Bangalore District Court
Sri. Achappa P.B vs Smt. C. Savithri on 5 August, 2021
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BA (Law), LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 5TH DAY OF AUGUST, 2021.
C.C.No.51663/2014
COMPLAINANT : Sri. Achappa P.B
S/o P.P. Belliappa
Aged about 36 years,
R/at No.4, 9th "A" Main, Chairman
Layout, Banaswadi, Bangalore560043
.Vs.
ACCUSED : Smt. C. Savithri,
W/o Sri. H.S. Manjunath,
R/at # 106, Siddapaji Krupa, Behind
KHB Water Tank, Belawadi,
Bengaluru560018.
JUDGMENT
.
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
2C.C.No.51663/2014
2. The factual matrix of the case are as follows: The complainant has averred that, he knew the accused from past 6 years, on these acquaintance he got developed trust on accused and also husband of the accused, accordingly, the first week of february 2012 the accused and husband of the accused had approached him for financial help of Rs.20,00,00/ for constructing their house at Mysore, by informing him that, they would not require the money at once, but, they require the money at frequent intervals, and promised him to return the money between the months of november 2013 to december 2013, based on their request and in order to assist financially to them, he allegedly paid sum of Rs.20,00,000/ to the accused from february 2012 to september 2013.
3. After completion of agreed period, he requested the accused to repay his amount to start up his office, at the time the accused had pleaded that she did not have money readily available with her, but, promised him to repay it on or before November 2013 and issued a cheque bearing No.768821 for sum of Rs.20,00,000/ drawn on Indian Overseas Bank Vijay Nagar, Mysore, dated 3 C.C.No.51663/2014 15.11.2013, accordingly, he presented the cheque for encash on 22.11.2013 in his banker Corporation Bank M.G. Road Bangalore, but, it was dishonored for "funds insufficient" as per the banker memo dated 25.11.2013, immediately, he caused legal notice to the accused on 20.12.2013 demanding to pay the cheque amount, same was served on the accused on 23.12.2013, despite of it service neither paid the cheque amount nor reply to his notice, and alleged that, the accused has committed an o/p/u/s 138 of N.I Act, accordingly prayed for conviction.
4. Based on the complaint, the sworn statement affidavit, the documents, the court took cognizance of an offense punishable under Sec.138 of N.I. Act and ordered to register a criminal case against the accused for the offense punishable under Sec.138 of N.I. Act.
5. In pursuance of summons, the accused appeared through her counsel and she was on court bail. Plea has been recorded accused pleaded not guilty and claimed to be tried.
4C.C.No.51663/2014
6. To prove the case, the complainant got examined him self as Pw.1, placed reliance on Ex.P1 to P7, on closure of complainant evidence accused was examined u/s 313 of Cr.P.C., she denied the incriminating materials on record and got herself examined as Dw.1 by placing reliance on Ex.D1.
7. Heard, both the sides, the learned counsel for the complainant filed memo with copy of judgment of C.C.No.6590/2014 for reference during the course of argument and placed reliance on AIR 2019 SC 2446, on the contrary, counsel for the accused relied upon the following decisions. (2006) 3 SCC Criminal 30, (2013) 3,SCC 86, AIR 2008 SC 278, ILR 2008 KAR 4629, (2008) Sri. KCCR 1569, 2012(1) DCR 385, ILR 2009 KAR 1633, 2015 AIR SCW 64, 2012(3) KCCR 2057, ILR 2014 KAR 6572. Perused the materials on record, the following points arises for my determination.
"Whether the complainant proves beyond all reasonable doubt that, the accused had issued cheque bearing No.768821 dtd:15.11.2013 for Rs.20,00,000/ in his favour towards discharge of legally recoverable debt and same was bounced for 5 C.C.No.51663/2014 "Funds Insufficient" and despite of demand notice, the accused failed to pay the legally recoverable debt or liability, thereby the accused has committed the offense punishable under Sec.138 of Negotiable Instruments Act?"
2. What Order?
8. My findings to the above points are follows;
Point No1: In the Affirmative.
Point No.2: As per final order for forgoing;
REASONS
9. The complainant claiming to be a practicing advocate had allegedly advanced Rs.20,00,000/ to the accused periodically i.e., from february 2012 to september 2013 as the accused and husband of the accused well known to him since 6 years, and they agreed to repay it between november 2013 to december 2013, towards discharge of the alleged loan the accused had allegedly issued cheque baring No.768821 for Rs.20,00,000/ drawn on Indian Overseas Bank, Mysore branch, Mysore, on it presentation it was dishonored for "funds insufficient" vide memo dated 15.11.2013 issued by his 6 C.C.No.51663/2014 banker, despite service of legal notice accused did not meet his demand , hence, this complaint.
10. Per contra, the accused denied the alleged hand loan transaction, and issuance of the cheque in question to the complainant, existence of legally enforcible debt service of legal notice and specifically contended that, one Jagadeesh a resident of Mysore is known to her, who is none other than the fatherinlaw of a practicing advocate by name Kiran had approached her for introduce any person working at MUDA for allotment of site at MUDA to one Sujatha mother of advocate Kiran, as per their request she introduced one Mahalingaihaswamy to that respect, however, she contended that, she was not part of the transaction. Later on, she was told by Smt. Sujatha that, the said Mahalingaihaswamy has cheated her and accused would be responsible for the amount paid by Sujatha to the Mahalingaihaswamy, because, she only introduced said Mahalingaihaswamy and alleged that, the above said Sujatha, Kiran, Shivakumar have forcibly obtained her 6 signed blank cheques by posing threat, out of them Sujatha had presented two cheque bounce cases against her before the Hon'ble 16 th ACMM, she has been 7 C.C.No.51663/2014 acquitted in both the cases, the cheque in question had allegedly obtained by the complainant from advocate Kiran and filed false case on behalf of the Kiran, however, she does not disputes cheque relied by the complainant and signature their on is that of her.
11. So, considering the rival contentions it is significant to note that, the accused has seriously disputed the existence of legally enforcible debt i.e. alleged hand loan transaction and issuance of cheque in question, towards discharge of legally enforcible debt and compliance of Sec.138(b) of N.I. Act, therefore, it is well settled law that, the initial burden is on the complainant to prover the financial transaction as well as alleged issuance of cheque, towards legally enforcible debt and Compliance of Sec.138(b) of N.I Act.
12. The complainant in order to prove the service of notice placed reliance on Ex.P3, copy of legal notice, P4 Postal receipt, P5 acknowledgment, according to him notice were duly served on the accused on 23.12.2013, on the contrary, the accused denies the service of notice in her examination chief, however, during course of cross 8 C.C.No.51663/2014 examination, she admits that, her residential address shown in the cause title i.e., Door No.106, Siddappaji Krupa, behind KHB water tank, Belavadi, Mysore, is true and correct, for the same address as per Ex.P4 & 5 the Ex.P3 legal notice was sent, so, it is clear that, her residential address was correctly mentioned and notice was correctly addressed, that apart, Ex.P5 clearly discloses it was served on the accused, therefore, it is well settled law that as per Sec.27 of General Clauses Act, if address shown in legal notice is correct and proper address of the accused and notice addressed to the proper address of the accused, the law mandates that service of notice shall be presumed, even if the notice returned for door lock, not in station, not claimed, refused, left etc., but, here in this case as per Ex.P5 the notice was duly served on the accused, further, despite her specific contention about non service of notice she has not denied her signature found on Ex.P5 about receipt of notice, in addition to that, admittedly, she appeared before the court in pursuance of the court summons issued for the very same address, therefore, the burden is on the accused to prove her contention about non service of notice, but, except her vague claim nothing has produced 9 C.C.No.51663/2014 in contrary to the postal documents, therefore, her contention about non service of notice cannot be acceptable, accordingly, the complainant has complied Sec.138(a) to (c) of N.I Act.
13. So far as, financial transaction, existence legally enforcible debt and issuance of cheque, towards discharge of loan are concern PW.1 stated he knew the accused and husband of the accused from past 6 years, on this acquaintance he got developed trust on the accused and husband of the accused, during first week of february 2012 accused and husband of the accused had approached him for hand loan of Rs.20,00,000/ for constructing their house at Mysore and told him that they would not require the money at once, but, it would require are frequent intervals, considering their request he claims to have paid sum of Rs.20,00,000/ from february 2012 to september 2013 and accused agreed to repay it on or before 15.11.2013, towards repayment the accused allegedly issued Ex.P1 in his favour for sum of Rs.20,00,000/, but, on it presentation the Ex.P1 was dishonored for the funds insufficient as per Ex.P2, on the contrary, the accused testified the veracity of Pw.1, 10 C.C.No.51663/2014 particularly she questioned the Pw.1 about how much did the complainant pay her, who introduced her to the Pw.1 mode of advancement of loan, had he disclosed the advancement of loan in IT returns, had he obtained any receipts or acknowledgment from the accused from having been paid the alleged loan, the Pw.1 categorically stated his distinct relative one Puttacheruvandha Viju had come to him along with accused and husband of the accused had requested him to extend financial help of Rs.20,00,000/ for the construction of house of the accused, his relative had convinced him to advance the amount, accordingly, from february 2012 to 2013 he allegedly paid sum of Rs.95,000/ by cash on every month, however, he has not produced any receipts to that effect, but, he specifically stated he had receipts, but, the accused while issuing the Ex.P1 cheque, towards, discharge of her debt has collected or received by the accused from him, therefore, he does not have receipt to that effect, the accused does not disputes the Ex.P1 is pertaining to her account, signature found their on is that of her, so, on unequivocal terms the accused admits the Ex.P1 and Ex.P1(a) is that of her, as such, the complainant has undoubtedly proved the cheque and 11 C.C.No.51663/2014 signature on the cheque is of the accused, once it is proved, the law mandates to presume that, the cheque in question has been issued towards discharge of legally enforcible debt or for consideration as per Sec.139 and Sec.118(a) of .N.I. Act, at this stage, It is relevant to note decision of Hon'ble Apex Court in in the case of Rangappa Vs. Mohan the relevant ratio is extracted here below, "Once the cheque relates to the account of the accused and he accept and admit the signature on the said cheque, then initial presumption as contemplated under Sec.139 of N.I.Act has to be raised by the court in favour of the complainant. The presumption referred to in Sec.139 of N.I.Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption." \
14. Accordingly, the initial presumption has been drawn in favour of the complainant that, accused had issued Ex.P1 cheque towards discharge of legally enforcible debt, 12 C.C.No.51663/2014 unless contrary is proved, therefore, the onus is on the accused to rebut the presumption, the standard of proof for rebutting the presumption is not a strict proof, but, it is preponderance of probabilities.
15. The accused in order to rebut the presumption has highly relied upon the materials elicited from Pw.1 during the course of cross examination and his defence evidence, that according to the Pw.1 the accused was introduced by his relative by name Viju but, in complainant Pw.1 has stated he knows the accused and husband of the accused from 6 years prior to their introduction, therefore, there was no concrete relationship in between the Pw.1 and the accused to lend huge sum of Rs.20,00,000/ to unknown person, and the said Viju has not been examined to substantiate the alleged transaction, that apart, the Pw.1has improved his case that, he had paid Rs.95,000/ on every month from february 2012 to september 2013 as the said alleged payment has not been stated, either in complainant or in legal notice, therefore, the counsel for the accused argued that, without the specific pleading, evidence with respect to payment of cash Rs.95,000/ on every month from 13 C.C.No.51663/2014 february 2012 to september 2013 cannot be acceptable, further, the Pw.1 admits the alleged advancement of amount has not disclosed in IT returns and also the Pw.1 has not produced his bank statement to prove that Pw.1 had an amount to pay the alleged loan, further, the complainant has not obtained any securitual document for the alleged loan and not passed any receipts to that effect, therefore, the claim of the complainant i.e., the alleged advancement of loan of Rs.20,00,000/ to a sales girl in a shop is highly doubtful in nature, accordingly, based on the above grounds the learned counsel for the accused argued that, the presumption has been rebutted by the accused and relaid upon decisions (2006) 3 SCC (Crl.)30, (2013) 3 SCC 86, AIR 2008 SC 278, ILR KAR4629, 2008 (3) KCCR 1569, Kumar Exports Vs Sharma Carpets, 2015 AIR SCW 64, ILR 2014 KAR 6572.
16. Per contra, the counsel for the complainant vehemently argued who is party in person that, he had received receipts for payment from the accused, but, it was collected by the accused while she was issuing the Ex.P1 cheque which is nothing but an acknowledgment, as he is a practicing advocate had a sufficient income, to 14 C.C.No.51663/2014 lend the amount, therefore, presumption has not been rebutted and placed reliance upon Birsingh case.
17. Considering the rival contentions, with material on record the testimony of Pw.1 is clear that, accused has not disputed the complainant is practicing advocate since 2003, it is true that, the Pw.1 for the first time in the cross examination has stated that, he paid Rs.95,000/ to the accused on every month, however, that itself is not an improvement as claimed by the accused, because, it is not the case of the Pw.1 that, he paid Rs.20,00,000/ at once to the accused, he specifically stated right from his legal notice that accused had requested to pay sum of Rs.20,00,000/, but not at once, but, they required at regular intervals, accordingly, from february 2012 to 2013, he advanced the amount, further, so far as nonexamination of one Viju and nonpleading with respect to introduction of the accused is also not fatal, as the Pw.1 in unequivocal terms stated that, even though his distinct relative Viju asked him to provide loan to the accused along with the husband of the accused, but, Pw.1 clearly stated he knew them even 6 years prior to the date of their approach, as such, it clearly stands proved 15 C.C.No.51663/2014 that, the Pw.1 had very much known to the accused and one H.S. Manjunath said to be the husband of accused prior to the date of advancement of loan, hence, it is proved that, there was a concrete relationship in between complainant and the accused, further, pleadings with respect to manner in which he got acquaintance not at all mandatory, as it is, summary proceedings, therefore, it is not one of the doubtful circumstances as urged by the accused, accordingly It is not tenable.
18. So, far as non producing of any documents, receipts or acknowledgment to prove the alleged loan is concerned, it is true that, the accused has posed several question with regard to receipts that, being an advocate at least receipts for alleged advancement of loan could have been obtained for proof of the loan as it is huge one, however, the Pw.1 stated that, he had received the receipts from the accused for having been paid the loan, but, while receiving the Ex.P1 cheque the accused has collected the receipts and issued Ex.P1 cheque for his loan amount as an acknowledgment, therefore, he is not produced the document to that effect, it is well settled law that, issuance of cheque itself is a promise to pay an 16 C.C.No.51663/2014 amount which is nothing but an acknowledgment, offcourse it is wise or prudent man normally insisted or receives receipts to prove the alleged payment, however, in absence of receipts and other documents which alone itself does not ipso facto ground to disbelieve the claim of the complainant, because, the accused does not disputing the Ex.P1 cheque is not that of her, when such being the case as held supra the cheque is an instrument having presumptory value in favour holder of the cheque that, it was issued towards discharge of loan, therefore, it is nothing, but, an acknowledgment of debt, accordingly, non production of receipts etc., is not fatal to the claim of the complainant.
19. It is well settled law that, whenever the accused challenges the financial capacity the complainant shall prove his capability to lend a amount, the learned counsel for the accused has argued that the complainant is an advocate has admitted that, he did not discloses the alleged advancement of loan Rs.20,00,000/ in his IT returns and also not produced his bank statement to show the Pw.1 had Rs.20,00,000/ in his account, therefore, the advancement of loan is doubtful in nature 17 C.C.No.51663/2014 and placed reliance on 2015(1) SCC 999 failed to prove source of income from which alleged loan was made, ILR 2009 KAR 1633, for non production of material documents, AIR 2018 SC 278 for non execution of any document and also non charging of an interest on the alleged advancement of huge sum.
20. On meticulous examination of materials on record, the Pw.1 categorically stated he is a practicing advocate in a office of Poovaiha and Co., accused never disputed the occupation of the complainant, further Pw.1 stated he was earning Rs.1,00,000/ to Rs.1.50,000/ p.m., out of retainers fee and also earning additional amount of Rs.30,000/ to Rs.40,000/ p.m. from these sources, his earning during the period of february 2012 to september 2013 was nearly Rs.1,30,000/, the said occupation income of Pw.1 has not been specifically denied by the accused, therefore, even though the Pw.1 has failed to produce the bank statement, non disclosure of the advancement of amount in IT returns is not detrimental to the claim complainant, because, the accused does not denies the profession of the Pw.1, income from profession, and more importantly it is not the case of the 18 C.C.No.51663/2014 complainant that he paid sum of Rs.20,00,000/ to the accused at once, but, it is his definite case that on every month he paid Rs.95,000/ to the accused, the capacity of earning Rs.1,00,000/ to Rs.1,20,000/ from the advocacy and other additional income Rs.30,000/ to Rs. 40,000/ not denied by the accused, in the absence of specific denial about income the contention of the accused about incapability to lent the amount cannot be acceptable, as the complainant does not claimed that he paid Rs.20,00,000/ at once to the accused if there were such pleadings definitely the arguments of accused would be valid, because, claim for Rs.20,00,000/ is not meager amount it's huge one and non production of bank statement and proof for sources would be material to disbelieve the claim of the complainant, as such, arguments of the accused is not tenable.
21. Further, so far as non disclosure of alleged advancement of loan in IT returns is concerned Pw.1 has categorically stated out of his profession, he earned the money and paid to the accused, since it is not an investment he did not discloses it in is IT return, so, it is clear that, it is his professional income, advancement of 19 C.C.No.51663/2014 loan not disclosed in ITR, but, that itself is not sufficient ground to draw an adverse inference that amount was not advanced, and presumption stands rebutted, because the accused must establishes that, the circumstances of the case must warrants for drawing such a conclusion, but, nothing has brought on record to disbelieve the source of income and the financial capacity of the complainant, so, mere suggestion is not sufficient to draw an inference, even, nondisclosure of advancement of loan by itself is not is ground to dislodge the presumption envisaged U/S 139 of N.I Act without establishing as to what type of return the complaint was hitherto filing prior to filing of the private complaint and whether those returns were requiring him to disclose the alleged loan transaction, which are necessary materials to disbelieve the case of complainant as ruled by the Hon'ble High Court of Karnataka in ILR 2018 KAR 5431, but, nothing has brought out on record that the complaint should have been disclose it, as such the accused cannot take shelter on this ground for rebutting the presumption, therefore, said contention is not tenable under law.
20C.C.No.51663/2014
22. Further, the accused has specifically stated on oath that, an advocate by name Kiran who is soninlaw of her knowned person by name Jagadeesh who hails from Mysore, known to her had approached her with soninlaw Kiran, parents of said Kiran namely Sujatha Shivakumar for to introduce any person working in MUDA to get a site from MUDA to his soninlaw advocate Kiran, accordingly, she introduced one Mahalingaihaswamy for that purpose, however, she claimed that she was not part of the transaction held in between Sujatha and Mahalingaihaswamy, but, she was told by Smt. Sujatha that, the above said Mahalingaihaswamy to whom she introduced to get site from MUDA had cheated her and claimed that she was the responsible for their amount given to Mahalingaihaswamy, on that basis an advocate Kiran and his parent Smt. Sujatha and Shivakumar had come to her house situated at Mysore have forcibly obtained her 6 signed blank cheques by posing threat to her and claimed H.S. Manjunatha is not her husband as claimed by the complainant, the said advocate Kiran and the present complainant are friends by misusing one of her 6 six signed blank cheques, the present complaint has been 21 C.C.No.51663/2014 filed by the complainant on behalf of his friend advocate Kiran and two other cheque bounce cases filed by mother of Kiran by name Sujatha before 16th ACMM Court in C.C.No.6590/2014 and C.C.No.6600/2014 which have been dismissed and she has been acquitted in both the cases, accordingly, she never had any financial transaction with the complainant whats so ever, hence, she claiming to be not liable to pay any amount.
23. To substantiate her contention she placed reliance on Ex.D1 certified copy of Judgment in C.C. NO.6590/2014 passed by the Hon'ble 16th ACMM Bangalore, on careful perusal of it, it is true that, one Sujatha has filed a cheque bounce case against the accused here in and one H.S. Manjunatha, as per it, the accused has been admittedly acquitted from the charges, the learned counsel for the accused vehemently argued by referring to Ex.D1 that, the complainant in C.C. No.6590/2014 is the mother of advocate Kiran, said Smt. Sujatha admittedly filed an appeal before the Hon'ble High Court of Karnataka against the judgment of C.C. No.6590/2014, further, admittedly the complainant here in who is practicing advocate has appearing for Smt. Sujatha an 22 C.C.No.51663/2014 appellant, therefore, the defence of the accused that, the questioned cheque has been collected by the complainant here in from Kiran and Smt. Sujatha, which is one of her 6 signed blank cheque forcibly obtained by the Kiran, sujatha, Shivakumar. On the contrary, complainant denies the nexus between him and Kiran and specifically claimed advocate Kiran and also counsel for the accused is his professional friends, considering the rival contention with the materials on record i.e., Ex.D1, it's clearly transpires that, the accused here in had taken defence that her cheque in question of said case had forcibly obtained by Smt. Sujatha, Kiran, Shivakumar, but, it is not her case that, custody of the cheque in question was with either Smt. Sujatha, Kiran or Shivakumar, that apart, the accused had mainly acquitted on the point of financial incapability, therefore, merely because she acquitted in some other cheque bounce case, which does not ipso facto ground to believe her contention about nexus in between the complainant and one advocate Kiran, in absence of proof with regard to custody of present cheque, moreover, the accused admittedly has not taken legal action against Smt. Sujatha, Kiran and Shivkumar, despite of taking her 23 C.C.No.51663/2014 contention about forcibly her signed blank cheques were taken by them, therefore, mere producing the Ex.D.1 is not proof to her contention that, complainant has filed this case by obtaining Ex.P1 cheque on behalf of his friend Kiran, until and unless she proves nexus between complainant and advocate Kiran, accordingly, I do not found valid force in the argument of counsel for the accused.
24. Further, so far as, relationship between her and one H.S. Manjunath is concern, the accused denied one H.S. Manjunath is her husband as claimed by the complainant, however, complainant confronted Ex.P7 copy of an Adhaar Card wherein it showed that one H.S. Manjunath is the husband of the accused, however, in a proceedings initiated U/S 138 of N.I Act consideration of relationship and decision with respect to dispute are not permissible under law, therefore, though the complaint claimed that the accused is wife of one H.S. Manjunath, which is material for consideration as the complainant specifically claimed the accused and her husband namely H.S. Manjunath had approached for loan jointly, but, since this court have no power to decide on the point of 24 C.C.No.51663/2014 disputed relationship the necessary point with respect to drawer of the cheque required to be consider, as such, as the accused does not dispute the cheque in question is pertaining to her account.
25. So, considering entire materials on record the accused in order to rebut the presumption drawn in favour of the complainant has taken multiple defenses i.e., doubt of concrete relationship between complainant and accused, not producing any documents with respect to payment, financial capacity, nexus between complainant and one Kiran and Ex.D1 document, however, the accused has not brought out any material proof that the accused here in is unknown to her, so, that there were no concrete relationship between the parties, further, so far as, non securing document with respect to proof of advancement of loan is concern, as held supra the complainant has specifically stated he had obtained the receipts from the accused for proof of payment of money, but, same was returned to the accused while issuing the Ex.P1 cheque, admittedly, cheque is belongs to the accused, which is nothing, but, an acknowledgment of debt, therefore, the explanation of 25 C.C.No.51663/2014 the complainant about returning of receipts at the time of issuing Ex.P1 cheque cannot be ruled out, hence, non production of any receipts, nonexecution of any documents, noncharging of interests would not be the valid grounds for displacement of presumption. Accordingly, the decisions relaid by the accused i.e., AIR 2008 SC 278, 2008 3KCR 1569, ILR 2008 KAR 4629, are not applicable to the case in hand, as these decisions were pronounced much prior to the decision of constitutional bench of Hon'ble Apex Court in Rangappa Vs. Mohan, wherein, as held supra once the complainant proved the signature and cheque related to the accused mandatory presumption shall be drawn then onus is on the accused to displace the presumption drawn in favour of the complainant by producing probable evidence, either from the materials produced by the complainant or he may be produced materials in contrary to the case of the complainant so as to prove the debt did not exist or nonexistence of legally enforcible debt, further, mere explanation from the accused is not acceptable, but, the explanation given by the accused must be capable to believe or accept under law, at this stage the court relaying upon the decision of Hon'ble Apex Court 26 C.C.No.51663/2014 Sumethi Vij Vs. M/s. Paramount Tech. Fab. Industries, held that, " To disprove the presumption, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt didn't exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they didn't exist".
26. As held supra, the accused specifically contended the questioned cheque was forcibly obtained by Smt. Sujatha advocate Kiran, Shivakumar, but, when they have obtained, how many cheques they have obtained from her, what step she has taken against them for forcible action for that absolutely there is no material on record, further, as held supra though she relaid upon Ex.D1 i.e., copy of the Judgment C.C.No.6600/2014, but, there is no finding or reference about the custody of the questioned cheque with either Smt. Sujatha or advocate Kiran, in 27 C.C.No.51663/2014 absence of proof to that effect the contention of the accused about collusion in between the complainant and advocate Kiran cannot be acceptable, as such she failed to prove the nexus in between the complainant and an advocate Kiran, accordingly, her specific contention about filing of this complaint by the complaint on behalf of advocate Kiran cannot be acceptable, that apart, the decisions relied by the accused in ILR 2014 KAR 6572, Shanthi Vs. Marry Serri with respect to mere admission of signature does not amount to it's execution is concern it is not helpful to her defence, as the Hon'ble Apex Court in Birsingh case has ruled that, issuance of signed blank cheque itself is an execution and empowering the holder of the cheque to fill it up, therefore, the above decisions much prior to the decision of Hon'ble Apex Court, accordingly, the arguments of the accused counsel is not tenable under law.
27. So, considering the entire materials on record the accused failed to brought out or produce cogent, convincing and acceptable material on record to prove that the debt claimed by the complainant did not exist or there was no legally enforcible debt, as such, relation 28 C.C.No.51663/2014 between them was strange, so, on failure to prove her contention specifically with respect to custody of cheque in question with one Sujatha, which was forcibly taken and then it was handed over to the complainant for their illegal gain, the accused has failed to probabalise her defence to rebut the presumption drawn in favour of the complaint as mandated U/S 139 of N.I Act, accordingly, complainant has proved the Ingredients of Sec.138 of N.I Act, therefore, the accused is found guilt of o/p/u/s 138 of N.I Act.
28. So, far as sentence and compensation is concerned, the material on record clearly revealed that, for the purpose of construction of the house, accused has borrowed loan of Rs.20,00,000/ from february 2012 to september 2013 without any interest, so, it is proved that, an interest free loan, so, considering the nature of transaction and object of Sec.138 of N.I Act, I am of the opinion that, if accused is sentenced to be paid a fine of Rs.22,05,000/ instead of sentencing her for an imprisonment that would meet the ends of justice, as the o/p/u/s 138 of N.I. Act is primarily compensatory in nature, punative is secondary, accordingly, the accused is 29 C.C.No.51663/2014 sentenced to pay a fine of Rs.22,05,000/ out of which the complainant is entitled for compensation of Rs.22,00,000/ as per Sec.357(1) of Cr.P.C and remaining amount of Rs.5,000/ is to be appropriated to the state, hence, I answer the above point in "Affirmative".
29. Point No.2: In view of above finding to Point No.1, I proceed to pass following;
ORDER Acting under section 255(2) of Criminal Procedure Code, the accused is convicted of the offence punishable U/S 138 of Negotiable Instrument Act, The accused is sentenced to pay a fine of Rs.22,05,000/ (Rupees twenty two lakhs five thousand only) in default, the accused shall undergo simple imprisonment for a period of six months. Out of the fine amount received, Rs.5,000/ is to be appropriated to the State and by way of compensation as per the provision U/s 30 C.C.No.51663/2014 357(1) of Cr.P.C. the complainant is entitled for Rs.22,00,000/.
The bail bonds and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in the open court, on this the 5th day of July, 2021) (M.Vijay), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Shri. Achappa P.B
2. Documents marked on behalf of complainant:
Ex.P.1 : Original Cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Bank return memo
Ex.P.3 : Office copy of the legal notice
Ex.P.4 : Postal receipt
Ex.P.5 : Speed post acknowledgment
Ex.P.6 : Bank challan
Ex.P.7 : Xerox copy of Adhaar Card
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C.C.No.51663/2014
3. Witnesses examined on behalf of Accused:
D.W.1 : Savithri
4. Documents marked on behalf of Accused:
Ex.D.1 : Copy of Judgment U/S 355 of Cr.P.C., dated 07/02/2019.
(M.Vijay), XXXIII ACMM, BENGALURU.