Bangalore District Court
M/S.Capital 4 Constructions vs Mr.H.M.Sharana Basappa S/O H.M.Maralu on 31 May, 2023
C.C.NO.6466/2018
0
KABC030177522018
Presented on : 12-03-2018
Registered on : 12-03-2018
Decided on : 31-05-2023
Duration : 5 years, 2 months, 19 days
IN THE COURT OF THE XXVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE NRUPATHUNGA ROAD,
BENGALURU CITY
Present:
Soubhagya.B.Bhusher,
BA.,LLB.,LL.M
XXVIII A.C.M.M, Bengaluru City.
DATED; THIS THE 31 st DAY OF MAY-2023
C.C.NO.6466/2018
Complainant: M/s.Capital 4 Constructions,
Partnership Firm, Office at No.102,
2nd Phase, 2nd Main, Vinayaka Layout,
Vijayanagar, Bangalore-560040.
R/by its Partner Mr.N.Suprith.
Phone No.9008033555.
(By B.M.S.P Associates & Advocates.,)
V/s
Accused: Mr.H.M.Sharana Basappa S/o H.M.Maralu
Siddappa, Age: 43 years, R/at Flat No.404,
Sri Sai Bless Apartment, 3rd Floor, 4th Main,
5th Cross, Bhoopasandra, MLA layout,
Bangalore-560094, Ph.No.9845345995.
(By Sri.Balaram.M.L.,Adv.,)
C.C.NO.6466/2018
1
:JUDGMENT:
This case arises out of the private complaint filed by the complainant against the accused under section 200 of Cr.P.C., for an offence punishable under section 138 of N.I.Act.
2. The case of the complainant's in brief is as under:
It is the case of the complainant is that the complainant is a partnership firm engaged in business of Civil constructions. The accused is a Civil Contractor engaged in business of execution of Civil Contracts. The accused was acquainted to the complainant firm through one of its partner Mr.Surendra. The accused made a representation to the complainant to invest in his project, which is worth of Rs.1,36,36,000/- obtained from Reliance Company, for construction of trembling and ducting laying OFC cables from Hollakere to Mayakonda and requested the complainant to invest a sum of Rs.30,00,000/- and assured the complainant that the said amount will return with assured return of investment of Rs.9,00,000/- within a period of 6 months from the date of investment. It is further stated that the complainant believing the representation of the accused on his personal acquaintance with one of the partner Mr.Surendra for over a period of 2 decades, agreed to invest a sum of Rs.30,00,000/-. Since the complainant firm was a startup and current account C.C.NO.6466/2018 2 operations were not yet started, Mr.Suprith.N, a partner of the complainant firm paid a sum of Rs.30,00,000/- toward investment in the project for a sum of Rs.16,00,000/- by way of RTGS on various dates and for a sum of Rs.14,00,000/- by way of cash on 22.12.2016.
3. It is further stated that the accused issued a letter of acknowledgement dated: 22.12.2016, with an assurance that the accused will return the entire investment alongwith return on investment total amounting to Rs.39,00,000/- to the complainant within 6 months. It is further case of the complainant is that the accused having utilized the investment of Rs.30,00,000/- in his project and in terms of the mutual understanding had issued a cheque bearing No.000181 dated: 31.07.2017 for a sum of Rs.22,00,000/- drawn on the HDFC Bank, Prashanth Nagar Branch, Bengaluru, in favour of the complainant with assurances that the cheque will be honored on presentation and requested the complainant to present the cheque in the month of October 2017. Further assured that balance amount of Rs.17,00,000/- will be paid during this period directly to the account of N.Suprith. Accordingly, Mr.N.Suprith received a sum of Rs.17,00,000/- from the accused i.e., a sum of Rs.14,00,000/- through RTGS on various dates and a sum of Rs.3,00,000/- by way of cash. It is further stated C.C.NO.6466/2018 3 that the complainant informed the accused that the cheque will be presented for encashment during first week of October 2017, the accused requested the complainant to present the said cheque during last week of October 2017, since the accused was awaiting for clearing of his bills.
4. It is further stated that, the complainant as per representation and assurance of the accused was presented the said cheque on 29.10.2017 through its banker M/s. HDFC Bank, Richmond road branch, Bangalore for encashment. On 30.10.2017 the said cheque was dishonored with an endorsement "Insufficient Funds" in the account of the accused. Further the accused on receipt of the intimation of the dishonoring of the cheque requested the complainant that he will make the payment on or before 15th November 2017, despite repeated requests of the complainant, the accused started avoiding the complainant and his failure to make the payment. Hence, the complainant issued a legal notice on 23.11.2017 through its counsel through the RPAD calling upon the accused to pay the cheque amounts and same is acknowledged by the accused. On 07.12.2017 the accused has caused untenable reply denying his liability to pay the cheque amount. But accused has failed to repay the cheque amount to the complainant. As such, the accused has committed an C.C.NO.6466/2018 4 offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court on 03.01.2018.
5. After the complaint was filed, the cognizance of the offence cited therein was taken. Sworn statement of the complainant was recorded. Since there were sufficient materials to proceed against the accused, an order was passed on 03.02.2018 to register the case in Register No.III and it was registered as C.C.No.6466/2018.
6. Thereafter, summons was issued to the accused and he has appeared before the court through counsel and secured bail. He was furnished its necessary papers as complied under section 208 of Cr.P.C,. Thereafter, the plea of the accused was recorded by the court. He has pleaded not guilty and claimed to be tried.
7. The complainant's in support of its case, have examined its Partner as PW.1 and got marked total 9 documents at Ex.P.1 to 9 and closed its side.
8. After closer of the evidence of the complainant, the statement under section 313 of Cr.P.C, was recorded. He has denied the incriminating evidence appearing against him. In his defence, the accused has examined as DW.1 and got marked total 8 documents at Ex.D.11 to 18. 10 documents were marked during C.C.NO.6466/2018 5 the course of cross examination of PW.1 at Ex.D.1 to 10 by way of confrontation.
9. I have heard the arguments on both the sides and perused the written arguments filed by the leaned counsel for the complainant as well as the learned counsel for the accused and also perused the material placed on record.
10. Upon hearing the arguments and on perusal of the material placed on record, the following points arise for my consideration:
1.Whether the complainant proves the existence of legally enforceable debt/ liability.?
2. Whether the complainant further proves that the accused had issued the cheque-Ex.P.2, towards the discharge of the legally enforceable debt/liability.?
3.Whether the complainant further proves that cheque-Ex.P.2 was dishonored for the reason "Insufficient Funds" in the account of the accused and thereafter the accused had failed to repay the same within the statutory period, inspite of receipt of legal notice.?
4. Whether the accused have thus committed an offence punishable under section 138 of N.I.Act.?
C.C.NO.6466/2018 6
5. What order or sentence?
11. My answers to the above points are as under:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: In the Affirmative Point No.4: In the Affirmative Point No.5: As per final order, for the following:
:REASONS:
12. POINT NO.1 AND 2: These points are inter- related to each other and finding given on any one point will bearing on the another. Hence, in order to avoid repetition of facts and evidence, I have taken both points together for common discussion. The case of the complainant is that he was acquainted with the accused. Further the complainant is a partnership firm engaged in business of Civil Constructions. The accused is a Civil Contractor engaged in business of execution of civil contracts. The accused was acquainted to the complainant firm through one of its partner Mr.Surendra. The accused made a representation to the complainant to invest in his project, which is a worth of Rs.1,36,36,000/- obtained from Reliance Company, for construction of trembling and ducting laying OFC cables from Hollakere to Mayakonda and requested the complainant to invest a sum of Rs.30,00,000/- and assured the complainant that the said amount will return with assured return of C.C.NO.6466/2018 7 investment of Rs.9,00,000/- within a period of 6 months from the date of investment. Further the complainant believing the representation of the accused on his personal acquaintance with one of the partner Mr.Surendra for over a period of 2 decades, agreed to invest a sum of Rs.30,00,000/-. Since the complainant firm was a startup and current account operations were not yet started, Mr.Suprith.N, partner of the complainant firm paid a sum of Rs.30,00,000/-. The said Mr.Suprith.N paid a sum of Rs.16,00,000/- by way of RTGS on various dates and a sum of Rs.14,00,000/- by way of cash on 22.12.2016.
13.Further the accused on 22.12.2016 issued a letter of acknowledgement, with assurance that the accused will return the entire investment alongwith return on investment total amounting to Rs.39,00,000/- to the complainant within 6 months. Further the accused having utilized the investment of Rs.30,00,000/- in his project and in terms of the mutual understanding he had issued a cheque bearing No.000181 on 31.07.2017 for a sum of Rs.22,00,000/- drawn on the HDFC Bank, Prashanth Nagar branch, Bengaluru, in favour of the complainant with assurances that the cheque will be honored on presentation and requested the complainant to present the cheque in the month of October 2017. Further assured that balance amount of Rs.17,00,000/- will be C.C.NO.6466/2018 8 paid during this period directly to the account of N.Suprith. Accordingly Mr.N.Suprith received a sum of Rs.17,00,000/- from the accused i.e., a sum of Rs.14,00,000/- through RTGS on various dates and a sum of Rs.3,00,000/- by way of cash. Further the complainant informed the accused that the cheque will be presented for encashment during first week of October 2017, the accused requested the complainant to present the said cheque during last week of October 2017, since the accused was awaiting for clearing of his bills.
14. The complainant as per the accused representation and assurance presented the said cheque on 29.10.2017 through its banker M/s.HDFC Bank, Richmond road branch, Bangalore for encashment. On 30.10.2017 the said cheque was dishonored with an endorsement "Insufficient Funds" in the account of the accused. Further the accused on receipt of the intimation of the dishonoring of the cheque requested the complainant that he will make the payment on or before 15th November 2017, despite repeated requests the accused started avoiding the complainant and his failure to make the payment. Hence, the complainant got issued a legal notice on 23.11.2017 through its counsel through the RPAD calling upon the accused to pay the cheque amounts and same is acknowledged by the accused. On C.C.NO.6466/2018 9 07.12.2017 the accused has caused untenable reply denying his liability to pay the cheque amount. But accused has failed to repay the cheque amount to the complainant. As such, the accused has committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court.
15. In support of the case, the complainant's have examined its Partner as P.W.1 and 9 documents were marked at Ex.P.1 to 9. In the chief examination P.W.1 has repeated the contents taken by the complainant in the complaint. Ex.P.1 is the Partnership deed in respect of the complainant company. Ex.P.2 is the cheque issued by the accused in favour of the complainant on 31.07.2017 for a sum of Rs.22,00,000/-. Ex.P2(a) is the signature of the accused. Ex.P.3 is the HDFC bank memo dated 30.10.2017 informing of the dishonor of the cheque for the reasons Insufficient Funds in the account of the accused. Ex.P.4 is the office copy of legal notice dated 23.11.2017. Ex.P.4(a) is the postal receipt. Ex.P.5 is the Postal acknowledgment. Ex.P.6 is the letter written by the accused to the complainant on 22.12.2016. Ex.P.6(a) is the signature of the accused. Ex.P.7 is the reply notice dated 07.12.2017. Ex.P.8 is the composition tax registration in respect of Form VAT-
8. Ex.P.9 is the complaint filed under section 200 of Cr.P.C.
C.C.NO.6466/2018 10
16. The accused in order to prove his defence has examined himself as DW.1 and 8 document were marked at Ex.D.11 to 18. During the cross examination of PW.1 Ex.D.1 to 10 got marked by way of confrontation.
17. DW.1 in his evidence deposed that "ನನನ ದ 2007 ರಎದ ನನನ ಹಚ.ಎ.ಎಲ ಸವಲ ಎಎಜನಯರ ಆಗದನ ಸಎಸಸಯ ಸವಲ ಕಎಟಟಕಕರ ಕಲಸಗಳನನ ನ ನನನ ಪಟಪಟಪಟರರರಪ ಸಎಸಸಯದ ಹಚ.ಎಎ.ಶರಣಬಸಪಪ ಮನಖಎತರ ಕಲಸ ಮಡನತತದನನ. ನನನ ಮತನತ ಮಧನಮತ ಕನನಕಟಕನನ ಪಟಪಟಪಟರ ಹರರಶ ಪಲನದರಕಯಲ ಸವಲ ಕಎಟಟಕ ಕ ಕಲಸವನನ ನ 2015 ರಎದ ನ ವ ಸಎಸಸಯ ಮಡನತತದವ. ಪಯರದ ಕಕಪಟಲ 4 ಕನನಕಟಕನ ಎನನ ಪಲನದರನದ ಸನರರಎದಟ ಎನನ ನ ವ ನನನ ಕಲರಜನ ಗಳಯ ತನನ ಸಎಸಸಗ ಕಎಟಟಕ ಕ ಕಕಡಸನವಎತ ನನನನನ ನ ಕರಳಕಕಎಡದದರನ. ಸದರ ಸನರರಎದಟ ಹಪದರಬದನಲ ಒಎದನ ಸಎಸಸಯಲ ಜನರಲಮಕನರಜರ ಆಗ ಕಲಸ ಮಡನತತದದ ನ, ಇ-ಮರಲ ಮನಖಎತರ ಕಲಸಗಳ ನ ನನಗ ಕಳನಹಸಕಕಡನತತದದರನ.
ಕಕರಟಗಳನನ
18. ನಮಮ ಸಎಸಸ ಶರಣಬಸಪಪ ಮತನತ ಮಧನಮತ ಕನನಕಟಕನನ ಇಬಬರನ ಸರರಕಕಎಡನ ಕಕಪಟಲ 4 ಕನನಕಟಕನ ಜಕತಗ ಸದರ ದ ಅದರಎತ ನಮಗ ನಲನ ಕಕರಟಗಳಗ ಟಎಡರ ಅಜರ ಹಕದನ ಲ ಕ ಕಲಸಗಳನ ದಕರತವ. ಹಚ.ಎ.ಎಲ ಏರ ಕಟಫಕ ಸವಲ ಕಎಟಟಕ ಡವಷನ ಮತನತ ಎಎ.ಆರ.ಓ ಡವಷನಗಳಲ ಸವಲ ಬಲಲಎಗ ಕಲಸಗಳನ ಸಕಲದದವ. ನನನ ಮತನತ ಮಧನಮತ ಕನನಕಟಕನರವರನ ಪಯರದ ಸಎಸಸ ಸರರಕಕಎಡನ ಹಚ.ಎ.ಎಲ ಏರ ಕಟಫಕ ಡವಷನ ನಲ ಶರ.50 ನಮಮ ಪಲನ ಮತನತ ಶರ.50 ಕಕಪಟಲ4 ಕನನಕಟಕನಪ ಟಕರ ಕಲಸ ಪಟರಎಭಸದವ. ಹಚ.ಎ.ಎಲ ಸಎಸಸ ಕಲಸದ ಸಲನವಗ ತಮಮ C.C.NO.6466/2018 11 ಸಎಸಸಯ ಆವರಣದಲ ಒಎದನ ತತಲಲಕ ಶಡನನ ನ ನಮರಸಕಕಳಳಲನ ದ ಅನನಮತ ನರಡದನ ಅದರಎತ ನವ ಒಎದನ ತತಲಲಕ ಶಡನನ ನ ನಮರಣ ಮಡ ಕಚರರಯನನಗ ಉಪಯಗಸನತತದವ. ಪಯರದ ಸಎಸಸಯ ಮತಕತಬಬ ಪಲನದರ ಸನಪಟತ ಎನನ ನ ವವರನ ಇ-ಮರಲ ಮನಖಎತರ ನನನ ಇ-ಮರಲ ವಳಸಕಲ ಕಕರಟಗಳನನ ದ ನ ಕಳನಹಸದನ ಅವಗಳನನ ದ ಅವ ನನಗ ದಕರಕಲಲಲ.
ನ ಪಡಯಲನ ನನನ ಪ ಟಯತನಸದನ ಈ ಸಮಯದಲ ನನನ ಸಎಸಸ ಹಚ.ಎಎ.ಶರಣಬಸಪಪ ಎಎಬ ಹಸರಗ ರಲಲಯನನ ಸಎ ಸಎಸಸಯಎದ ರಮಗರಯಎದ ಮಯಕಕಎಡವರಗ ಕರಬಲ ಅಳವಡಸನವ ಗನತತಗ ಸಕಲತನತ. ನನನ ಸದರ ಗನತತಗಯ ನ ನನನ ಸಎಸಸ ಹಚ.ಎಎ.ಶರಣಬಸಪಪದಎದ ಪಟರಎಭಸದ. ಸದರ ಕಲಸವನನ ಕ ತನಎಬ ದಕಡಲದಗದದರಎದ ಸದರ ಪಟಜಕ ಪಟಜಕ ಕ ನ ಕಲಸಗಳನನ ನ ಪಯರದ ಸಎಸಸಯವರಗ ಮಡಲನ ಅನನಮತ ನರಡದ. ಅವರನ ಆ ಕಲಸದ ಲಭಎಶದಲ ಪಲನದರಕಯಲ ರಕ.16 ಲಕ ಹಣವನನ ನ ಹಕಡಕ ಮಡದರನ. ಸದರ ವಷಯಕಲ ಸಎಬಎಧಸದಎತ ನನನ ಸಎಸಸ ಹಚ.ಎಎ.ಶರಣಬಸಪಪ ವತಯಎದ ದ.15.12.2016 ರಎದನ ಒಎದನ ಎಎ.ಓ.ಯನವನನ ನ ಇ-ಮರಲ ಮಕಲಕ ಪಯರದ ಸಎಸಸಗ ಕಳನಹಸಕಕಟಕದ. ಆ ಸಮಯದಲ ಆರ.ಟ.ಜ.ಎಸ ಮಕಲಕ ಪಯರದ ಸಎಸಸಯ ಪಲನದರನದ ಸನಪಟತ ದ.15.12.2016 ರಎದನ ರಕ.5,00,000/-, ದ.20.12.2016 ರಎದನ ಆರ.ಟ.ಜ.ಎಸ ಮಕಲಕ ರಕ.5,00,000/-, ದ.29.12.2016 ರಎದನ ರಕ.2,00,000/-, ದ.03.01.2017 ರಎದನ ರಕ.2,00,000/-, ಕ 16 ಲಕ ಹಣವನನ ದ.06.01.2017 ರಎದನ ರಕ.2,00,000/- ಒಟನ ನ ನನನ ಸಎಸಸಗ ಪವತ ಮಡದರ.
19.ದ.15.12.2016 ರಎದನ ನನನ ಕಕಪಟಲ 4 ಕನನಕಟಕನ ಕ ಸಎಸಸಗ ಸಎಬಎಧಸದಎತ 21 ಲಕ ಮತತಕಲ ಸಎಸಸಗ ರಲಲಯನನ ಪಟಜಕ 15.04.2017 ತರರಖನನ ನ ನಮಕದಸ ಚಕನನ ನ ಕಕಟಕದ. ನನನಎದ ವಕರ ಆಡರ ಹಚ.ಎ.ಎಲ ಸಎಸಸಯಲ ಮಸನಪನ ಫಲರರ ಕಲಸಕಲ C.C.NO.6466/2018 12 ದ ಅದಕಲ ಸಎಬಎಧಸದಎತ ಕಕಪಟಲ 4 ಕನನಕಟಕನ ಸಎಬಎಧಸದಎತ ಆಗದನ ಸಎಸಸಯವರನ ರಕ.2,00,450/- ಹಣವನನ ನ ಡಡ ಮನಖಎತರ ನನನ ಪರವಗ ಹಚ.ಎ.ಎಲಸಎಸಸಗ ನರಡದದರನ. ಸದರ ಕಲಸವನನ ನ ಪಟರಎಭ ಮಡನವ ಮನಎಚ ಹಚ.ಎ.ಎಲ ಸಎಸಸಗ ನನನ ಹಸರನಲ ನ ನರಡಬರಕಗನತತದ, ಅದರಎತ ನನನ ನನನ ಸಎಸಸಯ ದಖಲಗಳನನ ನನನ ಸಹಯನಳಳ ಖಲ ಲಟರ ಹಡಗಳನನ ನ ಪಯರದ ಸಎಸಸಗ ಕಕಟಕದ. ನನನ ಪಯರದಗ ನರಡದದ 21 ಲಕದ ಚಕಲನ ದನಎಕ ಸಮರಪಸನತತದದ ನ ನನನ ಕಪಗಕಎಡದದ ರಲಪಯನನ ಪಟಜಕ ಕ ನ ಕಲಸ ಪಣರಗಕಳಳದಕಲ ಕರಣ ತಳಸಲನ ದ.04.04.2017 ರಎದನ ಪಯರದ ಸಎಸಸಯ ಪಲನದರನ ಸನಪಟತಮತನತ ಕತರಕರವರನನ ನ ಕರದನಕಕಎಡನ ಹಕರಗ ಸಸಳ ಪರರರಲನ ಮಡಸದ. ಕಲಸದಲ ನಧನವಗಲನ ಕರಣಗಳನನ ನ ಅವರಗ ವವರಸದ. ಸದರ ಕಲಸ ಚಕ ನಲ ನಮಕದಸದ ದನಎಕಕಲಎತ ಮನಎದಕಲ ಹಕರಗನತತದದ ಕರಣ ಪಯರದ ಸಎಸಸಯವರನ ನನನಎದ ಹಕಸ ಚಕಲನನ ನ ನರಡಬರಕನ ಎಎದನ ನನನನನ ನ ಕರಳಕಕಎಡರನ. ನಎತರ ನನನ ಈ ಹಎದ ದ.15.04.2017 ಕಲ ನ ಮರಳ ಪಡದನಕಕಎಡನ ಸದರ ಚಕನಲ ಕಣಸದ 21 ನರಡದ ಚಕಲನನ ಕ 22 ಲಕ ಮಮತತಕಲ ನನನ ಲಕ ಮತತಕಲ ರಕ.1,00,000/- ಸರರಸ ಒಟನ ಖತಯ ನನನ ಸಹಯನಳಳ ಹಚ.ಡ.ಎಫ.ಸ ಬಕಎಕನ ಚಕಲನನ ನ 31.07.2017 ತರರಖನ ನಮಕದಸ ಪಯರದ ಸಎಸದಗ ನರಡದನನ.
20. ದ.29.07.2017 ರಎದನ ನನನ ಪಯರದಗ 5 ಲಕ ನ ವರರವಣ ಮಡದ. ಪನನ ದ.10.08.2017 ರಎದನ 5 ಲಕ ಹಣವನನ ಹಣವನನ ನ ಆನಲಪನ ಮಕಲಕ ಪಯರದ ಖತಗ ವರರಯಸದ.
ದ.17.08.2017 ರಎದನ ರಕ.2,50,000/- ನಗದನ ಹಣವನನ ನ ಪಯರದಗ ನರಡದ. ದ.19.08.2017 ರಎದನ ನಗದನ ಹಣವನನ ನ ಪಯರದಗ ನರಡದ. ದ.31.08.2017 ರಎದನ ರಕ.2,00,000/- ಹಣವನನ ನ ಮತನತ ದ.10.09.2017 ರಎದನ ರಕ.2,00,000/- ಹಣವನನ ನ ಆನಲಪನ ಮನಖಎತರ ನನನ ಖತಯಎದ ಪಯರದ C.C.NO.6466/2018 13 ಖತಗ ವರರಯಸದನ. ಒಟನ ಕ ರಕ.17 ಲಕ ಹಣವನನ ನ ಪಯರದಗ ಆನಲಪನ ಮತನತ ನಗದನ ರಕಪದಲ ಪವತಸರನತತರನ. ಈ ಮಧಕ ಅವರಗ ನರಡದದ ರಕ.22 ಲಕ ಮತತದ ಚಕಲನನ ನ ಪಯರದಯಎದ ಮರಳ ಪಡದನಕಕಎಡಲಲ. ನನನ ಪಯರದಗ ಕರವಲ ರಕ.5 ಲಕ ದ , ಸದರ ಮತತವನನ ಹಣ ಪವತಸಲನ ಬಕ ಇದನ ನ ನನನ ಹಸರಗ ಬಲ ಪವತಯದ ನಎತರ ಕಕಡನತತರನಎದನ ಭರವಸ ನರಡದನನ.
ಪಯರದ ನನನ ಗಮನಕಲ ತರದರ ನನನ ಈ ಹಎದ ಕಕಟಕದದ ರಕ.22 ಲಕ ಮತತದ ಚಕಲನನ ನ ಬಕಎಕಗ ನಗದರಕರಣಕಲ ಸಲಸ ಅದನ ಅಮನಕಗಕಡರನತತದ. ನನನ ಕಲಸದ ಪರವನಗ ಪಡಯಲನ ಕಕಟಕದದ ನನನ ಸಹಯನಳಳ ಖಲ ಲಟರ ಹಡಗಳನನ ನ ದನರನಪಯಗ ಮಡಕಕಎಡರನತತರ. ಸದರ ಲಟರ ಹಡನಲ ಬರಯಲದ ವಷಯಗಳನ ನನನ ಬರದನಕಕಟಕದದಲಲ ಮತನತ ಸದರ ವಷಯಗಳನ ಸನಳಳನಎದ ಕಕಡರನತತದ. ನನನ ಪಯರದಯಎದ ರಕ.14 ಲಕ ಹಣವನನ ತ ಪಡದಲಲ, ಕರವಲ ರಕ.16 ಲಕ ಹಣವನನ ನ ಯವತಕ ನ ಮತ ತ ಪಡದನಕಕಎಡದ. ಪಯರದ ನನನ ನರಡದದ ಚಕ ಮತನತ ನನನ ಸಎಸಸಯ ಲಟರ ಹಡಗಳನನ ನ ದನರನಪಯಗ ಮಡಕಕಎಡನ ನನನ ವರನದದ ಸನಳನ ದ , ದಕರನನ ಳ ದಕರನ ದಖಲಸದನ ನ ವಜ ಮಡ ನನನನನ ನ ಬಡನಗಡ ಮಡಬರಕಎದನ ಕಕರಕಕಳನ ಳ ತತರನ.
21. D.W.1 in his evidence marked the documents at Ex.D.11 to 18. Ex.D1 is the e-mail & attachment. Ex.D.2 is the text message. Ex.D.3 is the WhatsApp copy of the cheque. Ex.D.4 is the WhatsApp message. Ex.D.5 is the copy of the notice. Ex.D.6 is the final bill payment settlement letter. Ex.D.7 and 8 are the printout photos. Ex.D.9 is the HDFC bank computerized copy of the statement of account. Ex.D.10 is the SBI bank computerized copy of the statement of account.
C.C.NO.6466/2018 14 Ex.D.11 is the HDFC Bank account statement. Ex.D.12 is the Canara Bank OD account statement. Ex.D.13 is the SBI Bank current account statement. Ex.D.14 is the Canara Bank current account statement. Ex.D15 is the Bank of India current account statement. Ex.D.16 is the ICICI Bank saving account statement. Ex.D.17 is the Axis bank saving account statement. Ex.D.18 is the certificate under section 65(b) of the Indian Evidence Act.
22. The accused has taken the defence that the complainant company had taken the signed cheque for the purpose of security and trust. Further the complainant have misused the said security/trust cheque and filed this false complaint against the accused. The accused in his defence has not disputed Ex.P.2-cheque has been issued by him. He also does not dispute his signature appearing on the said cheque. But, he has taken up the contention that he had issued the cheque in favour of the complainant for the purpose of security/trust. But the complainant misused the said cheque. Further he contended that he has never admitted regarding repayment of the amount as contended by the complainant. Further defence of the accused is that complainant in his complaint has stated that he has paid a sum of Rs.14,00,000/- by way of cash on 22.12.2016. As on the alleged cash transaction withdrawal legal tender character of existing Rs.500/-
C.C.NO.6466/2018 15 and Rs.1000/- bank notes (Demonetization) was in force. Therefore the allegations made in the complaint is false. Further the complainant has filed false case against the accused.
23. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of legally enforceable debt/liability, for which the cheque came to be issued. The learned counsel for the complainant has argued that from the evidence placed on record, the fact that the accused in order to repayment of debt/liability had issued the cheque in favour of the complainant. Further argued that after the repeated request made by the complainant, the accused has not paid any amount to the complainant. He further argued that the accused has not denied the cheque-Ex.P.2 being drawn on his account. When the signature is not disputed, the presumption under section 139 N.I.Act is to be drawn in favour of the complainant. The accused has failed to elicit anything in the cross examination of P.W.1 to disbelieve the said evidence. The defence has failed to rebut the presumption under section 139 N.I.Act. The counsel for the complainant further argued that the accused has failed to produce any believable evidence that the accused had issued the cheque in favour of the complainant for the purpose of security/trust and also the defence how the cheque was got the complainant C.C.NO.6466/2018 16 and why he has not returned back the same is not clear. He further argued that under section 139 of N.I.Act, there is a presumption that the cheque has been issued for discharge of legally enforceable debt/liability. In the present case, the accused has not disputed the Ex.P.2 being his cheque drawn on his account. The said presumption is available to the complainant. Further he has argued that the accused has failed to prove the very fact that Ex.P.2-cheque was given to the complainant for the purpose of security/trust. Moreover, under section 118 of N.I.Act, there is a presumption that the Negotiable Instrument is drawn on the date, for the amount and in favour of the person as shown in it. It is for the accused to rebut the said presumption. But in the case on hand no such evidence forthcoming. It was also argued by him that as per the defence by the accused that he had given the cheque to the complainant for the purpose of security/trust. As such, very defence of the accused is not believable.
24. The learned counsel for the complainant further argued that the accused has not produced any believable evidence to prove his defence. Upon careful perusal of the entire evidence of records both the oral as well as documentary evidence the complainant have proved their case. The accused has admitted that he approached the complainant company to invest in his C.C.NO.6466/2018 17 project, which is worth of Rs.1,36,36,000/- obtained from the reliance company for construction of trembling and ducting laying OFC cables from Hollakere to Mayakonda and requested the complainant to invest a sum of Rs.30,00,000/- and assured the complainant that the said amount will be returned with assured return of investment of Rs.9,00,000/- within a period of six month from the date of investment. The accused has issued a letter of acknowledgment dated:
22.12.2016, with assurance that the accused will return the entire investment along with return on investment total amounting to Rs.39,00,000/- to the complainant within six months. The accused will paid amount of Rs.17,00,000/- to the account of N.Suprith through R.T.G.S and the accused in order to pay remaining amount of Rs.22,00,000/- he had issued the cheque in question on 31.07.2017 in favour of the complainant.
When the complainant was presented the said cheque for encashment same was returned with a shara funds insufficient. Thereafter, the complainant got issued a legal notice to the accused. Inspite of service of notice, the accused not paid the cheque amount. Hence, the complainant has filed this case before this court.
25. It is further argued that the burden of proving that the cheque has not been issued for debt or a liability is on the accused. As per section 139 of N.I.Act, the court has to presume, unless the contrary was C.C.NO.6466/2018 18 proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or a liability. Therefore, in compliance under section 138 the court has to presume that the cheque had been issued for a debt or liability. The said presumption is rebuttable and the burden of proving that the cheque had not been issued for a debt or liability is on the accused. It was further argued that the learned counsel appearing for the accused seriously disputed that the complainant received the cheque for the purpose of security/trust and company has misused the cheque. However, the accused has miserable failed to prove the said fact. It is specific case of the accused that the complainant has only invested for a sum of Rs.16,00,000/- to the project. In this amount the accused has already paid for a sum of Rs.17,00,000/- by way of cash and online. He is only due of Rs.5,00,000/-, the complainant have misused the cheque given by him. Further the materials available on record clearly established that the accused admitted transactions, he also admit the issuance of the cheque to the complainant. The initial burden is the complainant to prove that the cheque was issued in favour of the complainant towards payment of due amount, then onus shifts upon the accused to prove his defence and it is for the accused to rebut the legal presumption enumerated under section 138 of Negotiable Instrument Act. As per presumption the C.C.NO.6466/2018 19 cheque was issued for discharge of legal liability and it is for the accused to rebut the said presumption by adducing the cogent and convincing evidence.
26. It was further argued that under facts and circumstances the complainant have proved that in order to repayment of due amount the accused has issued the cheque in question. Though the accused has contended that he has paid a sum of Rs.17,00,000/- to the complainant and he is only due of Rs.5,00,000/-, if the payment made by the accused is genuine, the accused has not produced any piece of papers to prove the same except Ex.D.1 to 17. On the contrary, the accused utterly failed to prove his probable defence that he paid the amount of Rs.17,00,000/- and issued the Ex.P.2-cheque as security/trust. It is pertinent to note that the accused has admitted the transactions and the accused has issued the cheque produced at Ex.P.2 and the said cheque was issued for discharge of legally recoverable debt and the accused has not produced any evidence to prove his probable defence. Under these circumstances the complainant have established their case in compliance of 138 of the N.I.Act.
27. The learned counsel for the complainant has filed written argument, in his written argument also he has stated above said facts. It is further stated that it is C.C.NO.6466/2018 20 pertinent to note that Ex.P.10 and 11 are the complaint dated: 01.06.2018 in NCR No.457/2018. This complaint is lodged by the accused against the complainant and its partners. On perusal of the said complaint, it is clearly discloses that the complainant and the accused were in business relationship as late as 01.06.2018. When this complaint was lodged before HAL police station the accused has not referred to misuse of any of the letter heads, cheques or any other office belongings of the accused. This shows that the accused is well aware that Ex.P.6 that is the letter of acknowledgement was executed by him and only to over come the said liability, the accused has denied as well as taken frivolous defence that the cheque was deliver in trust and he could not collect the same. If the version of the accused ought to be true definitely he would have stated in the said complaint with reference to the said misuse in the cheque as well as other reference to the cheque. As per the date of complaint the accused has already served with summons pleaded not guilty has fully knowledge of the documents furnished by the complainant before this court as such the defence of the accused raised in legal notice as well as in his evidence does not hold any water.
28. It is further stated that during the course of their oral arguments the accused has raised a question that the complainant firm is an unregistered firm.
C.C.NO.6466/2018 21 Therefore, the complaint is not maintainable. The complainant firm is a registered firm and it is true that the complainant has not produced the registration certificate. However, the firm is a registered firm and the complainant has produced Ex.P.8 and 9 which discloses that the complainant firm is a registered firm and is been registered by the tax registration as well as by the Karnataka Tax on Professions, Trades, Callings and Employments Act, 1976. This shows that it is a registered partnership firm. However, if the firm is not registered then also the complaint is maintainable as per the ruling of the Hon'ble Apex Court in BSI Limited V/s. Gift holdings Pvt.,Ltd., (2002) 2 SCC 737; It was held in para 20 of the judgment that the criminal prosecution is neither for recovery of money nor any enforcement of any security etc., section 138 of the N.I.Act is a penal provision, the Commission of which offence entails a conviction and sentence on proof of guilt in duly conducted criminal proceedings. Ones, the offence under section 138 of N.I.Act is completed, the prosecution proceedings can be initiated not for recovery of amount covered by the cheque but for brining the offender to penal liability. Thus, the prosecution for the offence punishable under section 138 of the N.I.Act not being any proceeding, much less a suit, to enforce a right arising from a contract, but it being proving of an offence alleged to have been C.C.NO.6466/2018 22 committed by drawer of a cheque in favour of the complainant and also as observed by the trial court, since the said issuance of a cheque towards legally enforceable debt by the accused in favour of the complainant since proved, the complainant merely because. Being an unregistered firm is not precluded from initiating the complaint under section 200 of the Cr.P.C against the accused for the offence punishable under section 138 of the N.I.Act". Further this law has been retreated by the Hon'ble High Court of Karnataka in Crl.A.No.464 of 2018 reported in (2019) SCC online Karnataka 3625 at para no.16 & 17.
29. It is further stated that the accused argued and pressed that the transaction is based on contract and since the contract itself is a void contract the complaint is liable to be dismissed. This defence is argued by the accused in 2 layers. Firstly: The payment of Rs.14,00,000/- paid to the accused by way of cash on 22.12.2016 is not a legal tender money, since the demonetization notification bearing No.2652 dated:
08.11.2016 legal tender status of Rs.500/- and Rs.1,000/- denomination of bank notes issued by RBI were demonetized starting from 10.11.2016 as such these currency of Rs.1,000/- denomination admittedly, paid by the complainant to the accused on 22.12.2016 is not legal tender money. The scheme has also specified that the currency of Rs.500/- and Rs.1,000/-
C.C.NO.6466/2018 23 or in circulation till the end of 31.03.2017. Therefore, the accused cannot raise this contention that the cash received on 22.12.2016 is an illegal transaction/invalid currency. Since, on receipt of the said amount of Rs.14,00,000/- in cash the accused has issued a acknowledgement to discharge total liability of Rs.39,00,000/- including investment of Rs.30,00,000/- and return of Rs.9,00,000/-. Secondly, the accused has confronted Ex.D.1 to the complainant in cross examination which is the memorandum of understanding which is been sent through email to the complainant. This MOU in neither signed by any of the parties and as per the accused own case, on 15.12.2016 the accused has not received any amount alleged sum of Rs.16,00,000/- which is been acknowledged by the accused. Therefore, no reliance can be placed on this MOU at Ex.D.1 to state that in terms of Ex.D.1 investment of Rs.16,00,000/- was agreed to be paid and same will be return within a period of 4 months with an investment return of Rs.5,00,000/- by 15.04.2017. The entire case of the complainant and the accused does not disclose any of such terms which has been agreed upon and parties having not signed the agreement there is no legal sanctity to the said document. Therefore, no such reliance can be inferred on Ex.D.1 that the contract itself is voidable contract since the money is involved or C.C.NO.6466/2018 24 tendered legally. If this Ex.D.1 is to be looked into on behalf of the accused then the accused is admitting the receipt of Rs.14,00,000/- in cash from the complainant. Therefore the accused cannot blow hot and cold at the same time to is convenience get away from the legal enforceable debt. The learned counsel for the complainant relied the judgments reported in (2015) 8 SCC 378 in T.Vasanthkumar V/s. Vijayakumar, the Hon'ble Apex Court held that;
"8.The presumption mandated by sec.139 includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the respondent complaint."
30. In the case of Bir Singh V/s. Mukesh Kumar (2019) 4 SCC 197, the Honb'e Apex Court has held in para No.18, 20, and 24 that; "Section 139 mandates that unless the contrary is proved, it is to be presumed that the holder of the cheque received the cheque of the nature referred to in section 138, for the discharge, in whole or in part or any debt or liability. However, the presumption is rebuttable by proving to the contrary. Section 139 introduces on exception to the General Rule as to the burden of proof and shifts the onus on the accused to prove by cogent evidence that there C.C.NO.6466/2018 25 was no debt or liability. Mere denial or rebuttal by the accused was not enough".
31. In the case of Kalamani Tax and another V/s. P.Balasubramanian (2021) 5 SCC 283, the Hon'ble Court held in para No.13 & 14 "on a plain reading of its judgment that the trial court completely over looked the relevant provisions and failed to appreciate the statutory presumption drawn under section 118 and 139 of N.I.Act. The statute mandates that ones the signature(s) of an accused on the cheque/negotiable instrument or established, then these "reverse a onus"
clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. Ones appellant to had admitted his signatures on the cheque and the deed, the trial court ought to have presumed that the cheque was issued has consideration for a legally enforceable debt. The trial court fell in error when it called upon the respondent complainant to explain the circumstances under which the appellants were liable to pay. Such approach of the trial court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law".
32. In the case of Uttam Ram V/s Devinder Singh Hudan and another (2019)10 SCC 287 and also in the ruling in Basalingappa V/s Mudibasappa (2019) 5 SCC 418 have considered the definition of proved or C.C.NO.6466/2018 26 disproved the principal behind section 118(a) and section 139 of the N.I.Act which has emphasized in para No.16 & 19 of the said judgment: The Hon'ble Supreme Court in Uttam Ram V/s Devinder Singh Hudan and another at para No.16 to 25 with regard to presumption in favour of the holder is been discussed that "it shall be presumed unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability". Therefore, the complainant fulfilled all the provisions of section 138 and in terms of the presumption available under section 118(a) and 139 of the N.I.Act. The complainant has proved his case and the accused liable for conviction. Per contra the accused has relied upon Kumar Exports V/s. Sharma Carpets, 2009 (2) SCC 513 that presumption is always rebuttable and he had rebutted the presumption by placing following materials:
i. Ex.D.5 letter dated: 07.06.2018: Copy of the acknowledgement having served on complainant is not produced. The accused has produced 7 account statements containing current as well as a saving bank account of the accused to show that he has not deposited any cash which he has received on 22.12.2016 to the bank as per the notification dated 08.11.2016. However, in the cross examination he is C.C.NO.6466/2018 27 admitted the execution of the reliance work as well as receipt of amounts from the complainant as well as known acquaintances and the cheque issued to others also initiated criminal proceeding which included in settlement and the accused admission that he has no difficulty in producing the ledger book pertaining to the said proceedings for making payment to vendors and labors. Despite several opportunity the accused had not produced the documents pertaining to ledger account, therefore the accused has not rebutted the presumption available by the complainant under section 139 of N.I.Act. Therefore, adverse inference had to be drawn in this regard and the accused to be held liable for punishment under provision of section 138 of N.I.Act.
ii. The rebuttable evidence has to be appreciated on the principles of preponderance of probability. The conduct of the accused during the trial not prosecuting the complainant for breach of trust and cheating as defence taken in the legal notice as well as subsequent legal notice after service of summons at Ex.D.5 no proceedings has been initiated against the complainant. But however only to protract the proceedings with a malafide intention has filed an application under section 195 R/w 340 of Cr.P.C and also filed another application under section 391 of the Cr.P.C. Though first application was dismissed under C.C.NO.6466/2018 28 section 195 and 340 of the Cr.P.C and pending adjudication before the Hon'ble High Court. The second application was filed under section 391 to recall the earlier order which was not permissible and this court was pleased to dismiss the said application with exemplary cost. The accused in his entire defence has not been consistent with his theory of defence though he is entitled to such defences but nothing is been elicited in the cross examination of the complainant except the factual transaction between the accused and the complainant with regard to disputed project as well as with regard to another project executed by the complainant to the accused in HAL. Ex.P.10(a) and Ex.P.11 also clearly discloses that lodging of the complaint and having statement before jurisdictional police officer, the accused never whispered about the misuse of the letter heads documents, cheque etc., After thought the accused has alleged to cause the legal notice to the complainant at Ex.D.5 but no acknowledgement was forthcoming or placed before this court to establish such notice was caused to the complainant. Therefore the accused has miserably failed in discharging rebuttble evidence by way of preponderance of probability. Hence, he prays to convict the accused and direct the accused to pay twice the cheque amount.
33. The learned counsel for the accused argued C.C.NO.6466/2018 29 that there was no legally enforceable debt/liability to the complainant from the accused for which the cheque- Ex.P.2 was issued. Further argued that the accused had issued the cheque to the complainant for the purpose of security/trust. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of a legally enforceable debt/liability, for which the cheque came to be issued. The complainant created all the documents and filed this false complaint against the accused. Therefore, from the evidence placed on record, the very repayment of amount to the complainant is not clearly made out whereas the accused is succeeded in rebutting the presumption available under section 139 of N.I.Act regarding existence of legally enforceable debt. The complainant has utterly failed to prove his case against the accused.
34. The learned counsel for the accused has filed written argument, in his written argument he has stated that from the facts and circumstances, it is established by the accused that it is highly improbable for the complainant to pay Rs.14,00,000/- huge amount in Rs.1,000/- denomination notes, as it is admitted by the complainant and as on 28.12.2016 Rs.1,000/- denomination notes have been demonetized, as on 28.12.2016, there was no value for such demonetized notes. Even if the contention of the complainant is C.C.NO.6466/2018 30 taken as true, that the complainant has paid to the accused Rs.14,00,000/- on 22.12.2016 the accused could not cannot use of so called demonetized notes as by the gazette notification, the Government of India has withdrawn the validity of specified notes (Rs.500/- & Rs.1,000/-), and no vendor or business establishment would accept such currency, in such circumstance except depositing the amount to the bank account or exchanging the demonetized currency notes in the value of Rs.2,000/- per day per person. If such being the situation, it is highly improbable to hold that the complainant has paid Rs.14,00,000/- through demonetized notes, the accused cannot and could not used the said currency notes for any purpose, and no prudent person can excepts such huge amount when there were restrictions imposed by the Government of India and the Reserved Bank of India restricting the circulation and usage of demonetized notes of the series of Rs.1,000/-. The intent of the accused to enforce non-existing debt or liability through this court will be highly illegal and cannot be accepted by any court of justice. Further stated that the complainant has made illegal claim and filed the false complaint, is seriously caused irreparable damages to the accused. The complaint filed by the complainant is abuse of process of law. The action of the complainant filing the false complaint that too contending that he has paid C.C.NO.6466/2018 31 Rs.14,00,000/- on 22.12.2016, and if this court believes the contention of the complainant is true, the accused will have to suffer irreparable damages and will have to go through agony.
35. It is further stated that the accused is proved his innocence beyond the scope what is required to be proved under the law. He has proved that the complainant has approached this court with unclean hands and has made false claim not on just probabilities, but proved beyond doubt. It is excepted when a person approaches a court, he should approach the court not only with clean hands but also with clean mind, clean heart and clean objective. The complainant not mis used the cheque in question but has also filed by the false complaint by abusing the process of law. The moot question before this court arises is, whether the contention of the complainant paying Rs.14,00,000/- by way cash through Rs.1,000/- demonetized notes on 22.12.2016, can be believed to be though, and the accused be held guilty of the offence punishable under section 138 of N.I.Act. Whether this court can enforce the contract forbidden by law. It is further stated that even there is contract entered between the parties, and it is brought before the court for enforcing and it is found to be illegal, it is not enforceable by the court of law. The court shall declare that there was no contract between the parties C.C.NO.6466/2018 32 leave the parties "as they are" at the time of the breach. The parties who suffered the consequence from an illegal contract cannot recover the damages as the contract does not exist in the eye of law. The complainant in order prove his case has contended that Rs.16,00,000/- is paid to the accused through banking and Rs.14,00,000/- by way of cash on 22.12.2016. the complainant in order to foist false liability of Rs.14,00,000/- has contended that the complainant has paid such huge amount on 22.12.2016. The complainant even has admitted in the cross examination that on 22.12.2016 he has paid Rs.14,00,000/- in Rs.1,000/- demonetization notes, and further admits that on 22.12.2016 circulation of Rs.1,000/- is demonetized.
36. In his written argument he elaborately discuss the gazette notification. Further stated that in the cross examination the complainant admitted that he is having no proof that he had such huge amount of Rs.14,00,000/- by way of cash in hand as on 22.12.2016, it is also admitted by the complainant is that he is not declared in his income tax returns as to the loan given to the accused, the very action of the accused touches creditability of his complaint before this court. The circulars issued by the RBI clearly establishes the stringent conditions imposed by the Government of India and RBI even for exchange of C.C.NO.6466/2018 33 demonetized series of notes, and depositing to the bank account, if at all if the complainant has paid Rs.14,00,000/- through Rs.1,000/- currency notes, since there is no way the accused circulate or use the demonetized currency except depositing to his bank account. In this regard, the accused has produced bank account statement of all is bank operative and non- operative accounts to establish that no such amount have been deposited in his account, eventually no such money is paid by the complainant has contended by the complainant. The accused is also established through his evidence and in the cross of complainant that the only intent of the complainant and the accused is to execute the reliance work order through profit sharing. The admitted MOU shows and WhatsApp correspondence establishes that the only agreement between the complainant and the accused is for every kilometer of work executed, the complainant will receive Rs.50,000/- profit. Since the, the complainant has agreed to partner with the accused for to execute 10 Kms, the accused was required to pay profit of Rs.5,00,000/- along with the investment of Rs.16,00,000/-. It is also admitted by the complainant that there was delay in execution of the work order of M/s. Reliance and on the demand the accused has agreed to pay additional amount of Rs.1,00,000/-. Considering the investment of Rs.16,00,000/- profit C.C.NO.6466/2018 34 sharing of Rs.5,00,000/- and additional profit of Rs.1,00,000/- towards delay in returning the amount, the accused had issued a cheque for Rs.22,00,000/-. The complainant in the cross examination has admitted that he has received Rs.17,00,000/- from the accused, considering the admission of the complainant, the accused is due to the complainant only Rs.5,00,000/- and not Rs.22,00,000/- as contended by the complainant.
37. It is further stated that the complainant in order to misuse the cheque held by him under trust of Rs.22,00,000/- is come up with the story as, if the accused had approached the complainant seeking Rs.30,00,000/- financial help for executing reliance work order, offering Rs.9,00,000/- as profit, but has paid Rs.17,00,000/- and to pay the balance amount of Rs.22,00,000/- he has issued the cheque, and the same is dishonored when presented for encashment. He has relied the judgment in 2011 0 Supreme (AP) 890 in K.G.Shankar Shaik Ayez V/s. Abdul Khader and another. held that; in so far as the legally enforceable debt is concerned, as noticed above the very notice sent under Ex.P.6 does not refer to the complainant and further the complainant failed to bring home the guilt of the accused by adducing evidence to show that the cheque in question was issued in respect of the debt in question. Except his oral testimony and the C.C.NO.6466/2018 35 testimony of the PW.2, who is said to have been witnessed the borrowal of Rs.96,750/- by the respondent/accused, no other evidence is put forward by the Appellant-complainant. So also, no documentary evidence is forthcoming to show that the cheque in question was issued in connection with the legally enforceable debt. Therefore no case is made out by the Appellant-Complainant warranting interference by this court in the judgment under appeal".
38. In the written argument the learned counsel for the accused referred the section 2(g) and 2(h) of Indian Contract Act 1872 and Illustrations. The accused has rebutted the fact that there is consideration passed by the complainant entitling to claim has legally recoverable debt. The complainant has approached this court with unclean hand, and deserved to be dismissed with exemplary cost, as the complainant has filed the above complaint by abusing the process of law. The complainant has made every attempt use this court as a tool to make his illegal claim against the accused, which act shall be deprecated. Therefore will be harm or injustice cost to the complaint if the complaint is dismissed. Whereas, if the complaint is allowed, the accused will have to suffer irreparable damages and loss. Hence, he prays to dismiss the complaint.
C.C.NO.6466/2018 36
39. In the case on hand the complainant and the accused having some transactions has not been seriously disputed by the accused. Further the accused has not seriously disputed he had issued the cheque in favour of the complainant. Whereas, the accused has contended that he had given the chaque to the complainant for the purpose of security/trust. The accused has specifically denied having debt/liability and issued the cheque-Ex.P.2 on 31.07.2017 towards the discharge of any debt/liability. He contends that the cheque given by him to the complainant for the purpose of security as was misused by the complainant and a false complaint was filed.
40. In order to attract the offence of the section 138 of N.I.Act, the main ingredients of the existence of the legally enforceable debt/liability, for which the cheque drawn on the account of the accused was given for discharge of the same, are to be proved. The complainant's in order to prove its case, have examined its Partner as PW.1 and got marked 9 documents at Ex.P.1 to 9. In chief examination, P.W.1 has repeated the averments made by the complainant in the complaint. In the present case, the accused has not disputed the cheque-Ex.P.2 being his cheque drawn on his account. The said presumption is available to the complainant.
C.C.NO.6466/2018 37
41. As per the section 139 of N.I.Act, there is a presumption regarding the existence of legally enforceable debt/liability. Such presumption is rebuttable presumption and it is opinion to the accused to raise defence discharging the existence of a legally enforcible debt/liability. In the case on hand also the accused has disputed the existence of legally enforceable debt/liability, for which Ex.P.2 was issued. In order to prove his defence, the accused has adduced his oral evidence before this court and marked the documents at Ex.D.1 to 18. Except Ex.D.1 to 18 he has failed to produce any documents to prove that the complainant only invested amount of Rs.16,00,000/- and out of this he has already paid an amount of Rs.17,00,000/- to the complainant and is only due of Rs.5,00,000/- to the complainant and he had issued the cheque in question for the purpose of security/trust. PW.1 during his cross-examination has specifically denied the suggestions made to him that Ex.P.2- cheque was issued in favour of the complainant company for the purpose of security and trust.
42. Since, the presumption under section 139 of N.I.Act is a rebuttable presumption the accused is firstly required to produce some probable evidence to rebut the same. Though in the criminal cases, the standard of the proof required for the accused is not so strict as required for the complainant to prove the case. Further C.C.NO.6466/2018 38 he has to produce some probable evidence, which creates doubt about the existence of legally enforceable debt/liability. In the present case, as per the defence taken by the accused is that he had given the cheque to the complainant for the purpose of security. Except, said defence, he has not produced any materials to prove such defence. If he had given the cheque to the complainant for the purpose of security, what prevented the accused to file the complaint immediately after the alleged illegal act made by the complainant. Further what prevented the accused to file the complaint against the complainant for misusing of said cheque. On which date the accused came to knew about the alleged illegal act of the complainant, he did not whisper about on what date he came to know the alleged cheque illegally misused by the complainant. Admittedly the accused is a businessman and contractor and he is having knowledge of the financial transaction, why he has given the cheque to the complainant without anticipating the consequence is not explained by him. So also, he has not stated anything as to what steps he took to receive back the cheque. Moreover, immediately after the alleged cheque misused by the complainant he has not lodge complaint before concerned police station. No steps have been taken to receive back the cheque, after he came to know about C.C.NO.6466/2018 39 the same.
43. Once issuance of cheque and signature are admitted, the statutory presumptions would arise under sections 118 and 139 of the N.I.Act that the cheque was issued by the drawer for legally payable debt/liability and for valid consideration. The Hon'ble Supreme Court has held in Rangappa V/S Mohan (2010 AIR SCW 296) (AIR 2010 SC 1898), the presumption that the cheque was drawn in discharge of legally recoverable debt is a presumption of law that ought to be raised in every case, though, it is a rebuttable presumption. Of course, the presumption under section 139 and 118 of the N.I.Act are rebuttal presumption. Further it is also held that mere plausible explanation by the drawer is not sufficient and proof of that explanation is necessary. The principle of law laid down in the above decision is applicable to the facts of this case. In the instant case, since the complainant is in possession of the cheque-Ex.P.2 the court has to draw the initial presumption that he is the payee of that cheque. Once the initial burden is discharged by the complainant, the onus shifts on the accused to rebut the complainant's case.
44. Further the accused has taken the contention that the cheque was given as security and trust. Hence, offence under section 138 of N.I.Act is not attracted. In C.C.NO.6466/2018 40 this regard once issuance of the cheque and signature are admitted, the statutory presumptions would arise under sections 138 of N.I.Act that the cheque was issued by the drawer for legally payable debt/liability and for valid consideration. The latest judgment of the Hon'ble Supreme Court has held in 2021 SCC Online SC 1002 in the case of Sripati Singh (Since deceased) through his son Gaurav Singh V/s State of Jarkhand and another it is held that once the cheque is issued as security for the loan and if the loan is not paid back then if the cheque is dishonored which attract 138 of N.I.Act. The principle of law laid-down in the above decision is applicable to the facts of this case. Therefore, the contention of the accused cannot be acceptable that the cheque was given only for security purpose, but without producing any documents, then he has to pay the cheque amount when it is presented for encashment which is legally recoverable debt.
45. In the case of K.S.Ranganatha V/S Vittal Shetty, reported in 2021 SCC Online SC 1191, the Hon'ble Supreme Court held that once the cheque is admitted to be that of the accused, the presumption envisaged in section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the C.C.NO.6466/2018 41 discharge of any debt or liability. It is further held that the position of law makes it crystal clear that when a cheque is drawn out and is relied upon by drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount; such presumption of course, is rebuttable by proving to the contrary. The onus is on the accused to raise a probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities.
46. In the case of M/s Kalemani Tax V/s Balansubramanian reported in (2021) 5 SCC 283, the Hon'ble Supreme Court has observed that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under section 139 of the Negotiable instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
47. Applying the above said principles to the present case and before considering the point whether the accused succeeded to rebut the presumptions and to establish his defence to the extent of probabilities, it is just and necessary to accumulate undisputed facts in this case. It is not in dispute that bounced cheque belongs to the bank account of the accused. It is also C.C.NO.6466/2018 42 not in dispute that signature appearing on the bounced cheque is the signature of the accused. It is also not in dispute that the cheque presented by the complainant came to be dishonored by the banker of the accused for the reason stated in the dishonor memo. To consider whether the accused succeeded to rebut the presumption and established the defence to the extent of probabilities, the accused has not produced any documents in this regard. It was also contended by the accused that the accused had given the cheque to the complainant for the purpose of security and trust. The said cheque was misused by the complainant. In order to prove such defence the accused has failed to produce any believable evidence before this court.
48. The learned counsel for the accused taken specific contention that transaction is based on the contract and since the contract itself is void contract. Hence, the complaint is liable to be dismissed. Further he has taken specific contention that the payment of Rs.14,00,000/- paid by the complainant to the accused by way of cash on 22.12.2016 through Rs.1,000/- denomination. Further he contended that on 10.11.2016 as such these currency of Rs.500/- and Rs.1,000/- was demonetized. Hence, the payment made by the complainant to the accused is illegal. Hence, there is no legal enforceable debt. Hence, he prays to dismiss the complaint on this ground. This C.C.NO.6466/2018 43 court take judicial notice that there is no doubt the RBI and the Government of India on 08.11.2016 legal tender status of Rs.500/- and Rs.1,000/- notes issued by the RBI were demonetized starting from 10.11.2016. Further the said currency of Rs.500/- and Rs.1,000/- are in circulation till the end of 31.03.2017. The accused has received the cash on 22.12.2016 of Rs.1,000/- notes. In this regard the accused has issued acknowledgment as per Ex.P.6. Therefore, the defence also holds no water.
49. In the defence there is no ill-will between the complainant and the accused. Hence, misuse of the cheque and filing a false case is not possible. The accused admittedly having knowledge of business. It is implies, he is conversant with financial transaction. If the complainant misused the said cheque and other documents and had not return the same, inspite of collecting cheque leaves and documents from him, as a prudent man, the accused should have inquired with the complainant and demanded to return that cheque and documents. No ordinary prudent man would keep quite in such circumstances, without taking any steps. The conduct of the accused is very unusual, because he did not take any legal action against the complainant, even after filing of the complaint based on Ex.P.2-cheque. Further he could have issued a notice to his banker to stop payment or legal notice to the C.C.NO.6466/2018 44 complainant or he could have given complaint to the police station immediately. No such steps were taken by the accused. He simply makes a bald allegation of misuse of security and trust cheque against the complainant. It appears, just to escape from his legal liability, he has taken such contentions without any valid basis.
50. Moreover, the complainant has got issued a legal notice to the accused by registered through its counsel calling upon the accused to make repayment to the complainant. Before a person is held to be guilty of an offence punishable under section 138 of N.I.Act, the complainant have to prove the compliance of the requirement under section 138 of N.I.Act. It is not in dispute that Ex.P.2 is the cheque drawn on account of the accused. In view of the above discussions, it is also held to be proved that it was drawn for discharge of legally enforceable debt/liability. From the evidence of P.W.1 and also cheque return memo-Ex.P.3 it is established that the cheque was dishonored for the reasons "Insufficient Funds'' in the account of the accused. A legal notice being issued as per Ex.P.4 within one month from the date of dishonor of the cheque is also not in dispute. In the case on hand the accused has not seriously disputed regarding notice send by the complainant on his address. He has given reply to the said notice. But, the accused failed to repay C.C.NO.6466/2018 45 the cheque amount. Further the accused in his reply notice not stated anything about Ex.P.6. Thereby, he could have asserted his defence at an earliest available opportunity. In the case on hand the notice is sent to the accused at his address. When the accused has not seriously disputed, the notice sent to the correct address is sufficient compliance under section 138 of N.I.Act. Therefore, there is sufficient proof of due service of the legal notice.
51. It is not the contention of the accused that thereafter he has repaid the cheque amount within stipulated time of 15 days on receiving the notice. Therefore, in the case on hand on perusal of the evidence placed on record, all the essential ingredients under section 138 N.I.Act, have been complied with. As the accused has not paid the cheque amount within stipulated period, as such the accused has committed an offence punishable under section 138 of Negotiable Instruments Act. The present complaint is filed within the period of one month after the accused failed to repay the cheque amount. Even he did not whisper anything about the defence while his plea was recorded under section 251 of Cr.P.C. In view of judgment of Hon'ble Supreme Court in Indian Bank Association V/s Union of India and others, (2010(5) SCC 590), it is clear that while recording the plea under section 251 of Cr.P.C., it becomes the duty of the accused to state C.C.NO.6466/2018 46 whether he has any defence to make or he pleads guilty. Thus, unlike under section 240 of Cr.P.C., the accused has no option under section 251 of Cr.P.C., just to deny the allegations made against him. If he is not willing to plead guilty, he must explain what are the defences he want to take. As such it has to be considered, whatever defence raised by the accused during the trial are all after thought, just to get ride of statutory burden cast on him.
52. In addition to this in the case of T.P.Murugan (Dead) through legal representatives V/s Bojan (2018(8) SCC 469), the Hon'ble Apex Court held that once the cheque has been signed and issued in favour of the holder of the cheque, there is statutory presumption that the cheque is issued in respect of legally enforceable debt or liability: rebuttal of such presumption must be by adducing credible evidence. Mere raising a doubt without cogent evidence with respect to the circumstances, presumption under section 139 of N.I.Act cannot be discharged. The principle of law laid down in the above decisions are applicable to the facts of this case. Except some bald contentions, the accused has not been able to make out a probable case on his behalf.
53. The Hon'ble Apex Court in K.Bhaskaran V/s Sankaran Vaidhyan Balan and another (1999 C.C.NO.6466/2018 47 Cri.L.J.4608) held that, if the accused denies issue of cheque although owned his signature therein, the presumption arises that cheque was made or drawn for consideration on the date mentioned in cheque. The holder of cheque presumed to have received it for discharge of liability of the drawer.
54. As per the version of the accused is that the accused has nowhere denied transaction. The accused himself has admitted that he is the holder of alleged cheque. It is sufficient hold that the accused has issued the cheque-Ex.P.2 and even after the accused has not paid the cheque amount the getting of receipt of notice. However, in any manner as the complainant have complied all the terms of ingredients of the provisions of 138 of N.I.Act. The accused is liable for dishonor of cheque. In case of dishonor of cheque, once the execution of the cheque is admitted by the accused, then it for him to first rebut presumption arising out of section 139 of N.I.Act. Accordingly, PW.1 has established the case of the complainant, the accused has issued the cheque-Ex.P.2 in order to repay the legally recoverable amount. Therefore, the accused has failed to probables the defence taken by him that Ex.P.2 was given to the complainant for the purpose of security and trust to the complainant. Therefore, the accused has failed to rebut the presumption under section 139 of N.I.Act. In the said circumstances, the C.C.NO.6466/2018 48 complainant is not at all required to produce any material as to the financial transaction between the complainant and the accused, since the initial presumption is still available, when there is no rebuttal evidence.
55. PW.1 in his evidence has specifically stated that the accused in order to repayment of amount he had issued the cheque-Ex.P.2. So also it is not in disputed that the complainant and the accused are known to each other, some point of period, the complainant is a partnership firm engaged in business of civil constructions. The accused is a Civil Contractor engaged in business of execution of Civil Contracts. The accused was acquainted to the complainant firm through one of its partner Mr.Surendra. The accused made a representation to the complainant to invest in his project, which is worth or Rs.1,36,36,000/- obtained from Reliance Company, for construction of trembling and ducting laying OFC cables from Hollakere to Mayakonda and requested the complainant to invest a sum of Rs.30,00,000/- and assured the complainant that the said amount will returned with assured return of investment of Rs.9,00,000/- within a period of 6 months from the date of investment. Further the complainant believing the representation of the accused on his personal acquaintance, agreed to invest a sum of Rs.30,00,000/- and the complainant firm paid a sum of C.C.NO.6466/2018 49 Rs.30,00,000/- toward investment in the project. On personal approach by the complainant, the accused had issued the cheque in question in favour of the complainant company for the purpose of repayment of the amount, this is not seriously disputed by the accused. The accused has failed to rebut the presumption under section 139 of N.I.Act, non furnishing of details of financial transaction no consequences to disbelieve the case of the complainant. The accused has failed to probables his defence. With these reasons, I answer point No.1 and 2 in the Affirmative.
56.POINT NO.3 AND 4: In order to avoid repetition of facts, these points are taken together for common discussion. Before a person is held to have committed an offence punishable under section 138 of N.I.Act, the complainant have to prove all the requirements of section 138 of N.I.Act. The cheque- Ex.P.2 being drawn on the account of the accused is not in dispute. The said cheque having been dishonored, when it was presented by the complainant before the Bank for encashment is also not seriously disputed by the accused. The accused has not taken up any contention that thereafter he had paid the cheque amount within stipulated time of 15 days, after receipts of the notice. As such in the present case from perusal of documents, the essential requirements of C.C.NO.6466/2018 50 section 138 of N.I.Act, have been complied with. In this case if the accused has issued the cheque in favour of the complainant for the purpose of security and trust and why he has not produced any documents. After service of notice the accused has not paid the amount to the complainant. Hence, the present complaint came to be filed before the court on 03.01.2018 within the period of one month from the date of cause of action.
57. While discussing the point No.1 and 2, this court has already observed that the complainant's have proved that the cheque-Ex.P.2 was issued for discharge of legally enforceable liability/debt and in view of the mandatory requirements under section 138 of N.I.Act, being complied with. The accused is found to have committed an offence punishable under section 138 of N.I.Act. With these reasons, I answer point No.3 and 4 in the Affirmative.
58. POINT NO.5: The accused is held to have committed an offence punishable under section 138 of N.I.Act. The complainant's have proved its case. The accused has failed to prove his rebuttal for the reasons mentioned above and in view of the mandatory requirements of section 138 of N.I.Act, being complied with. The accused is found to have committed an offence punishable under section 138 of N.I.Act. Since, the said offence is an economic crime, the accused is C.C.NO.6466/2018 51 not entitled for the beneficial provisions of probation of offenders Act. In view of the above discussions and the findings on point No.1 to 4, I proceed to pass the following;
:ORDER:
Acting under section 255(2) of Cr.P.C. the accused is convicted for an offence punishable under section 138 of N.I.Act.
The bail bond of the accused hereby stands canceled.
The accused is sentence to pay fine of Rs.23,00,000/- (Rupees twenty three lakhs only) to the complainant.
It is further ordered that out of the said fine amount an amount of Rs.22,90,000/- (Rupees twenty two lakhs ninety thousand only) shall be paid to the complainant as compensation as per Section 357(1)(b) of Cr.P.C., and remaining amount of Rs.10,000/- (Rupees ten thousand only) shall be remitted to the State.
In default of the payment of fine amount, the accused shall undergo simple imprisonment of one year.
(Dictated to the stenographer directly on computer typed by her, corrected by me and then judgment C.C.NO.6466/2018 52 pronounced in the open court on 31 st day of May 2023) Digitally signed by SOUBHAGYA SOUBHAGYA B BHUSHER B BHUSHER Date:
2023.06.01 16:33:23 +0530 (Soubhagya.B.Bhusher) XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of witness examined on behalf of the complainant:
PW.1 : Mr.N.Suprith List of documents marked on behalf of the complainant:
Ex.P.1 : Partnership deed..
Ex.P.2 : Cheque.
Ex.P.2(a) : Signature of the accused.
Ex.P.3 : Bank endorsement.
Ex.P.4 : Office copy of legal notice.
Ex.P.4(a) : Postal receipt.
Ex.P.5 : Postal acknowledgement.
Ex.P.6 : Letter written by the accused to the complainant.
Ex.P.7 : Reply notice on 07.12.2017.
Ex.P.8 : Composition tax registration in respect of Form
Vat-8
Ex.P.9 : Complaint.
List of witnesses examined on behalf of the accused:
DW.1 : Mr.H.M.Sharana Basappa List of documents marked on behalf of the accused:
Ex.D.1 : E-mail and attachment.
Ex.D.2 : Message.
Ex.D.3 : WhatsApp copy of the cheque.
Ex.D.4 : WhatsApp message.
Ex.D.5 : Copy of the notice.
C.C.NO.6466/2018
53
Ex.D.6 : Final bill payment settlement letter.
Ex.D.7 & 8 : Printout photos.
Ex.D.9 : HDFC bank computerized copy of the statement of
account.
Ex.D.10 : SBI computerized copy of the statement of account.
Ex.D.11 : HDFC Bank account statement.
Ex.D.12 : Canara Bank OD account statement.
Ex.D.13 : SBI Bank current account statement.
Ex.D.14 : Canara Bank current account statement.
Ex.D.15 : Bank of India current account statement.
Ex.D.16 : ICICI Bank saving account statement.
Ex.D.17 : Axis Bank saving account statement.
Ex.D.18 : Certificate under section 65(b) of the Indian
Evidence Act.
Digitally signed
by SOUBHAGYA
SOUBHAGYA B BHUSHER
B BHUSHER Date:
2023.06.01
16:33:32 +0530
XXVIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Magistrate
C.C.NO.6466/2018
54
30.05.2023 (Judgment pronounced in the Open Court Vide
Separate Sheet)
:ORDER:
Acting under section 255(2) of
Cr.P.C. the accused is convicted for an offence punishable under section 138 of N.I.Act.
The bail bond of the accused hereby stands canceled.
The accused is sentence to pay fine of Rs.23,00,000/- (Rupees twenty three lakhs only) to the complainant.
It is further ordered that out of the said fine amount an amount of Rs.22,90,000/- (Rupees twenty two lakhs ninety thousand only) shall be paid to the complainant as compensation as per Section 357(1)(b) of Cr.P.C., and remaining amount of Rs.10,000/-(Rupees ten thousand only) shall be remitted to the State.
In default of the payment of fine amount, the accused shall undergo simple imprisonment of one year.
XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.