Bangalore District Court
Sri.Ramaiaha vs Sri.Venkataswamy on 4 November, 2020
IN THE COURT OF XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
Dated this the 4th day of November 2020
PRESENT: KALPANA.M.S.,
B.Sc., LL.M.,
XX ADDL. C.M.M.
Bengaluru.
C.C.No.24113/2017
Complainant : Sri.Ramaiaha,
S/o Byrappa,
Aged about 45 years,
R/at No.45,
Muneshwar Extention,
Doddabidarekallu,
Nagasandra Post,
Bengaluru - 73.
Vs.
Accused : Sri.Venkataswamy,
S/o Veerappa,
Aged about 50 years,
R/at Anjanadri Layout,
3rd Cross, 1st Main,
Shettihalli, Jalahalli Post,
Bengaluru West - 15.
Offence complied of : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
2 C.C.24113/2017
Final Order : Accused is Convicted
Date of Order : 04112020
JUDGMENT
The complainant has filed this complaint under section 200 of code of criminal procedure read with section 138 & 142 of the Negotiable Instruments Act ( in short referred as "N.I. Act") against the accused alleging that, he has committed the offence.
02. The sum and substance of the complaint, is as follows;
In the month of October 2016, the accused had availed hand loan of Rs.5,00,000/ from the complainant for his urgent family legal necessities and agreed to repay the same within six months. Accused has not returned the money as agreed upon. On consistent demands, towards 3 C.C.24113/2017 discharge of his liability, accused has issued a cheque bearing No. 486522 dated 16.08.2017 for Rs.5,00,000/, drawn on State Bank of India, Air Force Station, Jalahalli, Complainant presented the said cheque for encashment through his banker i.e., Vijaya Bank, Dasarahalli Branch, Bengaluru and the said cheque returned with an endorsement "Kindly contact Drawer/ Drawee Bank and please present again", dated 22.08.2017. Thereafter, complainant got issued legal notice on 29.08.2017 to accused. The notice was duly served to the accused on 31.08.2017. Accused neither complied nor replied the notice. It is contended that, accused intentionally not maintained sufficient amount in his bank account to honour the cheque issued in favour of the complainant towards discharge of legally enforceable debt. On these allegations, present complaint is filed.
03. After filing of complaint, this court perused the documents and taken cognizance for the offence under 4 C.C.24113/2017 section 138 of Negotiable Instrument Act, sworn statement of complainant was recorded. Being satisfied that there are primafacie materials to proceed against accused, summons was issued. After appearance, accused enlarged on bail and plea was recorded as per section 251 of Cr.P.C. Accused has not stated the defence.
04. Learned Counsel for complainant prays to treat sworn statement as examinationinchief and to consider the documents marked as Ex.P.1 to 5. The statement under section 313 of code of criminal procedure is recorded, read over and explained to the accused. The defence of the accused is total denial. Further, accused and three witnesses were examined as DW.1 to DW.4 and got marked documents from Ex.D.1 to Ex.D.7. Ex.D.1 to Ex.D.3 documents are marked through confrontation in the course of cross examination of the complainant. 5 C.C.24113/2017
05. In this case, the evidence on record shows that summons trial procedure was adopted instead of summary trial. As per the judgment passed by Supreme Court reported in 2014 Cr.L.J. 1953, in a case of Mehsana Nagarik Sahakari Bank Limited V/s. Shreeji CAB Company Limited and others, conducting Denova trial does not arises.
06. Heard the Learned Counsel for complainant and no arguments addressed on behalf of the accused. Perused the materials on record.
07. The points that arise for my consideration are as follows;
POINTS
1. Whether the complainant proves that, accused issued cheque bearing No. 486522 dated 16.08.2017 for Rs.5,00,000/, towards discharge of his liability, which was returned unpaid on presentation and also not complied the notice issued by the 6 C.C.24113/2017 complainant and thereby committed an offence punishable under section 138 of Negotiable Instruments Act?
2. What Order?
08. My answer to the above points is as follows;
1. Point No.1: In the Affirmative
2. Point No.2: As per final order for the following;
REASONS
09. POINT No.1: Complainant has filed this complaint alleging that accused has committed offence under section 138 of N.I. Act. He pleads and asserts that, towards discharge of his liability, accused has issued a cheque bearing No. 486522 dated 16.08.2017 for Rs.5,00,000/. The said cheque came to be dishonoured on presentation. Complainant has issued notice within time stipulated calling upon the accused to pay the amount covered under cheque. Inspite of service of notice, accused has not paid 7 C.C.24113/2017 the amount within 15 days, which gave raise cause of action to file this complaint. He further relied on the documents from Ex.P.1 to 5. This witness was subjected to cross examination.
10. In this scenario, let us scrutinize the documents relied by complainant in order to examine the compliance of statutory requirements envisaged under section 138 of N.I. Act. Ex.P.1 is cheque dated 16.08.2017, the said cheque returned with an endorsement ""Kindly contact Drawer/ Drawee Bank and please present again", Ex.P.2 is bank endorsement dated 22.08.2017, Ex.P.3 is legal notice dated 29.08.2017, said notice duly served on the accused on 31.08.2017, Ex.P.4 is postal receipt and Ex.P.5 is the Postal acknowledgement. This complaint came to be filed on 23.09.2017. A careful scrutiny of the documents relied by the complainant goes to show that, statutory requirements of section 138 of N.I. Act is complied with and this 8 C.C.24113/2017 complaint is filed within time. Thus, complainant relied on the statutory presumptions enshrined under section 118 read with section 139 of N.I. Act.
11. No doubt, the said presumptions of law are rebuttable in nature. The accused can take probable defence and rebut the presumption available to the complainant. Let us examine whether accused has successfully rebutted the presumptions of law. The accused denied the impugned transaction and also denied the service of legal notice. It is the specific defence of the accused that, he came to know about the complainant through their common friend by name Mariyappa. Said Mariyappa advised the accused to become subscriber to the chit transaction conducted by the complainant. Accordingly, he became the member of Rs.2,00,000/ chit, for which he used to pay Rs.5,000/ as monthly installment. There were 40 members in the chit. He has taken the bid amount of Rs.80,000/ and at that time, 9 C.C.24113/2017 complainant has taken disputed cheque from the accused. Even after taking the bid amount , accused regularly paying chit installments. After completion of the chit, accused demanded the complainant to return the cheque. He dodged on one or the other reason and accused came to know about the complaint only after service of summons. Complainant is of the habit of the filed false complaint on various persons including Mariyappa. Accused is not liable to pay cheque amount to the complainant. On these contentions, accused sought for dismissal of the complaint and consequent acquittal. To endorse these contentions, accused and two independent witnesses were examined as DW.1 to 3, Manager, Vijaya Bank was examined as DW.4 and accused relied on the documents from Ex.D. 1 to 7, Ex.D.1 to 3 documents are marked through confrontation in the course of cross examination of the complainant. Ex.D.1 to 3 are the complaint, sworn statement and the statement under section 313 of code of criminal procedure of the 10 C.C.24113/2017 accused in C.C.8269/2018. Ex.D. 4 & 5 are the complaint issued by complainant against Mariyappa and statement under section 313 of code of criminal procedure. Ex.D.6 & 7 are the Bhoomi Bharatgas bills.
12. In the back drop of the rival contentions, this court has given anxious consideration to the case papers. At the outset, accused has admitted in his evidence that, the cheque in question belongs to him and it bears his signature. For better appreciation the relevant portion of cross examination of DW.1 is culled out as under;
" ನಪ.1 ವವದತ ಚಕಕ ಕ ನನನ ಬಬಬಕ ಖತಗ ಸಬಬಬದಸದ.
ವವದತ ಚಕಕನಲ ನನನ ಸಹ ಇದ."
From this part of evidence, it goes without saying that, accused has not disputed the cheque in question. When the drawer has admitted the issuance of the cheque as well as the signature present therein, the presumptions envisaged 11 C.C.24113/2017 under section 118 read with section 139 of NI Act, would operate in favour of the Complainant. The said provisions lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and thereunder court shall presume that the instrument was endorsed for consideration. So also, in the absence of contrary evidence on behalf of the accused, the presumption under section 118 of the NI Act, goes in favour of the complainant.
13. This proposition of law is laid down by the Hon'ble High Court of Karnataka in the decision reported in ILR 2006 KAR 4672 J.Ramaraj V/s Iliyaz Khan, wherein it is held that;
"Mere denial of issuing cheque would not be sufficient as it is time and again noted that once the cheque is issued duly signed by the petitioner, the presumption goes against him as per Sec.139 of the Negotiable Instruments Act."
12 C.C.24113/2017No doubt, said statutory presumptions are rebuttable in nature. It is for the accused to place cogent and probable defence to rebut the presumptions raised in favour of the Complainant.
14. To discharge the burden of rebuttal, accused has put forth the plea of chit business conducted by the complainant and issuance of disputed cheque at the time of taking prize amount on bidding the chit. After completion of the chit, instead of returning the cheque, misused to file this false complaint. Complainant denied any such chit transaction. As discussed earlier, the burden lies on the accused to show the alleged chit transaction. To substantiate this defence , accused has placed the evidence of two witnesses by name Venkatesha Babu.V and Mariyappa as DW.2 & DW.3 respectively. DW.2 is none other than the son of accused. He asserts that, at no point of time, they were residing in Anjanadri Layout. However, 13 C.C.24113/2017 this witness expressed ignorance regarding the details of the alleged chit transaction and fairly admits that, he has not witnessed conducting of chit business by the complainant. Overall, the accused has relied on the testimony of DW.2 only to establish his residential address at the on the date of issuance of legal notice by the complainant, in turn disputing service of legal notice. Contrary to this version, accused has given unequivocally admission that, the legal notice issued by the complainant after dishonour of disputed cheque, was received by his family members, specifically by his daughterinlaw. For better appreciation, the relevant portion of the evidence during the cross examination of the DW.1 is culled out as under;
" ವವದತ ಚಕಕ ಕ ಅಮನಬಗಗಬಡ ನಬತರ ದಗರಕದರರಕ ನನನ ವಸದ ವಳಸಕಕ ಕಳಕಹಸದ ನಗನಟಸನಕ ನ ನನನ ಮನಯಲರಕವವರಕ ತಗದಕಕಗಬಡದರ ಎಬದರ ನನನ ಸಗಸ ತಗದಕಕಗಬಡದರ."14 C.C.24113/2017
From this part of evidence of accused, it is crystal clear that, accused has admitted the service of legal notice to his residential address. That apart, while recording statement under section 313 of Code of Criminal Procedure, accused has admitted the service of legal notice. In that view of the matter, the evidence of DW.2 is not anyway helpful to prove the defence of accused.
15. As for as the DW.3 is concerned, it is forthcoming from the materials on record that, complainant has filed cheque bounce case against DW.3 as per Ex.D.4. Thus, the evidence of DW.3 is required to be appreciated with great care and caution. In the cross examination, DW.3 admits that, he has not got any documents to show the alleged chit business conducted by the complainant. He expressed ignorance about the details of the cheque allegedly issued by the accused in favour of the complainant in respect of chit business. Above all, DW.3 is not sure regarding the 15 C.C.24113/2017 year of alleged chit transaction. In the chief examination, this witness says that, in the year 2016, accused became the member of the chit conducted by the complainant. Per contra, in the cross examination, he says that, cheque in question was issued by the accused to the complainant in connection with the chit of the year 2006. For better appreciation, the relevant portion of the evidence during the cross examination of the DW.3 is culled out as under;
" ನನನ ಪ ಪಕರ 2006 ರಲ ನಡದ ಚನಟಗ ಸಬಬಬದಸಬತ ಆರಗನಪ ಪರರದಕದರರಗ ಚಕಕ ಕ ಕಗಟಬದರ."
The aforesaid inconsistent statement of the witness creates doubt and hence does not inspire the confidence of this court. Therefore, this court finds substance made on behalf of the complainant that, accused and DW.3 have colluded together and giving false statement to escape from penal liability. Moreover, accused has given admission to the effect that, he has not got any document to show that, 16 C.C.24113/2017 complainant was conducting the chit business. For better appreciation, the relevant portion of the evidence during the cross examination of the DW.1 is culled out as under;
" ದಗರಕದರರಕ ಚನಟ ನಡಸಕತತದದರಬದಕ ತಗನರಸಕವ ದಖಲಗಳಕ ಇಲಲ. ಕರಣ ಆತ ಪರವನಗ ಪಡದರಲಲಲ. "
In the absence of any documentary evidence to show chit transaction, it is difficult to believe the self serving testimony of the accused. So also, the documents from Ex.D. 1 to 7 do not render any help to prove the defence , as law does not forbid any person to file more than one complaint.
16. That apart, as per the case of the accused, chit completed in the year 2016. Even though, DW.3 says that, the disputed cheque was issued in the year 2006. If at all, cheque was issued as security to the chit transaction, what prevented the accused to take suitable legal action to 17 C.C.24113/2017 recover the security cheque is not explained. Even otherwise, what prevented him to issue intimation to his banker to stop payment of alleged cheque issued towards security is also not satisfactorily explained. This inaction attributable to the accused rises genuine doubt about the defence.
17. In this context, it is profitable to refer the decisions reported in, AIR 2018 SUPREME COURT 3601, in a case of, T.P.Murugan (Dead) Thr.Lrs. V. Bojan, wherein it is held that;
" Negotiable Instruments Act (26 of 1881), Ss.118,138,139 Dishonour of cheque Presumption as to enforceable debt cheques allegedly issued by accused towards repayment of debt Defence of accused that 10 cheques issued towards repayment of loan back in 1995 Behavior of accused in allegedly issuing 10 blank cheques back in 1995 and never asking their return for 7 years, unnatural Accused admitting his signature on cheques and pronote, presumption under S.139 would operate 18 C.C.24113/2017 against him Complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt Conviction, proper".
The another decision reported in , 2015(8) SCC 378; T.Vasanthakumar Vs. Vijayakumari, it is held that;
" Negotiable Instruments Act, (26 of 1991 S.138 and 139 Dishonour of Cheque Appeal against acquittal Cheque as well as signature on it not disputed by the accused, respondent presumption under section 139 would be attracted story brought out by accused that cheque was given to complainant long back to 1999 as a security to a loan : the loan was repaid but complainant did not return security cheque Is unworthy of credit, apart from being unsupported by way evidence - mere printed date on cheque by itself cannot be conclusive of fact that cheque was issued in 1999 order of high court in acquitting accused is erroneous and set aside civil rev. petition No.263 of 2011, dated 22.07.2011 (kar)."
Similar to the facts and circumstances of the cited decisions, in the present case also the accused is not 19 C.C.24113/2017 disputing the issuance of the Ex.P.1 cheque and signature present on it. The defence that, said cheque was issued in favour of complainant as security is not supported by any evidence.
18. Further, accused has disputed the maintainability of the complaint on the ground that, the reason for dishonour mentioned in the cheque return memo does not fall within the purview of section 138 of NI Act. It is argued that, disputed cheque was dishonoured for the reason of "
Non CTS cheque", as per the testimony of Bank Manager, examined as DW.4. Accordingly, it is argued that, this complaint based on invalid cheque, is not maintainable under law.
19. It is difficult to accept this line of argument of accused that, the instrument in question was not cheque on the date of its presentation in view of the RBI norms. It has argued by the counsel for accused that, as per the RBI norms, all 20 C.C.24113/2017 non CTS cheques had become invalid with effect from 31.12.2013 and thus, on the date of presentation of cheque in question on 22.08.2017, the said cheque was not valid cheque and hence, no case under section 138 of NI Act, could have been filed. This court do not find merits in this contention because, the cheque had not become invalid, it is only that, the processing of Non CTS cheques was made limited to some particular days. Vide notification dated 22.01.2010, the RBI started CTS (cheque truncation system), i.e., 'CTS 2010 standard' for standardization and enhancement of security features in cheque forms and directed all the banks issue only CTS 2010 standard cheques and vide notification dated 03.09.2012, the RBI directed all the banks to withdraw all the Non CTS cheques in circulation and replace them with CTS 2010 standard cheques. Then, vide notification dated 18.03.2013, the RBI held that, all residual NonCTS cheques with customers would continue to be valid and accepted for some more 21 C.C.24113/2017 period. However, the RBI observed that, still there was a volume of NonCTS cheques made arrangements for clearing said cheques with effect from January 1, 2014. Thus, it is clear from said notification that, the NonCTS cheques had not become invalid, rather the number of days were reduced for their presentation for encashment. DW.4 the Bank Manger, has expressed the same opinion and stated that, there is provision to honour NonCTS cheques. For better appreciation, the relevant portion of the evidence during the cross examination of the DW.4 is culled out as under;
" 'Non CTS' ಚಕಕ ಕ ಗಳನಕ ನ ಬಬಬಕಗ ಹಜರಕಪಡಸಲಕ ಅವಕಶ ಇದ ಎಬದರ ಡಪಯರ ಬಬಬಕನವರಕ/ ಎಸ.ಬ.ಐ. ಬಬಬಕ ನವರಕ ನ ಮನಬ ಮಡದದಲ ನಗದನಕರಣದ ಅವಕಶ ಇದ."
ಚಕಕನಕ Furthermore, DW.4 has clearly deposed that, it is the responsibility of the customer i.e., accused to ascertain regarding completion of all procedure pertaining to the cheque in question. For better appreciation, the relevant 22 C.C.24113/2017 portion of the evidence during the examinationinchief of the DW.4 is culled out as under;
"ನಮ ಕ 'Non
ಮ ಬಬಬಕಗ ಪರರದ ಹಜರಕಪಡಸದ ವವದತ ಚಕಕ
CTS' ಚಕಕಗದ. ಚಕಕನಕ
ನ ವತರಸಕವ ಪವರದಲ ಬಬಬಕನ
ಗಪಹಕರಕ ಚಕಕಗ ಸಬಬಬಧಸದ ಎಲ
ಲ ಪ ಪಕ ಪಯಗಳಕ ಪಣಗಗರಬಡವ
ಎಬಬ ಖತರ ಪಡದಕಕಗಬಡಕ ಚಕಕನಕ
ನ ವತರಸಕವ ಅವಶಬಕತ
ಇರಕತತದ."
Hence, the contention of the accused that, no case under section 138 of NI Act, could have been filed due to the reason of said cheque being invalid, is rejected as meritless.
20. The Hon'ble Supreme Court of India pleased to discuss aforesaid aspect in detail in the decision reported in, Rangappa Vs. Mohan reported in AIR 2010 SC 1898 = 2010 AIR (SCW) 2946, It is relevant to reproduce said observations;
" Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial 23 C.C.24113/2017 presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the court in favour of the complainant. The presumption referred to in Section 139 of the NI Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption.
What is required to be established by the accused in order to rebut the presumption is different from each case under the given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the court.
The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered......"
Hence, the High Court concluded that the alleged discrepancies on part of the complainant which had been noted by the trial court were not material since the 24 C.C.24113/2017 accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act. Accordingly, the Hon'ble High Court recorded a finding of conviction.
It is further observed in para 18 of the decision that, Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumptions contemplated by Section 139 of the Act.
" Chapter XVII containing Sections 138 to 142 was introduced in the Act by Act 66 of 1988 with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. These provisions were intended to discourage people from not honouring their commitments by way of payment through cheques. The court should lean in favour of an interpretation .........
In view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing 25 C.C.24113/2017 evidence and the burden of proof is on the person who wants to rebut the presumption.
A contrary view would render S.138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of one's own wrong. ..."
The Hon'ble Apex court clearly laid down the ratio that, when the ingredients of section 138 of NI Act is complied with, presumption shall be drawn in favour of the complainant. The burden is upon the accused to rebut the statutory presumptions.
21. As far as proof of existence of legally enforceable debt is concerned, it is profitable to refer the observations of Rangappa's case cited supra;
"In the light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by section 139 of the Act does indeed include the existence of the legally enforceable debt or liability".26 C.C.24113/2017
In view of the law laid by three judges bench of Hon'ble Apex Court, the presumption enshrined under section 139 of the N.I. Act is expendable to the existence of legally enforceable debt. Accused has not placed cogent material to rebut the said presumption.
22. Further, it is profitable to refer the authorities reported in, AIR 2019 Supreme Court 2446 in Criminal Appeal Nos. 230231 of 2019, D/ 06.02.2019, Bir Singh Vs. Mukesh Kumar, it is held that;
"(C) Negotiable Instruments Act (26 of 1881), S.138, S.139 Evidence Act (1 of 1872), S.4 Presumption u/S. 139 Is presumption of law, distinguished from presumption of facts Presumptions are rules of evidence and do not conflict with presumption of innocence, which requires prosecution to prove case against accused Obligation on prosecution may be discharged with help of presumptions of law and presumptions of fact unless accused adduces evidence showing 27 C.C.24113/2017 reasonable possibility of nonexistence of presumed fact.
(E) Negotiable Instruments Act (26 of 1881), S.138, S.139 Dishonour of cheque Presumption as to legally enforceable debt Rebuttal Onus to rebut presumption that cheque issued in discharge of debt or liability is on accused. "
In the decision reported in, AIR 2019 SUPREME COURT 1876, Rohitbhai Jivanlal Patel Vs. State of Gujarat and Another; wherein it is held that;
" (D) Negotiable Instruments Act (26 of 1881), S.138, S.139 - Dishonour of cheque Principles of presumption - Once presumption of existence of legally enforceable debt drawn in favour of complainant, onus is shifted on accused Unless onus is discharged by accused that preponderance of probabilities are tilting in his favour, doubt on case of complainant cannot be raised for want of evidence regarding source of funds for advancing loan to accused."28 C.C.24113/2017
In view of the law laid down in the aforesaid Rangappa's case and Bir Singh's case, the claim of the complainant is acceptable.
23. From the overall consideration of the evidence on record it is forthcoming that, accused has not taken probable defence to rebut the statutory presumption. Mere denial is not sufficient to discharge the onus shifted on accused. To fortify this opinion, it is proper to refer the decision reported in, 2001 CRI.L.J. 4647, in a case of Hiten P.Dalal V/s. Bratindranath Banerjee, wherein it is held that;
"(B) Negotiable Instrument Act ( 26 of 1881), Ss.139, 138 Dishonour of cheque Presumption that cheque was drawn for discharge of liability of drawer Is presumption of law Ought to be raised by Court in every case Rebuttal evidence Nature Mere plausible explanation is not sufficient Proof of explanation is necessary.29 C.C.24113/2017
Evidence Act (1 of 1872), Ss .114, 101 104."
Further, in another decision reported in, 2017(2) A.K.R. 527, Arjun Vs.E.Shekar, it is held that, S. 138, 139 Presentation of lawful consideration Rebuttal of - Burden of proving that cheque has not been issued for any debt or liability is on accused - mere plausible explanation not sufficient to disprove complainant' s case.
From the gist of the ratio laid down in the above decisions, it is clear that, burden shift on the accused to rebut the statutory presumption through cogent evidence, which is not discharged by the accused in the present case.
24. Under the facts and circumstances of this case, it is profitable to refer the decision in, AIR 2018 Supreme Court 30 C.C.24113/2017 3604, in a case of Krishna Rao Vs. Shankargouda, wherein it is held that;
"Negotiable Instruments Act (26 of 1881), Ss.138, 139Dishonour of cheque Presumption as to - Accused issuing cheque of Rs. 2 lacs towards repayment of loan to complainant - Said cheque dishonored on account of insufficiency 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".
25. Moreover, in the latest judgment decided on 15 th March 2019, the Hon'ble Supreme Court of India, AIR 2019 Supreme Court 1876; Rohitbhai Jivanlal Patel V/s State of Gujarat & Another, it is observed in para 12 that;
" 12. For determination of the point as to whether the High Court was justified in reversing the judgment and order of the 31 C.C.24113/2017 Trial Court and convicting the appellant for the offence under section 138 of the NI Act, the basic questions to be addressed to are two - fold: as to whether the complainant - respondent No.2 had established the ingredients of Sections 118 and 139 of the NI Act, so as to justify drawing of the presumption envisaged therein; and if so, as to whether the accused -appellant had been able to displace such presumption and to establish a probable defence whereby, the onus would again shift to the complainant?........"
It is further observed in 18.6 that;
" 18.6. The fact of the matter remains that the appellant could not deny his signatures on the said writing but attempted to suggest that his signatures were available on the blank stamp paper with Shri Jagdishbhai. This suggestion is too remote and too uncertain to be accepted. No cogent reason is available for the appellant signing a blank stamp paper. It is also indisputable that the cheques as mentioned therein with all the relevant particulars like cheque numbers, name of bank and account number are of the same cheques which form the subject 32 C.C.24113/2017 matter of these complaint cases. The said document bears the date 21.03.2007 and he cheques were postdated, starting from 01.04.2008 and ending 01.12.2008. There appears absolutely no reason to discard this writing from consideration...."
It is further observed in para No.19 that;
" 19. Hereinabove, we have examined in detail the findings of the Trial Court and those of High Court and have no hesitation in concluding that the present one was clearly a case where the decision of the Trial Court suffered from perversity and fundamental error of approach; and the High Court was justified in reversing the judgment of the Trial Court. The observations of the Trial Court that there was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the complainant and his witness, or that the witness of the complaint was more in know of facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt. These 33 C.C.24113/2017 considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not. The other observations as regards any variance in the statement of complainant and witness; or want of knowledge about dates and other particulars of the cheques; or washing away of the earlier cheques in the rains though the office of the complainant being on the 8th floor had also been or irrelevant factors of consideration of a probable defence of the appellant....."
The ratio laid down in the cited decisions are aptly applicable to the case on hand.
34 C.C.24113/2017
26. The accused has taken a vague defence and not placed cogent evidence to prove the same. This aspect is discussed in detail in a decision reported in , 2014(4) AKR 98 between Sripad Vs.Ramadas M.Shet, Criminal Appeal No.2689 of 2009, wherein it is held that;
"Negotiable Instrument Act (26 of 1881), Ss.138,139, 118 Dishonour of chequeAcquittedValidityCheque issued by repay loan amount to complainant, was dishonoured Specific defence -However, accused failed to rebut initial presumption under sections 118 and 119 Mere distorted version or mere taking up defence by It means that he is not liable to pay any amount Are not sufficient to put back the burden on to the complainant Acquittal of accused Not proper."
The ratio laid down in the cited decision is squarely applicable to the facts on hand.
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27. In this case plea of the accused was recorded as per section 251 of Cr.P.C. Accused pleaded not guilty. As per section 251 of Cr.P.C. accused has to state about his defence. Here, except pleading not guilty accused has not stated his defence at the time of recording plea. As per the decision reported in AIR 2014 SC 2528 (Indian Bank Association V/s Union of India), Crl. Petition No.8943/2010 M/s.Mess Transgare Pvt V/s Dr .R. Parvathareddy and in Rajesh Agarwals case, Wherein, it is held that; " Accused cannot simply say " I am innocent "
or " I pleaded not guilty ". The proposition of law laid down in the aforesaid decision is squarely applicable to the facts and circumstances of this case. As such, it cannot be taken that accused has rebutted the presumption of law enshrined under section 139 and 118 of N.I. Act, by mere pleading not guilty.36 C.C.24113/2017
28. From the discussion made supra, it is clear that, accused has neither taken probable defence nor taken steps to prove the same. To put it other way, accused has not taken and proved probable defence to rebut the presumption of law available in favour of the complainant, envisaged under section 118 read with section 139 of N.I. Act. Accordingly, the case of the complainant is believable. Complainant has proved that, accused has intentionally not maintained sufficient amount in his account to honour the disputed cheque. Hence, this point No.1 under consideration is answered in the affirmative.
29. POINT NO.2: In view of the reasons stated and discussed above, the complainant has proved the guilt of the accused punishable under section 138 of N.I. Act It is worth to note that, the offence is of the nature of civil wrong. Hence, it is proper to award sentence of fine, instead of awarding sentence of imprisonment. Hon'ble 37 C.C.24113/2017 Supreme Court of India in a decision reported in, (2015) 17 SCC 368, in a case of H.Pukhraj Vs. D.Parasmal, observed that, having regard to the length of trial and date of issuance of the cheque, it is necessary to award reasonable interest on the cheque amount along with cost of litigation. Considering all these aspects, this court proceed to pass the following;
ORDER Acting under section 255 (2) of Criminal Procedure Code, accused is hereby convicted for the offence punishable under section 138 of Negotiable Instrument Act and sentenced to pay fine of Rs.6,75,000/ ( Six Lakhs Seventy Five Thousand Rupees only). In default thereof accused shall undergo simple imprisonment for 4 (Four) months.
Acting under section 357(1) (b) of code of criminal procedure, it is ordered 38 C.C.24113/2017 that, Rs.6,65,000/ ( Six Lakhs Sixty Five Thousand Rupees only), there from shall be paid to the complainant as a compensation, remaining fine amount of Rs.10,000/ (Ten Thousand Rupees only) is defrayed to the state for the expenses incurred in the prosecution.
The bail bond of the accused stands canceled after expiry of six months.
Office to supply the copy of this Judgment to the accused immediately on free of cost.
{Dictated to the stenographer directly on computer, corrected and then signed by me and then pronounced in the open court on this 4th day of November 2020}.
(KALPANA.M.S.) XX ACMM, Bengaluru.
39 C.C.24113/2017ANNEXURE List of witnesses examined on behalf of complainant:
P.W.1 Sri.Ramaiaha, List of documents produced on behalf of complainant:
Ex.P.1 Cheque Ex.P. 1(a) Signature of the accused Ex.P. 2 Bank endorsement Ex.P. 3 Copy of the legal notice Ex.P. 4 Postal receipt Ex.P. 5 Postal acknowledgement
List of witnesses examined on behalf of accused:
D.W.1 Venkata Swamy
40 C.C.24113/2017
DW.2 Venkatesh Babu V.
DW.3 Mariyappa
DW.4 Vishwanatha Nayaka
List of documents produced on behalf of accused:
Ex.D.1 to 3 Complaint, sworn statement and the statement under section 313 of code of criminal procedure of the accused in C.C.8269/2018 Ex.D. 4 & 5 Complaint issued by complainant against Mariyappa and statement under section 313 of code of criminal procedure Ex.D.6 & 7 Bhoomi Bharatgas bills XX A.C.M.M., Bengaluru.