Bangalore District Court
M/S. Vinayaka Agency vs Mr. Zainuddin on 7 March, 2020
IN THE COURT OF XXI ADDL.CHIEF METROPOLITON
MAGISTRATE, BENGALURU CITY
Present: Sri. V. NAGARAJA, LL.B., LL.M.,
XXI Addl. Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 7th day of March, 2020
C.C. No.4099/2018
COMPLAINANT: M/s. VINAYAKA AGENCY
Represented by its Proprietor
Harish H.S.
Shop No.67, S.N. Bazar,
3rd Main Road,
Gandhinagara,
Bengaluru - 560 009.
(Reptd. By: GK., Advocate)
V/s.
ACCUSED: Mr. ZAINUDDIN
S/o. Abusali,
Cement Sales Agencies,
M.G. Road,
Mudigere,
Chikkamagalur District - 577 132.
(Reptd. By: AP., Advocate)
:JUDGMENT:
Complainant has filed this complaint under Section 200 of Cr.P.C. r/w Section 138 of N.I. Act, seeking for penalizing the accused for the offence punishable under Section 138 of N.I. Act and also for awarding compensation to him.
2 C.C.No.4099/2018
2. Case of the complainant in a nutshell is that:
He and accused are well acquainted each other. So, in that acquaintance, on 02.12.2016, he had approached him seeking for hand loan of Rs.9,25,000/- to meet his urgent business adjustments and also assured to repay the same within two months. So, on considering his request, he advanced Rs.9,25,000/-. It is further averred that after expiry of two months, the complainant demanded the accused for repayment of above said loan amount, whereas accused went postponing the repayment on one pretext or other. Ultimately, in order to discharge above said loan liability, he has issued him a cheque bearing No.238213 dated 19.10.2017 for Rs.9,25,000/-
drawn on Syndicate Bank, Mudigere Branch, Chikkamagaluru District and assured to honour the said cheque. So, believing his words, on 23.10.2017, he presented the above said cheque through his banker i.e., Bank of Maharashtra, Gandhinagara Branch, Bengaluru.
But said cheque was dishonoured for the reason of "Funds Insufficient" in the account of accused. So, the bank authorities issued endorsement dated 24.10.2017. So, he got issued legal notice dated 17.11.2017 through RPAD to 3 C.C.No.4099/2018 accused regarding dishonour of cheque and called upon him to pay cheque amount, whereas said notice has been duly served on accused on 21.11.2017, but accused failed to pay the cheque amount. Hence, accused has committed offence punishable U/s.138 of NI Act. Hence, he is constrained to file this complaint seeking for penalizing the accused for the offence punishable under Section 138 of N.I. Act., and also seeking for awarding of compensation to him.
3. In pursuance of summons issued by this court, accused made appearance through his counsel and obtained bail and now he is on bail.
4. As these proceedings are summary in nature, substance of accusation read over and explained to accused in language known to him whereas, he pleaded not guilty and claimed for trial.
5. In order to prove the case of the complainant, he has been examined as PW-1 and got documents marked Ex.P-1 to Ex.P-6. After completion of evidence of complainant, statement of accused as specified U/s.313 of 4 C.C.No.4099/2018 Cr.P.C., has been recorded and he has been examined as DW-1 and got document marked as Ex.D-1.
6. I have heard arguments of both learned counsels.
7. Perused the records.
8. After perusal of records, the points arise for my consideration are:
1) Whether complainant proves beyond all reasonable doubt that accused in order to discharge his legally enforceable debt, he has issued him a cheque bearing No.238213 dated 19.10.2017 for Rs.9,25,000/- drawn on Syndicate Bank, Mudigere Branch, Chikkamagaluru District?
2) Whether complainant further proves that he has complied with mandatory requirements as specified under Section 138 of N.I. Act?
3) What Order?
9. My findings on the above points are:
Point No.1 : In the Affirmative
Point No.2 : In the Affirmative
Point No.3 : As per final order,
for the following:
REASONS
10. Point No.1: As I have already stated, in order to prove the case of the complainant, he has been examined as PW-1 and he filed his examination-in-chief by way of affidavit by reiterating entire complaint averments as 5 C.C.No.4099/2018 stated above. In support of his oral testimony, he relied upon Ex.P-1 to Ex.P-6.
11. On the other hand, accused has been examined as DW-1 and got documents marked as Ex.D. 1.
12. Before appreciation of evidence of both parties, I am of the opinion, it is worth to note presumptions envisaged in N.I. Act as well as ratio laid down by the Hon'ble Apex Court in Three Judges Bench Judgment reported in (2010) 11 SCC 441 (Rangappa V/s. Sri Mohan) wherein it is held:
"The presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, herein, there can be no doubt that there is an initial presumption which favours the respondent /complainant."
It is further held:
Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the court in favour of the complainant. The presumption referred to Section 139 of the NI Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption.6 C.C.No.4099/2018
13. So in the light of above presumptions and ratio decidendi laid down by Hon'ble Apex Court, if the present facts and situations are analyzed, it is obvious that according to complainant, accused has issued cheque for discharging of his liability. On the other hand, on considering the stand taken by the accused, it is obvious that though he disputes his liability as claimed by complainant, but he is not disputing the facts that cheque is belonged to his account and it bears his signature. So, as I have already stated in view of ratio laid down by Hon'ble Apex court in the Judgments stated supra, that as soon as accused admits the facts that cheque is belonged to his account and it bears his signature, then the mandatory presumption u/S 139 of N.I. Act comes to the aid of complainant and he can rest upon said presumption.
14. Whereas, learned counsel for defence argued that in order to raise presumption U/s.138 of NI Act, the condition precedent is that complainant must prove the existence of legally recoverable debt or liability, if he is able to prove the same, then only presumption can be raised otherwise not.
7 C.C.No.4099/2018
15. Having regard to the arguments of learned counsel for accused, it is important to note as I have already pointed out Hon'ble Three-Judges Bench Judgment of Hon'ble Supreme Court in Rangappa's case stated supra, it is clearly held:
"The presumption mandated by Section 139 includes a presumption that there exists a legally recoverable debt or liability"
16. So when above ratio clearly states that presumption includes existence of legally enforceable debt or liability then further proof of that fact is not required that too in summary proceedings. Because Hon'ble Apex Court in the judgment reported in (2009)2 SCC 513 (Kumar Exports V/s. Sharma Carpets) has clearly observed that:
Presumption literally means "taking as true without examination or proof"
17. At this juncture, it is also worth to note ratio laid down by Hon'ble Apex Court in the judgment reported in (2014)5 SCC 590 (Indian Bank Association and others V/s. Union of India and others) wherein it is held by reiterating Section 143 of Negotiable Instruments Act and Section 264 of Cr.P.C., that:
8 C.C.No.4099/2018
"Section 264, Judgments in cases tried summarily - In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding"
"Thus, the Magistrate is not expected to record full evidence which he would have been, otherwise required to record in a regular trial and his judgment should also contain a brief statement of the reasons for the finding and not elaborate reasons which otherwise he would have been required to record in regular trials"
18. So, in the light of above ratio decidendi and in view of Section 143 of Negotiable Instruments Act and Section 264 of Cr.P.C., as this case is summary case, I am of the opinion it is not necessary to discuss elaborately with respect to legally enforceable debt when presumption includes existence of legally recoverable debt as held in the above said judgment of Hon'ble Apex Court. So, the mandatory presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is to say the cheque was not issued for consideration and in discharge of any debt or liability, in other words, onus shifts on the accused to rebut the said mandatory 9 C.C.No.4099/2018 presumption raised in favour of complainant as observed by Hon'ble Apex Court in the Judgment reported in (2009)2 SCC 513 (Kumar Exports V/s. Sharma Carpets).
Now the crucial question arises as to whether accused is able to rebut the said presumption or not?
19. It is significant to note on considering the defence of the accused, in his examination in chief he contended that the complainant is utter stranger to him and he never borrowed any money from him and he has not issued present cheque to complainant. In fact he had borrowed Rs.50,000/- from father in law of the complainant namely Subbegowda, at that time, said Subbegowda had obtained his singed blank cheques as well as signed blank cheques of his brothers namely Sirajuddin and Mohammed Afrath for security purpose, but later he repaid said Rs.50,000/- to Subbegowda and requested to return the said security cheques, but said Subbegowda without returning said cheques, he misused his cheques and his brothers' cheques and filed two cases against his brothers in Mudigere Court. However in said cases his brothers were acquitted as reflected in Ex.D1 which is certified copy of Judgment, later as said 10 C.C.No.4099/2018 Subbegowda had not succeeded in the said cases. Now in order to grab money from accused, he got filed present case through complainant. Hence he may be acquitted.
20. Having regard to the defence of the accused, it is worth to note ratio decidendi laid down Hon'ble Apex Court in very Rangappa V/s. Sri. Mohan's case, it is clearly observed that:
"A mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the court"
21. At this juncture, it is worth to note ratio decidendi laid down by the Constitution Bench of Hon'ble Apex Court in the judgment reported in AIR 1964 SC 575 (Dhanvantrai Balwantrai Desai V/s. State of Maharashtra) which has been followed in the subsequent judgment reported in (2001)6 SCC 16 (Hiten P.Dalal V/s. Brathindranath Banerjee) wherein it is held that:
"That the distinction between the two kinds of presumption lay not only in the mandate to the court, but also in the 11 C.C.No.4099/2018 nature of evidence required to rebut the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation is offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible"
22. At this juncture, it also worth to note in another judgment of Hon'ble Apex Court reported in (2010)8 SCC 383 (Meghmala and others V/s. Narasimha Reddy and others) wherein it is held that:
"It is not like any other criminal case where the accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right, however, subject to the statutory 12 C.C.No.4099/2018 exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of offence, its seriousness and gravity thereof has to be taken into consideration. Statutes like the Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1998; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. Thus, the legislature has adopted a deviating course from ordinary criminal law shifting the burden on the accused to prove that he was not guilt"
23. So from the above ratio, it is crystal clear that proceedings U/s.138 of NI Act is not like any other criminal case where the accused is presumed to be innocent unless the guilt is proved. On the other hand the legislature has adopted a deviating course from ordinary criminal law by shifting the burden on the accused to prove that he is not guilty. So, the accused must rebut the mandatory presumption by raising probable and acceptable defence to the satisfaction of the court, because the presumption raised in favour of complainant is mandatory presumption, but not general presumption. 13 C.C.No.4099/2018
24. In the light of above ratio decedendi, if the present facts and situations are analyzed, it is important to note, accused has contended in his examination in chief that the complainant is utter stranger to him and he never borrowed any money from him and he has not issued present cheque to complainant. In fact he had borrowed Rs.50,000/- from father in law of the complainant namely Subbegowda, at that time, said Subbegowda had obtained his singed blank cheques as well as signed blank cheques of his brothers namely Sirajuddin and Mohammed Afrath for security purpose, but later he repaid said Rs.50,000/- to Subbegowda and requested to return the said security cheques, but said Subbegowda without returning said cheques, he misused his cheques and his brothers' cheques and filed two cases against his brothers in Mudigere Court and now in order to grab money from accused, he got filed present case through complainant.
25. It is significant to note, though he has raised above said defence, but he has not placed any cogent and convincing evidence to show that complainant misused his cheque which was given to Subbegowda for security 14 C.C.No.4099/2018 purpose. So, in absence of such cogent and convincing evidence, his version cannot be believable and acceptable.
26. It is further significant to note he has taken a different stands which are contradictory to one another and mutually destructive in nature that is to say at one stretch i.e. in the cross-examination of PW.1 he contended that complainant is utter stranger to him and he never borrowed any money from complainant and he has not issued present cheque to complainant. In fact he had issued present cheque and other cheques as signed blank cheques to brother in law of the complainant namely Nandeesh for security purpose with respect to some other money transaction. Whereas said Nandeesh and complainant in order to grab money from him, they misused his security cheque and got filed present case through complainant as suggested in the cross- examination of PW.1 that "¥Àæ¸ÀÄÛvÀ £Á£ÀÄ ºÁdgÀÄ ªÀiÁrgÀĪÀ F ZÉPï£ÀÄß DgÉÆæAiÀÄÄ ªÉÄÃ¯É ºÉýzÀ £ÀA¢Ã±ïgÀªÀjUÉ ¨ÀszÀævÉUÉAzÀÄ ¸À» ªÀiÁrzÀ SÁ° ZÉPï£ÀÄß ¤ÃrzÀÝgÀÄ JAzÀÄ ¸ÀÆa¹zÀgÉ ¸ÀjAiÀÄ®è ¸ÀzÀj £ÀA¢Ã±ï D ZÉPï£ÀÄß £À£Àß ªÀÄÆ®PÀ F jÃw ¸À馅 ªÀiÁr ¸ÀļÀÄî ¥ÀæPÀgÀt zÁR°¹zÁÝgÉAzÀgÉ ¸ÀjAiÀi®è".
15 C.C.No.4099/2018
27. It is further significant to note at another stretch in the cross-examination of PW.1 he further contended by suggesting to the PW.1 that " DgÀÉÆæAiÀÄÄ £À£ÀUÀÉ DvÀ£ÀÄ ¸À» ªÀiÁrzÀ SÁ° ZÉPï£ÀÄß ªÀiÁvÀæ ¤ÃrzÀÝ £Á£ÀÄ CzÀ£ÀÄß £À£Àß C£ÀÄPÀÆ®PÉÌ vÀPÀÌAvÉ ¨ÀswðªÀiÁrPÉÆArzÀÉÝãÉAzÀgÉ ¸ÀjAiÀÄ®è".
28. So from the above suggestion he contended that he had issued signed blank cheque to present complainant. Whereas complainant filled up his blank cheque for his convenience.
29. It is significant to note as already pointed out accused has taken contrary contentions which are mutually destructive in nature, even though he has raised such contentions, but he has not placed any cogent and convincing evidence to prove any of his contentions. Hence his version cannot be believable and acceptable. So under such circumstances mere production of Ex.D1 will not helpful to his contention.
30. At this juncture, it is also worth to take note of the conduct of the accused as specified U/s.114 of Indian Evidence Act that as per his contention, complainant has misused his signed blank cheque which was given for 16 C.C.No.4099/2018 security purpose in connection with money transaction with father in law and brother in law of the complainant. If that is the case, a reasonable doubt arises in the mind of the court as to why accused has kept quite for along time without taking any legal action against complainant or his father in law Subbegowda or brother in law Nandeesh with respect to alleged misuse of present cheque by them . So, I am of the opinion, if at all accused had not issued present cheque to complainant for discharging of his legally enforceable debt, then definitely accused would have initiated legal proceedings like issuance of legal notice to the complainant or lodging police complaint against the complainant or his father in law Subbegowda or brother in law Nandeesh with respect to alleged misuse of his cheque, because no prudent man will keep quite, when his cheque is misused by somebody else. So, non-taking any of these actions by the accused at appropriate time, it creates a reasonable doubt in the mind of the court regarding acceptance of his version that complainant misused the cheque. So, I come to clear conclusion that the defence raised by the accused is not probable and acceptable. 17 C.C.No.4099/2018
31. Coming to arguments of learned counsel for accused that complainant had no financial capacity to lend such a huge amount Rs.9,25,000/- etc.
32. Having regard to the arguments of learned counsel for accused, at this juncture, it is worth to note ratio laid down by Hon'ble Apex Court in the recent judgment reported in (2019) SCC Online SC 389 = Criminal Appeal No.508 of 2019 (Rohitbhai Jivanlal Patel V/s. State of Gujarat and another) wherein it is held:
"In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case 18 C.C.No.4099/2018 could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant"
"Presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors 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 relevant"
33. So, from the above ratio decedendi, it is crystal clear that when mandatory presumption has been raised in favour of complainant, which includes existence of legally enforceable debt, then court cannot expect evidence regarding the source of funds of the complainant for advancing loan to the accused, whereas expecting such evidence is contrary to presumption envisaged under Section 138 of N.I. Act. So, source of funds of the complainant is totally irrelevant. Hence, I do not find any force in the arguments of learned counsel for accused. 19 C.C.No.4099/2018
34. Coming to another argument of learned counsel for accused that according to complainant, he advanced entire amount of Rs.9,25,000/- by way of cash which cannot be believable, because a loan more than Rs.20,000/- cannot be advanced in cash etc.
35. Having regard to the arguments of learned counsel for accused, at this juncture, it is worth to note principle laid down in the judgment of Hon'ble High Court of Bombay reported in 2013 Crl.L.J. (NOC) 572 (BOM.) (Krishna P. Morajkar V/s. Joe Ferrao and another) wherein it is held that:
"A plain reading of Section 269SS of the Income-tax Act shows that no person can accept any loan or deposit of sum of Rs.20,000/- or more otherwise than by an account payee cheque or account payee bank draft. It does not say that a person cannot advance more than Rs.20,000/- in cash to another person. It is clear that the restriction on cash advances was in fact on the taker and not the person who makes the advance. The penalty for taking such advance or deposit in contravention of provisions of Section 269SS was to be suffered by one who takes the advance. Therefore, it was obviously impermissible to invoke these provisions for preventing a 20 C.C.No.4099/2018 person from recovering the advance which he has made"
36. So, from the above view taken by Hon'ble High Court and on reading of Section 269SS of I.T. Act, it is crystal clear that it does not say that a person cannot advance more than Rs.20,000/- in cash to another person. It is clear that the restriction on cash advances was in fact on the taker/to accept said amount in cash and not the person who makes the advance. So, under such circumstances, I am of the opinion that this provision is against to borrower but not to lender. So, this provision will not helpful to the accused to rebut the presumption. Hence, I do not find any force in the arguments of learned counsel for accused.
37. Coming to yet another argument of learned counsel for accused that complainant has filled up the contents of the cheque for his convenience which amounts to material alteration etc.
38. Having regard to the arguments of learned counsel for accused at this juncture, it is worth to note ratio laid down by Hon'ble Apex Court in the recent judgment reported in 2019 SCC On line SC 138 = Crl. 21 C.C.No.4099/2018 Appeal No.230-231/2019 2019 (@SLP(Crl) No.9334- 35/2018) dated 06.02.2019 (Bir Singh V/s. Mukesh Kumar) wherein it is held that:
"A meaningful reading of the provisions of the Negotiable Instruments Act, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had not been issued for payment of a debt or in discharge of a 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. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted"
"If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence"
"It may reasonably be presumed that the cheque was filled in by the appellant- complainant being the payee in the presence of the respondent-accused being the drawer, 22 C.C.No.4099/2018 at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration"
39. Having regard to the arguments of learned counsel for accused at this juncture, it is worth to note ratio laid down by Hon'ble Apex Court in the judgment reported in (2002)7 SCC 150 (P.K. Manmadhan Kartha V/s. Sanjeev Raj and another) wherein it is held that:
"Difference of handwriting and ink on the cheque did not rebut the statutory presumption U/s.139 and 118 of NI Act"
40. At this juncture it is also worth to note that view taken by Hon'ble High Court of Karnataka reported in ILR 2001 KAR 4127 (S.R. Muralidhar V/s. Ashok G.Y.) wherein it is held that:
Section 20 of NI Act - Inchoate stamped instruments "No law provides that in case of any negotiable instrument entire body has to be written by maker or drawer only. What is material is signature of drawer or maker and not the body writing hence question of body writing has no significance"
"It is not objectionable or illegal in law to receive a inchoate negotiate instrument duly singed by the maker despite the material 23 C.C.No.4099/2018 particulars are kept blank if done with an understanding and giving full 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 binds the maker of the Negotiable Instrument"
41. So, in the light of above principle if the present facts and situations are analyzed, as I have already pointed out accused is not disputing issuance of cheque and his signature thereon, whereas complainant is able to prove the existence of liability of Rs.9,25,000/- (covered under the cheque) by the accused as on the date of issuance of cheque by the aid of mandatory presumption. So, under such circumstances, filling up body of the cheque by complainant or somebody else will not invalidate the cheque and that itself will not rebut the mandatory presumption raised in favour of complainant when version of the accused itself is not probable and acceptable. Hence, I don't find any force in the arguments of learned counsel for accused.
42. As I have already pointed that Hon'ble Apex Court in the Constitution Bench and Larger Bench 24 C.C.No.4099/2018 Judgments stated supra, it is clearly held that presumption envisaged U/s.138 of NI Act is not general presumption but it is mandatory presumption, so the said presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible". So, I come to clear conclusion that accused has utterly failed to rebut the mandatory presumption raised in favour of complainant. Hence, I hold this point in Affirmative.
43. Point No.2: As I have already discussed in point No.1 that accused has issued cheques for discharging of his legally recoverable debt. Whereas, on perusal of bank endorsement given by bank authority clearly reveal that complainant had presented the said cheques within validity period, but said cheques were dishonoured with endorsement "Funds Insufficient". On perusal of Ex.P-3 which is legal notice issued to accused clearly reveal that the complainant got issued said demand notice to accused within specified time of 30 days from the date of receiving of endorsement from bank. On perusal of Ex.P-5, postal acknowledgement card clearly reveals that said notice has been duly served on accused. 25 C.C.No.4099/2018
44. So on considering the oral coupled with the documentary evidence of the complainant, they clearly proved that complainant has complied with mandatory requirements as specified U/s.138(a) and (b) of N.I. Act. Whereas, accused has not paid the cheque amount within specified time, inspite of service of demand notice. Hence, accused has committed offence punishable U/s.138 of NI Act. Hence, I hold point No.2 in Affirmative.
45. Point No.3: For the foregoing reasons discussed on points No.1 and 2, I proceed to pass the following:-
ORDER Acting under Section 255(2) r/w 264 of Cr.P.C., the accused is hereby convicted for the offence punishable u/S.138 of Negotiable Instruments Act.
(V. NAGARAJA) XXI ADDL. C.M.M., BENGALURU.
On considering the facts and circumstances of the case, accused is hereby sentenced to pay fine of Rs.9,30,000/- (Nine Lakh and Thirty Thousand only). In default he shall undergo simple imprisonment for a period of 6 (Six) months.
In view of Section 357 of Cr.P.C., complainant is entitled for compensation of Rs.9,25,000/- (Nine Lakhs and Twenty Five Thousand only) out of above said fine amount.26 C.C.No.4099/2018
After collecting the above fine amount, office is directed to pay Rs.9,25,000/- (Nine Lakhs and Twenty Five Thousand only) to complainant as compensation and defray remaining fine amount of Rs.5,000/- (Five Thousand only) to state, after appeal period is over.
However, accused shall execute personal bond of Rs.9,30,000/- in view of Sec.437(A) of Cr.P.C.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
(Directly dictated to Stenographer on computer, computerized by him, corrected and then pronounced by me in the open court on this the 7th day of March, 2020) (V. NAGARAJA) XXI ADDL. C.M.M., BENGALURU.
ANNEXURE LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
PW-1 : Harish H.S. LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P-1 : Cheque
Ex.P-2 : Bank Endorsement
Ex.P-3 : Copy of Legal Notice
Ex.P-4 : Postal Receipt
Ex.P-5 : Postal Acknowledgement Card
Ex.P-6 : Notarized Copy of VAT Registration Certificate
LIST OF WITNESSES EXAMINED FOR THE DEFENCE:
DW-1 : Zainuddin LIST OF DOCUMENTS MARKED FOR THE DEFENCE:
Ex.D-1 : C.C. of Judgment in C.C.501/2015 (V. NAGARAJA) XXI ADDL. C.M.M., BENGALURU.27 C.C.No.4099/2018