingly, he has transferred Rs.16,56,700/- through RTGS and Rs.11,43,300/- and towards the discharge of the balance amount of Rs.15 Lakhs, he has issued the disputed cheques which is being dishonored and thereby, he has issued the demand notice which is being served on the accused, but he has not chosen to comply it. So, therefore he claims that, having he established these facts, he is entitled to claim presumption U/s.118 & 139 of N.I. Act. However, on the other hand, the accused not only denied the loan transaction and the issuance of the disputed cheques to the complainant, but he has seriously disputed the signatures appearing in the disputed cheques. He contends that, he is not well acquainted with the 14 C.C.No.19187/2018 complainant. He never executed any agreement of sale dt:
18.09.2017 in favour of the complainant or his wife, but he contends that, he had raised Rs.20 lakhs from the complainant in the month of January 2016 and while raising the said loan, the complainant had obtained 5 blank cheques towards the security purpose. Out of the said amount, he has paid Rs.16,56,700/- through online transaction. The complainant has forcibly received a sum of Rs.11,43,300/- through cash. After repayment, he demanded the complainant to return back the cheques, but the complainant rather returning back the cheques has forged his signatures and has got presented the cheques to the bank and thereby, claiming that, he has suitably replied the notice, he claims that, he has rebutted the presumption and seeks for acquittal.15
C.C.No.19187/2018
13. So, by gathering the rival claims of the parties, more burden would be upon the complainant to establish the loan transaction and the issuance of the cheques by the accused towards the discharge of the legal liability. More particularly, he has to establish that, the accused has intentionally signed the disputed cheques with an intention to get it dishonoured. Likewise, the burden would be upon the accused to establish that, there was no loan transaction for Rs.43 Lakhs, but he had borrowed only Rs.20 lakhs towards which he had issued the blank disputed cheques towards security purpose and he has repaid it, but rather the complainant returning it, has misused it by forging his signature and therefore, he is not at default.
14. So, in this back ground, if the oral and documentary evidence available on record is taken into 16 C.C.No.19187/2018 consideration, the complainant claims that, the accused is his colleague while working at the KSRTC Department. Though, the accused do deny the fact of the well acquaintance with the complainant, but nowhere he denies that, the complainant is his colleague at the KSRTC department. Perhaps, he also admits that, even his wife as well as the wife of the complainant are also working at KSRTC department and both are colleagues. The accused who is being examined as DW.1 has also categorically admitted in his cross-examination that, he has a good relationship with the complainant's family as well as the complainant family is having a good relationship with his family. This admission indicates that, both are well acquainted with each other and therefore, the stand of the accused that, the complainant is not well acquainted with him appears to be a false defence. Moreso, the defence of 17 C.C.No.19187/2018 the accused that, he had raised a loan of Rs.20 Lakhs in the month of January 2016 also evidences that, the complainant and accused are well acquainted with each other from many years. Because, it is an admitted fact that, without there being well acquittance, there would be no possibility of a loan transaction of Rs.20 Lakhs.
15. The complainant claims that, as the accused was his colleague and was well acquitted, he used to borrow hand loan and having borrowed the loan amount from 2015 to 2017, it has accumulated till Rs.43 Lakhs. The complainant also claims that, as the accused could not repay the said amount, had agreed to execute a sale deed of the Sy.no.1007/6 measuring 10 guntas, situated at Harohalli Village, Varuna Hobli, Mysore Taluk and therefore, the sale consideration was being fixed at Rs.25 Lakhs and accordingly, an agreement of sale dt; 18.09.2017 18 C.C.No.19187/2018 came to be entered. As the accused's wife in whose name the property was standing has refused to execute the sale deed, the accused agreed to return back the loan amount of Rs.43 Lakhs and accordingly, he had transferred Rs.16,56,700/- through RTGS and Rs.11,43,300/- through cash by issuing the disputed cheques towards the balance amount. Here, though the accused do deny the fact of the agreement of sale dt: 18.09.2017, but he has categorically admitted in his evidence that, he used to borrow the loan from the complainant in the year 2015 to 2017. The admission would read like this, "2015 ರಿಂದ 2017 ನೇ ಸಾಲಿನವರೆಗೂ ನಾನು ಪಿರ್ಯಾದುದಾರರಿಂದ ಹಣದ ವ್ಯವಹಾರ ಮಾಡಿರುತ್ತೇನೆಂದರೆ ಸರಿ". This admission suffices that, there was a financial transaction between the complainant and the accused which cannot be brushed aside. Perhaps, the accused also nowhere disputes the existence of the property 19 C.C.No.19187/2018 at Mysore and also, nowhere he disputes the ownership of his wife over the said property. It is an admitted fact that, either the complainant has got produced the agreement of sale dt: 18.09.2017 nor the accused produced the RTC of the property. However, as said, the existence and the ownership of the property is not under dispute.
16. Here, the burden would be upon the complainant to establish the due execution of the agreement of sale dt:18.09.2017 and also its cancellation. Because here, the complainant would not dispute the transfer of Rs.16,56,700/- by way of RTGS nor Rs.11,43,300/- through cash by the accused. So, here the burden is upon the complainant to prove the agreement of sale dt:
18.09.2017. As said above, the complainant has not produced even a photo copy of the said agreement. Even, through out the evidence of the defence, he has categorically 20 C.C.No.19187/2018 denied the execution of the agreement of sale dt; 18.09.2017. But, however while gathering the oral evidence available on record, it indicates that, though the accused has seriously disputed the due execution of the agreement, fixation of the sale consideration and also its cancellation, but while going through the cross-examination of the PW.1, by posing certain suggestions by the accused has categorically admitted the due execution of agreement of sale dt; 18.09.2017, the fixation of the sale consideration amount and also the cancellation of the agreement. At this stage, it would be appropriate to extract certain suggestion which would really go to the root of the defence. It read like this, "ಕರಾರು ಪತ್ರ ರದ್ದು ಪಡಿಸುವ ಸಮಯದಲ್ಲಿ ನಾನು ಭದ್ರತೆಗಾಗಿ ಚೆಕ್ಕು ಪಡೆದುಕೊಂಡೆ ಎನ್ನುವುದು ಸರಿಯಲ್ಲ.
Again, "ಆರೋಪಿಯು ರೂ.43 ಲಕ್ಷ ರೂಪಾಯಿಯಲ್ಲಿ ಒಟ್ಟು ರೂ.31,56,000/- ನನಗೆ ನೀಡಿದ್ದಾರೆ ಎನ್ನುವುದು ಸರಿಯಲ್ಲ. ಕ್ರಯ ಕರಾರು 21 C.C.No.19187/2018 ಪತ್ರದಲ್ಲಿ ರೂ.25 ಲಕ್ಷ ರೂಪಾಯಿ ಮಾತ್ರ ನಮೂದಿಸಿದ್ದು ಆರೋಪಿ ಒಟ್ಟು ರೂ. 31,56,000/- ಮರುಪಾವತಿ ಮಾಡಿ ನನಗೆ ರೂ.6 ಲಕ್ಷ ರೂ ಹೆಚ್ಚು ಪಾವತಿಸಿದ್ದಾರೆ ಎನ್ನುವುದು ಸರಿಯಲ್ಲ"
Again, "ಕರಾರು ರದ್ದು ಪಡಿಸಿದ ಸಮಯಲ್ಲಿ ಆರೋಪಿ ನನ್ನ ಹತ್ತಿರ ಚೆಕ್ಕು ವಾಪಸ್ಸು ಕೊಡಲು ಕೇಳಿದ್ದರೆಂದರೆ ಸರಿಯಲ್ಲ".
17. So, by gathering the suggestion posed to the PW.1, it evidences that, there was a a sale agreement under which Rs. 25 lakhs being fixed as a sale consideration. Perhaps, an inference could also be drawn that, by posing a suggestion that, out of Rs.43 Lakhs, the accused happens to have repaid Rs.31 Lakhs, itself suffices the accused was due of Rs.43 Lakhs as on the date of the execution of the sale agreement. If really, there was no loan transaction of Rs.43 Lakhs or there was no sale transaction fixed for Rs.25 Lakhs, the accused could have straight away denied the claim of the complainant by denying the receipt of Rs.43 22 C.C.No.19187/2018 Lakhs and also, the execution of the sale agreement and also, the fixation of Rs.25 Lakhs towards the sale consideration. This admission evidences the fact of the debt for Rs.43 Lakhs and fixation of the sale consideration of Rs.25 Lakhs. Though, many questions were posed with regard to the financial capacity of the complainant and also, many questions were posed regarding the examination of the witnesses through whom the complainant has alleged to have borrowed the amount for advancing to the accused, but when the accused has categorically admitted the receipt of Rs.43 Lakhs, I am of the considered view that, the complainant has established the financial capacity to advance Rs. 43 Lakhs.
18. The complainant claims that, as the accused failed to execute the sale deed of the said property had 23 C.C.No.19187/2018 agreed to return back the receipt amount of Rs.43 Lakhs and accordingly, he has paid Rs.16,56,700/- through RTGS and Rs.11,43,300/- and issued the disputed cheques towards the balance amount. The complainant nowhere denies the receipt of the above said amount, but claims that, the accused has issued the disputed cheques for the balance amount of Rs.15 Lakhs. Though, the accused claims that, he and his wife are employed and they never faced any financial crisis so as to raise loan from the complainant and so also, the Ex.D.1 & D2 the bank statement of the accused would evidence the financial capacity of the accused and so also, the payment of Rs.16,56,700/- through RTGS, but it is also necessary to note that, the defence of the accused with regard to he raising the loan of Rs.20 Lakhs in the month of January 2016 and handing over the disputed cheques towards the 24 C.C.No.19187/2018 security purpose also makes more relevant so as to appreciate the rival claims of the parties. Here, the accused has totally denied the signature appearing in the disputed cheques at Ex.P.1(a), 3(a) & 5(a) claiming that, it is being forged by the complainant. It is not under dispute that, the disputed cheques does belongs to the accused. Though, he claims that, he had handed over the disputed cheques under the loan transaction of Rs.20 lakhs that alleged to have took place in the month of January 2016, but as referred above, in the course of the cross- examination of the PW.1 by posing a suggestion that, the disputed cheques were being handed over as a security while the agreement was alleged to be cancelled suffices again the defence of he handing over the disputed cheques as a security towards the loan transaction to be a false claim. At this juncture, it would be appropriate to extract 25 C.C.No.19187/2018 the said admission which reads like this, " ಕರಾರು ಪತ್ರ ರದ್ದು ಪಡಿಸುವ ಸಮಯದಲ್ಲಿ ನಾನು ಭದ್ರತೆಗಾಗಿ ಚೆಕ್ಕು ಪಡೆದುಕೊಂಡೆ ಎನ್ನುವುದು ಸರಿಯಲ್ಲ". So, again this suggestion goes contrary to his defence.
19. At one breath, he claim that, he had handed over the disputed cheques toward the security purpose while raising the loan of Rs.20 lakhs and at another breath he claim that, he had handed over the disputed cheques while getting the agreement cancelled. Absolutely, the defence raised by the accused goes contrary to his claim. Perhaps, even there is no evidence to establish the accused having borrowed only Rs.20 Lakhs in the month of January 2016 and that, he had handed over the disputed cheques towards the security purpose. Infact, the complainant by producing Ex.P.8, he harped upon the accused undertaking to repay the Rs.15 Lakhs and he issuing the disputed cheques in 26 C.C.No.19187/2018 presence of the witnesses as referred above. Though, the accused has seriously disputed this document apart from disputing his signature appearing therein with the signatures appearing in the disputed cheques, but again the complainant by examining the Chief Manager of Canara Bank Sri.Azad Kumar Bhoipai as PW.2 has clearly asserted the signatures appearing in the disputed cheques as well as at Ex.P.8(b) does belongs to the accused. Because, the PW.2 not only asserted the signatures appearing in the disputed cheques pertains to the accused, but also, got produced the Ex.P9 & 10 the true copy of the cheques belongs to the accused which is being honoured.
20. In other words, the accused has signed the honoured cheques at Ex.P.9 & 10 as found at Ex.P.1 (a), 3(a) & 5(a). All the signatures are similar in nature. 27
C.C.No.19187/2018 Though, the PW.2 was subjected for the cross-examination with regard to not producing the specimen signature of the accused or the application made for changing the specimen signature in the bank, but again nowhere the accused do deny the issuance of Ex.P.9 & 10 and the said cheque being honoured. When, the evidence of PW.2 being corroborated with the documentary evidence at Ex.P.9 & 10, it evidences that, the signatures appearing in the disputed cheques does belongs to the accused. Apart from that, the disputed cheques are being dishonoured for want of sufficient fund and not with any other shara more particularly as signature differs. Perhaps, when the evidence placed on record suffices that, the signatures in the disputed cheques does belongs to the accused, an inference could also be drawn that, the signature appearing at Ex.P.8(b) also belongs to the accused. Infact, even the 28 C.C.No.19187/2018 accused has not made any efforts to take the expert opinion to disprove the disputed signatures.
21. So, therefore it could be said that, the complainant has established that, not only the signatures appearing in the disputed cheques belongs to the accused, but also established the signature at Ex.8(b) belongs to the accused. Merely, not examining the witnesses appearing in Ex.P.8 would not go to the root of the case. There is a clear recital of the reference of the disputed cheques in Ex.P.8 being issued by the accused for the discharge of the legal liability. When, the oral and documentary evidence placed on record suffices that, the accused has issued the disputed cheques towards the discharge of the legal debt, I am of the considered view that, the defence raised by the accused that, the signatures found in disputed cheques 29 C.C.No.19187/2018 and Ex.P.8 appears to be again a false defence. No doubt, the accused has seriously disputed the Ex.P.8 by taking a contention that, the said document is being created and so also, the complainant had forcibly collected Rs.11,43,300/- and so also, he failed to return back the disputed cheques, but again except his self testimony evidence, there is no probable evidence forthcoming to appreciate it. When, he claims that, the complainant had forcibly received additional amount of Rs.11,43,300/- and that, he failed to return back the disputed cheques on demand, nothing had prevented him to initiate some legal proceeding against the complainant for such act at a particular point of time. Even, he had no impediment to demand the return of the disputed cheques at a particular point of time in writing or he could have requested his bank to stop the payment by putting forth the real incident which also not forthcoming. 30
C.C.No.19187/2018 Absolutely, there is no probable evidence placed by the accused to appreciate his defence. In the absence of the evidence, it cannot be construed that, the accused had raised the hand loan of Rs.20 Lakhs in the month of January 2016 and that, he had issued the disputed cheques towards the security purpose and it is being repaid.
22. Here, it is undisputed fact that, on the disputed cheques being dishonored, the complainant has got issued the demand notice as per Ex.P7 and it is being served to one Smt.Gangamma as per Ex.P.7(b). Here, the complainant, claims that, the notice is being acknowledged by the accused's mother which is also denied by the accused and questioned the service of the notice. But, while perusing his affidavit evidence, he has categorically contended that, on the receipt of the demand notice, he had 31 C.C.No.19187/2018 got suitably replied it. But, even the accused has not chosen to produce the copy of the reply notice. Perhaps, the said reply notice would have placed some light on the issue. What was the defence that was taken in the reply notice would have placed more criteria so as to appreciate his defence. But, admittedly, he has not chosen to produce it nor chosen to elicit the fact from the mouth of the PW.1 with regard to the defence raised in the demand notice. However, having the accused admitted the issuance of reply notice, it suffices that, the complainant has complied the mandatory provision of issuing the demand notice to the accused.
23. In the decision reported in (2021) 5 SCC 283 - Kalamani Tex and Another., Vs. P.Balasubramanian, (2010) 11 SCC 441- Rangappa Vs. Sri.Mohan., Wherein it is held that, when once the signature of an accused on 32 C.C.No.19187/2018 the cheque is established, than the reverse onus clauses become operative, also aptly applies to the case in hand. When the complainant has established the accused having issued the cheques at Ex.P.1, P.3 & P.5 towards the discharge of loan liability and their existed a legally enforceable debt, the onus to disprove it, shifts on the accused which is not been proved by placing positive evidence. In this background, having the accused not disputed the complainant case by placing positive evidence, I am of the considered view that, the cheques issued by the accused at Ex.P.1, P.3 & P.5 are for the legally enforceable debt and this fact is being established by the complainant by placing cogent and positive evidence which is not rebutted by the other side.
24. It is need less to say that, documentary evidence do prevail on the oral evidence. Absolutely, there is no 33 C.C.No.19187/2018 evidence available on record, to hold that, the accused had raised Rs.20 Lakhs in the month of January 2016 and had issued the disputed cheques towards the security purpose of the said loan. So, in this back ground when the provisions U/s.118 and 139 of N.I. Act is looked into, it raises the presumption in favour of the holder of the cheque that, he has received the same for discharge in whole or in part of any debt or other liability. It also permits the complainant to fill the cheques having established the Ex.P.1, P.3 & P.5 being issued towards the discharge of loan liability. As said above, the accused has not disputed the cheques does pertains to him. When the drawer has admitted the issuance of cheque, the presumption envisaged U/s.118 R/w.139 of N.I.Act would operate infavour of the complainant. The said provisions lies on a special rule of evidence applicable to negotiable 34 C.C.No.19187/2018 instruments. The presumption is one of law and thereunder the court shall presume that, the instrument was endorsed for consideration. So also, in the absence of contrary evidence on behalf of the accused, the presumption U/s.118 of N.I.Act goes in favour of the complainant. No doubt, as said statutory presumptions are rebuttable in nature, but when the complainant has relied upon the statutory presumptions enshrined U/s.118 R/w.Sec.139 of N.I.Act, it is for the accused to rebut the presumption with cogent and convincing evidence.
25. It is worth to note that, Sec.106 of Indian Evidence Act postulates that, the burden is on the accused to establish the fact which is especially within its knowledge. This provision is exception to the general rule that, the burden of proof is always on the prosecution to establish its case beyond all reasonable doubt. In that view of matter, 35 C.C.No.19187/2018 the burden is on the accused to prove that, the cheques in question was not issued for discharge of any liability. But, despite the accused has taken the defence that, the Ex.P.1, P.3 & P.5 were not issued towards the legal liability to the complainant, but the said fact and the version is not been established. In this back ground, it could be said that, though the principles enumerated in the decisions relied by the accused cannot be denied, but with due respect the said decisions are not applicable to the case in hand. From the discussion made supra, it could be said that, the complainant has established his case by placing positive evidence. On the other hand, the accused failed to to establish his defence by placing probable defence and also, failed to elicit the said fact from the mouth of the PW.1. In this back ground, the case of the complainant requires to be accepted. The evidence placed on record establishes that, 36 C.C.No.19187/2018 the complainant has proved that, for discharge of the legal liability, the accused has issued the cheques at Ex.P.1, P.3 & P.5 and it is being dishonored as per Ex.P.2, P.4 & P.6. Therefore, Point No.1 is answered in the "Affirmative'.
26. Point No.2:- For the reasons discussed in the point No.1, the complainant has proved the guilt of the accused punishable U/s.138 of N.I.Act. The Hon'ble Apex Court also dealt in the decision reported in (2018) 1 SCC 560, M/s. Meters and Instrument Pvt. Ltd., Vs. Kanchana Mehta., wherein It is held that "the object of provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged, but is not debarred at the later stage subject to appropriate compensation has may be found acceptable to the parties or the court". By considering the decision, it 37 C.C.No.19187/2018 could be said that, the time when the transaction has taken place and the primary object of the provision being kept in mind, I am of the considered view that rather imposing punitive sentence, if sentence of fine is imposed with a direction to compensate the complainant for its monetary loss by awarding compensation with interest U/s.396 of BNSS 2023, it would meet the ends of justice. By considering these aspects, I am of the considered view that, it would be just and proper to impose fine of Rs.20,40,000/-.Out of the compensation of Rs.20,40,000/-, an amount of Rs.20,35,000/-. shall be awarded to the complainant U/s.396 of BNSS 2023. Accordingly I proceed to pass the following :.
ORDER
Acting U/s.278(2) of BNSS -2023
(Old Correspondence No. 255(2) of Code of Criminal Procedure), the accused is convicted for the offence punishable under section 138 of the 38 C.C.No.19187/2018 Negotiable Instruments Act, the accused is sentenced to pay fine of Rs.20,40,000/- (Rupees Twenty Lakhs and Forty Thousand only) .
In default thereof, the accused shall undergo simple imprisonment for the term of one year.
Acting U/s. 396 of BNSS - 2023 (Old
Correspondence No.357(1)(b) of Cr.P.C), it is
ordered that, Rs.20,35,000/- (Rupees Twenty Lakhs and Thirty Five Thousand only), there from shall be paid to the complainant as compensation. The remaining fine amount of Rs.5,000/- (Rupees Five Thousand only) is defrayed to the state for the expenses incurred in the prosecution.
The office is to furnish the free copy of this Judgment to the accused forthwith.
(Directly dictated to stenographer on computer, typed by her, revised by me and then pronounced by me in the open court on this the 4th day of February 2025).
JAI Digitally signed
by JAI SHANKAR J
SHANKAR Date: 2025.02.04
J 16:19:36 +0530
(JAI SHANKAR.J)
XXII Addl. Chief Judicial Magistrate,
Bengaluru.
39
C.C.No.19187/2018
ANNEXURE
List of witnesses examined on behalf of complainant:-
PW.1 : Sri. Umesh.M PW.2 : Sri. Azad Kumar Boipai
List of exhibits marked on behalf of complainant:-
Ex.P1, P3 & P5 : Original cheques Ex.P1(a),3(a) & 5(a) : Signatures of the accused Ex.P2, P4 & P6 : Bank Memos Ex.P7 : Legal notice Ex.P7(a) : Postal receipt Ex.P7(b) : Postal acknowledgment Ex.P8 : Joint agreement dt: 28.11.2017 Ex.P8(a) : Signature of the complainant Ex.P8(b) : Signature of the accused Ex.P.9 : Communication letter Ex.P10 : True copies of cheques Ex.P11 : Accounts Statements List of witnesses examined on behalf of the accused:-
DW.1 : Sri. Ravi Shivappa Yelevala
40
C.C.No.19187/2018
List of exhibits marked on behalf of the accused:-
Ex.D.1 & D2 : Statement of accounts of Canara Bank & HDFC Bank Digitally signed JAI by JAI SHANKAR J SHANKAR Date:
J 2025.02.04
16:19:30 +0530
(JAI SHANKAR.J)
XXII Addl. Chief Judicial Magistrate,
Bengaluru.
41
C.C.No.19187/2018