Bangalore District Court
Abhilash vs Girish B N on 25 February, 2025
SCCH-2 1 C.C.No.3238/2021
KABC020110822021
IN THE COURT OF THE VI ADDL. JUDGE, COURT OF SMALL
CAUSES AND ADDL. CHIEF JUDICIAL MAGISTRATE,
BENGALURU CITY (SCCH-2).
C.C.NO.3238/2021
Present : Sri. H.P. Mohan Kumar, B.Sc.,LL.B.,
6th Addl. Judge, Court of Small
Causes and ACJM, Bengaluru.
Dated: On this the 25th day of February, 2025.
Complainant : Abhilash,
S/o Krishnappa,
Aged about 40 years,
R/at No.403, 5th Floor,
Adithya Park Apartments,
Behind Medplus,
Amruthally Main Road,
Kashi Nagara,
Bytarayanapura Post,
Bangalore-560092.
(By Smt. Jyothi S.G., Advocate)
- Vs. -
Accused : Girish B.N.,
S/o B.M. Narayan,
Aged about 50 years,
No.2758, Gandhi Nagar,
Bangarpet Taluk,
Kolar District-563114.
SCCH-2 2 C.C.No.3238/2021
And Also residing at,
Amma Nivas, Sing Layout,
2nd A Cross, Vivekananda Nagara,
Bangarapet,
Bangarapet Taluk,
Kolar District-563114.
(By Sri. Guru C.B., Advocate)
:: J U D G M E N T ::
The complainant has filed the present complaint U/Sec.200 of Cr.P.C., alleging that the accused has committed the offence punishable U/Sec.138 of Negotiable Instruments Act (herein after referred as N.I.Act).
2. The case of the complainant in brief is as follows:-
The complainant and accused are well known to each other since ten years. The accused approached the complainant for hand loan of Rs.7,00,000/- during the month of June 2020. At that point of time, the accused has agreed to repay the same within six months with interest. On 20.06.2020, the complainant lent a sum of Rs.7,00,00/- to the accused and the accused agreed to return the said amount within January-2021. When the complainant demanded to return the money, the accused has issued the cheque bearing No.274357, dated:16.12.20220 for Rs.7,00,000/- drawn on State Bank of India, Bangarapet Branch towards discharge of his liability.
As per the instructions of the accused, the complainant has presented the said cheque for encashment through his banker SCCH-2 3 C.C.No.3238/2021 HDFC Bank, Richmond Road Branch, Bangalore on 16.12.2020. However, the said cheque was dishonored and returned unpaid with an endorsement as " Insufficient Funds" on 18.12.2020. Thereafter the complainant issued the legal notice dated:06.01.2021. The accused has received the said notice. However, the accused has not complied the demands of the complainant. Hence, cause of action arose to file the complaint.
3. The cognizance was taken for the offence punishable U/Sec.138 of N.I.Act. After filing of the complaint, the sworn statement of the complainant was recorded and it prima-facie found that the accused committed the offence punishable U/Sec.138 of N.I.Act. Hence, criminal case was registered and the summons was issued to the accused.
4. In response to the summons, the accused appeared through his counsel and thereafter plea was recorded. The accused was denied the accusation leveled against him, claimed to be tried and stated that he has defence to make. Further, the statement of the accused as contemplated U/Sec.313 of Cr.P.C., was recorded. The accused has denied the incriminating evidence appeared against him in the evidence of complainant and submitted that he has defence evidence.
SCCH-2 4 C.C.No.3238/20215. The Hon'ble Apex Court of India in Indian Bank Association and Others vs Union Bank of India and Another reported in AIR 2014 SC 2528, held that "Sworn Statement of the complainant has to be treated as examination in chief". In the instant case, the complainant examined himself as P.W.1 and marked Ex.P.1 to Ex.P.5, Ex.P.3(a) and Ex.P.3(b). Thereafter, P.W.1 was subject to the process of cross-examination from the side of accused. The accused examined himself as D.W.1. D.W.1 was subject to the process of cross-examination from the side of complainant.
6. Heard the arguments from the side of complainant. However, after matter reserved for judgment, learned counsel for the accused has filed written arguments. Perused the materials available on record.
7. Now the points that arise for consideration of this Court are as hereunder:
1. Whether the complainant has proved that the accused has committed the offence punishable U/Sec.138 of N.I.Act?
2.What Order?
8. The findings of this Court to the above-referred points are as follows:
SCCH-2 5 C.C.No.3238/2021Point No.1: In the Affirmative.
Point No.2: As per final order, for the following:-
REASONS
9. POINT No.1: In order to prove the case of the complainant, the complainant examined himself as P.W.1 by filing affidavit in support of his oral examination-in-chief. In the affidavit P.W.1 has reiterated the complaint averments in verbatim. Hence, this Court need not to recapitulate the same once again at this juncture. In support of his oral testimony, P.W.1 has marked documents at Ex.P.1 to Ex.5, Ex.P.3(a) and Ex.P.3(b).
10. Now itself it is appropriate to see the documents marked at Ex.P-Series.
Ex.P-Series.
Ex.P.1 is the cheque in question. Ex.P.1(a) is the signature of accused. Ex.P.2 is the endorsement dated:18.12.2020. Ex.P.3 is the office copy of the legal notice dated:06.01.2021. Ex.P.3(a) and Ex.P.3(b) are the RPAD receipts. Ex.P.4 and Ex.P.5 are the Acknowledgment due cards.
11. Before going to discuss the main aspect, it is worth to reproduce the provisions of Sec.138 and 139 of N.I.Act, the same as hereunder:
138. Dishonour of cheque for insufficiency, etc., of funds in the account: -SCCH-2 6 C.C.No.3238/2021
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall 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; (The period of 6 months has been reduced to 3 months, vide R.B.I. notification No.RBI/2011-12/251,DBOD.AMLBC SCCH-2 7 C.C.No.3238/2021 No.47/14.01.001/2011-12, dated:4th November 2011 (w.e.f. 01.04.2012))
(b) the payee or the holder in due course of the cheque, 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 cheque, within fifteen days of the receipt of the said notice.
Explanation: - For the purposes of the section, "debt or other liability" means a legally enforceable debt or other liability.
139. Presumption in favour of holder:- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
12. At this juncture it is worth to refer the decision of the Hon'ble Apex Court reported in AIR 2010 S.C. 1898, SCCH-2 8 C.C.No.3238/2021 between Rangappa V/s Mohan wherein their lordships have observed at para 26 as hereunder:
"No doubt that there is a initial presumption which favours the complainant".
13. It is germane to note that the proceedings U/Sec.138 of N.I. Act is an exception to the general principle that the accused is presumed to be innocent until the charge leveled against him is proved beyond reasonable doubt. In the proceedings initiated U/Sec.138 of the N.I. Act proof of beyond reasonable doubt is subject to the presumption envisaged under Sec.139 of the N.I. Act. Once the requirement of Sec.138 of the N.I. Act is fulfilled, then it has to be presumed that the cheque was issued in discharge of legally recoverable debt or liability. The presumption envisaged under Sec.139 of N.I. Act is mandatory presumption and it has to be raised in every cheque bounce cases.
14. Now the important question before this Court is whether the complainant has complied the ingredients of Sec.138 of N.I.Act or not? In this connection, Ex.P.1 to Ex.P.5 are relevant. Ex.P.1 is the cheque bearing No.274357, dated:16.12.2020 drawn on State Bank of India. Ex.P.2 is the bank endorsement dated:18.12.2020. On careful perusal of these documents, it appears to this court that, the complainant has presented the cheque for encashment within stipulated period.
SCCH-2 9 C.C.No.3238/202115. Now the question before this court is whether the complainant has issued the legal notice in accordance with law or not?. In this connection Ex.P.3, Ex.P.3(a), Ex.P.3(b), Ex.P.4 and Ex.P.5 are relevant. Ex.P.3 is the legal notice dated:06.01.2021. Ex.P.3(a) and Ex.P.3(b) are the RPAD receipts. Ex.P.4 and Ex.P.5 are the acknowledgment due cards. On careful perusal of these documents, it appears to this court that, the complainant has issued the legal notice to the accused within 30 days from the date of receiving of endorsement from the bank. Apart from that, the accused examined himself as D.W.1. During the course of his examination-in-chief, he has not disputed the cheque and also signature found in Ex.P.1. Likewise, he has not disputed the issuance of legal notice. However, he has deposed that, after the service of notice, he came to know about the complainant. Therefore it is crystal clear that, Ex.P.1 is pertaining to bank account of the accused and Ex.P.1(a) is the signature of accused. Hence, it is manifestly clear that the complainant has issued the legal notice to the accused in accordance with law. In addition to that, as per Sec.118 and Sec.139 of NI Act presumption favours the complainant. Hence the complainant has complied the ingredients of Sec.138 of Negotiable Instruments Act.
16. Now, it is worth to refer the decision of the Hon'ble Apex Court between Hiten P Dalal V/s Brathindranath Manarji reported in 2001(6) SCC 16, wherein the Hon'ble Apex Court SCCH-2 10 C.C.No.3238/2021 observed that, "under Sec.138 of Negotiable Instruments Act, the complainant is not required to establish either the legality or enforceability of the debt or liability since he can avail the benefit of presumption U/Sec.118 and Sec.139 of N.I. Act in his favour".
17. It is also settled position of law that, the presumption available U/Sec. 138 of N.I Act is a rebuttable presumption. Further, to rebut the said presumption the accused need not to enter into the witness box. However, the accused can establish his probable defence by creating a doubt about the existence of legally enforceable debt or liability.
18. Further, it is also settled position of law that, the standard of proof of rebutting the presumption is that of preponderance of probabilities. It is also settled position of law that, if the accused succeeded in rebutting the presumption then the burden shifts back to the complainant. At this juncture, again it is worth to refer the decision of the Hon'ble Apex Court reported in AIR 2010 S.C. 1898, between Rangappa Vs. Sri. Mohan, wherein the Hon'ble Apex Court has observed that, "the standard of proof to rebut the presumption is that one of preponderance of probabilities".
19. It is also settled position of law that, "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.
SCCH-2 11 C.C.No.3238/2021If the cheque otherwise valid, within the provisions of Sec.138 would be attracted".
20. Now, the question before this court is whether the accused has rebutted the presumption or not?. On careful perusal of the cross-examination of P.W.1, the evidence of D.W.1 and the cross-examination of D.W.1, it can be inferred that, the accused has taken a contention that, the cheque in question was not at all issued towards discharge of debt. Per-contra, during the cross-examination of D.W.1, he has deposed that, the complainant has misused the cheque. Further, he has deposed that, he has lost the entire cheque book.
21. It is needless to mention that, on going through the entire cross-examination of P.W.1, there is no single suggestion regarding entire cheque book pertaining to accused had lost. Likewise, there is no single suggestion regarding the complainant has obtained missing cheque pertaining to accused and misused the same. Further, during the course of examination-in-chief, the accused has not deposed regarding his entire cheque book had been lost. Therefore, it is crystal clear that, the accused has taken different contentions and the said contentions are not supported with documentary evidence. Moreover the accused neither lodge the complaint nor given stop payment instructions to his banker.
SCCH-2 12 C.C.No.3238/202122. Normally, any prudent man if he lost entire cheque book, he would file complaint before the police station and simultaneously he would give stop payment instructions to the banker. However in the instant case the accused has not made any such endeavor. Likewise, he has not taken action against the complainant. This aspect clearly goes to show that, defence taken by the accused is unbelievable. Moreover, the accused has not clearly explained how the cheque in question gone into the possession of complainant. As such, the accused has not raised probable defence. In other words the accused has failed to prove how the cheque in question got into the custody of the complainant. Therefore, the defence taken by the accused amounts to vague defence.
23. At the cost of repetition, the initial presumption favours the complainant. However, the said presumption is rebuttable. If the accused rebutted the presumption then burden shifts back to the complainant. Interestingly, in the instant case, the accused has not put forth plausible defence to rebut the presumption and what are all the defence taken by the accused is amounting to vague defence. Based on the said vague defence the accused cannot rebut the presumption. At this juncture, it is worth to rely on the decision of Hon'ble Apex Court reported in 2018(8) SCC 165 between Kishan Rao V/s Shankar Gouda, Wherein the Hon'ble Apex Court held that, "Mere denial regarding existence of debt shall not serve any purpose".
SCCH-2 13 C.C.No.3238/202124. Again at the cost of risk, the versions of the accused failed to inspire the confidence of the Court. In the instant case the accused has not properly explained regarding passing of his cheque to the complainant. Therefore, the defence taken by the accused is not believable. In other words, the accused has not raised plausible defence to rebut the presumption. In the absence of cogent evidence to show that the cheque was not issued in discharge of a debt or other liability, the defence raised by the accused failed to inspire the confidence of this Court to believe his version or to meet the standard of 'Preponderance of Probabilities'. Hence, with the help of presumption and also on appreciation of oral and documentary evidence on record, this Court has has come to the conclusion that, the accused has committed the offence punishable U/Sec. 138 of Negotiable Instruments Act. Accordingly, this Court is answered Point No.1 in the Affirmative.
25. POINT No.2:- In view of the discussions referred to above, this Court proceeds to pass the following:
:: O R D E R ::
Acting U/Sec.255(2) Cr.P.C, the accused is convicted for the offence punishable U/Sec.138 of Negotiable Instruments Act, 1881. The accused shall pay fine of
Rs.7,05,000/- (Rupees Seven Lakhs Five Thousand Only) and in default to SCCH-2 14 C.C.No.3238/2021 payment of fine, the accused shall undergo simple imprisonment for a period of 3 months.
However, it is clarified that, mere serving of default sentence by the accused, does not absolve him from the liability of payment of fine amount as ordered by this court.
By exercising the powers conferred U/Sec.357(1) of Cr.P.C, the amount of Rs.7,05,000/- (Rupees Seven Lakhs Five Thousand Only) is ordered to be paid to the complainant as compensation.
Office is hereby directed to provide free copy of judgment to the accused forthwith.
Bail bond of the accused and that of surety shall stands cancelled.
(Dictated to the stenographer directly on computer, typed by her, revised and corrected by me, and then pronounced in the open Court on this the 25 th February, 2025) (H.P. Mohan Kumar) VI Addl. Judge and ACJM., Court of Small Causes, Bengaluru.SCCH-2 15 C.C.No.3238/2021
:ANNEXURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT:
P.W.1 : Sri. Abhilash.
LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT: Ex.P.1 : Original Cheque No.274357 dated:16.12.2020.
Ex.P.1(a) : Signature of the accused. Ex.P.2 : Cheque Return Memo dated:18.12.2020. Ex.P.3 : Office copy of legal notice dated:06.01.2021. Ex.P.3(a) & : 2 RPAD receipts. 3(b) Ex.P.4 & 5 : 2 Acknowledgment Due Cards.
LIST OF WITNESSES EXAMINED BY THE ACCUSED:
D.W.1 : Sri. B.N. Girish.
LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
- Nil -Digitally signed by H P
HP MOHANKUMAR
MOHANKUMAR Date:
2025.03.03
15:07:36 +0530
(H.P. Mohan Kumar)
VI Addl. Judge and ACJM.,
Court of Small Causes,
Bengaluru.