Bangalore District Court
Sri.A. Devaraj vs Sri. Prakash on 3 March, 2020
1 C.C.No.17108/2016 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 3RD day of March 2020
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.17108/2016
Complainant : Sri.A. Devaraj,
S/o. Late Alagesh,
Aged about 53 years,
R at No.29, 1st Cross,
Shankarpuram,
Bengaluru - 560 004.
(By Sri. Shiva Kumar., Adv.,)
- Vs -
Accused : Sri. Prakash,
Father name not known,
Aged about 42 years,
R/at No. 15, Ground Floor,
9th Cross,
Near Bannappa Park,
Cubbonpet,
Bengaluru -560 002.
(By Sri. M.R.Harish Kumar., Adv.,)
Case instituted : 12.7.2016
Offence complained : U/s 138 of N.I Act
of
2 C.C.No.17108/2016 J
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 3.3.2020
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, Accused is known to him since long time and is also his friend and due to said acquaintance the Accused approached him during the month of January 2016 and requested him to accommodate a hand loan of Rs.1 Lakh for his urgent financial difficulties and to purchase ambulance vehicle for his business purpose, accordingly he has lent a sum of Rs.1 Lakh to the Accused in the 2nd week of January at that time the Accused assured him to return the said loan amount within three months from the date of borrowing, thereafter the Accused did not repay the said hand loan amount and he demanded to the Accused for that the Accused issued a cheque bearing No.745299 dated:
3 C.C.No.17108/2016 J25.4.2016 for sum of Rs.1 Lakh drawn on Canara Bank, Hegganahalli cross branch, Bengaluru towards repayment of the said loan and assured him that he will keep sufficient amount in his account to honour the cheque, thereafter he has presented the said cheque for encashment through his banker i.e State Bank of Mysore, V.V.Puram branch, Bengaluru but the said cheque was returned dishonoured with an endorsement of "Insufficient Funds" dated:5.5.2016, after receipt of the dishonoured cheque he got issued legal notice to the Accused on 4.6.2016 calling upon him to pay the cheque amount by intimating the dishonour of the cheque and demanding him to pay the amount within 15 days from the date of receipt of notice through RPAD but the said notice was not returned thereafter he approached the post master by filing the complaint dated: 28.6.2016 with regard to the service or notice or not, but after receipt of the notice the Accused has not paid the amount as demanded in the notice. Hence he has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
.
4 C.C.No.17108/2016 J3. Before issuing process against the accused, the Complainant has filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the averments of the complaint. In support of his oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.C.1 to C.9 i.e, the Original Cheque dated: 25.4.2016 as per Ex.C.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.C.1(a), the Bank Memo as per Ex.C.2, the copy of Legal Notice as per Ex.C.3, the Postal Receipt as per Ex.C.4, copy of the complaint given to the postal authority as per Ex.C.5, returned legal notice as per Ex.C.6, postal cover as per Ex.C.7, postal receipt as per Ex.C.8, postal acknowledgement as per Ex.C.9.
4. Prima-facie case has been made out against the accused and summons was issued against the accused in turn he has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to him, to which he pleaded not guilty and claims to be tried.
5. As per the direction of the Hon'ble Apex Court in the decision of the Indian Bank 5 C.C.No.17108/2016 J Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the Accused, as he intended to set out his defence, the case came to be posted for the Cross-examination of complainant.
6. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence appearing against him and has chosen to lead his rebuttal evidence subsequently the Accused has examined as DW.1 no documents have been produced on behalf of the Accused and closed his side.
7. Heard both sides and perused the materials on record.
8. On the basis of complaint, evidence of complainant and documents the following points that are arise for consideration are:-
1. Whether the complainant proves that the accused has issued cheque bearing No.745299 dated:
25.4.2016 for sum of Rs.1,00,000/- drawn n on Canara Bank, Hegganahalli cross branch, 6 C.C.No.17108/2016 J Bengaluru, to discharge legally recoverable debt to the complainant and when the complainant has presented cheque for encashment through her banker but the said cheque has been dishonoured for the reasons "Funds Insufficient" on 5.5.2016 and the complainant issued legal notice to the accused on 4.6.2016 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
9. The above points are answered as under:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS
10. Point No.1 : Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is 7 C.C.No.17108/2016 J quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act pre-supposes conditions for prosecution of an offence which are as under:
1. Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
2. Cheque shall be presented for payment within specified time i.e., from the date of issue before expiry of its validity.
3. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
4. The drawer inspite of demand notice fails to make payment within 15 days from 8 C.C.No.17108/2016 J the date of receipt of such notice.
If the above said conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer in respect of bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
11. It is also one of the essential ingredient of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e.,U/s.118 presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and are rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of 9 C.C.No.17108/2016 J India and Hon'ble High Court of Karnataka in catena of decisions.
12. In the present case the complainant got examined as PW.1 by filing his affidavit evidence wherein the complainant has reiterated the entire averments of the complaint, the complainant/PW.1 in his evidence testified that, he know the Accused and he being the friend and requested to provide hand loan of Rs.1 Lakh for his urgent financial difficulties and to purchase ambulance vehicle for his business purpose in the month of January 2016 and had given the said amount to the Accused at that time the Accused promised to repay the said amount within 3 months, despite of his several request and demands he failed to make the payment to him and after demanding continuous follow-up the Accused issued the cheque bearing No.745299 dated:- 25.4.2016 for sum of Rs.1 Lakh towards repayment of the said loan by assuring that, the said cheque would be honoured and he has presented the said cheque for encashment through his banker but it was dishonoured with the reason of 'Insufficient Funds" vide memo dated: 5.5.2016, thereafter he 10 C.C.No.17108/2016 J got issued legal notice to the Accused through his counsel on 4.6.2016 by RPAD but the said notice was returned with an endorsement of "not claimed, returned to sender" and even after receipt of the notice the Accused neither made the payment nor replied to the notice.
13. In support of the oral evidence of the complainant, he produced and marked the documents as per Ex.C.1 to C.9 i.e, the Original Cheque dated: 25.4.2016 as per Ex.C.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.C.1(a), the Bank Memo as per Ex.C.2, the copy of Legal Notice as per Ex.C.3, the Postal Receipt as per Ex.C.4,copy of the complaint given to the postal authority as per Ex.C.5, returned legal notice as per Ex.C.6, postal cover as per Ex.C.7, postal receipt as per Ex.C.8, postal acknowledgement as per Ex.C.9.
14. In the present case, there is no dispute between the complainant and Accused with regard to their acquaintance. It is also not in dispute that, the cheque in question i.e. Ex.C.1 belongs to the account of the accused and also not disputed signature of 11 C.C.No.17108/2016 J the Accused which is appearing at Ex.C.1(a). It is also not in dispute by the accused that, the cheque in question presented for encashment and dishonoured for the reason of "Insufficient Funds"
since as matter on record, proved by return memo i.e. C.2 issued by the concerned bank dated:
5.5.2016, therefore it is a matter on record and has been proved that, the cheque in question was presented within its validity period and dishonoured as per the bank endorsement issued by the banker of accused.
15. In relation to the service of notice the Accused in his evidence has denied the service of legal notice issued by the complainant to him. The complainant in order to prove service of notice upon the Accused, has produced the documents i.e copy of the legal notice, RPAD cover along with postal receipt and acknowledgement copy of complaint given to the post master of concerned post office which are at Ex.C.3 to C.9. On perusal of the Ex.C.7 i.e., the RPAD returned cover with an endorsement of "Not claimed Returned". Hence, it goes to show that, the legal notice caused by the 12 C.C.No.17108/2016 J complainant through RPAD returned with postal endorsement of "Not claimed Returned". The Accused during the course of cross-examination of complainant and in his evidence has not disputed the address of the Accused mentioned by the complainant on RPAD cover as is not of his correct address or he was/is not residing in the said address as on the date of issuance of the legal notice i.e. Ex.C.3 by the complainant. The Accused has also not produced any documents on his behalf to disprove the address mentioned by the complainant in the legal notice, and on RPAD cover is not of his correct address or he was/is not residing in the said address as on the date of issuance of notice or return of notice. Therefore in view of the said reasons it can be held that, the Accused has admitted his address mentioned by the complainant in the legal notice as well as RPAD cover as that of his correct address. Even it is not the defence of the Accused that, the postal endorsement found on Ex.C.7 is not issued by the concerned postal authorities or has been created by the complainant and the Accused has not examined concerned postal authorities to disprove the endorsement found on 13 C.C.No.17108/2016 J Ex.C.7 RPAD cover is not issued by the postal authorities. Therefore in view of non disputing of the address of the Accused in the legal notice as well as on the RPAD cover makes it clear that, the Accused has admitted that, the legal notice caused by the complainant was issued to his correct address through registered post, in such circumstances, it can be held that, the notice sent by the complainant to the correct address of the Accused is presumed to have been served on him U/s. 27 of General Clauses Act. In this regard, it is relevant here to refer the decision of Hon'ble High Court of Karnataka reported in 2011 ACD 1572 (KAR) in the case of Jayamma Vs. Lingamma, wherein the Hon'ble High Court held that, "Notice sent at correct address returned unclaimed - is deemed to be served. In another decision reported in 1998 KAR 1841 in the case of Shridhar M.A. Vs. Metalloy Steel Corporation and 1999 Cri.L.J. 4606 "K. Bhaskaran Vs. Vaidhanbalan., wherein the Hon'ble Apex Court was concerned with the question as to when the service of notice could be inferred and it was held that if there is an endorsement like 'not available in the house' 'house locked' 'shop 14 C.C.No.17108/2016 J closed' 'unclaimed' the service should be deemed to have been effected. It is also relevant here to refer the decision reported in 2008(4) Civil code cases 027 (SC) "M/s. Indo Automobiles Vs., M/s. Jai Durga Enterprises and others." wherein the Hon'ble Apex Court held that, notice sent by registered post with acknowledgement to a correct address-service of notice has to be presumed. Therefore in view of the principles of law in the above decisions, it can be safely held that, the service of notice on accused in this case is presumed to have been served on him since in this case also the complainant has issued notice to the accused to his correct address through registered post and the said notice was returned with an endorsement of "Not claimed Returned, I.D", hence, the notice issued by the complainant through registered post is held to be proper service and for the above said reasons, the contentions taken by the learned counsel for the accused that, the notice issued by the complainant was not served on the accused and the complainant has not complied the mandatory requirements of Sec.138(b) of N.I.Act and complaint is not maintainable cannot be acceptable and are not 15 C.C.No.17108/2016 J sustainable.
16. It is the specific defence of the Accused that, he has denied the claim made by the complainant and also issuance of the cheque towards discharge of the liability in question, it is the specific defence of the Accused that, in the month of January 2015 he had borrowed a sum of Rs.1 Lakh from one Kiran Kumar at that time he had given his two blank signed cheques to him thereafter he had repaid the said amount o Rs.1 Lakh to the said Kiran Kumar and requested to return his blank signed cheques but the said Kiran Kumar intimated him that, they were misplaced in his house and would be returned after securing the same but now the complainant and said Kiran Kumar have misused his two blank signed cheques and filed complaints against him claiming Rs.1 Lakh each from him. Hence on these back grounds the oral and documentary evidence of the complainant and Accused has to be examined as to whether the Accused has rebutted presumption available to the complainant.
.
16 C.C.No.17108/2016 J17. It is also relevant here to mention that, the learned counsel for the defence has cross-examined the complainant in length but nothing has been elicited to discredit or discard his evidence, instead of eliciting anything materials from the complainant the Accused rather concentrated his defence on that, the complainant has not collected any documents at the time of lending the loan amount to the Accused and has not maintained documents to show that, as on the date of lending of the loan amount complainant was having an amount of Rs.1 Lakh with him and also concentrated on the difference of writing and ink on the disputed cheque. It is true that, the complainant/PW.1 in his cross- examination has admitted that, he do not remember on which date and year the Accused approached him seeking loan amount but he stated that, the Accused approached him in the month of January. The complainant/PW.1 has also admitted that, three is no hindrance for him to get the document from the Accused at the time of lending of the loan amount but he volunteers that, the Accused has borrowed the loan amount for the purpose of purchasing the ambulance vehicle and promised him to repay the 17 C.C.No.17108/2016 J said amount within three months from the date of borrowal. It is also true that the complainant has admitted that, after three months from the date of lending of the loan amount the Accused had issued cheque to him but he do not remember the date, month and year of handing over of the cheque. It is true that, the complainant /PW.1 admitted that, after dishonour of the cheque he has not contacted the Accused and talked to the Accused. The complainant/PW.1 has specifically denied the suggestion made to him that, the cheque in question was issued to his son-in-law by name Kiran Kumar at the time of borrowing of Rs.1 Lakh from him in the year 2015. It is also denied the suggestion made to him that, even after repayment of the said loan amount to his son-in-law, the cheques which were collected by his son-in-law have been misused in this case and another case in C.C.No.28300/2016 by his son-in-law. It is also denied the suggestion made on behalf of the Accused that he is falsely deposing at the instance of his son-in-law in respect of the cheque issued by him to his son-in-law pertaining to the transaction between his son-in-law and Accused in the year 2015. Hence, on entire 18 C.C.No.17108/2016 J perusal of the cross-examination of the PW.1 nothing has been elicited by the Accused to disbelieve or discard the evidence of the PW.1. It is true that, the Accused has elicited some discrepancies from PW.1, but the same cannot be taken into consideration unless the Accused has rebut the presumptions available U/s.118 and 139 of N.I. Act.
18. It is relevant here to mention that, it is true that the complainant in his cross-examination admitted that, he has not collected any documents from the Accused at the time of lending of the loan amount to the Accused and there was no hindrance for him in getting the documents from Accused. it is also true that, the Accused has not produced the document to show that, he had an amount of Rs.1 Lakh with him as on the date of lending of the loan amount to the Accused. But as it is already held in the above that, the complainant proved that the cheque in question i.e Ex.C.1 belongs to the Accused and signature found at Ex.C.1(a) is that of the signature of the Accused and also proved that, the cheque in question was presented within its validity period and it was dishonoured for the reason of 19 C.C.No.17108/2016 J "Insufficient Funds" as per Ex.C.2 and thereafter the legal notice caused by him through RPAD to the Accused was deemed to be served on him, in such circumstances, it can be held that, the complainant has discharged his initial burden by complying the mandatory requirements as required U/s.138 of N.I. Act and initially the presumptions are available in favour of the complainant U/s.118a and 139 of the N.I. Act. Consequently it is for the Accused to rebut the said presumptions available in favour of the complainant to show that, the cheque in question was not issued either to the complainant or towards discharge of any legally recoverable debt by producing cogent and convincible evidence but not mere suggestions or even by plausible explanation. In such circumstances, when the presumptions U/s.118 and 139 of N.I.Act are available to the complainant, even the said presumption can be drawn to the extent of existence of legally recoverable debt or liability against the Accused, unless and until the said presumptions are rebutted by the Accused even the documents are not produced by the complainant with regard to loan transaction in question. In this regard, it is relevant here to refer 20 C.C.No.17108/2016 J the decisions reported in 2001 AIR Karnataka HCR 2154 between 'M/s.Devi Tyres V/s.Navab Jan' and in 2011 ACD 1521 (KAR) between 'Smt. Usha Suresh V/s. Shashidharn', in 2010 SC 1898 between 'Rangappa Vs. Mohan' and 2011 ACD 1412 (KAR) between 'N.Hasainar Vs. M.Hasainar, S/o. Ibrahim'. The Hon'ble High Court of Karnataka in the above decision i.e., 2001 AIR Karnataka HCR 2154 at para No.6 was pleased to hold that issuance of cheque itself was adequate proof of existence of debt or liability. In another decision of Hon'ble Apex Court of India i.e. Hon'ble Three Judges Bench Decision reported in (2010) 11 SCC 441 in the case of Rangappa Vs. Sri. Mohan ., wherein the Hon'ble Apex Court held that "
A. Negotiable Instruments Act, 1881 - S.139 -
Presumption under - scope of - Held, presumption mandated by S. 139 includes a presumption that there exists a legally
enforceable debt or liability - However such presumption is rebuttable in nature - Criminal Trial - Proof - Presumptions - Generally. Further held that "Signature on the cheque was his, statutory presumption under S.139 comes into 21 C.C.No.17108/2016 J play and the same was not rebutted even with regard to the materials submitted by complainant Appellant not able to prove "lost cheque" theory - Apart from not raising a probable defence appellant was also not able to contest the existence of a legally enforceable debt or liability - hence, his conviction by High Court, held, proper. In another decision of Hon'ble Apex Court of India, reported in CRIMINAL APPEAL NO. 508 OF 2018 DT 15-03-2018 between ROHITBHAI JIVANLAL PATEL Vs. STATE OF GUJARAT AND ANR held that "Negotiable Instruments Act facts like source of funds are not relevant if the Accused has not been able to rebut the presumption. It is further held that " When such a presumption is drawn, the facts 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 of relevant consideration while examining if the Accused has been able to rebut the presumption or not". In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of 22 C.C.No.17108/2016 J Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, "
Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other 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 - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. It is also held that, " the accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the Trial Court and High Court. Both courts not only erred in law but also committed perversity when the due amount is said to be disputed only on the account of discrepancy in the cartons, packing materials or the rate to determine the total liability as if the appellant was proving his debt before the civil court.
23 C.C.No.17108/2016 JTherefore it is presumed that, the cheque in question were drawn for consideration and the holder of the cheques received the same in existing debt". It is also held that, " the Trial court and the High Court proceeded as if, the appellant is to prove a debt before civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. A dishonour of cheque carries statutory presumption of consideration. The holder of cheque in due course is required to prove that, the cheque was issued by the Accused and that when the same presented , it was not honoured Since there is a statutory presumption of consideration, the burden is on the Accused to rebut the presumption that, the cheque was issued not for any debt or other liability ". It is also relevant here to refer the decision of Hon'ble High Court of Karnataka reported in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption mandated by Sec.139 of N.I Act includes the 24 C.C.No.17108/2016 J presumption that, there existed a legally enforceable debt or liability, however such presumption is rebuttable in nature". In another decision of Hon'ble High Court of Karnataka in the case of Shri.V.R.Shresti Vs. Shri. Bhaskara.P. in Crl. Appeal No. 2109/2017 dated: 15.10.2019 wherein the Hon'ble High Court of Karnataka held that "the Accused has not given any reply to the notice and also in the cross-examination, he categorically admits that, the cheque has bounced on account of no sufficient fund in the bank account of the Accused. Mere non producing of the document before the court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The Accused ought to have rebutted the contention of the complainant by producing cogent evidence before the court and mere denial is not enough".
19. Therefore on careful reading of the principles of law laid down by the Hon'ble Apex Court of India and High Court of Karnataka in the above referred decisions makes it very clear that, once the holder in due course i.e. the complainant 25 C.C.No.17108/2016 J proved that, the cheque in question belongs to the drawer and signature appearing on the cheque is that of the drawer i.e., Accused and complied the mandatory requirements as required U/s.138 of N.I.Act, a presumptions U/s.118a and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt and when such presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence regarding source of funds were not of relevant unless the Accused rebutted the presumption available to the complainant as held by the Hon'ble Apex Court and High Court of Karnataka in the above decisions. In the present case also the complainant has complied the mandatory requirements and has proved that, the Accused has issued the cheque in question in his favour and the Accused has admitted the cheque belongs to him and signature appearing on the cheque is that of his signature and even the intimation is given by the postal authorities to the Accused regarding legal notice issued by the complainant to him but has not given any reply or complied the terms of the notice, in such circumstances, presumptions have to be 26 C.C.No.17108/2016 J drawn towards existence of legally enforceable debt as per Sec.139 of N.I.Act.
20. Therefore, for the above said reasons the arguments canvassed by the learned counsel for the defence that, the complainant has not produced the document to show that, he was having source of income or funds to lend the loan amount to the Accused as on the date of lending of the loan amount and has not collected the documents for having advancing the loan amount of Rs.1 Lakh to the Accused at the time of alleged lending of loan amount cannot be acceptable one. In this case also the learned defence counsel argued that, the complainant has to prove his claim by producing his evidence as if it is required for proving his debt before the Civil Court, same cannot be permissible in a proceedings initiated U/s.138 of N.I. Act, as held by the Hon'ble Apex court of India in the above referred decisions, therefore in view of the principles of law laid down in the above referred decisions it is presumed that, cheque in question was drawn for consideration as the Accused has admitted the cheque in question belongs to him and signature 27 C.C.No.17108/2016 J found on the cheque in question is also that of his signature.
21. The learned counsel for the defence has also argued that the complainant has admitted in his cross-examination that, he has not disclosed or declared the alleged loan amount lend to the Accused in his income tax returns, hence it goes to show that, the complainant has not lent the alleged loan amount to the Accused and also has no source of income as on the date of alleged lending of loan amount to the Accused and the complaint is liable to be dismissed. It is true that, the complainant in his cross-examination admitted that, he has not disclosed about lending of loan amount to the Accused in his I.T. Returns, but mere non declaration of the loan transaction in question in income tax returns could by itself invalidates the transaction or not is to be taken into consideration. In this regard, it is necessary here to refer the decision of our Hon'ble High court of Karnataka reported in 2019(1) Kar. L.R.185 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat in the said case the Hon'ble High Court of Karnataka 28 C.C.No.17108/2016 J held that " Negotiable Instruments Act, 1881 - Sections 138 and 139 -Endorsement 'payment stopped by drawer' - The trial court in the instant case, merely considered a suggestion made from the Accused side in the cross- examination of PW-1 that the complainant was an income tax assessee and that he has not declared the alleged loan transaction in his returns and disbelieved the case of the complainant that too, ignoring that legal presumption under section 139 of the N.I. Act, was operating in favour of the complainant- For these reasons, it has to be held that the complainant has beyond reasonable doubt proved the guilt of the Accused punishable under Section 138 of the N.I. Act. As such, the impugned judgment of acquittal passed by the trial court deserves to be set aside and respondent/Accused is liable to be convicted for the offence punishable under Section 138 of the N.I. Act. Hence in view of the principles of law laid down by the Hon'ble High court of Karnataka in the above referred decision, in the present case also the complainant admitted that, he has not declared the 29 C.C.No.17108/2016 J loan transaction in question in his I.T. Returns but as it is already held that, the complainant has discharged his primary burden by complying the mandatory provisions of Sec.138 of N.I. Act, therefore it is for the accused to rebut the presumption existing infavour of the complainant U/s.139 of Negotiable Instruments Act. Therefore, the admissions of the complainant with regard to non declaration of loan transaction in I.T. Returns for the concerned year could not by itself draw an adverse inference and to hold that, there was no existence of legally enforceable debt or the presumption as envisaged U/s.139 of N.I.Act is successfully rebutted by the accused. In another decision of Hon'ble Madhya Pradesh High Court decided in C.R.R No.5263/2018 dated: 7.3.2019 in the case of Smt. Ragini Gupta Vs. Piyush Dutt Sharma Gwalior., wherein the Hon'ble High Court held that, mere non filing of income tax return would not automatically dislodge the source of income of the complainant and non payment of income tax is a matter between the revenue and assessee and if the assessee has not disclosed his income in the income tax return, then the income 30 C.C.No.17108/2016 J tax department is well within its right to reopen the assessment of income of the assessee and to take action as per provisions of Income Tax Act, however non filing of income tax return by itself would not mean that, the complainant had no source of income and thus no adverse inference can be drawn in this regard only because of absence of income tax return. Hence in view of the principles of law laid down by Hon'ble High Court of Madya Pradesh in the above said decision in the present case also though the complainant has admitted that, he has not disclosed his income and transaction in question in his income tax return that itself would not automatically dislodge the source of income of the complainant. Therefore the admissions of the complainant which are elicited in his cross-examination are not helpful for the accused to prove his defence that, in view of non disclosure of source of income of the complainant and transaction in question in his income tax returns that itself sufficient to hold that, the complainant has no source of income cannot be acceptable one.
22. It is the specific defence of the Accused 31 C.C.No.17108/2016 J that, in the month of January 2015 he had borrowed a loan of Rs.1 Lakh from one Kiran Kumar i.e the son-in-law of the complainant at that time he had given two blank signed cheques to the said Kiran Kumar and he has repaid the entire loan amount to the Kiran Kumar but he did not return his two blank signed cheques and now the complainant herein and the said Kiran kumar have misused the said two blank signed cheques have filed this complaint and another complaint against him. In order to prove the said defence except oral denial of the Accused during the course of cross-examination of the complainant and self serving oral statement of the Accused in his evidence, nothing has been placed before the court, therefore the defence of the Accused appears to be bare denial one. It is also relevant here to mention that, though the Accused has cross examined the complainant in length but nothing has been elicited to discard or discredit his evidence to that effect. It is true that, the complainant/ PW.1 has admitted that, there is a difference in ink in respect of the signature and writings on the cheque in question but has denied the suggestion made to him that, the contents of the cheques have been filled in by him or 32 C.C.No.17108/2016 J on his behalf. Hence, on entire perusal of the cross- examination of the complainant on the contents of cheque in dispute i.e Ex.C.1 nothing has been elicited from him to believe the defence that, the complainant has filled up the contents of the Ex.C.1 i.e. cheque in question .
23. It is also relevant here to mention that, the Accused himself examined as DW.1 and in his cross- examination admitted that, the cheque in question i.e Ex.C.1 belongs to his account and signature on the cheque i.e Ex.C.1(a) is that of his signature. Hence, once signature on the Negotiable Instrument Act is admitted, in that circumstances sec. 20 of N.I. Act comes into play i.e. as per Sec. 20 of N.I.Act if the blank or incomplete Negotiable Instrument is given to the holder in due course, it is to be presumed that, he had given authority to the holder in due course to fill up the remaining portion. In this regard, it is relevant here to refer the decision of Hon'ble High Court of Karnataka reported in ILR 2006 KAR 2054 in the case of H.S.Srinivasa Vs. Girijamma and another wherein the Hon'ble High Court held that " a reading of sec.20 of the act 33 C.C.No.17108/2016 J which is extracted above reveals that, the words used are ' either wholly blank or having written therein an incomplete negotiable instrument'. The instrument may be wholly blank or incomplete in a particular in either case, the holder has authority to make or complete the instrument as a negotiable one. The authority implied by a signature to a blank instrument is so vide that, the party so signing is bound to be a holder in due course. Promissory notes are often executed in the name of the payer and left unfilled to be afterwards filled by the actual holder, the object being to enable the owner to pass it off to another without incurring the responsibility as an endorser. Thus, it is seen that, person in possession of an incomplete instrument in maternal particulars has the authority prima facie to fill it and thus the executants becomes liable to pay the amount due'. In another decision of Hon'ble High Court of Madras reported in 2005 (1) DCR 85 in the case of P.A. Thamatharan Vs. Dalmia cements (B) Ltd., wherein it is held that " Negotiable Instrument Act 1991 - Sec. 138 - dishonour of cheque - plea 34 C.C.No.17108/2016 J
-body of cheque was not written by Accused - held it is not mandatory and no law prescribes that, the body of cheque should also be written by the signatory to the cheque, a cheque could be filled up anybody and if it is signed by the account holder of the cheque'. In another decision of Hon'ble Apex court to India reported in (2002) 7 SCC in the case of P.K. Manmadhan Karthra Vs.Sanjeeva Raj., wherein it is held that " As long as signature on the cheque is admitted, whether the ink with which the other particulars are filled up is different or that the hand writing is not that of drawer does not matter. Until rebutted, the presumption that, cheque was issued for consideration exists". In another decision of Hon'ble High Court of Karnataka at Bengaluru in a case of Crl. Appeal No. 1664/2003 C/w. Crl.Appeal No.1663/2003 dated: 18.6.2008 in the case of R.Mallikarjuna Vs. H.R.Sadashivaiah wherein the Hon'ble High Court at para No.19 held that " But, the question is, whether that renders instrument unenforceable. In this regard, it must be observed that, this court similar circumstances in the case of S.R. 35 C.C.No.17108/2016 J Muralidar Vs. Ashok G.Y. reported in 3001 (4) KAR. LJ K. 122 referring to the provisions of Sections 20, 138, 139, and 140 of the Act and after interpreting alteration and filling up of the cheque observed thus " The trial court has made much about the difference in ink. Admittedly, Accused cheque is issued bearing signature of the Accused. It is the contention of the defence that, blank cheques issued for the business transactions have been illegally converted as a subject matter to this case fastening false liability........ It is not objectionable or illegal in law to receive a inchoate negotiable instrument duly signed by the maker despite the material 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 begins the maker of the negotiable instrument to the extent it purports to declare........ The fact that, a document executed is inchoate with regard to 36 C.C.No.17108/2016 J some of the material particulars would not render such contract invalid nor make the instrument illegal or inadmissible. Voluntarily, if a person were to deliver an inchoate instrument authorizing the receiver to fill up the material contents as agreed upon, the cheque does not get tainted as in admissible nor it amounts to tampering with the material particulars...... In the present case there is no categorical defence version, it is only by conjunctures and surmises, a case is made out from the difference in ink between the signature of the cheque and the other handwritten contents. Therefore in view of the principles of law of Hon'ble Apex court of India and also Hon'ble High Court of Karnataka and Madras referred above, in the present case the Accused has admitted the signature on Negotiable Instrument i.e. cheque and he also admitted issuance of the cheque to the complainant, it is prima-facie proof of authorizing the holder in due course i.e. the complainant to fill up the remaining contents of the Negotiable Instrument, therefore it cannot lie in the mouth of the Accused that, the complainant and his son=in-
37 C.C.No.17108/2016 Jlaw have misused his blank signed cheques which were allegedly collected by son-in-law of the complainant and the defence of the Accused cannot be acceptable one as the instrument i.e., cheque in question cannot be rendered unenforceable merely because the contents have been filled by different ink, as it would not render such instrument illegal or inadmissible, the complainant certainly can base action on it.
24. The learned counsel for the defence during the course of argument has argued that, the complainant during the course of cross-examination has admitted that, there is a difference in writings in the disputed cheque i.e the name, date and the amount mentioned in the words and figures and the ink used to write the name of the complainant and the ink used to write amount in the words and figure are different inks, hence it goes to show that the complainant has misused the cheque in question by mentioning his name, date and amount on the cheque, though the cheque was given in the year 2015. As it is already held in the above that, in view of the principles law laid down by the Hon'ble Apex 38 C.C.No.17108/2016 J court and also High Courts that, cheque in question cannot be rendered unenforceable merely because the contents have been filled by different ink, as it would not render such instrument illegal or inadmissible, the complainant certainly can base action on it and when the Accused has admitted issuance of cheque and signature on the cheque is that of his signature in such circumstances prima facie proof of authorizing the holder in due course to fill up the remaining contents of the Negotiable Instruments, in such circumstances the arguments canvassed by the learned counsel for the Accused cannot be acceptable one. The transaction in question took place in the year 2016 and the complainant had given his evidence in the year 2019, hence it goes to show that, there is a long gap between the period and it is also settled law that while scanning the evidence of witnesses the court has to inform itself that, variances in respect of discrepancies, contradictions etc., and court has to consider entire evidence of the witness not by taking particular word or sentence in the depositions. Even for sake of discussion if it is assumed that, Accused has given cheque in question as blank signed 39 C.C.No.17108/2016 J cheque, in such circumstances also it attracts the penal liability as contemplated U/s.138 of N.I. Act. In this regard, it is relevant here to refer decision of Hon'ble Apex Court of India reported in AIR 2019 SC 2446 in the case of Birsingh Vs. Mukesh Kumar., wherein the Hon'ble apex Court held that, "presumption U/s.139 is presumption of law, distinguished from presumption of facts and also held that, presumptions are rules of evidence and do not conflict with presumption of innocence which requires prosecution to prove case against the Accused and also held that obligation on the prosecution may discharged with the help of presumptions of law and presumption of fact unless the accused adduces evidence showing reasonable plausibility of non existence of presumed fact." In the present case though the Accused has denied the contents of the cheque in question except his signature but he did not proved his defence or produced any documents or satisfactory evidence to rebut the presumptions as available U/s.139 of the N.I.Act, under such circumstances in view of the above principles of law, it can be presumed even on fact also that the 40 C.C.No.17108/2016 J complainant has proved his case by discharging his burden and complying the mandatory provisions. In the said decision the Hon'ble Apex court has also held that, "presumption as to legally enforceable debt is rebuttable, the signed blank cheque if voluntarily presented to payee towards payment payee may fill up amount and other particulars and it in itself would not invalidate cheque and onus would still be on the accused to prove that, cheque was not issued or discharge of debt or liability by adducing evidence." In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, " Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other 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 - even a blank cheque 41 C.C.No.17108/2016 J leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. In such circumstances even if it is assumed that, Accused has not written the contents of the cheque in question in such circumstances also in view of the principles of law laid down in the above decision that itself would not invalidates the cheque in question and it can be presumed that, the said cheque has been issued towards discharge of legally recoverable debt.
25. It is also relevant here to refer the decision of Hon'ble Apex court held in (2016) 10 SCC 458 in the case of Sampelly Sathyanarayana Rao Vs. Indian Renewable Energy Development Ltd, wherein the Hon'ble Apex Court held that " (a) Negotiable Instrument Act 1881 - S.138 - If on the date of the cheque liability or debt exist or the amount has become legally recoverable- S.138 will apply - not otherwise". In another decision of Hon'ble High Court of Bombay decided in 42 C.C.No.17108/2016 J CRM-M No.2607/2018 (O & M) dated: 27.8.2019 in the case of Kailash vati Vs. M/s. Ludhiyana Beverages., wherein the Hon'ble High Court held that " A. Negotiable Instrument Act 1881 - S.138 and 6 - Dishonour of cheque- date of drawn - Determination of - The date on which the cheque is drawn has to be with reference to the date mentioned in the column in the cheque and not the date on which it is bar was signed- Date when the cheque is drawn is not defined in the act - If date of singing cheque is accepted then all post dated cheques cannot be treated as valid cheques within and drawer of cheques would stand absolved from criminal prosecution if cheques are presented after three months of the date on which signature were appended". Hence in view of the principles of law laid down by the Hon'ble Apex Court of India, it can be held that, the liability of the debt existed as on the date mentioned on the cheque not as on the date of signature on the cheque, even for sake of discussion the arguments canvassed by the learned counsel for the Accused taken into consideration but in view of the principles of law laid down by the Hon'ble Apex 43 C.C.No.17108/2016 J Court and High Court of Bombay it is to be considered that the date on which cheque is drawn has to be with reference to the date mentioned in the cheque but not the date on which it is or was signed., therefore the arguments canvassed by the learned counsel for the defence cannot be acceptable one.
26. It is also relevant here to mention that, the Accused/DW.1 in his evidence has taken specific defence that, he know the complainant and one Kiran Kumar who is son-in-law of the complainant and he has borrowed a loan of Rs.1 Lakh in the month of January 2015 from the said Kiran Kumar at that time he had given signed blank cheques to the said Kiran Kumar and thereafter 2 to 3 months he repaid the said amount of Rs.1 Lakh to the Kiran Kumar and requested to return his blank signed cheques but the said Kiran Kumar informed him to return the said cheques after securing, since they were misplaced.
27. It is a relevant here to mention that, except the oral evidence the Accused has not produced any 44 C.C.No.17108/2016 J documentary proof to show tht, he had borrowed a loan of Rs.1 Lakh from the son-in-law of the complainant i.e.,Kiran Kumar in the month of January 2015 and at that time had given two signed blank cheques to him and thereafter 2 to 3 months he has repaid the said loan amount to the Kiran Kumar. Therefore only on the basis of self serving statement it cannot be held that, the Accused had given 2 blank signed cheques in respect of the alleged loan transaction of Rs.1 Lakh with the son- in-law of the complainant in the year 2015 and even has not produced documents to show that, the said amount was repaid to him, in such circumstances, the Accused admitted issuance of cheque to the complainant and also his signature on the cheque and his defence cannot be accepted in view of the principles of law laid down by the Hon'ble High Court of Karnataka reported in 2015 (1) KCCR 235 in the case of Lale Patel Vs. Sharanabasappa., wherein the Hon'ble High Court held that " NEGOTIABLE INSTRUMENTS ACT, 1881- section 138 - Dishonour of cheque for insufficiency of funds - Plea of accused that he had given a blank cheque signed as security for a 45 C.C.No.17108/2016 J transaction and complainant filled up the contents and denied existence of any debt or loan - Conviction by Trial court - Affirmed by Appellate Court - Revision against. Hence in this case also it is the defence of the Accused that, he had given 2 signed blank cheques to the son-in- law of the complainant and same have been misused by the complainant and his son-in-law by filling the contents of the cheque and denied the existence of debt but no documents have been produced by the Accused to prove his defence, in such circumstances it is for the accused to prove his defence by producing cogent and convincible evidence, if the Accused has not proved the same in such circumstances, it cannot be held that, the cheque in question was issued for the purpose of security in connection with the transaction. In another decision reported in 2015 (4) KCCR 2881 (SC) in the case of T. Vasanthakumar Vs. Vijayakumari., wherein the Hon'ble Apex court held that " NEGOTIABLE INSTRUMENTS Act, 1881- Section s138 and 139
- acquittal - If justified- Accused not disputing issuance of cheque and his signature on it- Plea that it was issued long back as security and 46 C.C.No.17108/2016 J that loan amount was repaid- Not supported by any evidence - Fact that date was printed, would not lend any evidence to case of accused- Acquittal not proper. Hence in the present case also it is the main defence of the Accused that the cheque in dispute was given to the complainant's son-in-law at the time of alleged borrowing loan of Rs.1 Lakh in the year 2015 but in this regard the accused has not produced documents or proof in such circumstances by applying the principles of law laid down in the above decision the defence of the Accused cannot be acceptable one. In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.271/2020 in the case of APS Forex Services Pvt. Ltd., Vs. Shakthi International Fashion Linkers and others., wherein the Hon'ble Apex Court held that "the defence of the Accused that, cheques were given by way of security is not believable in the absence of further evidence to rebut the presumption. It is also held that, once the issuance of the cheque has been admitted and even the signature on the cheque has been admitted, there is always presumption infavour of the complainant that there exists 47 C.C.No.17108/2016 J legally enforceable debt or liability and thereafter it is for the Accused to rebut such presumption by leading evidence". In the present case the Accused has admitted that, the cheque was issued and signature is also admitted but it is the defence of the Accused that, it was issued towards loan amount of Rs.1 Lakh borrowed by him in the month of January 2015 from the son-in-law of the complainant and the complainant and his son-in-law have misused his cheques but no documentary proof produced by the Accused in support of his defence, in such circumstances the defence of the Accused cannot be acceptable one in the absence of further proof of evidence to rebut the presumption.
28. It is also important to note here that, the Accused in his defence has taken specific contention that, he had given two signed blank cheques to the son-in-law of the complainant at the time of borrowing loan amount of Rs.1 Lakh from him in the month of January 2015 and later after 2 to 3 months he had repaid the said amount to the son- in-law of the complainant but he did not return the cheques even inspite of demand made by him. But 48 C.C.No.17108/2016 J the Accused in his cross-examination has admitted that, intimation will be received by him through his mobile if any person presented the cheque to his bank account and also admitted that, he has not taken any action against the complainant by filing the complaint even after notice of dishonour of cheque and there was no difficulty for him to file complaitn against the complainant or his son-in-law i.e Kiran Kumar and also admitted that, he has not made any efforts to issue stop payment instructions to the bank authority and has not issued any legal notice to the complainant and his son-in-law. Hence, the admissions of the Accused makes it clear that, even after coming to know about the dishonour of the cheque , the Accused has not made any efforts to initiate legal action against the complainant or his son-in-law i.e Kiran Kumar about alleged misuse of cheque in question, in such circumstances it can be held that, if really the Accused has return the alleged loan amount of Rs.1 Lakh to the son-in-law of the complainant and requested to return his alleged blank signed cheques to him and the son-in-law of the complainant i.e Kiran Kumar has not return his blank signed cheques and misused the same by 49 C.C.No.17108/2016 J filing this complaint and also another complaint against him, in such circumstances the Accused definitely he would have taken or initiate action against the complainant either by lodging the complaint before the police or court or atleast by issuing notice to the complainant for return of his alleged signed cheque handed over to him as a security or by issuing stop payment instructions to his banker, but no such efforts have been made by the Accused even after notice of the dishonour of his cheque and intimation received about issuance of the legal notice by complainant and even after his appearance in this case, therefore mere denial of the Accused is not sufficient to hold that, he has rebutted the presumptions available to the complainant U/s.118 and 139 of the N.I. Act. It is also relevant here to mention that, the conduct of the Accused in not taking the action against the complainant for alleged misuse of cheque in question by the complainant may leads to draw an adverse inference against him that, the Accused has not initiated any action against the complainant since the cheque in question has been issued by the Accused to the complainant towards discharge of the 50 C.C.No.17108/2016 J liability in question but not for any other purpose. In this regard it is relevant here to refer the decision of Hon'ble Apex Court of India reported in AIR 2018 SC 3601 in a case of T.P.Murugan(dead) Thr. Lrs.V. Bhojan Vs. Posa Nandi, rep. Thr. Lrs. PA holder, T.P. Murugan V. Bhojan, wherein the Hon'ble apex Court held that "Negotiable Instruments Act (26 of 1881) Ss.118, 138, 139 - Dishonour of cheque - Presumption as to enforceable debt- cheques allegedly issued by accused towards repayment of debt- Defence of accused that 10 cheques issued towards repayment of loan back in 1995 - behavior of accused in allegedly issuing 10 blank cheques back in 1995 and never asking their return for 7 years, unnatural - Accused admitting his signature on cheques and pronote, presumption under S.139 would operate against him - Complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt - Conviction, Proper". Hence in view of the principles of law laid down by the Hon'ble Apex Court are aptly applicable to the case on hand since in the present case also 51 C.C.No.17108/2016 J the accused has not made any efforts to get return of cheque alleged to be given to the son-in-law of the complainant at the time of borrowing of alleged loan of Rs.1 Lakh from him, under such circumstances, the said unnatural conduct of the accused in non taking of action, an adverse inference can be drawn against the accused that, the cheque in question issued by the accused persons towards discharge of the liability and presumption U/s.139 of N.I.Act would operate against them, as he has admitted the signature and cheque in question is belongs to him.
29. It is also important to note here that, the Accused has not denied or disputed that the cheque in question as well as the signature therein do belong to him and though he has taken the specific defence that, he had given two blank signed cheques to the son-in-law of the complainant at the time of borrowing of alleged loan of Rs.1 Lakh and even after repayment of the said loan the son-in-law of the complainant did not return the cheque in question but the Accused has not proved the said defence by producing cogent and convincible evidence, in such circumstances it can be held that, the Accused has 52 C.C.No.17108/2016 J failed to explain and prove how the cheque in question has come to the possession of the complainant, this would also give rise to an adverse inference against him, this proposition of law finds support from the decisions of Hon'ble High Court of Karnataka reported in 2010(1) KCCR 176 in the case of "Siddappa Vs. Manjappa" and in the decision of Hon'ble Apex court of India decided in Crl.A.No.664 of 2012 dated: 19.9.2019 in the case of "M.Abbas Haji Vs. T.M.Chennakeshava"
held that, " the Accused has to explain how the cheque entered into the hands of complainant".
Therefore for the above said reasons the defense taken by the accused cannot be acceptable one and accused have miserably failed to rebut the presumption available in favour of the complainant by producing cogent and convincible evidence.
30. Therefore considering all these aspects of the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant and accused the complainant has successfully established beyond all reasonable doubt that, he has lent an amount of 53 C.C.No.17108/2016 J Rs.1 Lakh to the Accused and in turn the Accused has issued the Ex.C.1 cheque in question in his favour towards discharge of the said loan amount and thereafter the complainant has presented the said cheque through his banker and same was returned dishonoured with an endorsement of "Insufficient Funds" and thereafter he got issued legal notice to the accused and the said notice was deemed to have been served on him, inspite of it, the Accused did not paid the cheque amount, hence the complainant filed the present complaint against the accused. On the other hand, the accused has failed to rebut the presumption available infavour of the complainant with regard to the existence of legally recoverable debt under Ex.C.1 Cheque. Therefore accused has committed an offence punishable U/s.138 of N.I. Act, accordingly for the above said reasons this point is answered in the Affirmative.
31. Point No.2: Negotiable Instrument Act was enacted to bring credibility to the cheque and the very purpose of enactment is to promote the use of negotiable instrument, while to discourage the issuance of cheque without having sufficient funds 54 C.C.No.17108/2016 J in their accounts. Such being the case the intention of the legislature is that, complainant be suitable compensated while accused be punished for his act. Hence while awarding the compensation the said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly it will not cause injustice to the accused, accordingly the complainant is entitled for the compensation as ordered by the court and for the said reasons, it is just and proper to pass the following :-
ORDER Acting U/sec.255(2) of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.1,15,000/= (Rupees One Lakh and Fifteen Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.1,10,000/= (Rupees One Lakh and Ten 55 C.C.No.17108/2016 J Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
His Bail bond stands cancelled. . Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 3rd day of March, 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.A.Devaraj;
2. List of documents exhibited on behalf of the Complainant:-
Ex.C-1 : Original Cheque;
Ex.C-1(a) : Signature of the Accused;
Ex.C-2 : Bank Memo;
56 C.C.No.17108/2016 J
Ex.C-3 : Office copy of the Legal Notice;
Ex.C-4 : Postal Receipt;
Ex.C-5 : Complaint to the postal authority;
Ex.C-6 : Returned Legal Notice;
Ex.C-7 : Postal envelope;
Ex.C.8 : Postal receipt;
Ex.C.9 : postal Acknowledgement
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Sri. Prakash;
4. List of documents exhibited on behalf of the Accused:-
- Nil -
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.57 C.C.No.17108/2016 J
3.3.2020 Judgment pronounced in the open court vide separate order.
ORDER Acting U/sec.255(2) of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.1,15,000/= (Rupees One Lakh and Fifteen Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.1,10,000/= (Rupees One Lakh and Ten Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
His Bail bond stands cancelled.
58 C.C.No.17108/2016 J. Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
XVI ACMM, B'luru.