Bangalore District Court
K. Chalapathi vs J.R. Kumar on 29 February, 2024
1
C.C.No.208/2023
KABC030004362023
Presented on : 04-01-2023
Registered on : 04-01-2023
Decided on : 29-02-2024
Duration : 1 years, 1 months, 25 days
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated : This the 29th day of February 2024
Present: Sri.N.M. RAMESHA, B'Com.,L.L.M.
XVI Addl.C.M.M., Bengaluru City.
Case No. C.C.NoCC.No.208/2023
:
Complainant : Sri.K.Chalpathi
S/o Late Krishnappa
R/at No.82, 4th Main,
5th Cross, Naidu Layout,
Chikkalasandra,
Bengaluru - 560061.
(By Sri.Supreeth.S, Adv,)
V/s
Accused : Sri.J.R.Kumar
S/o Late Rameshaiah
Aged about 50 years
R/at No.77/1, 1st Floor,
2nd Cross Road, Yavallikavalu,
Bangalore - 560003.
And also working official Senior
working Inspector
2
C.C.No.208/2023
Rajaya Vakaligara Shanga,
East Office,
Bangalore - 560004.
(By Sri.B.Rajagopala., Adv.,)
Case instituted : 20.03.2019.
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 29.2.2024
JUDGMENT
The Complainant has filed this complaint against the accused under the provisions of Sec.200 of the Code of Criminal Procedure, for the offence punishable U/Sec.138 of the Negotiable Instruments Act.
2. The case of the Complainant is as under:-
The accused has taken a hand loan of Rs.1,50,000/- from the complainant on 23.01.2018 for financial difficulties. The accused has promised to repay the loan within 3 months. On demand for repayment of loan, the accused has issued a cheque bearing No.723934 dated 12.12.2018 for Rs.1,50,000/-, drawn on Syndicate Bank, V.V.Puram Branch, Bengaluru in 3 C.C.No.208/2023 favour of the complainant for repayment loan of Rs.1,50,000/-.
3. It is further averred in the complaint that the complainant has presented the cheque for encashment before the Bank, Bengaluru on 14.12.2018. But the cheque was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 15.12.2018. Therefore, the complainant got issued a legal notice dated 09.01.2019 calling upon the accused to pay the cheque amount within 15 days from the date of service of legal notice. The legal notice was served on the accused on 14.01.2019. The accused has contacted the complainant and requested not to proceed with legal proceedings, but to re-present the cheque for encashment. Therefore, the complainant has re- presented the cheque for encashment before the bank on 06.03.2019. But, the cheque was again dishonoured for want of sufficinet funds in the account of the accused vide bank endorsement dated 07.03.2019. But, the accused in spite of service of legal notice has failed to repay the cheque amount within time and thereby committed an offence punishable U/s.138 of NI Act. Therefore, the complainant has presented the complaint before the court on 20.03.2019 along with Interim 4 C.C.No.208/2023 Application U/Sec.145 of NI Act to condone the delay in presentation of complaint.
4. After presentation of complaint, it was ordered to be registered as PCR No.3857/2019 vide order dated 20.03.2019 and the notice on interim application was ordered to be issued against the accused.
5. On service of notice on application, the accused has appeared before the court through his learned counsel and filed objections to interim application.
6. The complainant got himself examined as PW.1 in respect of enquiry on IA and he was subjected for cross-examination by the learned counsel for the accused. The accused has not adduced any evidence with respect to enquiry on interim application.
7. On considering the evidence of PW.1 and the arguments canvassed by learned counsel for both the side, the interim application was ordered to be allowed vide order dated 12.09.2022 and the delay of 22 days in presenting the complaint has been condoned and the complainant was permitted to present the complaint.
8. The sworn statement of the complainant has been recorded and the documents were got marked as per Ex.P.1 to P.11.
5C.C.No.208/2023
9. This Court having heard the arguments of learned counsel for the complainant and having satisfied with the complaint averments, sworn statement of complainant and the documents at Ex.P.1 to P.11 and having satisfied with the prima facie materials placed on record has taken the cognizance for the offence punishable U/s.138 of N.I.Act and the case was ordered to be registered as CC.No.208/2023 and the process was ordered to be issued against the accused vide order dated 04.01.2023.
10. On service of summons, the accused has appeared before the court through his learned counsel and obtained the bail by depositing the cash surety of Rs.2,000/- vide Q.No.5117 dt:16.06.2023. Copies of all the prosecution papers were supplied to the accused.
11. The Plea of accused for the offence punishable U/s.138 of N.I.Act has been recorded on 16.06.2023 and the substance of accusation has been read over and explained to accused in the language known to him. The accused has pleaded not guilty, but claims to be tried.
12. In order to establish the guilt against the accused, the complainant got himself examined as PW-1 and got the documents marked as Ex.P.1 to P.11. PW.1 6 C.C.No.208/2023 was subjected for cross examination by the learned counsel for the accused.
13. The statement of accused as contemplated under the provisions of Section 313 of Cr.P.C has been recorded vide dated 18.11.2023 and the incriminating evidence as such forthcoming against the accused in the evidence of complainant and the documents has been read over and explained to the accused in the language known to him. But the accused has denied the evidence of complainant and the documents. The accused did choose to enter the defence evidence.
14. In order to substantiate his defence, the accused got himself examined as DW.1. DW.1 was subjected for cross examination by the learned counsel for the complainant.
15. I have heard the arguments of learned counsel for both the side and perused the oral and the documentary evidence placed on record.
16. Now, the points that would arise for my consideration are as under:-
1. Whether the complainant proves that the accused has issued a cheque bearing No.723934 dated 12.12.2018 for Rs.1,50,000/-, drawn on Syndicate Bank, V.V.Puram Branch, Bengaluru 7 C.C.No.208/2023 in his favour towards the legally recoverable debt of Rs.1,50,000/- and on presentation of cheque for encashment before the Bank, Bengaluru on 14.02.2018 and 06.03.2019, it was dishonoured for want of sufficient funds in the account of the accused vide bank endorsements dated 15.02.2018 and 07.03.2019 and in spite of issuance of legal notice dt:09.01.2019 and in spite of service of legal notice on 14.01.2019, the accused has failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of N.I.Act?
2. What Order?
17. On considering and assessing the oral and documentatry evidence placed on record, now my answers to the above points are as under :
[ Point No.1: In the Affirmative Point No.2: As per final order for the following :-
REASONS
18. Point No.1 : The provisions of Sec.20 of Negotiable Instrument Act deals about Inchoate Stamped Instruments. As per this provisions of law, where one person signs and delivers to another a paper stamped in accorance with the law relating to negotiable instrements then in force in India, and either wholly blank or having written thereon an incomplete 8 C.C.No.208/2023 negotiable instrument, he thereby gives prima-facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, or any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instruemnt, in the capacity in which he signed the same, to any holder in due course for such amount.
19. The provisions of Sec.118 of Negotiable Instrument Act deals about presumptions as to neogtiable instruments. As per this provisions of law, unit the contrary is proved, the following presumptions shall be made:-(a) of consideration: that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transfered, was accepted, indorsed, negotiated or transferred for considertaion: (b) as to date: that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance- that every accepted bill of exchange was accpted within a reasonable time after its date and before its maturity. (d) as to time of transfer-that every transfer of a negotiable instrument was made before the maturity; (e) as to order of indorsement; that the indorsements appearing upon a negotiable instrument 9 C.C.No.208/2023 were made in the order in which they apear thereon; (f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped and (g) that holder is a holder indue course- that the holder of a negotiable instrument is a holder in due course. [
20. The provisions of Sec.138 of Negotiable Instrument Act deals about dishonour of cheque for insufficiency etc., of funds in the accounts. As per this provisions of law, where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or inpart, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other proviosn of this Act, be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both.
10C.C.No.208/2023
21. As per the proviso attached to the above said provisions of law, nothing contained in this section shall apply unless-(a) the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing , to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
[ 22. The provisions of Sec.139 of Negotiable Instrument Act deals about presumption in favour of holder. As per this provisions of law, it shall be presumed, unles the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability.
11C.C.No.208/2023
23. The provisions of Section 146 of the Negotiable Instruments Act, 1881 deals about the Bank's slip prima facie evidence of certain facts. As per this provisions of law, the Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.
24. Now keeping the above said provisions of Section 20, 118, 138, 139 and 146 of N.I.Act, in mind, let us consider as to whether the complainant could able to comply the mandates, ingredients, terms and conditions of Section 138 of N.I.Act, so as to draw the presumptions in her favour as per Section 118 and 139 of N.I.Act.
25. It is averred in the complaint and stated by PW.1 in his oral evidence that the accused has taken a hand loan of Rs.1,50,000/- on 23.01.2018 for financial difficulties and the accused has promised to repay the loan within 3 months and on demand for repayment of loan, the accused has issued a cheque bearing No.723934 dated 12.12.2018 for Rs.1,50,000/-, drawn 12 C.C.No.208/2023 on Syndicate Bank, V.V.Puram Branch, Bengaluru in his favour for repayment loan of Rs.1,50,000/-.
26. It is further averred in the complaint and stated by PW.1 in his oral evidence that he has presented the cheque for encashment before the Bank, Bengaluru on 14.12.2018, but the cheque was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 15.12.2018 and therefore, he got issued a legal notice dated 09.01.2018 calling upon the accused to pay the cheque amount within 15 days from the date of service of legal notice and the legal notice was served on the accused on 14.01.2019 and the accused has contacted him and requested not to proceed with legal proceedings, but to re-present the cheque for encashment and therefore, he has re-presented the cheque for encashment before the bank on 06.03.2019, but, the cheque was again dishonoured for want of sufficinet funds in the account of the accused vide bank endorsement dated 07.03.2019, but, the accused in spite of service of legal notice has failed to repay the cheque amount within time and therefore, he has presented the complaint before the court on 20.03.2019.
13C.C.No.208/2023
27. The complainant has produced the cheque dated 12.12.2018, 2 bank endorsements dated 15.12.2018 & 07.03.2019, legal notice dated 09.01.2019, 2 postal receipts dated 09.01.2019, postal acknowledgment dated 14.01.2019, returned notice dated 09.01.2019, postal cover, postal receipt dated 09.01.2019 and complaint and they are marked at Ex.P1 to P11.
28. The accused has not seriously disputed the loan transaction between him and the complainant and about the fact that the cheque vide Ex.P1 dated 12.12.2018 is belongs to him and he has drawn the cheque on an account maintained by him with his banker namely Syndicate Bank, V.V.Puram Branch, Bengaluru. The accused has also not seriously disputed about the presentation of cheque for encashment before the Thyagaraja Co-operative Bank Ltd., Bengaluru within its validity and the dishonour of cheque for want of sufficient funds in his account vide bank endorsements at Ex.P2 & P3 dated 15.12.2018 and 07.03.2019 and the issuance of legal notice vide Ex.P4 dated 09.01.2019 and the service of legal notice on 14.01.2019 and the address mentioned on the notice.
14C.C.No.208/2023
29. In fact, there are no material suggestions to PW.1 either to deny the cheque vide Ex.P1 or to deny the presentation of cheque for encashment before the bank within its validity or to deny the dishonour of cheque for want of sufficient funds in the account of the accused vide bank endorsements at Ex.P2 & P3 dated 15.12.2018 & 07.03.2019 or to deny the issuance of the legal notice vide Ex.P4 dated 09.01.2019 or to deny the address mentioned on the notice or to deny the service of legal notice vide Ex.P7 dated 14.01.2019.
30. But, on the other hand, it is suggested to PW.1 that he has sent a legal notice to the accused on 09.01.2019 and after service of legal notice, the accused has contacted him and sought for time to repay the loan. DW.1 in his entire evidence has not seriously disputed either the cheque vide Ex.P1 or the presentation of cheque for encashment before the bank within its validity or the dishonour of cheque for want of sufficient funds in the account of the accused vide bank endorsements at Ex.P2 & 3 dated 15.12.2018 & 07.03.2019 or the issaunce of legal notice vide Ex.P4 dated 09.01.2019 or the address mentioned on the notice or the service of legal notice vide Ex.P7 dated 14.01.2019.
15C.C.No.208/2023
31. But, on the other hand, DW.1 in his evidence has stated that the complainant was known to him and he has availed a loan of Rs.1,50,000/- from the complainant in the year 2018 and issued the cheque in question to the complainant at the time of availing the loan. Be that as it may, DW.1 in his cross-examination has admitted that the cheque vide Ex.P1 shown to him is belongs to him and the notice sent by the complainant has been served upon him.
32. From these materials placed on record, it is crystal clear that the accused by necessary implications has admitted the fact that the cheque is belongs to him and he has drawn the cheque on an account maintained by him with his banker namely Syndicate Bank, V.V.Puram Branch, Bengaluru and on presentation of cheque for encashment before the Thyagaraja Co- operative Bank Ltd., Bengaluru within its validity, it was dishonoured for want of sufficient funds in the account of the accused vide bank endorsements at Ex.P2 & P3 dated 15.12.2018 & 07.03.2019 and the issuance of legal notice including the address mentioned on the notice and the service of legal notice. Under these circumstances, it is said that the admissions are the best proof for the complainant to comply the mandates of Sec.138 of NI Act.
16C.C.No.208/2023
33. However, on careful perusal of complaint averments, oral evidence of PW.1 and the documentary evidence at Ex.P1 to P11 including the material suggestions put to PW.1 during the course of his cross- examination and the material admissions made by DW.1 in his cross-examination, it clearly establishes that the cheque vide Ex.P1 is belongs to the accused and he has drawn the cheque on an account maintained by him with his banker namely Syndicate Bank, V.V.Puram Branch, Bengaluru and the signature vide Ex.P1(a) is as that of the signature of the accused.
34. The materials placed on record also clearly establishes that on presentation of cheque for encashment before the Thyagaraja Co-operative Bank Ltd., Bengaluru within its validity, it was dishonoured for want of sufficient funds in the account of the accused vide bank endorsements at Ex.P2 & P3 dated 15.12.2018 & 07.03.2019. Therefore, the complainant got issued a legal notice vide Ex.P4 dated 09.01.2019 calling upon the accused to pay the cheque amount within 15 days from the date of receipt of bank endorsements which has been served on the accused as per the postal acknowledgement at Ex.P7 vide dated 14.01.2019. But, in spite of service of legal notice, the 17 C.C.No.208/2023 accused has failed to pay the cheque amount within the stipulated time from the date of service of legal notice.
35. It is pertinent to note here that the cheque vide Ex.P1 is dated 12.12.2018. As could be seen from the documents at Ex.P2 & P3, the cheque was presented for encashment before the Thyagaraja Co-operative Bank Ltd., Bengaluru on 14.12.2018 & 06.03.2019 and it was dishonoured for want of sufficient funds in the account of the accused vide bank endorsements dated 15.12.2018 & 07.03.2019 at Ex.P2 & P3. So, it is crystal clear that the complainant has presented the cheque for encashment before the bank within its validity and the cheque was dishonoured for want of sufficient funds in the account of the accused.
36. As could be seen from the documents at Ex.P4 to P6 & P8 to P10, the complainant got issued a legal notice on 09.01.2019 as per Ex.P4 giving 15 days time to the accused to comply the demands made in the notice. So, it is crystal clear that the complainant has issued the legal notice within the stipulated period of time from the date of receipt of bank endorsement. As could be seen from the document at Ex.P7, the notice sent by the complainant has been served on the accused on 14.01.2019. But, in spite of service of legal notice, the 18 C.C.No.208/2023 accused has failed to pay the cheque amount within 15 days from the date of service of legal notice. Therefore, the complainant has presented the complaint before the court on 20.03.2019. As already stated above, the delay of 22 days in presenting the complaint was already condoned vide order on application dated 12.09.2022.
37. So, it is crystal clear that the complainant has complied the mandates of Sec.138 of NI Act by adducing the oral evidence of PW.1 and by producing the documentary evidence at Ex.P1 to P11 and also by eliciting the material facts in the cross-examination of DW.1. Under these circumstances, when once the complainant has complied the mandates of Sec.138 of NI Act and when once the accused has admitted the cheque and the dishonour of cheque including the address mentioned on the notice, this court has no option, but to draw the presumptions in favour of the complainant available under the provisions of Sec.118 and 139 of NI Act.
38. Admittedly, the presumptions available in favour of the complainant under the provisions of Sec.118 and 139 are not the conclusive proof, but they are rebuttable in nature. Therefore, when once the complainant has fulfilled the mandates of Sec.138 of N.I. 19 C.C.No.208/2023 Act and when once the accused has admitted the cheque and the address mentioned on the notice and when once the court has drawn the presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act, then, the onus shifts on the accused to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
39. The learned counsel for the complainant has argued with force that the complainant has complied the mandates of Sec.138 of NI Act with oral evidence of PW.1 and the documentary evidence at Ex.P1 to P.11 and also by eliciting material facts in the cross-examination of DW.1 which clearly establishes that the accused has availed a loan of Rs.1,50,000/- from the complainant on 23.01.2018 and in repayment of the loan, the accused has issued a cheque vide Ex.P1 for repayment of loan of Rs.1,50,000/- and the cheque was dishonoured for want of sufficient funds in the account of the accused vide bank endorsements dated 15.012.2018 & 07.03.2019 at Ex.P2 & P3 and therefore, the complainant got issued a legal notice vide Ex.P4 dated 09.01.2019 which was served on the accused on 14.01.2019 vide Ex.P7, but in spite of service of legal notice, the accused has failed to pay the cheque amount 20 C.C.No.208/2023 and therefore, the complainant has presented the complaint before the court on 20.03.2019.
40. It is further contended by the learned counsel for the complainant that the accused neither disputed the availment of loan nor the issuance of cheque or the presentation of cheque for encashment before the bank within its validity or the dishonour of cheque for want of sufficient funds in his account or the issuance of legal notice or the address mentioned on the notice or the service of legal notice and the oral evidence of PW.1 is very much consistent and in confirmity with the documentary evidence at Ex.P1 to P11 and therefore, the presumptions are available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
41. It is further contended by the learned counsel for the complainant that the accused has taken a defence that he has issued the cheque to the complainant in the year 2019 while availing the loan of Rs.1,50,000/- for security purpose and he has already repaid the entire loan amount to the complainant, but the complainant has filed false case against him and the notice sent by the complainant has not been served upon him and therefore, he is not liable to any cheque amount to the complainant. But the said contentions 21 C.C.No.208/2023 has not been proved by the accused before the court in any manner and the accused neither examined any independent witnesses nor elicited anything in the evidence of PW.1 or produced any documents before the court and thereby the accused has failed to rebut the statutory presumptions available in favour of the complainant.
42. It is further contended by the learned counsel for the complainant that the accused neither lodged any complaint against the complainant for misuse of cheque nor issued any stop payment instructions to the bank to stop the payment or issued any notice to get back the blank cheque from the complainant or issued any reply notice and thereby failed to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act and nothing is elicited in the evidence of PW.1 as to how and in what manner the complainant has misused the cheque and thereby failed to substantiate his probable defence and in view of the accused failed to rebut the statutory presumptions, the accused is liable for conviction U/Sec.138 of NI Act.
43. Per contra, the learned counsel for the accused has vehemently contended that the oral evidence of 22 C.C.No.208/2023 PW.1 and the documentary evidence at Ex.P1 to P11 do not establish the existence of legally recoverable debt of Rs.1,50,000/- and the issuance of cheque by the accused to the complainant towards the legally recoverable debt of Rs.1,50,000/- and thereby the complainant has failed to prove the existence of legally recoverable debt of Rs.1,50,000/- and the issuance of cheque towards the legally recoverable debt and failed to prove the guilt against the accused.
44. It is further contended by the learned counsel for the accused that the accused has raised a probable defence and proved the same before the court with oral evidence of DW.1 and also by eliciting the material facts in the cross-examination of PW.1 which clearly establishes that the accused has issued the cheque to the complainant in the year 2019 while availing the loan of Rs.1,50,000/- for security purpose and the accused has already repaid the entire loan amount to the complainant, but the complainant has filed false case against him and the notice sent by the complainant has not been served upon the accused and therefore, the accused is not liable to pay any cheque amount to the complainant and the complainant has not taken any legal action against the accused in respect of second notice and the complaint is also filed after lapse of 23 C.C.No.208/2023 statutory time and thereby the accused has rebutted the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act and hence, the accused is entitled to an order of acquittal.
45. Now, keeping the arguments canvassed by the learned counsel for both the side in mind, let us consider as to whether the accused could able to raise a probable defence and whether the accused could able to prove the same before the court and whether the accused could able to rebut the statutary presumption available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
46. It is the evidence of DW.1 that the complainant was known to him and there was no financial transaction between him and the complainant and he has availed a loan of Rs.1,50,000/- from the complainant in the year 2018 and repaid the loan in the year 2019 and he has issued the cheque to the complainant in the year 2018 while availing the loan of Rs.1,50,000/- for security purpose and he has already repaid the entire loan amount to the complainant, but the complainant has filed false case against him and the notice sent by the complainant has not been served 24 C.C.No.208/2023 upon him and therefore, he is not liable to pay any cheque amount to the complainant.
47. But, though the accused has taken these bald defences and bald contentions, same has not been amplified before the court in any manner. Because, the accused neither examined any evidence of independent witnesses before the court nor elicited any material facts in the cross-examination of PW.1 or produced any documentary evidence on his behalf either to substantiate his probable defence or to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act or to falsify the case made out by the complainant or to falsify the oral evidence of PW.1 or to falsify the documentary evidence at Ex.P1 to P11.
48. No doubt, it is suggested to PW.1 that on 04.03.2019, the accused has already repaid entire loan amount; that he has issued the notice for second time based on the dishonour of cheque for second time; that he has filed the complaint before the court based on the second notice; that the second notice sent by him has not been served upon the accused; that since the accused has already repaid entire amount, the accused is not due for any loan amount. But, all these material 25 C.C.No.208/2023 suggestions have been specifically denied by PW1. Therefore, it is said that the denied suggestions are always remained as suggestions only and not come in the way of accused either to substantiate his probable defence or to rebut the statutory presumption U/sec.118 and 139 of NI Act available in favour of the complainant or to falsify the case made by the complainant or to falsify the oral evidence of PW1 or to falsify the documentary evidence vide Ex.P1 to P11.
49. But, on the other hand, it is forthcoming in the evidence of PW.1 that when he was working with contractor, the accused was also working as work inspector with contractor and they came in contact with each other and the accused has sought for loan to perform the marraige of his daughter and therefore, he has pledged his ornaments and lent the loan of Rs.1,50,000/- to the accused. DW.1 has also stated that the complainant was known to him. DW.1 has also stated that the complainant was working as writer with contractor. From these materials placed on record, it is crystal clear that the complainant and the accused were known to each other as they were working with same contractor and having reposed the confidence, the accused has sought for loan from the complainant and 26 C.C.No.208/2023 therefore, the complainant has lent a loan of Rs.1,50,000/- to the accused.
50. It is pertinent to note here that if really the accused had issued a blank cheque to the complainant for security purpose for a loan amount of Rs.1,50,000/- and if really the accused had already repaid entire loan of Rs.1,50,000/- to the complainant and if really the complainant had failed to return the cheque even after repayment of entire loan amount and if really the complainant has misused the cheque and filed the false case and if really the notice has not been served upon the accused, then the accused could have taken some legal action against the complainant for misuse of cheque or the accused could have produced some documents to show that he had already repaid entire loan amount to the complainant or the accused could have issued a notice to the complainant to get back the cheque or the accused could have issued stop payment instructions to the concerned bank or the accused could have said the specific defence either at the time of recording of plea vide dated 16.06.2023 before the court or at the time of recording of statement U/Sec.313 of Cr.P.C. vide dated 18.11.2023 or the accused could have examined any independent witnesses or atleast 27 C.C.No.208/2023 Shashikiran which evidences the defence taken by the accused.
51. But, the accused has not done so. No explanation as such forthcoming either in the evidence of DW.1 or elicited any material facts in the cross- examination of PW.1 in this regard. In the absence of such an explanation or in the absence of the cogent materials on record or in the absence of independent testimony of either Shashikiran or any witness or in the absence of legal action against the complainant or in the absence stop payment instructions to the concerned bank or in the absence of police complaint against the complainant for misuse of cheque, an adverse inference has to be drawn against the accused for withholding the material witnesses being examined before the court and also for withholding the material documents being produced before the court as per Sec.114g of Indian Evidence Act, 1872.
52. But, on the other hand, DW.1 has stated in his evidence that he do not know the address of Shashikiran and he do not want to examine said Shashikiran before the court. The accused has not taken any action against the complainant when he failed to return the cheque and there was no impediment for 28 C.C.No.208/2023 accused to take such action against complainant and he has also not produced any documents before the court to show that he has issued any stop payment instructions to the concerned bank. The accused has also not issued any legal notice or reply notice to return the cheque even after payment of entire loan and also not taken any action against complainant for misuse of cheque and also not lodged any complaint against complainant. Under these circumstances, the evidence of DW.1 do not substantiate his probable defence and do not rebut the statutory presumptions available in favour of the complainant or falsify the case made out by the complainant or falsify the oral evidence of PW.1 or falsify the documentary evidence at Ex.P1 to P11.
53. It is pertinent to note here that at one point of time, the accused has taken a defence of as that of total denial at the time of recording the plea vide dated 16.06.2023 and also at the recording of statement U/Sec.313 of Cr.P.C. vide dated 18.11.202. But, the accused has not taken any specific defence and also not stated anything about the cheque and his signature on the cheque at the time of recording of his plea vide dated 16.06.2023 and statement U/Sec.313 of Cr.P.C. vide dated 18.11.2023. But, at another point of time, the accused has stated in his statement U/Sec.313 of 29 C.C.No.208/2023 Cr.P.C. that he has already repaid entire loan amount to the complainant. But, the accused has failed to substantiate the same. At one point of time, the accused has disputed the service of legal notice. But, at another point of time, the accused has admitted in his statement U/Sec.313 of Cr.P.C. that the complainant has issued the legal notice and he has received the notice.
54. But, at another point of time, it is suggested to PW.1 that he has issued the notice dated 09.01.2019 to the accused and after service of legal notice, the accused has contacted him and sought for time to repay the loan amount. But, at another point of time, DW.1 has stated in his chief-examination that there was no loan transaction between him and the complainant. But, at another point of time, DW.1 has stated in his evidence that he has availed a loan of Rs.1,50,000/- from the complainant in year 2018 and repaid entire loan amount in the year 2019 and while availing the loan, he had issued a signed blank cheque in favour of the complainant. But, at another point of time, DW.1 in his chief-examination has stated that he has not received legal notice from the complainant.
55. But, at another point of time, DW.1 in his cross-examination has stated that the complainant had lent a loan of Rs.1,50,000/- to one Shashikiran and 30 C.C.No.208/2023 thereby the accused go bye to his own defence. But, at another point of time, the accused has denied the issuance of cheque to the complainant and the complainant has obtained the cheque while lending a loan of Rs.1,50,000/- to Shashikiran who has not been examined before the court. At another point of time, DW.1 has stated that the second notice issued by the complainant has been served upon him. But, the accused has not produced any materials to show that the complainant has issued second notice and he has received the same. But, at another point of time, the accused has stated that he has received a loan of Rs.1,50,000/- from the complainant. But, at another point of time, he has denied the loan transaction.
56. So, from these materials placed on record, it is crystal clear that the accused has kept on changing his versions from stage to stage and also kept on changing his defence from stage to stage and also from time to time and thereby, laid on the material facts before the court with respect to the loan transaction between him and the complainant and the issuance of cheque to the complainant for legally recoverable debt of Rs.1,50,000/- towards the repayment of loan and also service of legal notice. Under these circumstances, utmost confidence 31 C.C.No.208/2023 cannot be reposed on the defence taken by the accused and much reliance cannot be placed on the oral evidence of DW.1 as the said evidence do not establish the defence taken by the accused.
57. It is pertinent to note here that after service of legal notice dated 09.01.2019, the accused has approached the complainant and sought for time to repay the loan and again requested the complainant to re-present the cheque and therefore, the complainant has re-presented the cheque on 06.03.2019 within the validity of date of cheque which was also again dishonured and therefore, the complainant has presented the complaint before the court on 20.03.2019 and the delay in presenting the complaint was already condoned vide order dated 12.09.2022. It is not in dispute that after service legal notice dated 09.01.2019, the accused has approached the complainant and sought for time to repay the loan. In this regard, material suggestions have been put to PW.1 by the learned counsel for the accused during the course of his cross-examination. The complainant has presented the complaint based on the legal notice dated 09.01.2019. So, it is clear that the complainant has complied the mandates of Sec.138 of NI Act.
32C.C.No.208/2023
58. On appreciation of entire oral and the documentary evidence placed on record, it is found that the accused has issued the cheque vide Ex.P1 to the complainant towards the legally recoverable debt of Rs.1,50,000/- and on presentation of cheque for encashment before the Bank within its validity, it was dishonoured for want of sufficient funds in the account of the accused vide bank endorsements at Ex.P2 & P3 dated 15.12.2018 & 07.03.2019. Therefore, the complainant got issued a legal notice vide Ex.P4 giving 15 days time to the accused to comply the demand made in the notice. But, the accused inspite of service of legal notice as per Ex.P7, has failed to pay the cheque amount within stipulated period of time and therefore, the complainant has presented the complaint before the Court on 20.03.2019.
59. It is pertinent to note here that the document at Ex.P1 being a cheque raises the presumption under the provisions of Sec.118 and 139 of NI Act. The documents at Ex.P2 & 3 being the bank endorsements also raises the presumption under the provisions of Sec.146 of NI Act. The documents at Ex.P4 to P10 being the legal notices, postal receipts, postal cover & postal acknowledgements clearly establishes the service of legal notice. The accused has admitted the cheque and the 33 C.C.No.208/2023 address mentioned on the notice including his signature on the cheque. Under these circumstances, the statutary presumptions under the provisions 118 and 139 of NI Act are available in favour of the complainant.
60. The accused has not only failed to examine an independent witnesses before the court, but also failed to elicit the material facts in the cross examination of PW1 and also not produced any cogent documentary evidence to substantiate his probable defence or to falsify the case made out by the complainant or to falsify the oral evidence of PW.1 and the documentary evidence Ex.P1 to P11 and thereby the accused has failed to rebut the staturory presumptions available in favour the complainant under the provisions of section 118 and 139 of NI Act. The oral evidence of DW.1 do not probablize the defence taken by the accused or to rebut the statutory presumptions available in favour of the complainant U/Sec.118 and 139 of NI Act or to falsify the case made out by the complainant or to falsify the oral evidence of PW.1 or to falsify the documentary evidence at Ex.P1 to P11. In fact, the accused neither issued any notice to get back the signed blank cheque nor taken any legal action against the complainant for misuse of cheque or issued any stop payment instructions to the concerned bank or any reply notice.
34C.C.No.208/2023 Under these circumstances, there are no reasons to disbelieve or to discard the oral evidence of P.W.1 and the documentary evidence at Ex.P1 to P11.
61. Under these circumstances, there is some legal and considerable force in the submission of the learned counsel for the complainant that the accused has not disputed the cheque vide Ex.P1 and his address mentioned on the documents at Ex.P4 to P10 and his signature on the cheque and thereby the accused has admitted about the cheque for legally recoverable debt of Rs.1,50,000/- which was dishonoured for want of sufficient funds in the account of the accused vide bank endorsements at Ex.P2 & P3 dated 15.12.2018 & 07.03.2019, but in spite of service of legal notice as per Ex.P7, the accused has failed to pay the cheque amount and the complainant has proved the guilt against the accused with legal evidence before the court, but the accused has failed to raise a probable defence and failed to prove the same before the court with legal evidence and the accused has failed to establish that the complainant has misused the cheque and the accused has not taken any legal action against the complainant and also not issued reply notice or stop payment instructions and also not produced any documents to substantiate his defence and also failed to prove that the 35 C.C.No.208/2023 complainant has obtained the blank cheque and misuse the same and thereby the accused has failed to rebut the statutory presumptions and therefore, the accused is liable for conviction U/Sec.138 of NI Act.
62. But, the arguments of the learned counsel for the accused that the oral evidence of PW.1 and the documentary evidence at Ex.P1 to P11 do not establish the existence of legally recoverable debt of Rs.1,50,000/- and the issuance of cheque for legally recoverable debt of Rs.1,50,000/- and the service of legal notice and thereby the complainant has failed to establish the guilt against the accused, but the accused has raised a probable defence and proved the same before the court by adducing the oral evidence of DW.1 and also by eliciting the material facts in the evidence of PW.1 which clearly establishes that the accused has issued the cheque for security purpose and he had already repaid the loan to complainant, but the complainant has misused the cheque and filed the case for wrongful gain and thereby the accused has rebutted the presumptions and therefore, the accused is entitled to an order of acquittal is not sustainable under law and therefore, cannot be accepted.
36C.C.No.208/2023
63. Therefore, for the reasons discussed above, this court is of the considered view that the materials placed on record clearly establishes the guilt against the accused for the offence punishable U/Sec.138 of N.I.Act. Hence, I hold that the complainant has proved the guilt against the accused for the offence punishable U/s.138 of NI Act. Hence, I answer the point No.1 in the 'Affirmative'.
64. POINT. No.2:- The provisions of Section 138 of N.I.Act provides punishment for imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of cheque or with both. In the present case, the accused and the complainant were known to each other and the accused has received the loan from the complainant for financial difficulties and issued the cheque for repayment of Rs.1,50,000/- which was dishonored. But, in spite of service of legal notice, the accused has failed to repay the cheque amount. Therefore, considering the nature of loan transaction between the complainant and the accused including the facts and circumstances of the case and the time taken for disposal of this case, this Court is of the considered view that if the following sentence is awarded, then it would meet the ends of 37 C.C.No.208/2023 justice. Hence, in view of my findings on point No.1, I proceed to pass the following:-
O RDE R The accused is found guilty for the offence punishable U/s.138 of Negotiable Instruments Act.
Hence, acting U/sec.255(2) of Cr.P.C, the accused is convicted and sentenced to pay a fine of Rs.2,00,000/- (Rupees Two lakhs Only) in default of fine amount, he shall undergo simple imprisonment for Six Months for the offence punishable under section 138 of N.I.Act.
Out of the fine amount collected from the accused, an amount of Rs.1,95,000/- (Rupees One Lakh Ninety Five Thousand only) shall be paid to the complainant as compensation U/s.357 of Cr.P.C. and the remaining fine of Rs.5,000/- shall be adjusted towards the cost of state expenses.
The bail bond of the accused shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.
The cash surety amount of Rs.2,000/- deposited by the accused vide Q.No.5117 dated 16.06.2023 38 C.C.No.208/2023 shall be refunded to the accused after the appeal period is over.
Office to supply the copy of the Judgment to the accused forthwith at free of cost.
(Dictated to the stenographer directly on computer, typed by her, print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 29 th February 2024).
(N.M.RAMESHA) XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness examined on behalf of the Complainant:-
P.W.1 : Sri.K.Chalapathi
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 & 3 : Bank Memos.
Ex.P.4 : Copy of Legal Notice.
Ex.P.5 & 6 : Postal Receipts.
Ex.P.7 : Postal Acknowledgment.
Ex.P.8 : Returned Notice.
Ex.P.9 : Postal Cover.
Ex.P.10 : Postal Receipt.
Ex.P.11 : Complaint.
39
C.C.No.208/2023
3. List of witness examined on behalf of the Accused:-
DW.1 ; Sri.J.R.Kumar
4. List of documents exhibited on behalf of the Accused:-
NIL (N.M.RAMESHA) XVI ACMM, Bengaluru City.40
C.C.No.208/2023 29.02.2023 Judgment pronounced in open court, (vide separate order) 41 C.C.No.208/2023 ORDER The accused is found guilty for the offence punishable U/s.138 of Negotiable Instruments Act.
Hence, acting U/sec.255(2) of Cr.P.C, the accused is convicted and sentenced to pay a fine of Rs.2,00,000/- (Rupees Two lakhs Only) in default of fine amount, he shall undergo simple imprisonment for Six Months for the offence punishable under section 138 of N.I.Act.
Out of the fine amount collected from the accused, an amount of Rs.1,95,000/- (Rupees One Lakh Ninety Five Thousand only) shall be paid to the complainant as compensation U/s.357 of Cr.P.C. and the remaining fine of Rs.5,000/-
shall be adjusted towards the cost of state expenses.
The bail bond of the accused shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.
The cash surety amount of Rs.2,000/- deposited by the accused vide Q.No.5117 dated 16.06.2023 shall be refunded to the accused after the appeal period is over.
42C.C.No.208/2023 Office to supply the copy of the Judgment to the accused forthwith at free of cost.
[ XVI ACMM, Bengaluru City