Bangalore District Court
Nandi Enterprises vs Sri. Khadar Shali.G on 9 August, 2021
IN THE COURT OF THE XVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, BANGALORE
PRESENT: MANJUNATHA. M S. B.A., LL.B.
XVIII ADDL.C.M.M., BANGALORE
DATED : THIS THE 09th DAY OF AUGUST 2021
Criminal Case No. 3506/2017
COMPLAINANT: Nandi Enterprises
Having office at C/o.K.V.Jayaram,
"Sri Balaji Nilaya" No.9
2nd cross, Vishweshwariah Layout,
C.I.L Layout Main Road,
Chola Nagar, R.T.Nagar Post,
Bengaluru-560 032.
Rep. By its Proprietor
Smt.Shuba A.H.
W/o Sri.Shashidhar
Aged about 38 years
R/at No.206, Radiant Castle,
9th Cross, Kempaiah Layout,
Cholanagar..R.T.Nagar Post,
Bengaluru-560 032.
(By Sri. M.N.-Advocate)
// Versus //
ACCUSED: Sri. Khadar Shali.G.
S/o G.Raziya Begum,
Aged about 25 years,
No.6, 1st Main Road,
Chikkamunivenkatappa Layout,
Guddadahalli, R.T.Nagar Post,
Bangalore-560 057.
(By Sri. A.R.N- Advocate)
2 Judgment C.C.3506/2017
Offence complained : U/Sec.138 of Negotiable
Instrument Act.
Name of the complaint : Sri.Ravi.G.S S/o G.P.S.Murthy
Date of commencement
of evidence : 28/01/2017
Date of closing evidence : 09/02/2021
Opinion of the Judge : Accused found guilty.
(MANJUNATHA M.S.)
XVIII A.C.M.M.,BANGALORE
JUDGMENT
The complainant has filed this complaint under section 200 of code of criminal procedure read with section 138 of the Negotiable Instruments Act ( in short referred as "N.I. Act") against the accused alleging that, he has committed the offence punishable under section 138 of NI Act.
2. The sum and substance of the complaint, is as follows; The accused's mother Smt.G.Raziya Begum and the complainant have entered into a Lease agreement dated 8-5-2014 in respect of the property bearing No.6, 1st Main Chikkamunivenkatappa Layout, 3 Judgment C.C.3506/2017 Guddadahalli, R.T.Nagar Post, Bengaluru-560 032 for a period of two years commencing from 5-5-2014 and at the time of executing the lease agreement the complainant had paid an amount of Rs.3,00,000/- towards security deposit. In the said premises the complainant was doing a business of sales and service of Videocon DTH in the name and style of "Nandi Enterprises". On expiry of lease term the complainant requested the accused's mother to refund the security deposit of Rs.3,00,000/- so that she can vacate the premises, but the accused and his mother expressed their financial inability and sought some time to refund the security deposit. The complainant has vacated the schedule premises on 15-8-2016. On consistent demand, the accused's mother paid Rs.1,00,000/- and for balance security deposit amount of Rs.2,00,000/- the accused has issued three cheques bearing No. 063045 for Rs.1,00,000/-, No. 063046 for Rs.50,000/- and No.063047 for Rs.50,000/- all dated 30-11-2016 drawn on Central Bank of India, Seshadri Road, Gandhinagar Branch, Bengaluru. The Complainant presented the said cheques for realisation through her banker and the said cheques were returned with an endorsement "Funds Insufficient" in the accused's account. Thereafter, complainant got issued legal notice on 4 Judgment C.C.3506/2017 12-12-2016 to the accused by demanding the payment of cheque amount. The notice was duly served to the accused. But accused has not complied the notice. It is contended that, accused intentionally not maintained sufficient amount in his bank account to honour the cheques issued in favour of the complainant towards discharge of liability. On these allegations, present complaint is filed.
03. After filing of complaint, this court perused the documents and taken cognizance for the offence under section 138 of Negotiable Instrument Act, sworn statement of complainant was recorded. Being satisfied that there are prima-facie materials to proceed against accused, summons was issued. After appearance, accused enlarged on bail and plea was recorded as per section 251 of Cr.P.C. The accused has pleaded not guilty, however he has not stated his defence.
04. As per the direction of Hon'ble supreme court in "Indian Bank Association V/s Union of India and others reported in (2014)(5) SCC 590, this court treated the sworn statement of the complainant as complainant evidence. The accused has filed application under section 145(2) of NI Act for recall of PW1, the 5 Judgment C.C.3506/2017 said application was allowed and posted the case for cross examination of PW1. PW1 has fully cross examined by the defence counsel. After completion of complainant's evidence, the statement under section 313 of code of criminal procedure was recorded, read over and explained to the accused. The defence of the accused is total denial, particularly denying the impugned transaction. Further, accused examined himself as DW.1 and in support of his defence seven documents marked as Ex.D1 to 7 .
05. Heard the Learned Counsel for complainant and accused. Perused materials on record.
06. The points that arise for my consideration are as follows;
1. Whether the complainant proves that, accused issued cheques bearing No.063045 for Rs.1,00,000/-, No.063046 for Rs.50,000/- and No.063047 for Rs.50,000/- all dated 30-11-2016 towards discharge of his liability, which were returned unpaid on presentation for the reason "Funds Insufficient" and also not complied the notice issued by the complainant and thereby committed an offence punishable under section 138of Negotiable Instruments Act?
6 Judgment C.C.3506/2017
2. What Order?
07. My answer to the above points is as follows;
Point No.1: In the Affirmative Point No.2: As per final order for the following;
REASONS
8. POINT No.1: Complainant has filed this complaint alleging that accused has committed offence under section 138 of N.I. Act. The complainant pleads and asserts that, towards discharge of his liability, accused has issued three cheques bearing No.063045 for Rs.1,00,000/-, No.063046 for Rs.50,000/- and No.063047 for Rs.50,000/- all dated 30-11-2016. The said cheques came to be dishonoured on presentation for "Funds Insufficient" in the account maintained by the accused. Complainant has issued notice within time stipulated calling upon the accused to pay the amount covered under cheque. In spite of service of notice, accused has not paid the amount within 15 days, which gave raise cause of action to file this complaint. To substantiate complainant's case the proprietor of complainant stepped into witness box and got examined as PW.1 7 Judgment C.C.3506/2017 through her Ex.P-1 to Ex.P-16 are marked. PW1 has reiterated contents of the complaint in her evidence affidavit about the transaction, undertaking to pay the amount by the accused and also about issuing cheques towards repayment of his liability and its dishonour for insufficient fund in the account maintained by the accused.
9. In this scenario, let me scrutinize the documents relied by complainant in order to examine the compliance of statutory requirements envisaged under section 138 of N.I. Act. Ex.P.1 to 3 are cheques dated 30-11-2016, the said cheques were returned with an endorsements "Funds Insufficient" as per Ex.P.4 to 6 bank endorsements dated 02-12-2016. Ex.P.7 is legal notice dated 10-11- 2016, Ex.P.8 is another legal notice, Ex.P.9 & 10 are postal receipts, Ex.P.11 Postal acknowledgment, Ex.P.12 is un served RPAD cover, Ex.P.13 copy of cheque, Ex.P.14 is the Bank statement, Ex.P.15 is FIR, Ex.P.16 is original Lease agreement. This complaint came to be filed on 28-01-2017. A careful scrutiny of the documents relied by the complainant goes to show that, statutory requirements of section 138 of N.I. Act is complied with and this complaint is filed within 8 Judgment C.C.3506/2017 time. Thus, complainant is entitle to relied on the statutory presumptions enshrined under section 118 read with section 139 of N.I. Act. Section 118 reads as here: - "That every negotiable instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration". Further Sec 139 of the Negotiable Instruments Act provides for presumption in favour of a holder. It reads as here: - "It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in sec 138, for the discharge, in whole or in part, or any debt or other liability." Combined reading of above said sections raises a presumption in favour of the holder of the cheque that he has received the same for discharge in whole or in part of any debt or other liability.
10. No doubt, the said presumptions of law are rebuttable in nature. The accused can take probable defence in the scale of preponderance of probability to rebut the presumption available to the complainant. Let me examine whether accused has successfully rebutted the presumptions of law. The accused denied the impugned 9 Judgment C.C.3506/2017 transaction and put forth the defence that, he has borrowed loan of Rs.1 Lakh from the complainant and for security of the said loan amount he has issued four signed blank cheques. In spite of repayment of the said loan amount the complainant has not returned said security cheques and by misusing the said security cheques has filed this false complainant. As such the cheques in question are not issued for discharge debt or liability. On these contentions, accused sought for dismissal of the complaint and consequent acquittal. To endorse these contentions, accused examined himself as DW.1 and got marked seven documents as Ex.D1 to 7. The accused has deposed inconsonance with his defence.
11. In the back drop of the rival contentions, this court has given anxious consideration to the case papers. At the outset, accused has admitted in his evidence that, the cheques in question belongs to him and they bears his signatures. From the said admissions, it goes without saying that, accused has not disputed the cheques in question. When the drawer has admitted the issuance of the cheque as well as the signature present therein, the presumptions envisaged under section 118 read with section 139 of NI Act, would operate in 10 Judgment C.C.3506/2017 favour of the Complainant. The said provisions lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and thereunder court shall presume that the instrument was endorsed for consideration. So also, in the absence of contrary evidence on behalf of the accused, the presumption under section 118 of the NI Act, goes in favour of the complainant. No doubt, said statutory presumptions are rebuttable in nature. It is for the accused to place cogent and probable defence to rebut the presumptions raised in favour of the Complainant. It is pertinent to note that, the accused has taken defence that the complainant has misused security cheques which were issued while borrowing loan from the complainant. As discussed earlier, when the complainant has relied upon the statutory presumptions enshrined under section 118 read with section 139 of NI Act, it is for the accused to rebut the presumptions with cogent and convincing evidence. To put it other way, the burden lies upon the accused to prove that he has borrowed loan of Rs.1 Lakh from the complainant and issued four signed security cheques for the said loan. It is worth to note that, Section 106 of Indian Evidence Act postulates that, the burden is on the accused to establish the fact which is especially 11 Judgment C.C.3506/2017 within his special knowledge. This provision is exception to the General Rule that, the burden of proof is always on the prosecution to establish their case beyond all reasonable doubt. In that view of the matter, the burden is on the accused to prove the previous transaction. To discharge this burden, except self serving statement, accused has not placed any believable supportive evidence to prove his defence. That apart, if at all, complainant has not returned the security cheques, what prevented the accused to lodge a police complaint or to take suitable steps to secure the said cheques or to give intimation to bank to stop the payment, is not satisfactorily explained.
12. It is the specific case of the complainant that the accused's mother Smt.G.Raziya Begum and the complainant have entered into a Lease agreement dated 8-5-2014 and at the time of executing the lease agreement the complainant had paid an amount of Rs.3,00,000/- towards refundable security deposit. On expiry of lease term the complainant requested the accused's mother to refund the security deposit of Rs.3,00,000/- so that she can vacate the premises, but the accused and his mother expressed their financial inability and 12 Judgment C.C.3506/2017 sought some time to refund the security deposit. The complainant has vacated the schedule premises on 15-8-2016. On consistent demand, the the mother of the accused has paid Rs.1,00,000/- and for balance security deposit amount of Rs.2,00,000/- the accused has issued Ex.P1 to 3 cheques and the said cheques came to be dishonoured for insufficient funds in the account of the accused. The accused has denied the very transaction and execution of lease agreement by his mother.
13. In order to substantiate the case, the complainant has produced Ex.P16 original lease agreement dated 08-05-2014. On perusal of recitals of the same, it appears that the lease agreement made on embossed stamp paper and the said endorsement made on 08-05-2014 i.e. on the date of execution of agreement itself. Hence there is no doubt about the genuineness of the Ex.P16 lease agreement as contended by the accused. The said agreement contained signature of accused's mother on the last page. In the clause 2 of the said agreement it is clearly mentioned that complainant has paid Rs.3 lakhs to the mother of the complainant as refundable security deposit. In support of Ex.P16 lease agreement, 13 Judgment C.C.3506/2017 complainant has also produced statement of account of Nandi Enterprises marked at Ex.P14 to prove payment of security deposit amount. Ex.P.14 statement of account show that the complainant has paid Rs.1,00,000/- on 5-5-2014 and Rs.1,95,000/- on 08-05-21 by way of cheque in the name of accused's mother. The name of the accused's mother Raziya Begum found in the bank statement. This entry of bank statement clearly support the contention of complainant that the mother of accused has entered into lease agreement dated 08-05-2014 and the complainant has paid Rs.3,00,000/- as refundable security deposit. If the mother of the accused has not entered into any lease agreement with the complainant, then why she received amount shown Ex.P14 during the relevant point of time from the complainant through cheque. No proper explanation has put forth by the accused on this aspect.
14. During the defence evidence, the accused has taken defence that he has availed loan of Rs.1 Lakh from the complainant and issued four signed blank cheques as security to the said loan. Inpite of repayment of the said loan through his bank account the complainant has not returned security cheques. However no where in 14 Judgment C.C.3506/2017 the cross-examination of PW1 it was suggested that accused has borrowed loan of Rs.1,00,000/- from the complainant and for security of the said loan he issued the blank signed cheques and he repaid the said loan amount. Only one suggestion put to PW1 is that she has misused security cheques. The said suggestion has been denied by PW1 in clear terms. Even in reply notice Ex.D.7 also no whisper about borrowing of loan by the accused and its repayment and issuance of security cheques by him. In the said notice the accused contended that leased property was sold on 10-02-2014 to one Nazeer by his mother through a registered sale deed. As such question of giving the said property on lease to complainant by executing Ex.P.16 lease agreement on 8-5-2014 does not arise at all and it is further contended that the complainant is making false claim against the accused and there is no any liability to repayment the said amount. In the Ex.D7 notice nothing has been stated about so called borrowing of Rs.1 lakh loan by the accused and it is repayment. For the first time during the defence evidence the accused has taken contention that he borrowed loan of Rs.1,00,000/- from the complainant and for security of said loan he has issued four signed blank cheques on 6-6-2014 and he repaid the same. In supporting 15 Judgment C.C.3506/2017 the same he produced Ex.D.4 Bank pass book. The complainant has not denied the payment of Rs.1,00,000/-. In the complaint itself the complainant contended that out of Rs.3 lakhs security deposit amount, the mother of the accused managed to pay of Rs.1,00,000/- and kept balance of Rs.2,00,000/-. Hence production of Ex.D.4 bank pass book is not helpful the accused to prove his defence that he has borrowed loan of Rs.1,00,000/- from the complainant and as security of the said loan he has issued 4 cheques. Except his self serving statement nothing has been produced by the accused to prove that he has borrowed loan from the complainant and issued blank signed cheques as security. The accused has not taken any steps either by lodging the complaint or issuance of legal notice calling upon the complainant to return the cheques. A prudent man under the normal circumstance will not sit quite without taking any efforts to take back his blank signed cheque, which creates doubt in the mind of the court, regarding the genuineness of the defence taken by the accused. Hence defence of the accused that he has borrowed loan of Rs.1,00,000/-from the complainant and issued 4 security cheques is not probable one in the facts and circumstances of the case.
16 Judgment C.C.3506/2017
15. The learned counsel for the accused vehemently argued that the property which was alleged to leased out by the accused's mother was sold on 10-2-2014 i.e., before the date of alleged lease. Hence question of leased out the said property in favour of complainant on 8-5-2014 does not arise at all. He further argued that on the date of lease the mother of accused was not the owner of the said premises. In support of his submission he has relied on the attention of the court on Ex.D2 certified copy of the registered sale deed dated 10- 02-2014 executed by mother of the accused in favour of Nazeer K B. On perusal of the description of the property in the Ex.D.2 sale deed and Ex.P.16 lease agreement, it appears that both properties are totally different. Ex.D.2 sale deed relating to site No.32 (old No.5). But the lease agreement relates to site No.6. Hence, Ex.D.2 is not supports the contention of accused that leased property was already sold by the mother of accused.
16. The next contention of the accused that the no notice was issued to his correct address and he contended that on the date of issuing of notice he was not residing in the said address. In supporting of his contention that he has produced Ex.D.5 and Ex.6 17 Judgment C.C.3506/2017 lease agreements, wherein it is stated that he was residing in the address mention in the said agreement of lease on the date of issuance of Ex.P8 notice. The complainant contended that notice has issued on the office address of the accused. On perusal of the Ex.P.8, it appears that complainant has issued legal notice on 12-12- 2016 on the address shown in in the agreement of lease Ex.P.16. The said address is the last know correct address of the accused. Further the said notice was received by someone in the said address as per Ex.P11 postal endorsement. Hence the complainant has complied mandatory requirement under section 138 of NI Act by issuing notice to the accused to his last know correct address.
17. The learned counsel for the accused has argued that signature and other hand writings in the Ex.P1 to 3 cheques are not tally each other. But it is pertinent to state here that accused has admitted that Ex.P1 to 3 bears his signatures. As per Sec.20 of N.I.Act, it is manifest that, a right has been created in the holder of the cheque to complete the incomplete negotiable instrument. Mere averment to the effect that the accused did not fill in the details on the cheque except for signing on the cheque is not sufficient. On this point it is 18 Judgment C.C.3506/2017 profitable to refer the decision reported in (2019 )ACR 16, in the case of Bir Singh V Mukesh Kumar, Hon'ble Apex court has held that "A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted". In view of the law laid down by the Hon'ble supreme court in the above referred judgment the argument addressed by the learned defence counsel is not acceptable one.
18. As far as proof of existence of legally enforceable debt is concerned, it is profitable to refer the decision of larger bench of the Hon'ble Apex Court reported in Rangappa Vs. Mohan reported in AIR 2010 SC 1898, Wherein their lordships pleased to observe that, "In the light of these extracts, we are in agreement with the 19 Judgment C.C.3506/2017 respondent-claimant that the presumption mandated by section 139 of the Act does indeed include the existence of the legally enforceable debt or liability". In another decision reported in, (2015) 8 SCC 378 in the case of Vasanthakumar Vs. Vijayakumari, it is held that once the accused has admitted the issuance of Cheque as well as signature on it, the presumption under section 139 would be attracted. In K.N. Beena Vs Muniyappan and another reported in (2001) 8 SCC 458, the Hon'ble Apex Court, refers to Hiten P. Dalal Vs. Bratindranath Banerjee and holds, on the factual matrix, that bare denial of the liability in reply notice is not sufficient to shift the burden of proof on the complainant to prove that the cheque was issued for a debt or liability. In view of the law laid by the Hon'ble Apex Court, the presumption enshrined under section 139 of the N.I. Act is extendable to the existence of legally enforceable debt. The story brought by the accused is unworthy of credit and not supported by any acceptable evidence. In other words, accused has not placed cogent material to rebut the said presumption. As such, this contention of the accused holds no water. The Hon'ble Supreme Court of India pleased to discuss aforesaid aspect in detail in the decision reported in, Rangappa Vs. Mohan reported in AIR 2010 20 Judgment C.C.3506/2017 SC 1898. It is relevant to reproduce said observations; " Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the court in favour of the complainant. The presumption referred to in Section 139 of the NI Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under the given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the court. The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered... "
21 Judgment C.C.3506/2017
19. It is further observed in para 18 of the decision that, Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumptions contemplated by Section 139 of the Act. " Chapter XVII containing Sections 138 to 142 was introduced in the Act by Act 66 of 1988 with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. These provisions were intended to discourage people from not honouring their commitments by way of payment through cheques. In view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. A contrary view would render S.138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of one's own wrong..." The Hon'ble Apex court clearly laid down the ratio that, when the ingredients of section 138 of NI 22 Judgment C.C.3506/2017 Act is complied with, presumption shall be drawn in favour of the complainant. The burden is upon the accused to rebut the statutory presumptions.
20. Further, it is profitable to refer the authorities reported in, AIR 2019 Supreme Court 2446 in the case of Bir Singh Vs. Mukesh Kumar, it is held that;"Presumptions are rules of evidence and do not conflict with presumption of innocence, which requires prosecution to prove case against accused- Obligation on prosecution may be discharged with help of presumptions of law and presumptions of fact unless accused adduces evidence showing reasonable possibility of non-existence of presumed fact. Onus to rebut presumption that cheque issued in discharge of debt or liability is on accused. " In the decision reported in, AIR 2019 SUPREME COURT 1876, in the case Rohitbhai Jivanlal Patel Vs. State of Gujarat and Another; wherein it is held that Once presumption of existence of legally enforceable debt drawn in favour of complainant, onus is shifted on accused- Unless onus is discharged by accused that preponderance of probabilities are tilting in his favour, doubt on case of complainant cannot be raised for want of evidence regarding 23 Judgment C.C.3506/2017 source of funds for advancing loan to accused."In view of the law laid down in the aforesaid Rangappa's case and Bir Singh's case, the claim of the complainant is acceptable.
21. From the overall consideration of the evidence on record it is forthcoming that, accused has not taken probable defence to rebut the statutory presumption. Mere denial is not sufficient to discharge the onus shifted on accused. To fortify this opinion, it is proper to refer the decision reported in, 2001 CRI.L.J. 4647, in a case of Hiten P.Dalal V/s. Bratindranath Banerjee, wherein it is held that Presumption that cheque was drawn for discharge of liability of drawer is presumption of law ought to be raised by Court in every case instituted under the Act and mere plausible explanation is not sufficient to rebut the said presumption.
22. Further, in another decision reported in, 2017(2) A.K.R. 527, Arjun Vs.E.Shekar, it is held that, Burden of proving that cheque has not been issued for any debt or liability is on accused and mere plausible explanation not sufficient to disprove complainant' s case. From the gist of the ratio laid down in the above decisions, it is clear 24 Judgment C.C.3506/2017 that, burden is on the accused to rebut the statutory presumption through cogent evidence, which is not discharged by the accused in the present case. The accused has taken a vague defence and not placed cogent evidence to prove the same. In this case plea of the accused was recorded as per section 251 of Cr.P.C. Accused pleaded not guilty. As per section 251 of Cr.P.C. accused has to state about his defence at the time of plea. Here, except pleading not guilty accused has not stated his defence at the time of recording plea. As per the decision reported in AIR 2014 SC 2528 (Indian Bank Association V/s Union of India) and Crl. Petition No.8943/2010 M/s.Mess Transgare Pvt V/s Dr. R Parvathareddy and in Rajesh Agarwals, Wherein, it is held that; " Accused cannot simply say " I am innocent " or " I pleaded not guilty ". The proposition of law laid down in the aforesaid decision is squarely applicable to the facts and circumstances of this case. As such, it cannot be held that accused has rebutted the presumption of law enshrined under section 139 and118 of N.I. Act, by mere pleading not guilty.
23. From the discussion made supra, it is clear that, accused has neither taken probable defence nor taken steps to prove the same.
25 Judgment C.C.3506/2017 The contention of the accused that, disputed cheque was not issued towards discharge of his liability is also not proved through cogent and acceptable evidence. To put it other way, accused has not taken and proved probable defence to rebut the presumption of law available in favour of the complainant, envisaged under section 118 read with section 139 of N.I. Act. Accordingly, the case of the complainant is acceptable. Complainant has proved that, accused has undertakes to pay the amount paid to his mother and in discharge of said liability has issued Ex.P1 to 3 cheques and he has intentionally not maintained sufficient amount in his account to honour the disputed cheques. Hence, this point No.1 under consideration is answered in the Affirmative.
24. POINT NO.2: In view of the reasons stated and discussed above, the complainant has proved the guilt of the accused punishable under section 138 of N.I. Act. Hon'ble Supreme Court of India in a decision reported in, (2015) 17 SCC 368, in a case of H.Pukhraj Vs. D.Parasmal, observed that, having regard to the length of trial and date of issuance of the cheque, it is necessary to award reasonable interest on the cheque amount along with cost of litigation. Further 26 Judgment C.C.3506/2017 the Hon'ble Apex Court in its recent decision in M/s. Meters & instrument Pvt Ltd. Vs. Kanchana Mehta reported in (2018)1 SCC-560 held at para 18 that " The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the court." Therefore, keeping in mind the time when the transaction has taken place and primary object of the provision, this court is of the opinion that, rather than imposing punitive sentence, if sentence of fine is imposed with a direction to compensate the complainant for its monitory loss, by awarding compensation U/Sec.357 of Cr.P.C, would meet the ends of justice. The amount covered under the disputed cheque is Rs.2,00,000/-. The date of cheque is, 30-11-2016. By considering all these aspects, this court is of the opinion that, it is just and proper to imposed fine amount of Rs.3,05,000/-. which includes interest and cost of litigation, out of which compensation of Rs.3,00,000/- has to be awarded to the complainant U/s 357 Cr.P.C.. Accordingly, this court proceed to pass the following;
27 Judgment C.C.3506/2017 ORDER Acting under section 255 (2) of Criminal Procedure Code, accused is here by convicted for the offence punishable under section 138 of Negotiable Instrument Act and sentenced to pay fine of Rs.3,05,000/-(Rupees Three Lakhs and Five Thousand only). In default thereof accused shall undergo simple imprisonment for the term of 6(Six) months.
Acting under section 357(1) (b) of code of criminal procedure, it is ordered that, Rs.3,00,000/- ( Rupees Three Lakhs only), therefrom shall be paid to the complainant as a compensation, remaining fine amount of Rs.5,000/-(Rupees Five Thousand only) is defrayed to the state for the expenses incurred in the prosecution.
Office is directed to supply free copy of the judgment to the accused.
(Directly dictated to the Stenographer on computer, typed by her, corrected by me and then judgment pronounced in the open court on this the 9 th day of August 2021).
(MANJUNATHA M.S.) XVIII A.C.M.M.,BANGALORE 28 Judgment C.C.3506/2017 ANNEXURE I. List of witnesses on behalf of complainant:
P.W.1: Smt.Shubha,W /o Sri.Shashidar II. List of documents on behalf of complainant:
Ex.P-1to 3 : Three Original Cheques.
Ex.P-4 to 6 : Bank memos.
Ex.P-7 : Legal notice.
Ex.P-8 : Reply Notice
Ex.P.9& 10: Postal receipt.
Ex.P-11 : Postal Acknowledgement
Ex.P-12: RPAD cover
Ex.P-13: copy of cheque
Ex.P-14: Bank statement,
Ex.P.-15: FIR
Ex.P.-16: Lease agreement,
III. List of witnesses for the accused:
D.W.1: Khadar Shali.Ji
IV. List of documents for accused:
Ex.D-1 : RPAD cover .
Ex.D-2: Notarized copy of Sale Deed
Ex.D-3: Mutation register
Ex.D-4: Pass book
Ex.D.5& 6: Rental agreements,
Ex.D.7:Legal notice
(MANJUNATHA M.S.)
XVIII A.C.M.M.,BANGALORE