Bangalore District Court
Sri. C.Raju vs Sri. B.M.Narayanna on 20 February, 2020
1 C.C.No.26388/2017 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 20th day of February, 2020
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl. C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.26388/2017
Complainant : Sri. C.Raju,
S/o. Chinnappa,
Aged about 57 years,
R/o. No.65, 3rd 'A' Cross,
2nd Main, BSK 5th Stage,
Bikasipura,
Bengaluru -560 111.
Rep. by Smt.Shobha. G., Adv.,)
- Vs -
Accused : Sri. B.M.Narayanna,
S/o. Late Madappa,
Aged about 62 years,
No.46/20, 3rd Cross,
4th Main, Ittumadu Main Road,
Near Webster School North
Gate,
BSK 3rd Stage,
Bengaluru -560 085.
(Rep. by Sri. Sathyanarayana S.
Chalke., Lex -Nexus., Advs.,)
2 C.C.No.26388/2017 J
Case instituted : 24.10.2017
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 20.02.2020
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused is his family friend and known to him since 32 years and in the month of October 2012 the Accused approached him after knowing the fact that, he had sold one of his property for Rs.40 Lakhs and sought for financial assistance of Rs.12 Lakhs for his family needs and requirements. He had consider the request of the Accused since prior to that many times the Accused has taken hand loans for small amounts and repaid the same within he period of assurance , accordingly he agreed to advance a hand loan to him and in all he has paid a 3 C.C.No.26388/2017 J sum of Rs.10 Lakhs to the Accused by way of cash on 10.10.2012 and the Accused has agreed to return the same within six months from the date of receiving of the amount, after receiving the said amount the Accused has paid some interest to the said loan amount up to six months after that, the Accused neither repaid the hand loan nor paid any interest on the same, thereafter he demanded to repay the said amount on several occasions more than four years ultimately the Accused had issued three cheques towards repayment of the hand loan of Rs.10 Lakhs i.e. 1) cheque bearing No.340615 dated: 2.6.2017 for sum of Rs.3 Lakhs, 2) cheque bearing No.340616 dated: 15.6.2017 for sum of Rs.2 Lakhs; and 3) cheque bearing No.340617 dated:
30.6.2017 for sum of Rs.5 Lakhs, all the cheques are drawn on Corporation bank, Bommasandra Branch, Bengaluru in his name by promising that, said cheques would be honoured on their presentation, thereafter he had presented the one of the cheque bearing No.340615 dated: 2.6.2017 for Rs.3 Lakhs through his banker, i.e. State bank of India, Isro Layout Branch, Bengaluru on 5.6.2017 and the said cheque has been returned dishonoured as "Funds 4 C.C.No.26388/2017 J Insufficient' on 5.6.2017 immediately he informed the same to the Accused over telephone and Accused sought time for 15 days and requested to present all the three cheques after 30.6.2017 and as per his request he has presented all the three cheques for encashment on 19.8.2017 but all the cheques were returned with an endorsement of "Funds Insufficient" on the same day, thereafter again he approached the Accused but he has avoided him to meet in person and also not attended his phone calls and though sufficient time was given to the Accused but he has prolonged the same on one or other reason, and finally on 13.9.2017 he got issued legal notice to the accused through his counsel by RPAD demanding to repay the cheques amount within 15 days from the receipt of said notice, but the said notice was returned on 20.9.2017 with an endorsement of "Insufficient" address" but the Accused intentionally has not received the notice and even after returning the said notice, the Accused himself called him and requested 20 days time to settle the cheques amount but even after completing 20 days he did not come forward to return the cheques amount. Hence the complainant has filed 5 C.C.No.26388/2017 J this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the averments of the complaint. In support of his sworn statement, P.W.1 has relied upon the documentary evidence as per Ex.C.1 to C.13 i.e, three Original Cheques dated:-2.6.2017, 15.6.2017, 30.6.2017 as per Ex.C.1 to C.3 respectively, the signatures on the said cheques identified by P.W.1 as those of the accused as per Ex.C.1(a) to C.3(a), three Bank Memos as per Ex.C.4 to C.6 respectively, the office copy of the Legal Notice as per Ex.C.7, Postal Receipt as per Ex.C.8, Courier receipt as per Ex.C.9, returned legal notice as per Ex.C.10, RPAD cover as per Ex.C.11, postal receipt as per Ex.C.12, postal acknowledgement as per Ex.C.13.
4. Prima facie case has been made against the Accused and summons was issued against him in turn the Accused has appeared before the Court and 6 C.C.No.26388/2017 J he has been enlarged on bail and the substance of the accusation has been read over to him, to which he has pleaded not guilty and has claimed the trial.
5. As per the direction of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the Accused, as he intended to set out his defence, the case came to be posted for the cross-examination of complainant. thereafter the complainant has got marked documents i.e., certified copy of the registered sale deed dated: 25.5.2012 as per Ex.C.14 and one original pass book marked as per Ex.C.15 and relevant entries marked as per Ex.C.15(a) and C.15(b) respectively
6. Thereafter the statement of the Accused as required U/s.313 of Cr.P.C. has been recorded, the Accused has denied the incriminating evidence appearing against him and chosen to lead his rebuttal evidence, subsequently he did not lead his rebuttal evidence.
7 C.C.No.26388/2017 J7. Heard the arguments by both sides and perused the written argument submitted by the learned counsel for the complainant and perused the materials on record and decisions submitted by the learned counsel for the complainant and Accused and perused decisions relied upon by the learned counsel for the complainant i.e., LAWS (BOM) 2017 1 182 ; 2) Crl.Appeal No. 1545 /2019; 3) (2010) 11 SCC 441 5) Crl.Writ petition No. 1715/2018;
5) 2007 Cri. L.J. 583 and also perused the decisions relied upon by the learned counsel for the Accused i.e., 1) LAWS (KAR) 2018 - 3 -23 in the case of K.N.Raju Vs. Manjunatha T.V; 2) 2013 (3) KCCR 1967 (KAR) in case of Wilson Marcilin carvalho Vs. Krishna Budhaji Patil ; 3) LAWS (SC) 2006 - 5- 13 in the case of D. Vinod Shivappa Vs. Nanda Belliappa 4) 2001 Crl.L.J. 24 (KERALA) in the case of Sasseriyil Joseph Vs. Devassia ; 5) 2002 AIR SCW 694 in case of A.V Murthy Vs. B.S.Nagabasavanna ; 6) 1997 (2) Crimes 658 (AP) in case of Giridhari Lal Rati Vs. P.T.V.Ramanujachari and another.
8. On the basis of complaint, evidence of 8 C.C.No.26388/2017 J complainant and documents the following points that are arise for consideration are:-
1. Whether the complainant proves that the accused has issued three cheques i.e 1) cheque bearing No. 340615 dated: 2.6.2017 for sum of Rs.3 Lakhs, 2) cheque bearing No.340616 dated: 15.6.2017 for sum of Rs.2 Lakhs; and 3) cheque bearing No.340617 dated:
30.6.2017 for sum of Rs.5 Lakhs, all the cheques are drawn on Corporation bank, Bommasandra Branch, Bengaluru, to discharge legally recoverable debt to the complainant and when the complainant has presented cheque for encashment through his banker but the said cheque has been dishonoured for the reasons "Funds Insufficient" on 19.8.2017 and the complainant issued legal notice to the accused on 13.9.2017 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?9 C.C.No.26388/2017 J
9. The above points are answered as under:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS
10. Point No.1 : Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act pre-supposes conditions for prosecution of an offence which are as under:
10 C.C.No.26388/2017 J1. Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
2. Cheque shall be presented for payment within specified time i.e., from the date of issue before expiry of its validity.
3. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
4. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer in respect of bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
11. It is also one of the essential ingredient of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages 11 C.C.No.26388/2017 J certain presumptions i.e.,U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and or rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
12. In the present case the complainant got examined as PW.1 by filing his affidavit evidence wherein the complainant has reiterated the entire averments of the complaint, the complainant/PW.1 in his evidence testified that, Accused is his family friend and approached him in the month of October 2012 after knowing the fact that, he had sold one of his property for Rs.40 Lakhs and sought for financial assistance of Rs.12 Lakhs for his family needs and 12 C.C.No.26388/2017 J requirements and he had consider the request of the Accused since prior to that many times the Accused has taken hand loans for small amounts and repaid the same within the period of assurance, accordingly he agreed to advance a hand loan to him and in all he has paid a sum of Rs.10 Lakhs to the Accused by way of cash on 10.10.2012 and the Accused has agreed to return the same within six months from the date of receiving of the amount. The complainant/PW.1 further testified that, after receiving the said amount the Accused has paid some interest to the said loan amount up to six months after that, the Accused neither repaid the hand loan nor paid any interest on the same, thereafter he demanded to repay the said amount on several occasions more than four years ultimately the Accused had issued three cheques towards repayment of the hand loan of Rs.10 Lakhs i.e. 1) cheque bearing No.340615 dated: 2.6.2017 for sum of Rs.3 Lakhs, 2) cheque bearing No.340616 dated:
15.6.2017 for sum of Rs.2 Lakhs; and 3) cheque bearing No.340617 dated: 30.6.2017 for sum of Rs.5 Lakhs, all the cheques are drawn on Corporation bank, Bommasandra Branch, Bengaluru in his 13 C.C.No.26388/2017 J name by promising that, said cheques would be honoured on their presentation, thereafter he had presented the one of the cheque bearing No. 340615 dated: 2.6.2017 for Rs.3 Lakhs through his banker, i.e. State bank of India, ISRO Layout Branch, Bengaluru on 5.6.2017 and the said cheque has been returned dishonoured as "Funds Insufficient' on 5.6.2017 immediately he informed the same to the Accused over telephone and Accused sought time for 15 days and requested to present all the three cheques after 30.6.2017 and as per his request he has presented all the three cheques for encashment on 19.8.2017 but all the cheques were returned with an endorsement of "Funds Insufficient" on the same day. The complainant/ PW.1 further testified that, thereafter again he approached the Accused but he has avoided him to meet in person and also not attended his phone calls and though sufficient time was given to the Accused but he has prolonged the same on one or other reason, and finally on
13.9.2017 he got issued legal notice to the accused through his counsel by RPAD demanding to repay the cheques amount within 15 days from the receipt of said notice, but the said notice was returned on 14 C.C.No.26388/2017 J 20.9.2017 with an endorsement of "Insufficient address" but the Accused intentionally has not received the notice and even after returning the said notice, the Accused himself called him and requested 20 days time to settle the cheques amount but even after completing 20 days he did not come forward to return the cheques amount.
13. In support of the oral evidence of the complainant, he produced the i.e, the three Original Cheques dated:-2.6.2017, 15.6.2017, 30.6.2017 as per Ex.C.1 to C.3 respectively, the signatures on the said cheques identified by P.W.1 as those of the accused as per Ex.C.1(a) to C.3(a), three Bank Memos as per Ex.C.4 to C.6 respectively, the office copy of the Legal Notice as per Ex.C.7, Postal Receipt as per Ex.C.8, courier receipt as per Ex.C.9, returned legal notice as per Ex.C.10, RPAD cover as per Ex.C.11, postal receipt as per Ex.C.12, postal acknowledgement as per Ex.P.13, subsequently he got marked certified copy of the registered sale deed dated: 25.5.2012 as per Ex.C.14 and one original pass book marked as per Ex.C.15 and relevant entries marked as per Ex.C.15(a) and C.15(b) 15 C.C.No.26388/2017 J respectively.
14. In the present case, the Accused has not disputed his acquaintance with the complainant but the Accused has disputed the issuance of cheques in favour of the complainant and also the contents of the cheques and signatures o found on the cheques i.e Ex.C.1 to C.3 are not of his signatures. The Accused has also disputed the loan transaction in question and has taken specific defence that, there were no transaction between him and the complainant and has not borrowed any amount from the complainant much less Rs.10 Lakhs from the complainant. The Accused has also disputed service of legal notice issued by the complainant upon him. Hence the defence taken by the Accused makes it clear that, he has denied the entire claim made by the complainant in this case. Therefore the initial burden is on the complainant to discharge his burden by complying the mandatory provisions of the sec.138 of N.I. Act and to show that, the presumption envisaged U/s.118 and 139 are available in his favour, consequently it is for the accused to rebut the presumption available in favour 16 C.C.No.26388/2017 J of the complainant by producing cogent and convincible evidence but not by mere suggestion or even by plausible explanation.
15. The complainant in order to prove the service of legal notice caused by him, he has stated in his evidence that, he got issued legal notice through his counsel on 13.9.2017 to the Accused by RPAD and also through courier demanding to repay the cheques amount within 15 days from the date of receipt of said notice but the notice sent through RPAD returned on 20.9.2017 with a shara "
Insufficient address" and courier receipt has not returned, but the Accused has not received the notice intentionally. In support of his oral evidence has relied upon the documentary evidence i.e. copy of legal notice, RPAD cover returned to him with a postal shara that, insufficient address and postal receipt and acknowledgement which are at Ex.C.7 to C.13 respectively. On perusal of the Ex.C.7 to C.13 it appears that, the complainant has got issued legal notice on 13.9.2017 to the address of the accused as mentioned in the legal notice i.e. Ex.C.7 through registered post acknowledgement due i.e. as per 17 C.C.No.26388/2017 J Ex.C.8 along with postal acknowledgement i.e. as per Ex.C.13. The complainant has mentioned the address of the Accused on Ex.C.11 and C13 and the said RPAD issued by the complainant returned with a postal shara "Insufficient Address". Hence, on the basis of Ex.C.7 to C.13 it can be held that, the legal notice issued by the complainant to the accused through RPAD was returned to him with an endorsement of "Insufficient Address". The learned counsel for the accused during the course of cross- examination of complainant has only suggested that, there was no service of the legal notice upon the accused, except the said suggestion, the accused has not denied the address mentioned in the legal notice and on the RPAD cover and postal acknowledgement as it is not his address or the notice issued by the complainant is not to the correct address of the accused, therefore the accused has admitted that, the address mentioned in the legal notice RPAD and postal acknowledgement is his correct address. The Accused has also not produced any documents to show that, as on the date of issuance of the legal notice or the address mentioned in the legal notice RPAD and postal acknowledgement is not his 18 C.C.No.26388/2017 J address, in such circumstances, it can be held that, the accused has admitted that, the legal notice issued by the complainant was to his address and the said notice has not been received by him and it was returned to the complainant with a postal endorsement that Insufficient Address". The accused in the cross-examination of complainant has not disputed the postal endorsement issued by the concerned authority on Ex.C.8 i.e. RPAD cover and even it is not the defence of the Accused that, the complainant by colluding with the postal authorities got created the endorsement on Ex.C.8 and even the Accused has not examined the concerned postal authorities to prove that, the postal endorsement issued by the authority is got created by the complainant, in such circumstances it can be held that the Accused has also admitted the postal endorsement issued by the concerned postal department. In this regard, it is relevant here to refer the decision of Hon'ble High Court of Karnataka reported in 2011 ACD 1572 (KAR) in the case of Jayamma Vs. Lingamma, wherein the Hon'ble High Court held that, "Notice sent at correct address returned unclaimed - is deemed to be served. In 19 C.C.No.26388/2017 J another decision reported in 1998 KAR 1841 in the case of Shridhar M.A. Vs. Metalloy Steel Corporation and 1999 Cri.L.J. 4606 "K. Bhaskaran Vs. Vaidhanbalan wherein the Hon'ble Apex Court was concerned with the question as to when the service of notice could be inferred and it was held that if there is an endorsement like 'not available in the house' 'house locked' 'shop closed' 'unclaimed' the service should be deemed to have been effected. It is also relevant here to refer the decision reported in 2008(4) Civil code cases 027 (SC) "M/s. Indo Automobiles Vs., M/s. Jai Durga Enterprises and others." wherein the Hon'ble Apex Court held that, notice sent by registered post with acknowledgement to a correct address-service of notice has to be presumed. In addition to the above, it is relevant here to refer the decision reported in 2007 AIR SCW 3578 in the case of C.C.Alavi Haji Vs. Palapetty Muhammed and another., wherein the Hon'ble Apex court held that " the drawer of the cheque is permitted to deposit the cheque amount within 15 days from the date of his appearance before the court in pursuance of the 20 C.C.No.26388/2017 J service of summons on him and in such situation, his defence of non service of the legal notice cannot be available to him'. Hence, in view of the said principles of law, even for sake of discussion, though there is no cogent and reliable documentary proof to substantiate the claim of the complainant with regard to address of the Accused to show there is due service of the legal notice on the Accused, in view of settled position of law by virtue of the above said decision of Hon'ble Apex Court of India, the Accused is not entitled to the technical defence of the alleged non service of the legal notice. Therefore in view of the principles of law in the above decisions, it can be safely held that, the service of notice on accused in this case is presumed to have been served on him since in this case also the complainant has issued notice to the accused to his correct address through registered post and the said notice was returned with an endorsement of "Insufficient address", hence, the notice issued by the complainant through registered post is held to be proper service and for the above said reasons, the contentions taken by the learned counsel for the accused that, the notice issued by the complainant 21 C.C.No.26388/2017 J was not served on the accused and the complainant has not complied the mandatory requirements of Sec.138(b) of N.I.Act and complaint is not maintainable cannot be acceptable and are not sustainable and with due respect to the principles of law laid down by the Hon'ble High Court of Karnataka in the decision relied upon by the learned counsel for the Accused are not applicable to the defence of the Accused in relation to the service of notice, since the Accused has not disputed his address mentioned by the complainant as it is not his correct address and also failed to produce the documents to show his correct address as on the date of service of the legal notice.
16. The second defence of the accused is that, the signatures appearing on the disputed cheques i.e. Ex.C.1(a) to C.3(a) are not the signatures of the Accused and the complainant by creating the contents of the cheque and his signatures has filed this false complaint against him. In order to prove the signatures of the Accused on the cheques in dispute i.e Ex.C.1(a) to C.3(a) the complainant in his evidence has stated that, the accused in order to 22 C.C.No.26388/2017 J meet his family needs and requirements has availed a loan from him and towards discharge of said liability the Accused had issued cheques in question i.e. Ex.C.1 to C.3 for Rs.10 Lakhs /= in his favour and the said cheques were presented for encashment through his banker, but they were returned dishonoured with an endorsement of "Funds Insufficient". In order to substantiate his oral evidence, the complainant has produced original cheques in dispute and memos issued by the Accused's banker which are at Ex.C.4 to C.6. On careful perusal of the Ex.C.4 to C.6 i.e. the return memos issued by the banker of the Accused, as the cheques in dispute got dishonoured for want of sufficient funds i.e. the cheques issued by the accused were dishonoured for the reason of Funds Insufficient.
17. The learned counsel for the defence during the course of argument has specifically argued that, the accused has not issued the cheques in question to the complainant i.e. Ex.C.1 to C.3 and signatures appearing on the Ex.C.1 to C.3 i.e., Ex.C.1(a) to C.3(a) are not of the Accused, therefore the Accused 23 C.C.No.26388/2017 J has not signed on the cheques in question and has not issued the cheques to the accused towards discharge of alleged recoverable debt or liability. In order to prove the defence of the Accused that, the signatures appearing on the Ex.C.1 to C.3 cheques are not of his signatures, except the oral denial Accused has not produced any documentary proof or has not made any efforts to get the handwriting expert opinion to show that, the signatures appearing on Ex.C.1(a) to C.3(a) are not of his signatures, therefore in the absence of documentary proof or materials placed by the Accused to show that, Ex.C.1(a) to C.3(a) are not of his signatures only on the basis of self serving statement it cannot be held that, the signatures found at Ex.C.1(a)t o C.3(a) are not the signatures of the Accused. It is relevant here to refer the decisions of Hon'ble Apex Court of India reported in 1999(3) SCC 376 in the case of "L.C. Goyal Vs. Suresh Joshi(Mrs) and Ors" wherein Hon'ble Apex Court held that, "drawer denied his signature on the cheque and pleaded that, he could not be held responsible unless opinion of hand writing expert was obtained, but when cheque bounced for want of 24 C.C.No.26388/2017 J funds, the plea of forged signature cannot be accepted". In another decision reported in ILR 2006 KAR 2958 in a case of "Rajendraprasad Vs. M.Shivaraj" wherein the Hon'ble High Court held that " B. Negotiable Instrument Act, 1881 - Sections 138, 139 - signature of the accused on cheque denied - No discrepancy of the signature with the specimen signature. In the banks intimation- Whether mere denial of the signature of the accused on the cheque sufficient for acquittal- competency of persons to speak about the signature of the accused- HELD - The banker of the accused is more competent person to say whether it is the signature of the accused or not with reference to the specimen signature. In the banks intimation, the discrepancy of the signature with the specimen signature is not the ground for dishonour. In the instant case, the banker does not mention that, the signature is discrepancy of the signature with the specimen signature is not the ground for dishonour. In the instant case, the banker does not mention that, the signature is discrepant and does not tally with 25 C.C.No.26388/2017 J the specimen signature. Therefore, the self- serving denial of signature in the cheque cannot be a good evidence to come to the conclusion that, the signature on the cheque is not that of the accused. The bankers no objection for the signature in the cheque is one of the strongest circumstances to corroborate that, the signature on the cheque is that of the accused. The possession of the lose cheque with the complainant suggests an inference of endorsement and delivery of inchoate instrument which impliedly admit the issuance of cheque in favour of the complainant. Hence on careful reading of principles of law laid down by the Hon'ble High court of Karnataka in the above referred decisions, it is clear that, when the accused disputed his signature on the cheque, then the court can consider the endorsement issued by the banker on the Memo and if in the bank's intimation, the discrepancy of the signature with the specimen signature is not the ground for dishonour, then the signature appearing on the cheque is one of the strongest circumstances to corroborate that, the signature on the cheque is that of accused and it is 26 C.C.No.26388/2017 J also held that, the possession of the cheque with complainant suggest an inference of endorsement and delivery of inchoate instrument which impliedly admits the issuance of cheque in favour of the complainant.
18. In the present case also though the accused has denied his signatures and issuance of the cheques infavour of the complainant, but nothing has been produced by him to show how the cheques in question were come in possession of the complainant and bank intimation which are at Ex.C.4 to C.6 discloses the fact that, the cheques in question were dishonoured for the reasons of "Funds Insufficient" in the account of the accused but not "signature differs" therefore in view of the principles of law laid down by the Hon'ble Apex Court and High Court of Karnataka in the above referred decisions, it can be safely held that, the denial of signature by the accused is only self serving denial of his signatures that, cannot be a good evidence to come to a conclusion that, the signatures found at Ex.C1(a) to C.3(a) are not that of the accused. In view of the principles of law laid down in the decisions, even it is 27 C.C.No.26388/2017 J not necessary for the complainant to examine the bank manager as a witness to prove the fact that, the signatures appearing on the cheques are those of the accused, since the accused during the cross examination of PW.1 has not denied the endorsement issued by banker as per Ex.C.4 to C.6. Therefore the complainant has discharged his initial burden that, the signatures appearing at Ex.C.1(a) to C.3(a) are those of the accused.
19. It is also relevant here to mention that, the accused in his defence except denial of the claim of the complainant has not stated how the possession of the disputed cheques entered into the hands of complainant. If the accused has failed to explain the circumstances, under which the Ex.C.1 to C.3 i.e., disputed cheques came in possession of the complainant, hence failure to do so also entitles in drawing adverse inference against the accused. This preposition of law finds support from the decisions of Hon'ble High Court of Karnataka reported in 2010(1) KCCR 176 in the case of "Siddappa Vs. Manjappa". In another decision of Hon'ble Apex court of India decided in Crl.A.No.664 of 2012 28 C.C.No.26388/2017 J dated: 19.9.2019 in the case of "M.Abbas Haji Vs. T.M.Chennakeshava" held that, " the Accused has to explain how the cheque entered into the hands of complainant". Hence in the present case also the Accused has failed to explain how the cheques in question were entered into the hands of complainant.
20. It is also the defence of the Accused that, complainant had no source of fund to lend the loan amount in question to him. In this regard the learned counsel for the Accused has cross examined the complainant in length but nothing has been elicited to disbelieve or discredit the evidence of the complainant. The complainant in his evidence stated that, he had sold one of his property for Rs.40 Lakhs and the Accused after knowing the said fact approached him and sought for financial assistance of Rs.12 Lakhs for his family needs and requirements, accordingly on 10.10.2012 he lend the said amount to the Accused. In support of his evidence has produced certified copy of the registered sale deed dated: 25.5.2012 which is at Ex.C.14 and also produced his original bank pass 29 C.C.No.26388/2017 J book which is at Ex.C.15 and relevant entries are at Ex.C.15(a) and 15(b). On perusal of the Ex.C.14 it appears that, the Accused has sold his property measuring 30 x 52 feet to one Dr. R.Archana on 25.5.2012 for sum of Rs.40 Lakhs. It is also seen from Ex.C.15, 15(a) &15(b) that, the complainant was having a sufficient source of funds in his bank account on 6.6.2012 and also on 12.6.2012. The complainant during the course of his cross- examination has also specifically stated that, he has sold his property measuring 30 x 52 feet along with the constructed house therein to one Dr. Archana for sum of Rs.40 Lakhs and out of the said amount he has received some amount through D.D. and also received some amount in cash in advance. The complainant/PW.1 in his cross-examination has also stated that, he has lend an amount of Rs.10 Lakhs to the Accused on 10.10.2012 by way of cash and the Accused in turn has paid interest for a period of six months i.e. still April 2013 and the Accused has issued the cheques in dispute in the month of May 2017. The complainant/PW.1 has also stated that, in the year 2012 he has got income of Rs.3 to 4 Lakhs per year and has got SB account in SBI, Isro 30 C.C.No.26388/2017 J Layout Branch. It is relevant here to mention that, though the learned counsel for the Accused cross examined the PW.1 in length with regard to source of income of the complainant but nothing has been elicited to disbelieve the evidence of the complainant and the complainant in support of his oral evidence has produced the documentary evidence i.e Ex.C.14 and C.15 to prove his source of income and also as on the date of issuance of the cheque he was having sufficient source of income or funds in his bank account. The Accused has not disputed the Ex.C.14 and C.15 in the cross-examination of the complainant only has concentrated collecting of documents by the complainant at the time of lending of the loan amount and also made suggestions in respect of the defence taken by him but the said suggestions were denied by the complainant, in such circumstances it can be held that, nothing has been elicited in the cross-examination of the complainant to disbelieve his evidence and accept the defence of the Accused.
21. It is also relevant here to mention that, as already held in the above that, the complainant has 31 C.C.No.26388/2017 J proved that, the cheques in question i.e. Ex.C.1 to C.3 were issued by the accused and signatures appearing on cheques i.e. Ex.C.1(a) to C.3(a) are those of the accused and the complainant was presented the said cheques and they were returned with an endorsement of "Funds Insufficient", thereafter the complainant got issued legal notice to the Accused and the said notice was returned as "Insufficient Address" and thereafter the complainant has filed the complaint against the Accused. It is also important to note that, though the accused has specifically denied the financial capacity of the complainant to lend the loan to the accused either by producing the document or by disclosing the alleged loan transaction, but the complainant has proved his financial capacity by producing the documentary evidence i.e Ex.C.14 and C.15. It is also held in the above that, the complainant has proved that the cheques in question were issued by the accused to him and the signatures appearing on the cheques are those that of the accused, therefore, the complainant has discharged his initial burden that was casted upon him and a presumption can be drawn in favour of 32 C.C.No.26388/2017 J the complainant as required U/s.118(a) and 139 of the N.I. Act. Now it is for the accused to rebut the presumptions as available infavour of the complainant by producing cogent and convincible evidence not by mere suggestions or plausible explanation. In this regard, it is relevant here to refer the decisions reported in 2001 AIR Karnataka HCR 2154 between 'M/s.Devi Tyres V/s.Navab Jan' and in 2011 ACD 1521 (KAR) between 'Smt. Usha Suresh V/s. Shashidharn', in 2010 SC 1898 between 'Rangappa Vs. Mohan' and 2011 ACD 1412 (KAR) between 'N.Hasainar Vs. M.Hasainar, S/o. Ibrahim'. The Hon'ble High Court of Karnataka in the above decision i.e., 2001 AIR Karnataka HCR 2154 at para No.6 was pleased to hold that issuance of cheque itself was adequate proof of existence of debt or liability. In another decision of Hon'ble Apex Court of India i.e. Hon'ble Three Judges Bench Decision reported in (2010) 11 SCC 441 in the case of Rangappa Vs. Sri. Mohan ., wherein the Hon'ble Apex Court held that "
A. Negotiable Instruments Act, 1881 - S.139 -
Presumption under - scope of - Held, presumption mandated by S. 139 includes a 33 C.C.No.26388/2017 J presumption that there exists a legally
enforceable debt or liability - However such presumption is rebuttable in nature - Criminal Trial - Proof - Presumptions - Generally. Further held that "Signature on the cheque was his, statutory presumption under S.139 comes into play and the same was not rebutted even with regard to the materials submitted by complainant Appellant not able to prove "lost cheque" theory - Apart from not raising a probable defence appellant was also not able to contest the existence of a legally enforceable debt or liability - hence, his conviction by High Court, held, proper. In another decision of Hon'ble Apex Court of India, reported in CRIMINAL APPEAL NO. 508 OF 2018 DT 15-03-2018 between ROHITBHAI JIVANLAL PATEL Vs STATE OF GUJARAT AND ANR held that "Negotiable Instruments Act facts like source of funds are not relevant if the Accused has not been able to rebut the presumption. It is further held that " When such a presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source 34 C.C.No.26388/2017 J of funds were not of relevant consideration while examining if the Accused has been able to rebut the presumption or not". In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, "
Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. It is also held that, " the accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the Trial Court and High Court. Both 35 C.C.No.26388/2017 J courts not only erred in law but also committed perversity when the due amount is said to be disputed only on the account of discrepancy in the cartons, packing materials or the rate to determine the total liability as if the appellant was proving his debt before the civil court. Therefore it is presumed that, the cheque in question were drawn for consideration and the holder of the cheques received the same in existing debt". It is also held that, " the Trial court and the High Court proceeded as if, the appellant is to prove a debt before civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. A dishonour of cheque carries statutory presumption of consideration. The holder of cheque in due course is required to prove that, the cheque was issued by the Accused and that when the same presented , it was not honoured Since there is a statutory presumption of consideration, the burden is on the Accused to rebut the presumption that, the cheque was issued not for any debt or other 36 C.C.No.26388/2017 J liability". It is also relevant here to refer the decision of Hon'ble High Court of Karnataka reported in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption mandated by Sec.139 of N.I Act includes the presumption that, there existed a legally enforceable debt or liability, however such presumption is rebuttable in nature". In another decision of Hon'ble High Court of Karnataka in the case of Shri.V.R.Shresti Vs. Shri. Bhaskara.P. in Crl. Appeal No. 2109/2017 dated: 15.10.2019 wherein the Hon'ble High Court of Karnataka held that "the Accused has not given any reply to the notice and also in the cross- examination, he categorically admits that, the cheque has bounced on account of no sufficient fund in the bank account of the Accused. Mere non producing of the document before the court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The Accused ought to have rebutted the contention of the complainant by producing cogent evidence before the court and mere denial 37 C.C.No.26388/2017 J is not enough". Therefore on careful reading of the principles of law laid down by the Hon'ble Apex Court of India and High Court of Karnataka in the above referred decisions makes it very clear that, once the holder in due course i.e. the complainant proved that, the cheque in question belongs to the drawer and signature appearing on the cheque is that of the drawer i.e., Accused and complied the mandatory requirements as required U/s.138 of N.I.Act, a presumptions U/s.118a and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt and when such presumption is drawn the facts relating to the want of documentary evidence to prove the existence of debt in question were of not relevant unless the Accused rebutted the presumption available to the complainant as held by the Hon'ble Apex Court and High Court of Karnataka in the above decisions. In the present case also the complainant has complied mandatory requirements and has proved that, the Accused has issued the cheques in question in his favour and the Accused has admitted the cheques belongs to him and signatures appearing on the cheques are those of his signatures and the notice issued by the 38 C.C.No.26388/2017 J complainant was returned as Insufficient address and Accused has not given any reply or complied the terms of the notice, in such circumstances, presumptions have to be drawn towards existence of legally enforceable debt as per Sec.139 of N.I.Act. Therefore, for the above said reasons the arguments canvassed by the learned counsel for the defence that, the complainant has not proved that, he has lend an amount of Rs.10 Lakhs to the Accused and in turn the Accused has issued the cheques in question to him towards discharge of the loan amount and the complainant has failed to prove the contents of cheques i.e. the Ex.C.1 to C.3 cannot be acceptable one.
22. No doubt, the defence version claimed by the Accused could be considered only the accused has rebutted the presumption available U/s.118 and 139 of NI Act in favour of the complainant by producing cogent and convincible evidence. It is settled law that, the accused can rebut the presumption only on the basis of materials produced by the complainant even without entering into the witness box but in the present case the Accused has 39 C.C.No.26388/2017 J failed to substantiate his defence version in order to rebut the presumption available to the complainant and to prove the defense of the accused, the accused while recording his statement as required U/s. 313 of Cr.P.C. though he has denied the incriminatory evidence appearing against him but he did not entered in to witness box to prove his defense or rebut the presumption available to the complainant U/s. 118 and 139 of N.I.Act. Under such circumstance, it is for the accused to disprove the case of the complainant or rebut the presumption then only the onus will be shifted on the complainant to prove his case.
Admittedly the accused did not entered in to the witness box, therefore an adverse inference can be drawn against the accused that he has failed to rebut the presumption available to the complainant. Therefore it is clear that, except having denial of the case of the Complainant in the cross examination of complainant, the Accused has not taken any interest so as to prove his defence. In this regard, it is relevant here to refer a decision of Hon'ble Apex Court of India reported in "AIR 2018 SC 3173 in a case of Kishan Rao Vs. Shankargouda" wherein 40 C.C.No.26388/2017 J the Hon'ble Apex Court held that " Negotiable Instruments Act (26 of 1881), Ss. 138, 139- Dishonour of cheque - Presumption as to - Accused issuing cheque of Rs.2 Lakhs towards repayment of loan to Complainant- said cheque dishonoured on account of insufficiency of funds- Complainant proving issuance of cheque having signatures of Accused - Accused failing to rebut presumption raised against him and no evidence led by him in his support - Acquittal of Accused by High Court in revisional jurisdiction on ground of doubt in mind of Court with regard to existence of loan, improper- Accused, liable to be convicted. In another decision decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, " Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any 41 C.C.No.26388/2017 J person other than the drawer, if the cheque is duly signed by the drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. It is also held that, the accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the Trial Court and High Court. Both courts not only erred in law but also committed perversity when the due amount is said to be disputed only on the account of discrepancy in the cartons, packing materials or the rate to determine the total liability as if the appellant was proving his debt before the civil court. Therefore it is presumed that, the cheque in question were drawn for consideration and the holder of the cheques received the same in existing debt. Hence, the principles of law laid down in the above decisions are aptly applicable to the case on hand, since in this case also the complainant proved the fact of payment of the amount of Rs.10 Lakhs to the 42 C.C.No.26388/2017 J accused and the accused in turn the Accused has issued cheques for discharge of the said amount as per Ex.C.1 to C.3 but accused has also failed to enter into witness box to rebut the statutory presumption in support of his defense in such circumstances the defense taken by the accused counsel during the course of cross examination and argument cannot be acceptable one.
23. The learned counsel for the Accused argued that, as per the averments of the complaint according to the complainant he has lent a loan amount of Rs.10 Lakhs to the Accused on 10.10.2012 at that time the Accused agreed to return the said amount within six months and after that, the Accused neither paid the loan amount or interest on the same and after several occasions and demanding for more than four years the Accused issued the cheques in question i.e Ex.C.1 to C.3 in the name of complainant, hence as per the own admissions of the complainant goes to show that, the cheques in question i.e Ex.C.1 to C.3 were alleged to have been issued in the year 2017, hence the alleged debt was barred by time i.e. the cheques 43 C.C.No.26388/2017 J in question were issued after four years from the date of alleged lending of loan amount, in such circumstances, the alleged debt in question is barred by time and even though the complainant proved his case, he cannot be recovered the loan amount from the Accused as it was time barred by debt. In this regard and in support of the arguments of learned counsel for the Accused has relied upon the decisions reported in 1) LAWS (KAR) 2018 - 3 -23 in the case of K.N.Raju Vs. Manjunatha T.V; 2) 2013 (3) KCCR 1967 (KAR) in case of Wilson Marcilin carvalho Vs. Krishna Budhaji Patil ; 3) LAWS (SC) 2006 - 5- 13 in the case of D. Vinod Shivappa Vs. Nanda Belliappa 4) 2001 Crl.L.J. 24 (KERALA) in the case of Sasseriyil Joseph Vs. Devassia ; 5) 2002 AIR SCW 694 in case of A.V Murthy Vs. B.S.Nagabasavanna ; 6) 1997 (2) Crimes 658 (AP) in case of Giridhari Lal Rati Vs. P.T.V.Ramanujachari and another and argued that, in view of the principles of law laid down by the Hon'ble Apex Court and High Court in this case also the complainant has not produced any evidence to prove the fact that, the Accused has admitted his liability in writing since the date of last 44 C.C.No.26388/2017 J transaction till the issue of cheque by the Accused, thus complaint is liable to be dismissed as the loan amount in question i.e. debt is time barred and cannot be recovered and not legally enforceable debt under the provision contained in Sec.138 of N.I. Act.
24. On the other hand the learned counsel for the complainant during argument submitted that, U/s.25(3) of the Contract Act is very clear that, there is a promise made in writing and signed by a person to be charged there with to pay wholly or in part a debt which is time barred by law of Limitation. In support of this argument, has also relied upon the decision of Hon'ble High Court of Karnataka decided in 1) LAWS (BOM) 2017 1 182 in case of Pragathi Credit Co-operative Society Vs. Suresh S/o. Sham Rao Gode ; 2) Crl.Appeal No. 1545 /2019 ; 3) (2010) 11 SCC 441; 5) Crl.Writ petition No. 1715/2018 in case of Nandakishore Shamkanth Sonar Vs. Sau MalatiDiwakar Kulkarni, C/w Crl. W.P. No. 1716 to 1719/2018 etc.; 5) 2007 Cri. L.J. 583 H.Narasimha Rao Vs. Venkatarama.R. 45 C.C.No.26388/2017 J
25. On careful considering the rival contentions of both learned counsels and the admitted facts by the complainant in his complaint, evidence and also in his cross-examination that, it is true that, the complainant is claiming the loan transaction by stating that, he has paid an amount of Rs.10 Lakhs to the Accused on 10.10.2012. It is also an admitted fact that, the cheques in question issued in the year 2017. Now the question before the court is whether the cheques in question were issued in discharge of time barred debt or not and debt in question is not legally enforceable at the time of issuance of cheques in question or not. It is relevant here to mention that, during the course of cross-examination of the complainant by the Accused nothing has been elicited to discard his evidence that, the complainant has not demanded his loan amount since the date of lending and he has only demanded the loan amount in the year 2017, on the contrary the complainant in his evidence as well as in the cross-examination has specifically stated that, on several occasions and demanding for more than four years the Accused has issued the cheques in question to him in the year 2017. It is true that, the complainant admitted 46 C.C.No.26388/2017 J that, after expiry of six months from the date of lending of the loan amount he has not taken any action against the Accused but the complainant specifically stated that, he and the Accused are in cordial relationship and has not taken action, hence nothing has been elicited in the cross-examination of the complainant to accept the defence of the Accused that, the debt in question is time barred, therefore for the said reasons the arguments canvassed by the learned counsel for the Accused i.e. the alleged debt in question is barred by time cannot be acceptable one and also with due respect to the principles of law laid down by the Hon'ble Apex Courts and High Courts relied upon by the learned counsel for the Accused, are not helpful for the Accused to prove his defence that, the debt in question is time barred debt and cheque in question was issued in discharge of time barred debt.
26. In this regard, it is relevant here to refer the principles of law laid down by the Hon'ble High Court of Karnataka and Bombay in the decisions reported in Crl. Appeal No. 2275/2006 in the case of G. Muniswamy Vs. H.S.Nagendra Kumar 2) 47 C.C.No.26388/2017 J Crl.Application No. 2933/2007 in the case of Mr. Dinesh B Choksi Vs. Rahul Vasudeo Bhat 3) ILR 2006 KAR 4242 in the matter of H.Narasimha Rao Vs. R. Venakataram. In the decision of ILR 2006 KAR 4242 wherein the Hon'ble High Court had held that " In case if the time barred debt is agreed to be paid through a cheque there is no legal bar for the debtor agreeing to pay time barred debt and the cheque issued towards repayment of time barred debt also constitute offence U/s.138 of the Act . In Crl. Writ petition No. 1715 to 1719/2018 wherein the Hon'ble High Court of Bombay has also held that, "Sub section 3 of Sec. 25 of the Contract Act is an exception to the General Rule that, an agreement made without consideration is void. Sub Sec.3 of Sec. 25 of the Contract Act also applies to a case where there is a promise made in writing and signed by a person to be charged there with to pay wholly or in part a debt which is barred by law of limitation". It is further held that, a case of promise created by a cheque issued for discharge of a time barred debt or liability and once it is held that, a cheque 48 C.C.No.26388/2017 J drawn for a discharge of a time barred debt creates a promise which becomes enforceable contract, it cannot be said that, cheque is drawn in discharge of debt or liability which is not legally enforceable. The promise in the form of a cheque drawn in discharge of a time barred debt or liability becomes enforceable by virtue of Sub section 3 of Sec. 25 of the Contract Act. Thus, such cheque becomes a cheque drawn in discharge of legally enforceable debt as contemplated by the explanation to sec. 138 of the said Act of 1881. Hence, in view of the principles of law laid down by the Hon'ble High Court of Karnataka and Bombay in the above referred decisions in the present case also the Accused has promised to pay the time barred debt by issuing the cheques in question i.e., Ex.C.1 to C.3 towards discharge of the debt or liability, in such circumstances, the promise is in the form of a cheques drawn discharge of debt in question which becomes enforceable by virtue of Sec. 25 (3) of the Contract Act. It is also relevant here to decision of Hon'ble Apex court of India reported in 2016 AIR SCW 4363 in the case of Samplly 49 C.C.No.26388/2017 J Satyanarayana Rao vs. Indian Renewable Energy Development Agency Ltd., wherein the Hon'ble Apex Court held that "Negotiable Instrument Act 1881- 138 - If on the date of cheque liability or debt exists or the amount has become legally recoverable - Sec. 138 will apply - not otherwise". Hence, in view of the principles of law laid down by the Hon'ble Apex Court in the said decision are aptly applicable to the case on hand, since in this case also the complainant has proved that the Accused has issued cheques in question in the year 2017, therefore the liability or debt in question existed as on the date of cheque and the amount in question has become legally recoverable debt. It is also relevant here to refer the decision of Hon'ble High Court of Karnataka decided in Crl.Appeal No. 799/2010 dated:
4.12.2019 in the case of M/s. S.V. Enterprises Rep. by proprietor Sri.M.Srinivas Naidu Vs. Sri.Tulasiram.V. Friends Cine Creations.
Wherein the Hon'ble High court held that " As cited by the learned counsel for the petitioner reported in 2007(I) KLJ 238 between H. Narasimha Rao Vs. Venkataram., wherein this 50 C.C.No.26388/2017 J court has held in the following manner: "
Banking - dishonour of cheque - time - barred- debt - Sec.138 of Negotiable Instrument Act 1981 (The Act) - Complainant granted loan to Accused on condition of repayment within short period - Accused issued two cheques in favour of complainant towards discharge of loan- on presentation, cheques were bounced- complainant issued demand notice, the receipt of which was acknowledged by Accused but untenable reply was sent along with - therefore complainant had filed complaint U/s.138 of the act against Accused - Magistrate however, acquitted Accused on the ground that, Accused could not be held liable to pay any time barred debt - no fresh consideration was required for debtors promise to pay time barred debt- more over undisputed signature on cheques by Accused constitute agreement to pay time barred debt- offence U/s.138 made out - appeal allowed.
8. In view of the above decision, once the cheque is proved that, the same was issued with reference to any debt, in such an eventuality such stand is not available to the Accused that, 51 C.C.No.26388/2017 J there is no existence of any debt or liability, therefore on the said ground the acquittal recorded by the trial court is not proper". In another decision of Hon'ble Apex court decided in Appeal (Cri) 206/2002 in the case of A.V.Murthy Vs. B.S. Nagabasavanna., wherein the Hon'ble Apex court held that " Even in the said case if the cheque has been issued on the time barred debt than the person who has issued the cheque is liable for payment of amount stated in the cheque as the person who issues the cheque promised the person who receives the cheque to pay the amount stated in the cheque". Hence the claim of the Accused that, the debt in question as claimed by the complainant is time barred debt cannot be acceptable one.
27. Therefore considering all these aspects of the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant the complainant has successfully established beyond all reasonable doubt that, he has lend an amount of Rs.10 Lakhs to the Accused and in turn the Accused 52 C.C.No.26388/2017 J has issued cheques in question i.e. Ex.C.1 to C.3 to the complainant towards discharge the loan amount borrowed by him and thereafter the complainant has presented the said cheques through his banker and same were returned dishonoured with an endorsement of "Funds Insufficient" and thereafter he got issued legal notice to the accused and the said notice was returned as "Insufficient address"
and it is held in the above that, the notice issued by the complainant was deemed tobe served on the Accused and inspite of it, the Accused did not paid the cheques amount, hence the complainant filed the present complaint against the accused. On the other hand, the accused has failed to rebut the presumption available infavour of the complainant with regard to the existence of legally recoverable debt under Ex.C.1 to C.3 Cheques. Therefore accused has committed an offence punishable U/s.138 of N.I. Act, accordingly for the above said reasons this point is answered in the Affirmative.
28. Point No.2: Negotiable Instrument Act was enacted to bring credibility to the cheque and the very purpose of enactment is to promote the use of 53 C.C.No.26388/2017 J negotiable instrument, while to discourage the issuance of cheque without having sufficient funds in their accounts. Such being the case the intention of the legislature is that, complainant be suitable compensated while accused be punished for his act. Hence while awarding the compensation the said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly it will not cause injustice to the accused, accordingly the complainant is entitled for the compensation as ordered by the court and for the said reasons, it is just and proper to pass the following :-
ORDER Acting U/sec.255(2) of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.10,25,000/= (Rupees Ten Lakhs and Twenty Five Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.10,20,000/= 54 C.C.No.26388/2017 J (Rupees Ten Lakhs and Twenty Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
The Bail bond of the Accused
stands cancelled.
. Office is directed to furnish free
certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 20th day of February 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri. C.Raju;
2. List of documents exhibited on behalf of the Complainant:-
Ex.C-1 to C.3 : Original Cheques;
Ex.C-1(a) to : Signatures of the Accused;
C.3(a)
55 C.C.No.26388/2017 J
Ex.C.4 to C.6 : Bank Memos;
Ex.C-7 : Office copy of the Legal Notice;
Ex.C-8 : Postal Receipt;
Ex.C.9 : Courier Receipt;
Ex.C.10 : Returned Legal Notice;
Ex.C.11 : RPAD cover;
Ex.C.12 : Postal Receipt;
Ex.C.13 : Postal Acknowledgement;
Ex.C.14 : Certified copy of the registered sale deed
date: 25.5.2012;
Ex.C.15 : Original Pass book
Ex.C.15(a) & : Relevant entries;
(b)
3. List of witness/s examined on behalf of the Accused:-
- Nil -
4. List of documents exhibited on behalf of the Accused:-
- Nil-
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.56 C.C.No.26388/2017 J
20.2.2020 Judgment pronounced in the open court vide separate order.
ORDER Acting U/sec.255(2) of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.10,25,000/= (Rupees Ten Lakhs and Twenty Five Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.10,20,000/= (Rupees Ten Lakhs and Twenty Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
The Bail bond of the Accused stands cancelled.
. Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
XVI ACMM, B'luru.
57 C.C.No.26388/2017 J