Bangalore District Court
Mrs. Pavana S vs M/S. Golden Agro Husbandry on 10 February, 2020
IN THE COURT OF THE JUDGE COURT OF SMALL
CAUSES AND XXVI A.C.M.M, AT BENGALURU
Present: Abdul Khadar, B.A., LL.B.,
JUDGE, Court Of Small Causes,
Bengaluru.
Dated this the 10th day of February 2020
C.C. No:19892/2014
Complainant : Mrs. Pavana S.
W/o B.G. Umesh,
Residing at No. 80, 1st Floor,
1st Main Road, 2nd Cross
(Aralimara Road),
Kamakshipalya,
Bengaluru-79.
(By Sri.T.S.Sathish-Advocate)
-Vs-
Accused : 1. M/s. Golden Agro Husbandry
India Limited
No. 712, 1st Floor,
Modi Hospital Road,
West of Chord Road,
Bengaluru-86.
Reptd by is Authorized
signatory and Director
Mrs.Vanajaakshi YankaNaik
2. Vanjaakshi Yanka Naik
W/o Jaya Naik and D/o
YankNaik, (Director - Golden
Agro Husbandry India Limited)
No.C-31, UAS Staff Quarters,
Bellary Road, Hebbal,
Bengaluru-24.
2 CC.19892/14
SCCH-9
3. Devaraja Yank Naik
S/o YankayaNaik
(Director - Golden Agro
Husbandry India Limited)
No.C-31, UAS Staff Quarters,
Bellary Road, Hebbal,
Bengaluru-24. (Split up)
4. Shivaprakash Yanka Naik
S/o Dakya Naik Enkayanaik
(Director - Golden Agro
Husbandry India Limited)
# 19/1, Giridhama,
Guddadahalli,
Sri.V. Nagenahalli Main Road,
R.T.Nagar Post, Bengaluru-32.
(By Sri.S.Satyanarayan Chalke
-Advocate)
JUDGMENT
The complainant filed the private complaint under Sec.200 of Cr.P.C., against the accused persons for having committed an offence punishable under Sec.138 of Negotiable Instruments Act.
2. According to the complainant, that the accused No. 1 is a company, registered under the companies Act 1956. The accused Nos.2 to 4 are the directors of the company. The accused No.1 company being represented by its director accused No2, all other directors are and were involved in the day to day 3 CC.19892/14 SCCH-9 business of the accused No.1 company. The accused Nos.2 to 4 have approached the complainant in the month of August 2010 and were in the business of sheep and goat farming under the module of contract farming module under taken in the name and entity of accused No.1. The accused Nos.2 to 4 along with Sri.Jaya Naik who is the husband of the accused No.2. have made several representations, sales promotions and solicitation activities for promoting the schemes established under the accused No.1, under the pretext for mobilization of deposit for the purpose of establishing sheep and Goat farms and promoting in the business of Sheep and Goat farming on Contract basis with interested persons and farmers assuring that the good return on investment on the said deposits by such investors. The accused No.1 had established under scheme of multi-level marketing attracting investors and assuring benefits promoting the business of the accused No.1 upon which the benefits would be paid to the investors for such deposits and promoting activities under taken by the investors, such as complainant would be provided with live training in Sheep and Goat farming and along with turnkey advisory support and also providing the livestock for rearing which was then to be sold back to the accused No.1.
4 CC.19892/14SCCH-9
3. The complainant further stated that, upon the assurances, guarantees extended by the accused No.2 to 4, she made an investment with the accused No.1 and also mobilized investment for the purpose of the accused No.1 company from her family and friends. The accused No.2 to 4 also promised the complainant that the investments made with accused No.1 would be doubled and returned back within a period of 60 months from the date of investment along with the benefits assured during the term of investments by the accused No.1 company. The accused No.1 company was collected a sum of Rs.10,000/- on 29.09.2010 as initial deposit and issued a certificate in the nature of Bond, which was to mature on or double at the end of 60 months i.e., 20.09.2015. The complainant invested with the accused No.1 company to a tune of Rs.12,30,000/- from 29.09.2010 to 11.04.2011. In the month of June 2011, the complainant met accused Nos 2 to 4 and the office bearers of accused No.1 to return back he deposits along with benefits, until such date, when confronted with the aforesaid companies. The accused No.2 issued two cheques bearing No. 272874 dated 15.03.2012 for a sum of Rs.4,00,000/- and cheque bearing No. 272875 dated 15.04.2012 for a sum of Rs.4,00,000/- both cheques are drawn on corporation Bank, Sadashivanagar Branch, Bengaluru on behalf of company in favour of the 5 CC.19892/14 SCCH-9 complainant. The said cheques were collected back by the accused No.2 to 4 representing that, accused No.1 Company was duly receiving funds within a period of 2 to 3 months and that they shall issue fresh cheques and arrange for aforesaid amounts. On September 2013 when the complainant approached the accused No.2 to 4 for return of the investments, the accused No.2 issued cheque bearing No. 164125 dated 20.08.2013 for sum of Rs.12,30,000/- drawn on IDBI Bank R.T. Nagar Branch, Bengaluru. The accused No.2 assured that depositing of the said cheques , the same would be duly honoured, accordingly the complainant presented the said cheque through her banker SBI, Dr. Rajkumar Road branch, Bengaluru, the same was returned with endorsement dated 21.08.2013 as "Funds Insufficient"
when the same was brought to the notice of the accused Nos.2 to 4 instructed to represent. The complainant again presented the cheque on 18.11.2013 for encashment the same was returned with an endorsement on 19.11.2013 as "Insufficient Funds".
The complainant issued notice on 18.12.2013 through her counsel by RPAD, Speed Post and Courier. The accused No.1, notice has been returned with an endorsement "Addressee left" and on accused Nos.2 and 3 have been duly served by speed post on 21.12.2013 and RPAD on 20.12.2013. The notice issued to the 6 CC.19892/14 SCCH-9 accused No.4 has been returned with an endorsement "refused by the addressee". Despite service of notice, the accused persons neither sent any reply nor paid the amount under the cheque. Accordingly, she has filed the present complaint to take action against the accused persons in accordance with law.
4. Being satisfied with the complaint averments, this Court has taken cognizance and after recording sworn statement being satisfied with the prima-facie case, issued summons to the accused compelling their appearance. Accused Nos. 2 and 4 appeared through their counsel before this Court and got enlarged on bail. Substance of accusation was read over to the accused. Accused Nos. 2 and 4 pleaded not guilty for the offence punishable u/s.138 of NI Act. Hence, this Court called upon the complainant to prove her case.
5. In support of the case of the complainant, her GPA holder by name B.G.Umesh examined himself as P.W.1 and got marked 32 documents as per Ex.P1 to P.32. During the course of cross of PW-1 two documents were marked by confrontation as Exs.D1 and D2. One witness by name Anjan Kumar Satpathy, Manager, IDBI Bank, R.T. Nagar Branch, examined as PW-2 and got marked two documents at Ex.P33 and P34. After closure of evidence of Complainant, the accused persons were examined as contemplated u/s.313 Cr.P.C and their 7 CC.19892/14 SCCH-9 statement were recorded. The accused persons, totally denied the case of the complainant, but they have not led defense evidence and hence, the case was posted for arguments.
6. I have heard the arguments canvassed by both counsels and perused the materials available on record.
7. The points that would arise for my determinations are:
1. Whether the complainant proves that the cheque bearing No.164125 dated 20.08.2013 for sum of Rs.12,30,000/-
drawn on IDBI Bank R.T.Nagar Branch, Bengaluru, has been issued by the accused No.2 towards discharge of legal liability of accused No.1 company and failed to make good to the Complainant after its dishonor and issue of legal notice within the stipulated period and thereby accused have committed the offence Punishable U/s. 138 of the NI Act?
2. What order?
8. My findings to the above points is as under:
Point No.1 : In the Affirmative
Point No.2 : As per final order below
For the following:
REASONS
Point No.1 :
9. It is pertinent to note that, whenever a private complainant is filed seeking prosecution of the accused for an offence punishable under Section 138 of 8 CC.19892/14 SCCH-9 Negotiable Instrument Act, if the issuance of cheque and the signature on the cheque is accepted and admitted by the accused, an initial presumption has to be raised by the Court in favour of the complainant, that the cheque in question was issued towards legally recoverable debt or liability. Of course, this presumption is rebuttable presumption. Such rebuttable evidence has to be placed before the Court by the accused. It is well known that, the accused can rebut the said legal presumption either by cross-examination of complainant or by leading evidence. The G.P.A holder of complainant himself examined as PW.1 filed affidavit by way of chief examination has reiterated the versions of complaint. I would not like to reproduce the same to avoid repetition of facts since the complainant has explained the details of complaint averments in chief examination. The complainant produced 34 documents at Ex.P1 to P.34.
10. So far as the document is concerned Ex.P.1 is the GPA, wherein the complainant appointed her husband as her attorney to represent in CC No.19982/2014 filed by her against M/s Golden Agro Husbandry India LTD and to depose on her behalf. Ex.P2 is the cheque bearing No. 164125 dated 20.08.2013 for sum of Rs.12,30,000/- drawn on IDBI Bank R.T. Nagar Branch, Bengaluru. Ex.P2(a) is the signature of the accused No.2. Ex.P3 is the Bank endorsement issued by the SBI 9 CC.19892/14 SCCH-9 Dr. Rajkumar Road Branch, Bengaluru, wherein the said cheque was dishonoured with a shara as "Instrument out dated stale" on 19.11.2013. Ex.P4 is the letter given by the Branch Manager IDBI Bank stating that the Ex.P3 endorsement was given wrongly for the reason Instrument out dated stale instead of Insufficient Funds on 26/11/2013. Ex.P5 is the legal notice dated 14.12.2013, wherein the complainant demanded for repayment of money of Rs.12,30,000/-from the accused within 15days from the date of receipt of notice. Ex.P6 to 13 are the postal receipts. Ex.P14 to P16 are the Courier receipts. Ex.P17 to 21 are the unserved postal covers. Ex.P17(a) to 21(a) are the contents of Ex.P17 to P21. Ex.P22 is the Project report of accused company, wherein the accused No.1 company promoters, directors of this company Mrs. Vanajakshi Yanka Naik, Mr.Devaraj Yanka Naik, Shivaprakash Yanka they are accused No.2 to 4 and they object of the project of the Golden Agro- Husbandry Limited. A closely held public limited company based in Bengaluru. The company was incorporated in July 2010 with the main objective of establishing and promoting agriculture and animal husbandry related enterprises including high-tech Agri and Horticultural units, animal breading, fishers, poultry. Ex.P23 is the certificate of incorporation of accused company dated 02.07.2010 along with memorandum of association.
10 CC.19892/14SCCH-9 Ex.P24 is the Certificate for commencement of business issued by the Deputy Registrar company dated 28.09.2010 in favour of accused No.1 company. Ex.P25 is the TDS certificate. Ex.P26 is the Broacher of accused No.1 company. Ex.P27 is the certificate issued by the accused No.1 company in favour of complainant by acknowledging deposit of Rs.10,000/- and original certificate have already returned to the accused No.1 company as per their request dated 29.09.2015 vide registration No.637444 and they also mentioned that towards Goad/ Sheep units package for Rs.10,000/- was accepted by the company. Ex.P28 is the Welcome letter wherein the accused No.1 company welcome the complainant to the Society of GOLDENA AGRI.IN as a member and also to be a part of the innovative state of art social welfare and career development programs of Golden Agro- Husbandry India Limited and also acknowledged Rs.1,30,000/- was taken by them under top up receipt. Ex.P29 is the Top up receipt. Ex.P30 is the sale deed dated 24.01.2011, wherein the husband of the complainant, complainant and the brothers and sisters were sold property bearing Sy. No.58/2 of Kenchankuppe village, Bidadi Hobli, Ramanagara Taluk and District, to an extent of 30 guntas in favour of Ramesh G and Manoj Kumar Jain for total sale consideration of Rs.30,00,000/-. Ex.P31 is the pass book 11 CC.19892/14 SCCH-9 belonging to complainant husband from 19.09.2008 to 28.11.2010, wherein it appears that on 21.09.2010 Rs.6,00,000/- each amount credited to his account through bearing No. 297626 and 796674 and he had Rs.12,01,012/- as on 21.09.2010 in his account. Ex.P32 is the DVD belongs to Golden Agro Husbandry Limited. Ex.P33 is the Authorization letter issued by the General Manager IDBI Bank, Bengaluru, authorizing Anjan Kumar Sathpathi as Manager of R.T. Nagar Branch to depose and produce document. Ex.P34 is the Account statement of accused No.1 company from 19.07.2011 to 30.09.2019, its shows that till today the accused No.1 company having account in the IDBI Bank, R.T.Nagar Branch. According to the learned counsel for the complainant, when the issuance of cheque and her signature are admitted, then the presumption as required under Section 139 of N.I. Act comes to the aid of the complainant and it is the turn of the accused to explain or rebut the said presumption by raising a probable defence.
11. In this regard, the court has to see whether the accused has been successful in rebutting the presumption through cross-examination of PW-1 and their evidence. In support of their defence, the accused cross examined PW-1 in length, but nothing has been elicited from his mouth to show that the consideration 12 CC.19892/14 SCCH-9 does not exist as alleged by the complainant under Ex.P2. During the course of cross examination of PW-1, he deposed that, his wife is a house wife. He is doing agriculture work. Himself and complainant have invested amount in the accused No.1 company. Both were filed separate case against accused persons. Since the complainant has invested separately an amount of Rs.12,30,000/- to the accused company. He denied that he has no personal knowledge about transaction between complainant and accused persons. They have invested amount as the accused persons were circulated the advertisement infornt of their house, wherein the accused Nos.2 to 4 were present in the office of accused No.1 company. At the time of investment, the accused No.1 was present. Since the husband of accused No.2 working as professor in Animal Husbandry at Hebbala, they invested on 03.08.2010 in the accused company. In the accused company, there were 7 Directors, out of them, he saw only 3 Directors and paid Rs.10,000/- as initial deposit and they have given certificate in the nature of bond. The said amount would become double in five years or it may become double which was mentioned in the brochure. His wife was invested Rs.12,30,000/- on 29.09.2010 to 11.04.2011 in the accused company. The said amount was mobilized due to sale of property of his father. He has no knowledge 13 CC.19892/14 SCCH-9 about educational qualification of accused Nos.2 to 4 and back ground of them. First time when Pw-1 invested Rs.10,000/- was offered to return after 5years with 100%. PW-1 deposed that the complainant verified the address of accused company's e-mail ID while investing with them. He has no knowledge about the schemes of accused company and not taken advice from the auditors as well as advocate before investment. He has deposited the amount to the accused company through online and also by way of cheque, therefore, he has say the on which date PW-1 deposited the amount to the accused company in installments. PW-1 admits that his wife is not an income tax assessee. He knows that the non declaration of investments in the IT returns is an offence and he has not mentioned the date of investments in the complaint, but he has produced receipts before the court. PW-1 deposes that the accused persons have assured that they are providing live training in Sheep and Goat farming on contract basis, therefore, she invested and to that effect they have not verified the documents. She knows that other persons have invested the amount in the accused company, therefore, she invested Rs.12,30,000/- in 12 installments in the office of accused No.1 company. He admits that prior to issuance of Ex.P2 cheque the accused persons have issued 2cheques for Rs.4,00,000/-
14 CC.19892/14SCCH-9 each and the same were not produced, as the accused were taken back those cheques and issued the alleged cheque in question to the complainant. He admits that except Ex.P29, she has no document show that she invested amount in the accused No.1 company. The signature found in Ex.P29 belongs to accountant of accused No.1 company. She has not signed any documents at the time of receiving of Ex.P29. He admits that Vismaya Integrated Firm Tech is a proprietorship concern which belongs to him, through that firm, he gave information to the General public with regard to the accused No.1 company project. He denied that the said firm established in the year 2000. At the time of asking of return back of investment amount, during that time, the accused Nos.2 to 4 were present. The accused No. 2 is the authorized signatory of the accused No.1 company, she issued Ex.P2-cheque to the complainant. PW-1 deposes that she paid initial investment of Rs.10,000/- the accused company and when they issued Ex.P27 to the complainant. He admits that there is difference of ink in the signature and other writings of Ex.P2. The accused company was issuing Top Up receipts whenever she paid investment installments by generating in computer. He denied that himself and husband of the accused No.2 are friends. He denied that he himself started Goat Farm 15 CC.19892/14 SCCH-9 as he was not invested any amount in the accused company. He denied that he cheated the accused No.2 to 4 as they have no knowledge about Goat Farming. He denied that Ex.P29 is created for the purpose of this case. He denied that the accused No.2 to 4 are innocent they are not liable to pay any amount as claimed by the complainant. He denied that the complainant has not invested Rs.12,30,000/- in the accused company.
12. In the further cross examination, PW1 deposed that he sold property for the total sale consideration of Rs.30,00,000/- on 24.01.2011. In that sale deed, complainant, Renuka, Prasad, Shashishekar, Mahesh, Kalavathi and Suresh were affixed their signatures. He admits that the sale consideration amount were divided among themselves. He admits that Ex.P31 Bank statement for the period of 19.09.2008 to 28.11.2010. He admits that in Ex.P31, there was no entry found for the investment made by the complainant in the accused No.1 company. He admits that the document shown to him pertaining to Vishmaya Integrated Farm Tech online extract and the same is marked at Ex.D1, wherein there is recital that they providing service of Goat and Sheep farming. He denied that he had knowledge about the accused No.1 company. He denied admits that prior to accused No.1 company he started Ex.D.1 16 CC.19892/14 SCCH-9 company. He admits that the accused No.3 has know ledge about the bank transaction of accused No.1 company. He admits that the certificate issued by the accused No.1 company to the complainant as the same is marked at Ex.D2. In Ex.D2, it was shown that accused No.4 was the authorized signatory. He do not know the signature found in Ex.D2 belongs to whom. He do not know one Chethan was the Marketing Consultant of accused company. He admits that as per Ex.D.2, complainant invested Rs.10,000/- only . Ex.P29 value is of Rs.1,30,000/-. He admits that the signature found in Ex.D2 was not found in Ex.P29. He denied that by colluding with Chethan accused No.3 had stolen the cheque of accused company and misused the same to develop the Vishmaya Integrated Firm and to cause loss to the accused No.1 company.
13. He pleads ignorance that Ex.P32 is the promotion CD of accused company. He denied that after settling the amount from the accused company, the complainant returned Ex.D2 to the accused company as the accused is not due to the complainant. He denied that notice was not served on accused and she herself filled the contents of Ex.P2 and presented to the bank. He admits that he has not produced bank pass book of his wife. Pw-1 admits that the sale deed executed on 24.01.2011 and after execution of sale deed he 17 CC.19892/14 SCCH-9 invested the amount in the accused No.1 company. He do not know how much share she got in the sale consideration. He denied that his wife got Rs.4,00,000/- share amount in the sale deed. PW-1 deposes that as on the date of execution of sale deed, the purchaser paid Rs.13,00,000/- through DD and cash. He admits that he has personal knowledge of this case in the chief affidavit as well as GPA. He admits that there is no entry found in Ex.P.31 that the DD amount was credited to his account. His wife invested Rs.12,30,000/- in the accused No.1 company by way of cash.
14. The complainant examined Bank Manger by name Anjan Kumar Satapathy as PW-2. He deposed that, the account No.0363102000004107 belongs to the accused No.1. He produced authorization letter at Ex.P33 and account statement from 19.07.2011 to till date as per Ex.P34. In the cross examination he denied that, in order to help the complainant, he is deposing falsely before the court by producing documents. He denied that once company closed automatically account will inactive. He deposed that, the account holder has to intimate closure of company to the bank. He pleads ignorance that, when account of accused is inactive and before inactivating the account of the accused company, whether the previous Officer had intimated to the account holder or not.
18 CC.19892/14SCCH-9
15. On perusal of entire cross examination of PW-1 it clearly appears that the PW-1 and his wife was invested amount in the company of accused No.1, from 29.09.2010 to 11.04.2011 by way of cash in total Rs.12,30,000/-. PW-1 categorically denied the suggestion that, the accused No.2 to 4 have not liable to pay cheque amount and she is not entitled for the cheque amount. On perusal of Ex.P2 it clearly discloses that, as per the assurance for return of investment amount, the accused No.2 had issued alleged cheque in question to the complainant which was deposited by her. It is the defence of the accused that, they have no due either towards the complainant or her husband and therefore they are not liable for the cheque amount. The accused No.3 by colluding with the complainant stolen the cheque from her office and misused the cheque to harass them. It is pertinent to know that, the accused persons have categorically admits that, Ex.P2 cheque was belongs to them and signature found in Ex.P2 is that of accused No.2 and she has signed cheque as Managing Director of accused No.1 company. Accused No.4 also admits that, he is one of the Directors of the accused No.1 company. The accused persons have not chosen to deny the fact, that Ex.P2 cheque was bounced as "Funds Insufficient" through their account and not denied the fact that, themselves issued Ex.P2 infavour of 19 CC.19892/14 SCCH-9 this complainant. The accused persons also admit that, before filing of this complaint, the complainant had issued demand notice and the same were duly served upon them and they have not given reply and not repaid the amount due of Ex.P2 cheque. Admittedly the complainant along with her husband have deposited the certain amount before the accused No.1 company, that the accused had issued certificate by agreeing to pay investment along with benefits thereon. In the Ex.P29 discloses that the complainant has surrendered of original certificate and demanded for repayment of deposited amount immediately and that the accused No.2 had issued post dated cheque for Rs.12,30,000/-. This clearly establishes that the accused persons have categorically admitted the issuance of Ex.P2 cheque infavour of complainant for a sum of Rs.12,30,000/-.
16. Admittedly, the burden on the accused to rebut the presumption available to this complaint U/Sec. 139 of N.I. Act. The accused in order to prove their defence that there was no investment made by the complainant in their company and by colluding with accused No.3 stolen the cheque and misused to file this complaint. They have not chosen to adduce evidence before this court, except cross examination of PW-1 by putting the same suggestion, which has been categorically denied by the PW-1. The accused persons 20 CC.19892/14 SCCH-9 have utterly failed to get truthful information from the mouth of PW-1 to disbelieve his testimony or to discard his evidence. There is nothing on record to disbelieve that Ex.P2 cheque issued by accused No.2 towards security of the deposit amount infavour of this complainant. Exs.D1 and D2 which were marked during cross examination of PW-1 on confrontation are not rebutted presumption available to this complaint U/Sec. 139 of N.I. Act. No such suggestion without any evidence before this court, it is not possible to believe that the complainant has stolen the cheque and misused the same to file this complaint. Even when the accused persons were questioned U/Sec. 313 Cr.P.C. before this court, they except denied incrementing evidence made against them, they have not put-forth any evidence before this court and even they have not made any effort to produce documents that the cheque was stolen with the help of accused No.3. No such suggestions without any evidence before this court it is not possible to believe the defence of the accused persons. The accused persons utterly failed to rebut the presumption available to this complaint U/Sec. 118 and 139 of N.I. Act.
17. The learned counsel for the complainant has argued that, the accused persons have issued cheque in question to the complainant and when it presented for 21 CC.19892/14 SCCH-9 encashment, which came to be dishonoured. He issued notice, after expiry of 15days, the accused persons have not paid the amount covered under the cheque. Hence, the complainant has proved that the accused persons have committed an offence punishable under Sec.138 of N.I. Act. .To rebut the case of accused persons, they have not lead defence evidence and no documents have been produced. The cheque was presented to the bank within valid period and it was dishonoured as per endorsement at Exs.P3 to 5. The accused persons have not stepped into the witness box except cross examining PW-1 in length to show that they have not issued Ex.P2 to discharge their liability and the complainant was not having financial capacity to invest with the accused persons as alleged in the complaint.
18. The counsel for the accused persons argued that, the complainant has not produced bank pass book or statement to prove investment of Rs.12,30,000/- in the accused company except Ex.P29. It is well settled law that presumption can be rebutted by the accused either by leading evidence or from the preponderance of probabilities as arisen from the material available on record and the accused persons need not step in to the witness box for rebutting the same. The demand notice is not served on the accused persons as there is no postal acknowledgment due received by them. He has no 22 CC.19892/14 SCCH-9 financial capacity and hence, the complainant has not fulfilled the requirements of Sec.138 of N.I. Act, this Hon'ble Court cannot take presumption under Sec.139 and 118 of N.I. Act as the cheque in dispute was issued towards any legally recoverable debt or consideration as mentioned in the complaint. Therefore he prayed to acquit the accused persons by dismissing the complaint.
19. In the cross examination of PW.1, it was suggested that by receiving the alleged cheque from the accused No.3 and Chetan in order to give trouble the accused had misused the cheque and filed this complaint and the same was denied by him. In this regard the complainant also relied on Sec.114 of the Indian Evidence Act, 1872, which reads thus;- "Court may presume existence of certain facts". The court may presume the existence of any fact which it think likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. In the present case, the accused No.2 has not denied the issuance of Ex.P2 - cheque nor her signature marked at Ex.P2(a). Hence, complainant has prayed to convict the accused in accordance with law.
20. To defeat the case of the complainant, the accused persons not lead evidence nor produced any contra documents. It is not in dispute that the cheque 23 CC.19892/14 SCCH-9 was drawn by the accused persons from their Bank account. It is not in dispute that the cheque returned unpaid when presented by the complainant for collection as Funds Insufficient in the bank of the accused No.2. It is not in dispute that the complainant issued legal notice through registered post. The contention of the accused persons is that, the complainant has misused the blank cheque which was stolen by accused No.3. When accused persons admits their liability to the complainant and accused No.2 had given the cheque to the complainant whether it is blank cheque or written cheque they are liable under Sec.138 of N.I. Act. Therefore, the complainant has proved that they have issued Ex.P2 -cheque to discharge of their liability. Then the burden shifts upon the accused persons to prove the non-existence of legally recoverable debt under the disputed cheque. The accused persons have not rebutted the presumption envisaged under Sec.118 and 139 of N.I. Act. Therefore, it cannot be said that, cheque was issued not for the discharge of legally enforceable debt.
21. It is pertinent to note that ordinarily in the cheque bounce cases, what the court has to consider is, whether 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 presumption contemplated by Sec.139 of the Act. Once, the cheque 24 CC.19892/14 SCCH-9 relates to the account of the accused persons and he or she accepts and admits the signature on the said cheque, then initial presumption has contemplated under Sec.139 of the N.I. Act has to be raised by the court in favour of the complainant. The presumption referred in Sec.139 of N.I. Act is a mandatory presumption and not a general presumption.
22. In this regard, it is useful to refer decision of Hon'ble Apex Court in Criminal Appeal No.867/2016 (arising out of SLP(CRL) No. 5410 /2014) in the case of Sampelly Satyanarana Rao V/s. Indian Renewable Energy Development, wherein it is held that in "Rangappa V/s Mohan, this court held that once issuance of a cheque and signature thereon are admitted presumption of a legally enforceable debt in favour of the holder of the cheque arises, it is for the accused to rebut the said presumption, though accused need not adduce the own evidence and can rely upon the material submitted by the complainant. However mere statement of the accused may not be sufficient to rebut the said presumption.
23. The Hon'ble Apex Court in Cri. Appeal No.1545/19(arising out of SLP(Cri) No. 3452/19) dated 17/10/2019 in the case of Utham Ram V/s Devinder Sing Huda and another wherein it is held 25 CC.19892/14 SCCH-9 that once the accused has admitted the statement of due amount and in absence of any other evidence, Court could not dismiss the compliant only on account of discrepancies in the determination of the amount due or oral evidence in the amount due when the written document crystallizes the amount due for when the cheque was issued. On perusal of the evidence, it reveals that after service of notice or summons from the Court, the accused has not taken any legal action against complainant. Hence, the defence of accused clearly establishes the fact that the story created by the accused is false. When the accused has admitted Ex.P2 cheque belongs to accused No.1 company account and signature of accused No.2, it is sufficient to hold that the complainant has proved the existence of debt under Ex.P2 by the accused persons. Thus it clearly goes to show that since they had issued the cheque in question to the complainant for consideration. The notice Ex.P6 issued by the complainant was duly served on the accused persons, after that they have not taken any legal action against complainant, there, itself they have failed to raise the probable defence. The document at Ex.P2 show that the complainant had invested amount of Rs.12,30,000/- with the accused company and the accused No.2 issued the cheque to the complainant to discharge their liability.
26 CC.19892/14SCCH-9
24. In view of the above principles evolved by the Hon'ble Supreme Court, the burden heavily casts upon them to prove the non-existence of legally recoverable debt or liability under Ex.P2 cheque. If the accused persons have succeeded in rebutting the presumption then definitely they will be entitled for an order of acquittal. It is pertinent to note that, the complainant has issued the demand notice as per Ex.P6 by calling upon them to repay the cheque amount within 15 days from the date of receipt of legal notice. Therefore, it is proved by the complainant that, she has sent the demand notice to the correct address of the accused persons. Any how they have not led any defence evidence and they have not stepped into witness box to rebut the presumption under Sec.138 of Negotiable Instruments Act.
25. It is well settled law that, when the signature in the cheque is admitted to be that of accused persons the presumption under Sec.118 of Negotiable Instruments Act is that the cheque was made or drawn for consideration on the date, which the cheque bears. In this case, they have admitted that they have issued cheque to the existing liability. Therefore, Sec.118 of Negotiable Instruments Act operates against them unless and until they are able to rebut that presumption. No such efforts are made to rebut the presumption.
27 CC.19892/14SCCH-9
26. It is settled position of law that if the accused did not enter the witness box to adduce the rebuttal evidence or to produce any documents, then, an adverse inference can be drawn. In this regard I relay on a decision reported in AIR 1999 SC 1341 in the case of Eshwar Bai C. Patel V/s Narihar Behara and(1999) 3 SCC 573 in the case of Vidhydhar V/s. Manik Rao and Another, wherein, the Hon'ble Apex Court has observed that;
"When a person fails to enter into witness box to state his case on oath, the adverse inference can be drawn as per Sec.114 of Indian Evidence Act, against such person". "Evidence Act, 1872 - S.114 III (g) - Presumption - If a party abstains from entering the witness box, an adverse inference would arise against him. "Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set-up by him is not correct". In the present case the accused persons except cross examining PW.1 they did not enter into the witness box to disprove the case of the complainant and hence, an adverse inference drawn against them that the story set up by them during the course of cross examination of PW.1 is not correct. On perusal of entire evidence of PW-1, it is quiet clear that the accused No.2 28 CC.19892/14 SCCH-9 has admitted issuance of cheque and her signature. The defence theory of the accused persons in cross examination of PW.1 is impossible to believe. The accused persons being a normal prudent person did not take any legal action against the complainant for the act of misuse of cheque till today. Hence, the defence taken by the accused persons nowhere helps them to rebut the presumption available under Sec.139 of N.I. Act.
27. It is proved fact that, complainant and accused persons are known to each other and there were transaction in between accused persons and complainant. Therefore, the presumption available under Section 139 of N.I. Act, drawn easily in favour of the complainant, because they failed to rebut the evidence of complainant with cogent evidence. It is well settled by the Hon'ble Supreme Court in SLP(Crl)No.3858/2019 in the case of Pavana Dilip Rao Dike V/s Vishal Narendrabhai Parmar. Wherein it is, held that, we are of the opinion that, the High Court rightly reversed the order of Acquittal passed by the trial court, wherein the presumption U/sec 138 has not been taken in to account. The trial court committed an error in placing heavy burden on the complainant to prove the debt. In the present case the complainant has proved that the accused persons have issued the cheque in question infavour of the complainant to discharge their liability, 29 CC.19892/14 SCCH-9 which they owed to the complainant. When such being the case the contention of the accused persons and submission of learned counsel for them that the accused persons did not borrow any amount from the complainant and hence, they are not liable to pay the amount of cheque cannot be acceptable. The complainant has discharged necessary legal ingredients to draw presumption in her favour about the transaction between herself and accused persons. Therefore it can be said that, the complainant has produced better document and deposed better oral evidence rather than the defence of the accused. Hence the evidence of complainant stands good compared to the oral evidence of the accused. Inspite of lapse of six year the accused did not take any action for misuse of stolen blank signed cheque for the reason best known to them only. Therefore, best evidence always stands good compared to non rebuttable evidence. In the present case the issuance of cheque is proved. It is for the accused to explain the purpose of issuance of cheque. Once the act of misuse of cheque was not proved automatically, it can be believed that, said cheque had been issued only for recoverable existed debt.
28. Therefore the theory of the accused persons is unbelievable and not proved. Hence, the complainant is entitled for benefit of statutory presumption as 30 CC.19892/14 SCCH-9 contemplated under Sec.139 of the Act. I did not find any informalities or contradictions elicited to render his evidence incredible. Therefore, the testimony of PW-1 inspires confidence to believe and to act upon the evidence of PW.1 and PW2 and the documentary evidence at Ex.P1 to P34 are consistence, corroborative and supporting to each other and in accordance with the case of the complainant and which leads me to conclude that the complainant has proved beyond reasonable doubt against the accused persons for the alleged offence punishable under Sec.138 of N.I. Act. Accordingly, I answer Point No.1 in the Affirmative. Point No.2:
29. In view of my above discussions and findings on Point No.1, I proceed to pass the following:
ORDER Acting under Section 255[2] of Cr.P.C, the accused Nos.1, 2 and 4 are hereby convicted for the offence Punishable U/s. 138 of the N.I. Act.
The accused Nos.2 and 4 shall pay fine of Rs.15,00,000/-. In default of payment of fine amount, the accused Nos.2 and 4 shall under go Simple Imprisonment for six months.
Out of the amount so realized, the accused shall pay a sum of Rs.14,90,000/- to the Complainant as compensation, as provided U/s.357 Cr.P.C. The remaining amount of Rs.10,000/- shall go to the State.31 CC.19892/14
SCCH-9 The bail bond and surety bond of the accused Nos.2 and 4 is hereby stand cancelled.
Office is directed to furnish free copy of this judgment to the accused Nos.2 and 4.
(Dictated to the Stenographer directly over computer, typed by her, corrected and then pronounced by me in the Open Court on this the 10th day of February 2020) (Abdul Khadar) Judge, Court of Small Causes, & XXVI ACMM, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of complainant:
PW-1 B.G. Umesh PW-2 Anjan Kumar Satapathy
List of Documents marked on behalf of complainant:
Ex.P1 GPA
Ex.P2 Cheque
Ex.P2(a) Signature of accused
Ex.P3 &4 Bank Endorsements
Ex.P5 Legal Notice
Ex.P6 to 13 Postal receipts
Ex.P14 to 16 Courier receipt
Ex.P17 to 21 Unserved postal covert
Ex.P17(a)
to 21(a) Contents of Ex.P17 to 21
Ex.P22 Project report of accused company
Ex.P23 Company bye-law
Ex.P24 Certificate for commencement of business
Ex.P25 TDS certificate
Ex.P26 Broucher
Ex.P27 Certificate
Ex.P28 Welcome letter
Ex.P29 Top up receipt
Ex.P30 Sale deed dated 24.01.2011
32 CC.19892/14
SCCH-9
Ex.P31 Pass Book
Ex.P32 DVD
Ex.P33 Authorization letter
Ex.P34 Account statement
List of Witnesses examined on bephalf of accused:
- NONE -
List of documents marked on behalf of accused:
Ex.D.1 Integrated Farm Tech
Ex.D.2 Certificate
(Abdul Khadar)
Judge , Court of Small Causes,
& XXVI ACMM, Bengaluru.