Bangalore District Court
Sri. Dhananjaya vs Sri. Aruna on 3 February, 2020
1 C.C.No.17963/2018 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
i. Dated:- This the 3rd 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.17963/2018
Complainant : Sri. Dhananjaya,
S/o. Late.Nanjundaiah,
Aged about 38 years,
At Huthri Village,
Huthrirdurga Hobli,
Kunigal Taluk.
(Rep.by Sri. N.Anjangowda.,
.Adv.,)
- Vs -
Accused : Sri. Aruna,
NPT Travelers,
No.405/A. 1st Floor,
7th Main, 2nd Block,
Jayanagar,
Near South End Circle,
Bengaluru -560 011.
(Rep. by Sri. Ajay B.S. and others.,
Adv.,)
Case instituted : 1.6.2018
2 C.C.No.17963/2018 J
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 3.2.2020
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, accused is known and well acquainted to him due to that, the Accused approached him in the month of August 2016 seeking financial assistance of Rs.5 Lakhs to meet his urgent and family necessities, accordingly he has paid a sum of Rs.5 Lakhs as a hand loan in the said month , the Accused assured him to repay the same within six months and after completion of six months when he approached him at that time the Accused expressed his difficulties and requested for some more time to arrange the amount and towards repayment of the said loan amount has issued post dated cheque 3 C.C.No.17963/2018 J bearing No. 571892 dated: 26.3.2018 for a sum of Rs.5 Lakhs drawn on Karnataka Bank Ltd., Srinagar, Bengaluru in his favour and assured that, the said cheque will be honoured on its presentation, thereafter at the request of the Accused he has presented the cheque on 6.4.2018 for encashment through his banker i.e. Kaveri Gramina Bank, Tumkur Road, Huthrirdurga branch, and the same was returned with an endorsement "Funds Insufficient" on 7.4.2018 immediately after the same he brought the fact to the knowledge of the Accused and demanded for payment but the Accused started to give evasive answers, hence he got issued legal notice dated:-2.5.2018 to the Accused by RPAD calling upon him to repay the debt i.e. cheque amount within 15 days from the date of receipt of notice and the said notice was served on the Accused inspite of it, the Accused failed to clear the cheque amount and not replied to the notice. Hence he has filed the present complaint praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
4 C.C.No.17963/2018 J3. The Complainant has led his Pre-
summoning evidence and he has filed affidavit in lieu of sworn statement and he has produced the documents as per Ex.P.1 to P.5 i.e. Ex.P.1 is the original cheque dated: 26.3.2018 in which, the signature is identified by P.W.1 as that of the Accused as per Ex.P1(a), the Bank memo as per Ex.P.2, the office copy of the Legal Notice as per Ex.P.3, postal Receipt as per Ex.P.4, the Postal acknowledgment as per Ex.P.5.
4. Prima facie case has been made against the Accused and summons was issued against his in turn the Accused has appeared before the Court and 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. Thereafter complainant himself examined as PW.1 by adopting sworn statement filed by his and also adopted the documents which are marked as Ex.P.1 to P.5 at the time of recording of the sworn statement and closed his side.
5 C.C.No.17963/2018 J6. 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.
7. The Accused himself examined as DW.1 and two documents have been marked on his behalf i.e. Bank Statements as per Ex.D.1 and D.2 and relevant entries as per Ex.D.1(a) and D.2(a), and 2(b) and closed her side.
8. Heard the arguments by both sides and perused the written argument submitted by the learned counsel for the complainant and Accused and perused the materials on record.
9. On the basis of complaint, evidence of complainant and documents and having heard the arguments of both learned counsels for the complainant and the accused, the following points that are arise for consideration are:-
1. Whether the complainant proves that the accused has issued cheque for 6 C.C.No.17963/2018 J Rs.5,00,000 bearing No.571892 dated:-26.3.2018 drawn on Karnataka Bank Ltd., Srinagara, Bengaluru to discharge legally recoverable debt to the complainant and when the complainant has presented a cheque for encashment through his banker but the said cheque has been dishonoured for the reasons "Funds Insufficient" on 7.4.2018 and the complainant issued legal notice to the accused on 2.5.2018 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?
10. The above points are answered as under:
Point No.1: In the Affirmative Point No.2:As per final order for the following:
REASONS
11. 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 7 C.C.No.17963/2018 J 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 three conditions for prosecution of an offence which are as under:
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. 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
3. 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 three conditions are satisfied 8 C.C.No.17963/2018 J by holder in due course gets cause action to launch prosecution against the drawer of the 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.
12. It is also one of the essential ingredients 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 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 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.
9 C.C.No.17963/2018 J13. In the present case the complainant got examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire averments of the complaint and in his evidence testified regarding lending of loan amount of Rs.5 Lakhs to the Accused in the month of August 2016 as a hand loan by way of cash and Accused promised to repay the same within six months, thereafter he approached the Accused and requested to repay the amount in turn the Accused requested for some more time and also issued post dated cheque i.e Ex.P.1 for Rs.5 Lakhs dated: 26.3.2018, thereafter at the request of the Accused he has presented the said cheque through his banker for encashment on 6.4.2018 and it was dishonoured for the reason of "Funds Insufficient"
dated; 7.4.2018 and thereafter on 2.5.2018 caused legal notice to the accused through RPAD to him calling upon him to pay the amount covered under the dishonoured cheque within 15 days from the date of receipt of notice and the notice was served on the Accused but inspite of it, the Accused has neither complied the notice nor repaid the amount to him.10 C.C.No.17963/2018 J
14. In support of his oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.5 i.e., Ex.P1 is the original cheque dated:
26.3.2018 in which, the signature is identified by P.W.1 as that of the Accused as per Ex.P1(a), the Bank memo as per Ex.P.2, the office copy of the Legal Notice as per Ex.P.3, postal Receipt as per Ex.P.4, the Postal acknowledgment as per Ex.P.5.
15. In the present case, there is no dispute between the complainant and Accused with regard to their acquaintance. It is also not in dispute by the accused that, the cheque in question belongs to his account and signature found at Ex.P.1(a) is also that of his signature. The Accused has also not disputed that the cheque in dispute presented for encashment and dishonoured for the reason of "Funds Insufficient' vide bank endorsement dated:7.4.2018 and as a matter of record and has been proved by Ex.P.2 issued by the concerned bank dated:
7.4.2018. Therefore the complainant has proved that, the cheque in question i.e Ex.P.1 was presented within its validity period and dishonoured as per bank endorsement issued by the banker of the 11 C.C.No.17963/2018 J Accused and the cheque in question belonging to the Accused account and signature of the Accused is at Ex.P.1(a). The Accused has also not disputed the receipt of legal notice i.e. Ex.P.3 issued by the complainant as per Ex.P.5 postal acknowledgement, hence the complainant has also proved that, after receipt of the bank memo i.e dishonour of the cheque issued by the Accused, has issued legal notice in writing as per Ex.P.3 within 30 days from the date of receipt of bank memo, hence the complainant has complied mandatory requirements as required U/s.138 of Negotiable Instruments Act.
16. It is the specific defence of the Accused that, the complainant had no source of income to lend alleged loan amount of Rs.5,00,000/= to him and the Accused has not borrowed loan amount in question from the complainant and has not issued the cheque in question i.e Ex.P.1 to the complainant towards discharge of loan amount in question. It is also the defence of the Accused that, a blank signed cheque was given to the brother of the complainant by name Suresh towards security of the chit transaction amount of Rs.85,000/= and the said 12 C.C.No.17963/2018 J cheque has been misused by the complainant by colluding with his brother, hence in this back ground now it is to be examine oral and documentary evidence adduced by the complainant and Accused.
17. The learned counsel for the Accused cross- examined the complainant in length but nothing has been elicited to discredit or discard his evidence, instead of eliciting anything materials from the complainant the Accused rather concentrated his defence that, there was no financial transaction between him and the complainant, and Accused has not produced the documents to show his financial capacity and has not collected the documents to show that, he has lend the loan amount in question to the Accused. The complainant/PW.1 in his cross- examination has specifically stated that, he came to know about Accused through his brother and in the month of August 2016 Accused was approached him and requested to lend loan amount as to meet out his family necessities and he has lent a loan amount of Rs.5 Lakhs to the Accused in the last week of August 2016 by way of cash. The 13 C.C.No.17963/2018 J complainant/PW.1 has denied a suggestions made to him that, his brother was running chit business and a complaint was lodged against his brother for misuse of chit amount and the Accused has also subscribed the chit transaction conducted by his brother and towards security of the chit, he has given a blank singed cheque to his brother and his brother has filed this complaint against the Accused through him. The complainant/PW.1 has also denied the suggestions made to him that, he has misused the cheque in question which was given to his brother as a security towards chit transaction and filed this false complaint against the Accused. Therefore the perusal of entire cross-examination of the PW.1 nothing has been elicited to disbelieve the claim of the complainant and accept the defence of the Accused that, the cheque in question was not issued to the complainant, in such circumstances, unless and until the Accused has rebutted the presumption available to the complainant U/s.118 and 139 of N.I. Act., the discrepancies elicited in the cross-examination of complainant by the Accused cannot be taken into consideration to disbelieve the claim of the complainant.
14 C.C.No.17963/2018 J18. It is important to note here that, on careful perusal of the entire oral and documentary evidence produced by the complainant i.e Ex.P.1 to P.5 and admitted facts by the Accused as it is already held in the above that, the complainant proved that the cheque in question belongs to the Accused i.e Ex.P.1 and signature found at Ex. P.1(a) is that of the signature of the Accused and also proved that, the cheque in question was presented within its validity period and it was dishonoured for the reason of "Funds Insufficient"
as per Ex.P.2 and thereafter the legal notice caused by him through RPAD to the Accused was served on him and Accused has not given any reply to the legal notice, in such circumstances, it can be held that, the complainant has discharged his initial burden by complying the mandatory requirements as required U/s.138 of N.I. Act and initial presumptions are available in favour of the complainant U/s.118a and 139 of the N.I. Act. Consequently it is for the Accused to rebut the said presumptions available in favour of the complainant to show that, the cheque in question was not issued either to the complainant or towards discharge of any legally recoverable debt 15 C.C.No.17963/2018 J by producing cogent and convincible evidence but not mere suggestions or even by plausible explanation. In such circumstances, when the presumptions U/s.118 and 139 of N.I.Act are available to the complainant, even a presumption can be drawn to the extent of existence of legally recoverable debt or liability against the Accused unless and until the said presumptions are rebutted by the Accused, even in the absence of documents produced by the complainant with regard to loan transaction in question.
19. It is true that, the complainant has not produced documents except the cheque in question i.e., Ex.P.1 to show that, he has lent an amount of Rs.5 Lakhs to the Accused and in turn the Accused has issued the Ex.P.1 cheque towards discharge of the said debt and has also not produced documents to show his source of income. 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 16 C.C.No.17963/2018 J '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 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 17 C.C.No.17963/2018 J 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 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 18 C.C.No.17963/2018 J 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 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 19 C.C.No.17963/2018 J 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 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 20 C.C.No.17963/2018 J 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 is not enough".
20. 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 21 C.C.No.17963/2018 J 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 in the form of receipts or accounts or want of evidence regarding source of funds were not of 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 cheque in question in his favour and the Accused has admitted the cheque belongs to him and signature appearing on the cheque is that of his signature and even after service of the notice, the 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 Accused in the written argument are not acceptable one.
22 C.C.No.17963/2018 J21. It is relevant here to mention that, the Accused in order to rebut the presumption available to the complainant U/s.118 and 139 of N.I. Act himself examined as DW.1, in his evidence has stated that, he do not know the complainant and the brother of the complainant by name Suresh was running chit business and he has subscribed for two chits of Rs.85,000/= and he has bid the first chit of Rs.60,000/= and out of the said amount has received Rs.54,000/= by deducting Rs.6,000/= towards 1st installment and at that time he has given a blank signed cheque as a security to the said Suresh, thereafter in the month of December 2016 he has transferred an amount of Rs.6,000/= through bank towards chit amount and thereafter till the month of June 2017 has paid all the installment in total Rs.48,000/= out of the said amount an amount of Rs.17,000/= paid through bank transfer and remaining amount of Rs.31,000/= paid by way of cash thereafter the brother of the complainant was absconded and inspite of contacted him through phone but the brother of the complainant did not contacted to him and he came to know about the complaint was filed against the brother of the 23 C.C.No.17963/2018 J complainant by the chit subscribers. The Accused /DW.1 further deposed that, after 4 months of lodging of the complaint against the brother of the complainant he came to know about the bouncing of the cheque in question and at that time he called the brother of the complainant but he did not responded and thereafter two months he received the notice issued by the complainant and when he appeared before the court then only he came to know that, the said Suresh is the younger brother of the complainant herein and his cheque is misused by him though he has not borrowed any amount from the complainant and has not issued the cheque in question towards discharge of any alleged amount. In support of oral evidence, the Accused has produced his bank statements which are at Ex.D.1 and D.2 and relevant entries are at Ex.D.1(a) and D.2(a) & 2(b).
22. It is relevant here to mention that, in support of oral evidence of the Accused, has not produced any documentary proof to substantiate his defence that, in the month of November 2016 the younger brother of the complainant by name Suresh 24 C.C.No.17963/2018 J was running chit transaction and the Accused was a subscriber of two chit transaction for sum of Rs.85,000/= and was the successful bidder of his 1st chit transaction and out of Rs.60,000/= chit amount has received Rs.54,000/= by deducting the 1st installment of Rs.6,000/= . The Accused has also admitted in his cross-examination that, in order to substantiate above said alleged chit transaction has not produced the documents before the court, hence in view of the admitted facts by the Accused, his defence cannot be acceptable one, unless and until the Accused proved that, the brother of the complainant was running the chit transaction and he was the subscriber for chit transaction and also bidder of the chit transaction and at that time he has given a blank signed cheque to the brother of the complainant as a security towards the alleged chit transaction and the said cheque has been misused by the brother of the complainant by colluding with the complainant, the defence of the Accused cannot be acceptable one, it can be held that, cheque in question was issued for discharge of debt in question.
25 C.C.No.17963/2018 J23. In this regard, it is relevant here to refer the decision of Hon'ble Madras High Court reported in AIR 2009 (NOC) 726 MAD in the case of P. Armugam Vs. P. Veluswamy, wherein the Hon'ble High Court held that "Negotiable Instruments Act (26 of 1881) S.138 - Dishonour of cheque - Accused admits to have signed cheque and handed it over to complainant - Defence raised by accused that said cheque was issued as a blank cheque intended to be a collateral security for an unregistered chit conducted by complainant - However, no evidence has been adduced by Accused to prove that complainant was running an unregistered chit in which Accused joined as a subscribing member - there is no evidence to prove amount of chit or that Accused was a priced subscriber and the blank cheque had been issued to ensure proper payment of future subscriptions - can be held that, cheque was issued for payment of loan obtained by accused from complainant - Accused guilty of offence. In another decision of Hon'ble High Court of Karnataka reported in 2012 (4) KCCR 2634 in the case of Sri. Prakash @ 26 C.C.No.17963/2018 J Jnana Prakash Vs. Ms. T.S. Susheela wherein the Hon'ble High Court held that "NEGOTIABLE ISNTRUCTMETS ACT, 1881 - Section 138 - Complaint under - Cheque dishonoured for "insufficient funds" - Plea of accused as to non - receipt of demand notice, absence of legal liability, misuse of documents given as security in an independent chit transaction - Convicted by Trial Court- Confirmed by Appellate Court - Revision against- The plea as to misuse of documents would not be believed due to in action of the accused. Hence in view of the principles of law laid down by the Hon'ble High Courts in the above decisions, in the present case also the Accused has not proved that, the cheque in question has been issued to brother of the complainant i.e.Suresh in respect of chit transaction and the complainant has misused the cheque by colluding with his brother and filed false case against him as alleged in his defence.
24. It is relevant here to mention that, according to the defence of the Accused that, the brother of the complainant had collected blank 27 C.C.No.17963/2018 J signed cheque from him towards security in respect of chit transaction, according to him, he has handed over the blank signed cheque to the brother of the complainant at the time of receiving the chit amount of Rs.54,000/= in respect of chit amount of Rs.60,000/= and thereafter he has repaid the chit amount to the brother of the complainant through bank transfer i.e. Rs.6,000/= in the month of December 2016 and thereafter has paid Rs.48,000/= till the month of June 2017, out of Rs.48,000/= has paid Rs.17,000/= through bank transfer and remaining Rs.31,000/= paid by way of cash but though the Accused has produced Ex.D.1 an D.2 bank statements and the entries i.e. Ex.D.1(a) and D.2(a) and (b) which reflects the payments made in the name of one Suresh but the complainant has not admitted during the course of his cross- examination that, the above said payments have been made by the Accused in respect of the chit transaction i.e. the amount received from his brother , therefore in such circumstances, it cannot be held that, the documents which are produced by the Accused are not sufficient to prove his defence on the contrary it can be held that, the Accused in order 28 C.C.No.17963/2018 J to substantiate the said defence the Accused has not produced any documents. It is also stated by the Accused that, he came to know that, the persons who had invested the chit amount along with him, have lodged the complaint against the brother of the complainant thereafter four months he came to know that, the subject cheque was bounced and thereafter two months he has received a notice from the brother of complainant and appeared before the court, then only he came to know that the said Suresh is the brother of the complainant and the complainant has misused the cheque in question by colluding with his brother and has filed the present case. If really the brother of the complainant has collected blank signed cheque from the accused towards security of the chit amount, and even after repayment of the said chit amount, the brother of the complainant by colluding with the complainant has misused his cheque which was alleged to have been given as a security in respect of chit amount, even after notice of the fact of alleged misuse of the cheque either by the complainant or by his brother, the Accused would have made an efforts to get return of the said blank cheque from the 29 C.C.No.17963/2018 J complainant. Admittedly he has not produced any document to show that, the complainant's brother was running chit business and has paid chit amount to the Accused and the complainant's brother had collected the signed blank cheque from the accused, in such circumstances, the defence of the Accused cannot be acceptable one as the Accused has not made any efforts either to issue notice to the complainant or to his brother and either by filing complaint against the complainant and his brother before the police or competent authority for non returning of the alleged misuse of signed blank cheque. In this regard, it is relevant here to refer the decision of Hon'ble Apex Court of India reported in AIR 2018 SC 3601 in a case of T.P.Murugan(dead) Thr. Lrs.V. Bhojan Vs. Posa Nandi, rep. Thr. Lrs. PA holder, T.P. Murugan V. Bhojan, wherein the Hon'ble apex Court 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 30 C.C.No.17963/2018 J 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 against him - Complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt- Conviction, Proper." Hence by applying the above principles of law to the present facts of the case in the present case though the Accused has taken contention that, the complainant by colluding with his brother has misused the subject cheque which was alleged to have been given to the brother of the complainant towards security in respect of chit transaction but the said defence has not been proved by the Accused, under such circumstances, it can be held that, the accused has not made any efforts to get return of the cheque in question alleged to have been given to the brother of the complainant for security of the amount received from the brother of the complainant in respect of alleged chit business, therefore, the said unnatural conduct of the accused in non taking of action leads to draw an 31 C.C.No.17963/2018 J adverse inference against the accused that, the cheque in question issued by the accused towards discharge of the liability in question and presumption U/s.139 of N.I. Act would operate against him, as he has admitted the signature and cheque in question is belong to him.
25. The learned counsel for the Accused during the course of argument has taken contention that, the complainant in his cross-examination has specifically admitted that, the ink used to write contents of the date and signature and the ink used to write the name of payee and amount are different , hence the admission of the complainant itself is clear that, the blank cheque issued by the Accused has been misused by the complainant by colluding with his brother , if really the Accused got written the cheque in question, the complainant would have stated the said fact in his cross-examination, in such circumstances an adverse inference can be drawn that the Accused has not issued the cheque in question to the complainant towards alleged loan transaction in question. It is relevant here to mention that, the complainant during the course of 32 C.C.No.17963/2018 J his cross-examination has specifically denied the suggestion made to him that, the subject cheque was given by the Accused as a blank signed cheque to his brother by name Suresh in respect of chit transaction as a security and the said blank cheque has been misused by him by colluding with his brother. On the contrary, the Accused himself has admitted that, he has not filed any complaint against the brother of the complainant or the complainant in respect of alleged misuse of cheque by them. Apart from that, as it is already held in the above that, the Accused has failed to prove his defence that, the complainant's brother was running chit business and he had collected the alleged blank signed cheque from the Accused, in such circumstances the defence of the Accused cannot be acceptable one. However, even for sake of discussion if it is assumed that, the contents of the subject cheque are not filled in by the Accused even under such circumstances also, unless and until the defence of the Accused is proved by producing cogent and convincible evidence, it cannot be held that, the contents of the cheque have been filled in by the complainant. In this regard, it is a relevant here to refer the decision 33 C.C.No.17963/2018 J of Hon'ble Apex Court of India reported in AIR 2019 SC 2446 in the case of Birsingh Vs. Mukesh Kumar., wherein the Hon'ble apex Court held that, "presumption U/s.139 is presumption of law, distinguished from presumption of facts and also held that, presumptions are rules of evidence and do not conflict with presumption of innocence which requires prosecution to prove case against the Accused and also held that obligation on the prosecution may discharged with the help of presumptions of law and presumption of fact unless the accused adduces evidence showing reasonable plausibility of non existence of presumed fact." In the present case though the Accused has denied the contents of the cheque in question except his signature but he has failed to prove his defence or produced any documents or satisfactory evidence to rebut the presumptions as available U/s.139 of the N.I. Act, under such circumstances in view of the above principles of law, it can be presumed even on fact also that the complainant has proved his case by discharging his burden and complying the mandatory provisions. In the said decision the 34 C.C.No.17963/2018 J Hon'ble Apex court has also held that, "presumption as to legally enforceable debt is rebuttable, the signed blank cheque if voluntarily presented to payee towards payment payee may fill up amount and other particulars and it in itself would not invalidate cheque and onus would still be on the accused to prove that, cheque was not issued or discharge of debt or liability by adducing evidence." 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 35 C.C.No.17963/2018 J 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. In such circumstances even if it is assumed that, the complainant admitted that, the ink used for writing the date and signature is one ink and the ink used for writing the payee name and amount is used in other ink, but in view of the principles of law laid down in the above decision that itself would not invalidates the cheque in question and it can be presumed that, the cheque filled in by in the presence of the Accused at his consent and the said cheque has been issued towards discharge of legally recoverable debt.
26. Therefore for the above said reasons the arguments canvassed by the learned counsel for the Accused in the written argument at para No. 8(1) to (7) are not acceptable one and not sustainable in law in view of the findings given by the court at above while discussing the oral and documentary evidence of the complainant and Accused and in view of the principles of law laid down by the Hon'ble Apex court and High Court of Karnataka as referred above.
36 C.C.No.17963/2018 J27. 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 and accused the complainant has successfully established beyond all reasonable doubt that, he has lent a sum of Rs.5,00,000/= to the accused as a hand loan and the accused in turn the Accused has issued subject cheque to the complainant towards repayment of the loan amount, thereafter the complainant has presented the said cheque through his banker and same was returned dishonoured with an endorsement of "Funds Insufficient" and thereafter he got issued legal notice to the accused and inspite of service of the said notice, the Accused did not repaid cheque 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.P.1 Cheque. 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.
37 C.C.No.17963/2018 J28. 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 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.5,15,000/= (Rupees Five Lakhs and Fifteen Thousand only) within one month from the date of order, in default she shall under 38 C.C.No.17963/2018 J 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.5,10,000/= (Rupees Five Lakhs and Ten 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 3rd February 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
39 C.C.No.17963/2018 JANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.Dhananjaya;
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 : Original Cheque; Ex.P-1(a) : Signature of the Accused; Ex.P.2 : Bank Memo; Ex.P.3 : Office copy of the Legal Notice; Ex.P.4 : Postal Receipt; Ex.P.5 : Postal Acknowledgement;
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Sri.Arun Kumar;
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 & D.2 : Statement of Accounts for the period from 1.1.2016 to 31.2.2016 and 1.1.2017 to 31.12.2017;
Ex.D.1(a), 2(a) : Relevant entries; & 2(b) (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
40 C.C.No.17963/2018 J3.2.2020 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.5,15,000/= (Rupees Five Lakhs and Fifteen 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.5,10,000/= (Rupees Five Lakhs and Ten 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.
41 C.C.No.17963/2018 J