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[Cites 31, Cited by 0]

Bangalore District Court

Sri. G.Vijaya Kumar vs Sri.C.Jayaram on 16 April, 2021

                          1
                                        C.C.No. 12403/18 J



 IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY

    Dated:­ This the 16th day of April, 2021

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.12403/2018

Complainant          :   Sri. G.Vijaya Kumar,
                         S/o. M.Gundappa,
                         Aged about 56 years,
                         R/at No.75, Desai Garden,
                         Vasanthapura Main Road,
                         Konanakunte Cross,
                         Bangalore ­ 560 062.
                         (By Sri. B.A. Srinivasa &
                         Associates., Advs.,)

                         ­ Vs ­

Accused             :    Sri.C.Jayaram,
                         S/o. Chikka Narasimhalu,
                         Aged about 32 years,
                         Kewre Choodahalli,
                         Somanahalli Post,
                         Bangalore - 560 082.
                         (By Sri.Venkataram, Bala Reddy.R.)
                         Advs.,)

Case instituted      :   14.3.2018
                              2
                                            C.C.No. 12403/18 J



Offence complained      :   U/s 138 of N.I Act
of
Plea of Accused         :   Pleaded not guilty
Final Order             :   Accused is convicted
Date of order           :   16.4.2021

                      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, he and the accused are well known to each other as the accused is working as a Driver under him and during the year 2017 the accused borrowed a hand loan of Rs.2 Lakhs to meet his marriage expenses and assured to repay the same within one year, believing the version of the accused, he mobilized the funds and paid to the accused by way of cash and after lapse of stipulated period of time, he demanded to repay the hand loan amount, the accused has got issued a cheque bearing No.982488 dt;12.1.2018 for a sum of Rs.2 Lakhs drawn on Indian overseas Bank, Somanahalli Branch, 3 C.C.No. 12403/18 J Banglaore in his favour with instructions to encash the said cheque ondue date towards the repayment of hand loan and as per the instructions of the accused he presented the said cheque for encashment through his banker but the said cheque was returned dishonored as "Funds Insufficient"

with bank endorsement dt: 16.1.2018, immediately he brought the matter to the notice of the accused and demanded for repayment but the accused has expressed his financial difficulties and keep on dodging the time for one or the other reasons and failed to repay the amount, thereafter he got issued legal notice to the accused through RPAD on 30.1.2018 demanding him to repay the hand loan amount within 15 days from the date of receipt of notice and the notice sent by RPAD was duly served on the accused on 8.2.2018, inspite of that, the accused either complied the demand made in the notice or repleid to 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. 12403/18 J

3. Before issuing process against the accused, the Complainant has filed his affidavit­in­lieu of his sworn statement, in which, he has reiterated the averments made in the complaint. In support of his evidence, P.W.1 has relied upon the documentary evidence as per P.1 to P.5., i.e, Original Cheque dated: 12.01.2018 is as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank Memo as per Ex.P.2, the office copy of Legal Notice as per Ex.P.3, postal receipt as per Ex.P.4, Postal acknowledgement as per Ex.P.5.

4. Prima­facie case has been made out against the accused and summons was issued against the accused in turn 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 Association Vs., Union of India, reported in 2014 5 C.C.No. 12403/18 J (5) SCC 590, after recording the plea of the Accused, as she intended to set out her defence, then the case was posted for the cross­examination 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 and has produced Notarised copy of his Aadhar card as per Ex.D.1.

7. Heard by learned counsel for the complainant and the Accused and perused the decisions relied upon by the learned counsel for the accused i.e. in 1) Crl.Appeal No.636/2019 - Basalingappa Vs. Mudibasappa ; 2) Crl. Appeal No.(s) 95­96/2019 - Anss Rajashekar Vs. Augustus Jeba Ananth.

8. On the basis of complaint, evidence of complainant and accused and documents the following points that are arise for consideration are:­ 6 C.C.No. 12403/18 J

1. Whether the complainant proves that the accused has issued cheque bearing No.982488 dated:

12.01.2018 for Rs.2,00,000/­ drawn on Indian overseas Bank, Somanahalli Gate, Bangalore to discharge legally recoverable debt to the complainant and when the complainant has presented cheque for encashment through his banker but the said cheque has been dishonoured for the reasons "Account closed" on 16.1.2018 and the complainant issued legal notice to the accused on 30.1.2018 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 7 C.C.No. 12403/18 J 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 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 pre­supposes three conditions for prosecution of an offence which are as under:

1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. 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 8 C.C.No. 12403/18 J
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.

If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the 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 ingredients 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 a 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 9 C.C.No. 12403/18 J 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 India and Hon'ble High Court of Karnataka in catena of decisions.

12. In the present case the complainant has examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire contents of the complaint. The complainant/PW.1 testified that, he and the accused are well known to each other as the accused is working as a Driver under him and during the year 2017 the accused borrowed a hand loan of Rs.2 Lakhs to meet his marriage expenses and assured to repay the same within one year, beliving the version of the accused, he mobilized the funds and paid to accused by way of cash and after lapse of stipulated period of time, he demanded to repay the hand loan amount, the accused has got issued a cheque bearing No.982488 dt;12.1.2018 for a sum of Rs.2 Lakhs drawn on Indian overseas Bank, Somanahalli Branch, Bangalore in his favour with instructions to encash the said cheque on due date 10 C.C.No. 12403/18 J towards the repayment of hand loan and as per the instructions of the accused he presented the said cheque for encashment through his banker but the said cheque was returned dishonored as "Funds Insufficient" with bank endorsement dt: 16.1.2018, immediately he brought the matter to the notice of the accused and demanded for repayment but the accused has expressed his financial difficulties and keep on dodging the time for one or the other reasons and failed to repay the amount. The complainant/PW.1 further testified that, thereafter he got issued legal notice to the accused through RPAD on 30.1.2018 demanding him to repay the hand loan amount within 15 days from the date of receipt of notice and the notice sent by RPAD was duly served on the accused on 8.2.20218, inspite of that, the accused either complied the demand made in the notice or replied to the notice.

13. In support of his evidence, P.W.1 has relied upon the documentary evidence as per P.1 to P.5., i.e, Original Cheque dated: 12.01.2018 is as per Ex.P.1, the signature on the said cheque identified by 11 C.C.No. 12403/18 J P.W.1 as that of the accused as per Ex.P.1(a), the Bank Memo as per Ex.P.2, the office copy of Legal Notice as per Ex.P.3, postal receipt as per Ex.P.4, Postal acknowledgement as per Ex.P.5.

14. In the present case, there is no dispute between the complainant and Accused with regard to their acquaintance as accused was working as a driver under the complainant. It is also not in dispute by the accused that, the cheque in question belong to his account and signature found at Ex.P.1(a) is that of his signature. It is also not in dispute that, the cheque in question was presented to the encashment within its validity period and the said cheque has been returned as dishonoured for want of sufficient funds as per the returned memo issued by the concerned bank i.e Ex.P.2, hence as a matter on record it is proved by the complainant that, the cheque in question was dishonoured for want of sufficient fund.

15. In relation to the service of notice the Accused in his defence has denied service of notice upon him by contending that, complainant had sent 12 C.C.No. 12403/18 J the notice to his wrong address deliberately to see that, the same is not served upon him. The complainant in order to prove service of notice upon the Accused, has produced the documents i.e copy of the legal notice, postal receipt, postal acknowledgement which are at Ex. P.3 to P.5 respectively. On perusal of the Ex.P.3 it appears that, on 30.1.2018 the complainant has got issued legal notice to the residential address of the accused through his advocate through RPAD. The Ex.P.4 and P.5 are the postal receipt and postal acknowledgement and as per the Ex.P.5 the legal notice sent was received by affixing the signature on the acknowledgement. The learned counsel for the accused during the course of cross examination of PW.1 elicited that, the residential address of the accused is No.53, Kerechuda Halli, Somanahalli Post, Kanakapura Main Road, Bangalore ­82 and there is no mention of No.53 and Kanakapura Main Road in the legal notice at Ex.P.3. It is also admitted by the PW.1 that, he do not know as to who has sign the receiver of the postal acknowledgement as per Ex.P.5 and he do not know the said signature is not that of 13 C.C.No. 12403/18 J the accused and the signature on the postal acknowledgement is not the one identical to the signature on the cheque in dispute. But PW.1 denied the suggestion made to him that, he have not caused the legal notice to the correct address of the accused and same is not served on him and also denied that, the signature on the postal acknowledgement has been manipulated by some one on his side, hence it goes to show that, the complainant/PW.1 has denied the suggestions that, the legal notice issued was not to the correct address of the accused and signature on the acknowledgement is manipulated on his behalf. It is true that, the complainant has admitted that, the residential address of the accused and there is no mention of No.53 and Kanakapura Main Road in the legal notice i.e Ex.P.3 and he do not know as to who has signed the receiver on the postal acknowledgement as per Ex.P.5, but it is not elicited that, the complainant before issuing the legal notice was having knowledge of the house number of the accused is No.53 and it comes in Kanakapura Main Road, therefore mere eliciting that, the house number of the accused was not mentioned in the 14 C.C.No. 12403/18 J legal notice is not a ground to reject the claim of the complainant that, the legal notice issued by him was not served on the accused, as the accused has not disputed his residential address which is mentioned by the complainant in the legal notice and even it is not the case of the accused that, if any letter or post sent to the address mentioned in the legal notice ie. Ex.P.3 is not sufficient to serve on the accused, therefore when the accused admitted the residential address which is mentioned in the legal notice it cannot be held that, the complainant has issued the legal notice to the wrong address of the accused. In addition to that, the accused during the course of his cross examination has categorically admitted that, the address shown in the cause title of the complaint itself is his address and the police have brought the warrant to his house and thereafter he appeared before the court, hence the said admissions of the accused makes it clear that, he has admitted his correct address which is shown by the complainant in the cause title of the complaint and on comparing the addresses mentioned in the complaint and legal notice it appears that, the said addresses are one and 15 C.C.No. 12403/18 J the same, therefore when the accused admitted his address as shown in the cause title of the complaint impliedly also admitted the address mentioned in the legal notice, postal receipt and postal acknowledgement i.e Ex.P.3 to P.5. Therefore in view of the admissions of the accused it can be held that, the legal notice issued by the complainant was to the correct address of the accused. It is true that, the accused has produced his Aadhar card to show his residential address which is at Ex.D.1, but as it is already held in the above that, the accused himself admitted in his cross examination that, the address mentioned in the cause title of the complaint is that of his correct address, in such circumstances though the accused has produced Ex.D.1 but it will not help for him to prove his defence that, the legal notice caused by the complainant was not served on him. In addition to that, though the accused has denied the signature found on Ex.P.5 postal acknowledgement as not of his signature by alleging that, the signature on the postal acknowledgment is not the one identical to the signature on the cheque in dispute and signature on the postal 16 C.C.No. 12403/18 J acknowledgement has been manipulated by some one on behalf of the complainant, but in order to prove the said allegations the accused has not examined the concerned postal authorities , since the burden is on the accused to prove his defence ie., the signature found on postal acknowledgement has been manipulated by some one on behalf of the complainant. Therefore mere denial of signature on the postal acknowledgement it cannot be held that, the complainant manipulated the said signature as the accused has not made any allegation against the postal authorities, therefore it appears that, the accused in order to deny the service of legal notice has taken such defence without there being any proof , in such circumstances the defence of the accused cannot be acceptable one. As it is already held in the above that, the accused himself admitted that, his correct address is as mentioned in the cause title of the complaint and the legal notice caused by the complainant was sent through RPAD to the correct address of the accused, in such circumstances it can be held that, the notice sent by the complainant is presumed to have been served 17 C.C.No. 12403/18 J on the accused as per Sec.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 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 18 C.C.No. 12403/18 J that, "notice sent by registered post with acknowledgement to a correct address­service 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 and it was served on the accused as per Ex.P.5 hence, the notice issued by the complainant through registered post is held to be proper. In addition to that, it is relevant here to refer the decision reported in 2007 AIR SCW 3578 in the case of C.C.Alavi Haji Vs. Palapetty Muhammed and another., wherein the Hon'ble Apex court held that " the drawer of the cheque is permitted to deposit the cheque amount within 15 days from the date of his appearance before the court in pursuance of the service of summons on him and in such situation, his defence of non service of the legal notice cannot be available to him'. Hence, in view of the said principles of law, even for sake of 19 C.C.No. 12403/18 J discussion, though there is no cogent and reliable documentary proof to substantiate the claim of the complainant with regard to address of the Accused to show there is due service of the legal notice on the Accused, in view of settled position of law by virtue of the above said decision of Hon'ble Apex Court of India, the Accused is not entitled to the technical defence of the alleged non service of the legal notice. Therefore, the contentions taken by the accused in his defence that, the notice issued by the complainant was not served on him and cannot be acceptable one and not sustainable in law.

16. It is also the defence of the Accused that, he has not borrowed the loan amount in question from the complainant and has not issued the cheque in question towards the discharge of the loan amount and the learned counsel for the accused during the course of cross examination of the complainant has also disputed the source of income of complainant. But the complainant /PW.1 during the course of his cross examination has specifically stated that, accused had worked with him during the 20 C.C.No. 12403/18 J year 2013­14 and quit his job during the year 2015 and again rejoined with him in the year 2016 . The complainant has also stated that, he was paying a monthly salary of rs.15,000/­ to the accused from the year 2016 and thereafter it was slightly raised. It is true that, the complainant admitted that, he has not issued any appointment letter to the accused as he was appointed as his driver, but when the accused himself admitted that, he was joined as a driver in the year 2013­14 and worked under the complainant as driver and during the said time was getting salary from the complainant, in such circumstances the dispute with regard to issuing of appointment letter to the accused does not hold any water, therefore it is an admitted fact that, the accused was working under the complainant as his driver and also getting the salary. It is also true that, the complainant has admitted that, he has not collected any document from the accused while advancing the loan of Rs.2 Lakhs to him, but only on the ground of non collecting of document at the time of lending the loan amount is not a ground to accept the defence of the accused that, complainant has not 21 C.C.No. 12403/18 J advanced any loan amount to the accused. On entire perusal of the cross examination of the complainant nothing has been elicited to discredit or disbelieve his evidence. The complainant has denied the suggestion that, when the accused quit his job with him for the first time without intimating to him and rejoined with him in the year 2016 he had collected the cheque in dispute as a signed blank cheque to ensure that, he does not quit his job with him, therefore nothing has been elicited to believe the defence of the accused. It is true that, the complainant has admitted in his cross examination that, he do not remember the date and month of lending of loan amount to the accused but the suggestions made to the complainant makes it clear that, accused has admitted that, he was working as driver under the complainant and has quit his job and thereafter again he re­joined with the complainant, in such circumstances the admission of the complainant with regard to date and month of lending of loan amount not fatal to the claim of the complainant, as admittedly it is emerged in the evidence of the complainant and accused that, both 22 C.C.No. 12403/18 J of them were cordial and having acquittance since long period as the accused was working as a driver under the complainant and also admitted by the accused that, when he quit his job for the first time he was not married and when he again rejoined with the complainant thereafter the accused got married , in such circumstances an inference can be drawn that, there may be possibility of borrowing of loan amount for the purpose of marriage of accused, as claimed by complainant. If really the accused quit the job due to trouble some by the complainant as contended in the defence then the question of again rejoining with the complainant does not arise at all. Therefore on entire perusal of the cross­examination of PW.1 nothing has been elicited to disbelieve the evidence of complainant.

17. In addition to the above, the perusal of entire oral and documentary evidence produced by the complainant i.e Ex.P.1 to P.5 and admitted facts by the Accused, as it is already held in the above that, the complainant has proved that the cheque in question belongs to the account of the Accused i.e 23 C.C.No. 12403/18 J Ex.P.1 and signature found at Ex.P.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 "Funds Insufficient" as per Ex.P.2 and thereafter a legal notice was caused by the complainant as per Ex.P.3 through RPAD to the Accused and it was served on the accused, but the Accused has not given any reply to the legal notice, 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 initial presumptions are available in favour of the complainant U/s.118(a) and 139 of the N.I. Act. Consequently it is for the Accused to rebut the 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 24 C.C.No. 12403/18 J a 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 in the absence of documents produced by the complainant with regard to loan transaction in question. In this regard, it is relevant here to refer 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 an 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 "

25
C.C.No. 12403/18 J 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 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 15­03­2018 between ROHITBHAI JIVANLAL PATEL Vs. STATE OF GUJARAT AND ANR held that "Negotiable Instruments Act facts like source of funds are 26 C.C.No. 12403/18 J 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 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, 27 C.C.No. 12403/18 J 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.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. Therefore 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 28 C.C.No. 12403/18 J 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 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 29 C.C.No. 12403/18 J 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 cross­examination, 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". In another decision of Hon'ble Apex Court of India reported in ICL 2021(2) SC 529 in the case of M/s. Kalamani Tex Vs. P.Balasubramanian , dt:

10.02.2021 wherein the Hon'ble Apex court held that " once the accused had admitted his signatures on the cheque and deed, the trial court ought to have presumed that, the cheque 30 C.C.No. 12403/18 J was issued as consideration for legally enforceable debt" 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 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, presumptions U/s.118(a) 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 31 C.C.No. 12403/18 J Accused has admitted the cheque belongs to his account and his signature on the cheque and complainant has proved that the legal notice issued by him was served on the Accused in such circumstances, presumptions have to be drawn even to the extent of existence of legally enforceable debt as per Sec.118a and 139 of N.I.Act. Therefore, for the above said reasons the defence taken by the Accused that, the complainant has not produced the documents 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 cannot be acceptable one. The defence taken by the Accused appears 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, but same cannot be permissible in proceeding 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 32 C.C.No. 12403/18 J belongs to his account and the signature found on the cheque in question is of his signature, therefore for the above said reasons the defence take by the accused cannot be acceptable one, as the accused has miserably failed to rebut the presumptions available to the complainant. 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 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, presumptions U/s.118(a) 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 33 C.C.No. 12403/18 J 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 his account and his signature on the cheque and complainant has proved that the legal notice issued by him was served on the Accused in such circumstances, presumptions have to be drawn even to the extent of existence of legally enforceable debt as per Sec.118a and 139 of N.I.Act.
18. Therefore, for the above said reasons the defence taken by the Accused that, the complainant has not produced the documents 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 the complainant has not advanced the loan amount and accused has not issued the cheque in question towards discharge of the liability or debt in question cannot be acceptable one. The defence taken by the Accused appears that, the complainant has to prove his claim by producing his evidence as if it is required for proving his debt 34 C.C.No. 12403/18 J before the Civil Court, but same cannot be permissible in proceeding 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 his account and the signature found on the cheque in question is of his signature, therefore for the above said reasons the defence take by the accused cannot be acceptable one, as the accused has miserably failed to rebut the presumptions available to the complainant.
19. It is also elicited in the cross examination of the complainant that, he is an Income tax assessee since 7 to 8 years and he has not declared about the transaction in question in his IT returns and he can produce his I.T. returns if the same is required. The learned counsel for the Accused in the argument contended that, the complainant has not produced any document ie I.T. Returns and if really the 35 C.C.No. 12403/18 J complainant lent the loan amount in question he could have disclosed the same in his I.T. Returns but he has not disclosed the same and has not produced the said documents, therefore the complainant has failed to prove that, he was having sufficient funds and lent the loan amount in question to the accused.

It is important to note that, the complainant has admitted in his cross­examination that, he is an income tax payee and has not disclosed the loan transaction in question in his I.T.returns, in such circumstances whether non declaration of the loan transaction in question in the income tax returns that itself invalidates the transaction in question 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 held that "

Negotiable Instruments Act, 1881 - Sections 138 and 139 -Endorsement 'payment stopped by drawer' - The trial court in the instant case, 36 C.C.No. 12403/18 J merely considered a suggestion made from the Accused side in the cross­examination of PW­1 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 the complainant has admitted that, he has not declared the loan transaction in question in his I.T.Returns documents but as it is already held in the above 37 C.C.No. 12403/18 J 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. Apart from that, the admissions of the complainant with regard to non declaration of loan transaction in his I.T. Returns, 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 38 C.C.No. 12403/18 J income 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 cross­examination 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 39 C.C.No. 12403/18 J acceptable one.
20. In order to rebut the presumption available to the complainant, the accused himself examined as DW.1 by stating that, he joined to complainant as a driver in the year 2013­14 and complainant had never given any appointment letter nor had given a salary through cheque and the work with complainant was troublesome as he used to made to stay till 1.00 am to 2.00 am in the night, due to that, he had dispute with his wife and quit his job in the year 2015 and again rejoined the job in the year 2016 at that time complainant collected a blank signed cheque from him saying that, he should not quit the job without notice and he has not borrowed a sum of Rs.2 Lakhs in the year 2017 from the complainant and has not issued the cheque towards discharge of the said amount and when he quit the job he requested the complainant to return his blank signed cheque but the complainant went on postponing saying that, the same is misplaced and now by misusing the same, to make wrongful claim has filed this false complaint against him.
40
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21. In order to substantiate the oral evidence of the accused, the accused has not produced any documentary proof to show that, he had quit the job in the year 2015 and rejoined to the job in the year 2016 at that time the complainant collected his blank signed cheque for the purpose that, he should not quit the job without notice, therefore except the oral evidence nothing has been produced by the accused and even the suggestions made to the complainant during the cross examination were also denied by the complainant, in such circumstances the heavy burden is on the accused to prove that, the cheque in question was collected by the complainant as stated in his defence but the accused has not able to prove his defence either from the materials produced by the complainant or by producing independent evidence through him .
22. It is relevant here to mention that, if really the complainant collected the blank signed cheque of the accused when the accused joined his job at second time during the year 2016 and when he quit the job inspite of his request the complainant failed 41 C.C.No. 12403/18 J to return his blank signed cheque, definitely the accused would have taken steps against the complainant for non return of his blank signed cheque either by replying the notice issued by the complainant or by initiating legal action against the complainant i.e by filing the complaint before the concerned police or the courts of law against the complainant for alleged non return of blank signed cheque but no such efforts have been made by the accused. Even the accused has not intimated to his bank authorities for stop payment in case the cheque in question presented by the complainant for encashment as it was obtained by the complainant as blank signed cheque, in such circumstances in view of in action by the complainant regarding non return of the cheque in question as alleged by the accused, may leads to draw an adverse inference against the accused that, the cheque in question was issued by the accused only towards discharge of the debt in question not for the reason stated by the accused. The accused for his conveniently has not stated in which year he quit the job for second time and on which date , month and year he requested the 42 C.C.No. 12403/18 J complainant for return of the alleged blank signed cheque, therefore the said circumstances may also leads to draw an adverse inference against the accused that, only in order to evade liability to pay the cheque amount the accused has taken such defence without there being any proof. 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 43 C.C.No. 12403/18 J 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 the accused has not made any efforts to get return of cheque alleged to have been obtained by the complainant at the time of rejoining of his job in the year 2016, 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 towards discharge of the liability and presumption U/s.139 of N.I.Act would operate against him, as he has admitted the signature and cheque in question is belongs to Accused.
23. The accused in his defence evidence has taken specific defence that, the writings of the contents in the cheque does not belong to him and the same are written and filled up by the 44 C.C.No. 12403/18 J complainant to make wrongful gain, though there is no existing liability of him towards the complainant. In order to substantiate the said defence except the oral contention and suggestions made to the complainant, nothing has been placed before the court to show that, the writings of the contents in the cheque in question does not belongs to him and same are written and filled up by the complainant, therefore only on the basis of oral evidence it is very difficult to accept the defence of the accused . The complainant in his cross examination has denied the suggestions made to him that, contents of the cheque in dispute have not been filled up by the accused and he have filled up the contents of the cheque in dispute, on the contrary the complainant has clearly stated that, the entire contents of the cheque in dispute have been filled up by the accused and signed on it before him, therefore nothing has been elicited in the cross­examination of the complainant to believe the defence of the accused that, the contents of the cheque in question have been filled up by the complainant. Even for sake of discussion, if it is assumed that, the accused had given blank 45 C.C.No. 12403/18 J signed cheque to the complainant unless and until he proved that, the said cheque was not given towards discharge of any debt or liability, in such circumstances also it can be presumed that, the cheque in question issued towards discharge of the liability or debt in question. 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 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 46 C.C.No. 12403/18 J 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 -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., 47 C.C.No. 12403/18 J 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. 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 48 C.C.No. 12403/18 J 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 some of the material particulars would not render such contract invalid nor make the instrument illegal 49 C.C.No. 12403/18 J 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 laid down by Hon'ble Apex court of India and also Hon'ble High Court of Karnataka referred above and in the present case also the Accused has admitted his signature on Negotiable Instrument i.e. cheque and he also admitted issuance of the cheque to the complainant, it is prima­facie 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 had misused or fabricated the cheque in 50 C.C.No. 12403/18 J question given by him 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. Therefore for the above said reasons the arguments canvassed by the learned counsel for the accused are not acceptable one. In addition to that, even for sake of discussion if it is assumed that, Accused has given cheque in question without mentioning the name of the payee and date to the complainant 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 51 C.C.No. 12403/18 J 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 complainant has proved his case by discharging his burden by 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, 52 C.C.No. 12403/18 J 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 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 view of the principles of law laid down as above, even if it is assumed that, the 53 C.C.No. 12403/18 J complainant has written his name and date on 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. 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 CRM­M 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 54 C.C.No. 12403/18 J is drawn has to be with reference to the date mentioned in the column in the cheque and not the date on which it 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 are taken into consideration but in view of the principles of law laid down by the Hon'ble Apex Court and High Court of Bombay it is to be considered that the date on which cheque was drawn has to be with reference to the date mentioned in the cheque but not the date on which it was signed., therefore the arguments 55 C.C.No. 12403/18 J canvassed by the learned counsel for the defence cannot be acceptable one.

24. 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 he has failed to prove his defence by producing cogent and convincible evidence, in such circumstances it can be held that, the Accused has failed to explain and prove as per his defence 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 56 C.C.No. 12403/18 J accused has miserably failed to rebut the presumption available in favour of the complainant by producing cogent and convincible evidence.

25. 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 loan amount of Rs.2,00,000/­ to the Accused and in order to discharge the said loan amount, the accused has issued the Ex.P.1 cheque in question for sum of Rs.2,00,000/­ in favour of the complainant and thereafter the complainant has presented the said cheque through his banker and same was returned dishonoured with an endorsement of "Funds Insufficient" and thereafter he got issued legal notice to the accused and the said notice was 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 57 C.C.No. 12403/18 J presumption available infavour of the complainant with regard to the existence of legally recoverable debt under Ex.P.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.

26. 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 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 :­ 58 C.C.No. 12403/18 J 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.2,15,000/= (Rupees Two Lakhs 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.2,10,000/= (Rupees Two Lakhs 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.

The Bail bond of the Accused stands cancelled after appeal period is over.

59

C.C.No. 12403/18 J 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 16h day of April 2021).

(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.

ANNEXURE

1. List of witness/s examined on behalf of the Complainant:­ P.W.1 : Sri. G.Vijayakumar

2. List of documents exhibited on behalf of the Complainant:­ Ex.P.1 : Original Cheque;

Ex.P.1(a) : Signature of the Accused; 

Ex.P.2            :   Bank Memo;
Ex.P.3            :   Office copy of the Legal Notice;
Ex.P.4            :   Postal Receipt;
Ex.P.5            :   Postal acknowledgement

3. List of witness/s examined on behalf of the Accused:­ DW.1 : Sri. C.Jayaram 60 C.C.No. 12403/18 J

4. List of documents exhibited on behalf of the Accused:­ Ex.D.1 : Notarised copy of the Aadhar card of accused (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.

61

C.C.No. 12403/18 J 16.4.2021 Case called out, Both complainant and accused absent and counsels for complainant absent, and counsel for the accused present. Judgment pronounced, since fine amount and default sentence is only imposed against the Accused, no separate sentence is imposed against the Accused 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.2,15,000/= (Rupees Two Lakhs 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.2,10,000/= (Rupees Two Lakhs 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 62 C.C.No. 12403/18 J Thousand only) shall be defrayed as prosecution expenses to the state.

The Bail bond of the Accused stands cancelled after appeal period is over.

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.

63 C.C.No.5668/2018 J