Bangalore District Court
Sri. K.B. Shivanna vs Sri. K.N. Rajshekar on 30 March, 2022
KABC020049902021
IN THE COURT OF THE JUDGE COURT OF SMALL CAUSES
AND A.C.M.M, AT BENGALURU
Present: UMESHA.H.K, B.A., LL.B.,
JUDGE, Court Of Small Causes,
Bengaluru.
Dated this the 30th day of March, 2022
C.C. No:1268/2021
Complainant: Sri. K.B. Shivanna,
S/o Boregowda,
Aged about 37 years,
Residing at No.44, SKY Line
Apartment Road, D'Souza Nagar,
Kerekodi, Bangalore South,
Banashankari 3rd Stage,
Bangalore-560085.
(By Sri. Jeevanth T.-Advocate)
-Vs-
Accused : Sri. K.N. Rajshekar
S/o Nanjundappa,
Aged Major,
Residing at No.7, 10th "B" Cross,
Anjaneya Temple Road,
Ittamadu, Banashankari 3rd Stage,
Bangalore-560085.
(By Sri. S.K.Mohan Kumar-
Advocate)
SCCH-09 2 CC.1268/2021
JUDGMENT
Complainant has filed this private complaint under Sec. 200 of Cr.P.C., against accused for an offence punishable under Sec.138 of Negotiable Instruments Act.
2. It is the case of the complainant that, the complainant and the accused are friends. In the month of November 2019 accused approached the complainant for hand loan of Rs.2,50,000/- to meet some urgent financial needs and agreed to repay the same within 3 months. The complainant has paid Rs.2,50,000/- to the accused on 02.11.2019 by way of cash and for due discharge of the same, accused had issued cheque, bearing No.597757, dated 10.03.2020, for a sum of Rs.2,50,000/- drawn on Karnataka Bank, Banashankari 3rd Stage branch, Bengaluru. On presentation of said cheque through his banker i.e., Corporation Bank, Srinagar Branch, Bangalore and said cheque was returned with an endorsement "Funds Insufficient".
SCCH-09 3 CC.1268/2021
3. It is further case of complainant that he issued legal notice, dated 16.03.2020 through RPAD as well as through courier and the said notice was served to the accused on 17.03.2020. After issuance of notice the accused failed to reply to the said notice. However, accused did not paid the aforesaid amount. As such accused committed an offence punishable under Section 138 of N.I.Act and prays to convict accused.
4. My Predecessor in Office by taking cognizance for the offence punishable U/Sec.138 of N.I. Act, registered the case as PCR. Sworn statement of complainant was recorded. Thereafter, by perusing the averments of complaint, documents, this court has registered the case as CC in register No.3 and issued summons to accused. In pursuance of summons accused appeared through his Advocate and he is on bail. Plea read over as per the provisions of U/Sec.251 of Cr.P.C. accused pleaded not guilty and claimed to be tried.
5. Complainant in order to prove his case, he himself examined as PW-1 and got marked documents Ex.P1 to 6. SCCH-09 4 CC.1268/2021 Thereafter statement of accused U/Sec. 313 of Cr.P.C. was recorded. Accused denied the incriminating evidence available against him and adduced his defense evidence as DW1 and got marked documents Ex.D1 and 2.
6. Heard the arguments of learned counsel for complainant and accused.
7. The following points are arise for my consideration:
1. Whether complainant proves that the accused has committed an offence punishable under Sec.138 of N.I. Act?
2. What order?
8. My findings on the above points are as under:
Point No.1 : In the Affirmative; Point No.2 : As per the final order;
for the following:
REASONS
9. Point No.1:- Before appreciation of fact and oral, 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 SCCH-09 5 CC.1268/2021 reasonable doubt. However, a proceeding U/Sec. 138 of N.I. Act is quasi criminal in nature and quasi civil in nature. In this proceeding proof beyond all reasonable doubt is subject to presumption as envisaged U/Sec. 118, 139 of N.I. Act. An essential ingredients of Sec. 138 of N.I. Act is that Whether a person issues cheque to be encashed and the cheque so the issued towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing cheque, shall be deemed to have been committed an offence punishable U/Sec.138 of N.I. Act. N.I.Act presupposes conditions for prosecution of an offence which are as under:
1. Existence of legally enforceable debt or liability and issuance of cheque in discharging 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 SCCH-09 6 CC.1268/2021
4. The drawer, inspite of demand notice fails to make payment within 15 days from the date of the receipt of such notice.
10. If the above said ingredients are satisfied by the holder in due course gets cause of action to launch prosecution against the drawer in respect of the bounced cheque and as per Sec. 142 (b) of N.I. Act the complaint has to be filed within one month from the date on which the cause of action arise to file complaint.
11. 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 presumption. U/Sec. 118(a) presumption shall be raised regarding consideration, date, transfer, endorsement and holder, in due course of Negotiable Instrument. Even Sec. 139 of N.I. Act are rebuttable presumption shall be raised that, cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumption are mandatory SCCH-09 7 CC.1268/2021 presumptions that are required to be raised in case of Negotiable Instrument. But, the said presumption are not conclusive and they are rebuttable one. This preposition of law has been laid down by Hon'ble Apex Court and Hon'ble High Court of Karnataka in catena of decisions.
13. It is the case of complainant that accused borrowed hand loan of Rs.2,50,000/- and agreed to repay the said amount within three months. In order to repay the said amount he issued cheque in dispute for Rs.2,50,000/-. On presentation of said cheque it was returned for the reasons "Funds Insufficient". Thereafter, he issued notice. Inspite of service notice, accused didnot repay the said amount and thereby, committed an offence punishable U/S 138 of N.l. Act.
14. It is defense of the accused that complainant is a stranger to him, he has not borrowed any loan amount from the complainant and he has not issued the cheque in dispute in favour of complainant for due discharge of said loan amount. It is further defense of the accused that one Lakshmanna was running chit fund business in the name and SCCH-09 8 CC.1268/2021 style as "M/s. Lakshman Chit Fund" at Banashankari, III Stage, Bengaluru since 2010 and he is subscriber of Lakshman Chit Fund in the year 2017 and the chit value of Rs.1,00,000/- and he was paying monthly premium of Rs.5,000/- and the said chit was closed in the year 2018 and he has paid entire debt amount. It is further defense of the accused that the said Lakshmanna had taken signed cheque for security of said chit. Even after completion of said chit he has not returned the same and he postponed for the return of document by giving one or other reasons. He has misused his signed cheque and got filed the false complaint through complainant just to gain illegal money from him.
15. Both the complainant and accused to substantiate their defense have adduced the evidence. Complainant himself examined as PW1 and he has reiterated the complaint averments in detail on oath. PW1/complainant was thoroughly cross-examined by learned counsel for accused and during the cross-examination the learned counsel for accused has suggested above said defense of accused that the cheque in SCCH-09 9 CC.1268/2021 dispute was issued to one Lakshman in connection with chit transaction and said Lakshman misused the cheque and filed false complaint through complainant etc. But, PW1 has specifically denied the said suggestions. In support of his oral evidence he has placed Ex.P1 to 6 documents. Ex.P1 is the cheque dated 10.03.2020 drawn on Karnataka Bank, Banashankari Branch, 3rd Stage Branch, Bengaluru for Rs.2,50,000/-. Ex.P1 (a) is the signature of accused. Ex.P2 is the endorsement, which discloses the cheque in dispute was returned for the reason "Funds Insufficient". Ex.P3 is the copy of legal notice, which discloses on 16.03.2020 complainant has issued notice to the accused through his counsel. Ex.P4 is the postal receipt. Ex.P5 is the postal acknowledgment, which discloses notice was served to the accused on 17.03.2020. Ex.P6 is the bank statement of complainant.
16. On the other hand, accused himself examined as DW1 and he has filed his chief examination affidavit and deposed before the Court that the complainant is a stranger and he never borrowed any loan from the complainant and he SCCH-09 10 CC.1268/2021 never issued the cheque in dispute in favour of complainant. He further deposed he was subscriber of chit, which was conducting by one Lakshmanna in the name and style of 'Lakshman Chit Fund' at BSK 3rd Stage, Bengaluru and he has paid entire chit amount to said Lakshman. He further deposed said Lakshmanna in connection with chit transaction has taken his signed cheque as security. But, after completion of chit transaction, he has not returned the said cheque and now he has misused the same through complainant and filed false complaint, just to gain illegal money. He further deposed that he was not served with notice issued by complainant and he prays to dismiss the complaint.
17. Learned counsel for complainant has cross-examined DW1 and during cross-examination accused has admitted that the cheque in dispute is belongs to him and signature found in Ex.P1 is pertaining to him but he denied that the cheque in dispute was not issued for due discharge of loan amount. He further admitted that he has not lodged any Police complaint against Lakshmanna and complainant and he further denied SCCH-09 11 CC.1268/2021 the service of notice. In support of his oral evidence, he also placed Ex.D1, a small note book pertaining to 'Lakshman Chit Fund'. Ex.D2 is the Aadhar card of accused.
18. Learned counsel for complainant has vehemently argued that accused being the friend of complainant had borrowed hand loan of Rs.2,50,000/- for interest and for due discharge of said amount, he issued cheque in dispute. On presentation of same, it was returned for the reason 'Funds Insufficient'. Inspite of service of notice accused didnot repaid the said amount. The oral and documentary evidence placed by complainant clearly establishes that accused has committed an offence punishable U/Sec.138 of N.I. Act and complainant has proved the ingredients of Section 138 of N.I.Act. Therefore, accused is liable to be convicted and prays to convict the accused. In support of his arguments, he has also filed written arguments.
19. On the other hand, learned counsel for accused has vehemently argued that complainant is a stranger to the accused and accused never borrowed any loan from the SCCH-09 12 CC.1268/2021 complainant as alleged in the complaint and he never issued cheque in dispute in favour of complainant for alleged loan. The cheque in dispute was issued as security to the chit transaction to one Lakshman, who was conducting chit transaction in the name and style of 'Lakshman Chit Fund' at 3rd Stage, Banashankari, Bengaluru. Accused has paid entire debt amount but said Lakshman didnot returned the security cheque and misused the said cheque and filed false complaint through complainant, who is friend of Lakshman. As such the complaint is liable for dismissal, as there is no legally enforceable debt or liability on the part of accused. He further argued that accused has not received any notice. As such the accused didnot replied to the notice, since mandatory requirements of Sec.138 of N.I Act was not complied, complaint is liable for dismissal. The evidence placed by accused clearly establishes that he never borrowed loan from complainant and he never issued the cheque in dispute, in favour of complainant and no notice was served. So, SCCH-09 13 CC.1268/2021 complaint is liable for dismissal and prays to dismiss the complaint.
20. In the light of above submissions and written arguments and evidence placed by both parties, once again I have carefully scrutinised evidence available on record. On analyzing evidence, it is crystal clear that accused never disputed the signature found in Ex.P1. Further, he admitted the cheque in dispute is pertaining to his account. Further, he also admitted the issuance of cheque but his defense is that the cheque in dispute was not issued in favour of complainant but it was issued in favour of Lakshman in connection with chit transaction. Any how, the issuance of cheque and signature is admitted. When once issuance of cheque and signature is admitted the mandatory presumption Under Sec. 118 & 139 of N.I.Act has to be drawn in favour of complainant. Unless the contrary is proved, this court is required to presume that the cheque in dispute was issued for due discharge of amount.
21. At this juncture, I would like to quote decision of Hon'ble Apex Court reported in (1999) 7 SCC 510 SCCH-09 14 CC.1268/2021 K.Bhaskaran V/s Shankaran Vaidhyan Balan and another decision reported in (2010) 11 SCC 441 Rangappa V/s. Mohan, (2020) 12 SCC 724 APS Forex Services Pvt. Ltd., - Versus - Shakti International Fashion linkers and Ors." by reiterating the principles laid down in K.Bhaskaran V/s Shankaran Vaidhyan Balan's case and "Rangappa Vs. Mohan's" case. The Hon'ble Apex in APS Forex case has held that: "The fact that the accused has admitted the issuance of cheque and his signature on the cheque and that the cheque in question pertaining to the account, there is a presumption u/Sec. 139 of NI Act, that there exists a legally enforceable debt or liability." Even our Hon'ble High Court relying on the Hon'ble Apex Court decision recently in Criminal Appeal No.140/2011, dtd. 20th November-2020 - Muralidhar Rao Vs. P. Nageshwar Rao" has held that "a person who signs a cheque and make it over to the payee remains liable unless he adduces the evidence and rebut the presumption that the cheque had been SCCH-09 15 CC.1268/2021 issued for payment of debt or in discharge of a liability and the onus shifts on the accused to establish a probable defence." Further recently the Hon'ble Apex Court in Triyambaka S Hedge v/s S.Sripad Cr.L.Appeal No.849-850/2011, dated 23.09.2021 reported in L.L (Live Law) 2021 SC 492 by reiterating the same principles as held - that applying the proposition of law that when once signature is admitted to be that of accused, the presumption envisaged in Sec.118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Sec.139 of the Act enjoins on the court to presume that the holder of the cheque received it for discharge of any debt or liability. The question to be looked into is as to - whether any probable defense was raised by accused. So, in the light of above dictum or principles laid down by Hon'ble Apex Court and High Court, let me discuss whether accused is able to displace the presumption. According to accused, the cheque in dispute was issued in SCCH-09 16 CC.1268/2021 favour of one Lakshman in connection with chit transaction. To substantiate the said contention accused adduced his defense evidence and in his defense evidence he has reiterated the said defense and said defense was also suggested to the complainant during the course of cross-examination. But, PW1 has specifically denied the said suggestion and he specifically stated accused being friend had borrowed loan and for due discharge of said amount he issued cheque in dispute. Accused to substantiate his oral evidence he has also placed Ex.D1 document. I have carefully perused the said Ex.D1 document. On perusal of said document, it discloses a small note book is maintained by accused in connection with alleged chit transaction. On careful perusal of Ex.D1, it is evident that Ex.D1 doesnot show exactly, who has issued the said note book and who are all the members of alleged chit fund of said Lakshman and in the entire note book name of accused doesnot finds a place and there is no details relating to chit transaction, when it was commenced, who has paid amount, when chit was closed etc. Further, there is no mention of other SCCH-09 17 CC.1268/2021 details with regard to issuance of cheque in dispute as security to said Lakshman in connection with chit transaction. So, under such circumstances, Ex.D1 placed by accused will not help the accused in any manner. Merely, because there is some entry in Ex.D1 regarding alleged chit and there is seal of Lakshman chit Fund etc., it cannot be said that the cheque in dispute was not issued in connection with the alleged chit transaction as security. If really, the cheque in dispute was issued as security why the accused remained silent without insisting for return of said cheque for a long time. Further, accused has not taken any legal action against complainant or said Lakshman for non returning of security cheque and misusing of his security cheque.
22. Further, accused himself during the cross- examination has specifically admitted that he has not lodged any police complaint against said Lakshman or against complainant. Even after filing of this complaint, accused has not taken any action either against complainant or said Lakshman, it shows the said defense of accused is an after SCCH-09 18 CC.1268/2021 thought defense and it is taken only for the sake of defense and there is no truth in it. No prudent man would remain silent if really his cheque is misused by any person.
23. Further, accused has not made any attempt to give stop payment mandate to the bank authority. In case, the said Lakshman failed to return his security cheque after completion of alleged chit transaction, he would have given stop payment mandate to the bank immediately after refusal of said Lakshman. No such mandate was given by accused to his banker, it shows the story narrated by accused is an after thought story and it is created just for the sake of defense of this case. As discussed above, no prudent man would remain silent if really he was cheated by any other person by misusing his security cheque. If at all, there is no transaction between the complainant and accused - why the accused remained silent without taking action against complainant. Even after his appearance he has not taken any such legal action against complainant for alleged misusing of his security cheque. Therefore, the defense of accused is completely an after SCCH-09 19 CC.1268/2021 thought defense and it is taken only for the sake of defense and there is no truth in it.
24. Further, during the cross-examination and in his evidence accused denied the service of notice issued by complainant. Ex.P5 discloses, notice was received by accused, he denied the said service. To substantiate his contention accused has mainly relied upon Ex.D2/Aadhaar card and he contended that he was not at all residing in the address mentioned in Ex.P3/notice and no notice was issued. No doubt, on perusal of Ex.D2 and Ex.P3, there is some difference in the address of accused. But, on perusal of both documents, it is crystal clear that accused is residing at Banashankari 3rd Stage, Ittamadu, Hosakerehalli, Bengaluru, there is some slight difference in address regarding House Number, Cross Number etc. Except that other address mentioned in both documents are one and same and he is residing in same area and notice was issued to the accused in the address of Banashankari 3rd Stage, Bengaluru. So, the contention of accused that he was not served with the notice etc., is not acceptable one. SCCH-09 20 CC.1268/2021 Moreover, Ex.D2 is Aadhaar card, as we know the address of Aadhaar Card can be changed at any time and there is provision in the Aadhaar Portal for correction of address, date of birth etc., who knows accused might have changed his address in Aadhaar card purposefully. So, only on the basis of Ex.D2, it cannot be said that notice was not served to the accused. Except this, accused has not placed any other evidence to show that he was not at all residing in the address shown in Ex.P3.
25. As per Sec.27 of General Classes Act, if the notice is sent through registered post or any post to the correct address, it is the duty of the court to presume that the notice was duly served to the addressee. Therefore, the drawer i.e., the accused is the competent person to rebut the presumption about non service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned in the cover was incorrect or that the letter was never tender or that the report was incorrect etc., Unless and until, the contrary is proved by the SCCH-09 21 CC.1268/2021 addressee/accused service of notice is deemed to have been effected, at the time of which the letter could have delivered in the ordinary course of business. Therefore, in view of the said presumption when stating that a notice has been sent by registered post to the address of accused. It is mandatory on the part of court to raise the presumption regarding service of notice. As already stated above except some denial in the evidence and Ex.D2 by accused he has not placed any contrary evidence to the evidence placed by complainant to show that, the notice which was issued under Ex.P3 was not duly served on him etc. Therefore, the defense of the accused that he was not served with the mandatory notice is not acceptable one.
26. At this juncture, it is worth to place reliance on the decision reported in - 2007 (5) Supreme 277 C.C Alavi Haji Vs. Palapetty Muhammed.
PARA 17 - It is also to be borne in mind that the requirement of giving notice is a clear departure from the rule of criminal law, where there is no stipulation of SCCH-09 22 CC.1268/2021 giving of a notice before filing a complaint. Any drawer, who claims that he did not receive the notice sent by post, within 15 days of receipt of summons from the court in respect of complaint under Section 138 of N.I.Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving the copy of complaint with the summons) and therefore, the complaint is liable to be rejected. A person, who does not pay within 15 days of receipt of summons from the Court along with copy of complaint U/Sec. 138 of N.I.Act., cannot obviously contend that there was no proper service of notice as required U/Sec. 138 of N.I. Act., by ignoring statutory presumption to the contrary U/Se.c27 of General Clause Act and Sec. 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (Supra), if the 'giving of notice' in the context of clause (b) of the SCCH-09 23 CC.1268/2021 proviso was the same as the 'receipt of notice' a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Sec.138 of N.I.Act.So, in view of the same, the contention taken by accused that no notice was served to him etc., was not sustainable one.
27. Considering, the overall evidence placed by both complainant and accused, this court is of the opinion that the complainant has proved the ingredients of Section 138 of N.I.Act and also proved that accused for due discharge of loan amount has issued cheque in dispute. On the other hand, accused has miserably failed to substantiate his defense and failed to place probable defense with cogent and satisfactory evidence. When all the basic ingredients of Sec.138 of N.I Act are apparent on the face of record and it is required and mandatory on the part of Court to presume that the cheque in dispute was drawn for consideration and complainant received SCCH-09 24 CC.1268/2021 it in discharge of existence of debt as held by Hon'ble Apex Court reported in -
AIR 2019 SC 1876 Rohit Bhai Jivan Lal Patel V/s State of Gujarat, has held that - 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 the accused. Recently, the Hon'ble Apex Court by accepting the above principles and reiterating the principles of Rohit Bhai Jivan Lal Patel's case has held - in case reported in (2021) 5 SCC 283 Kalamani Text. and anr. V/s P.Balasubramanaian has further held that - the statute mandates that once the signatures of accused on the cheque/N.I. are established, then these reverse onus clauses become operative.
SCCH-09 25 CC.1268/2021
28. Further, Hon'ble Apex Court in the decision reported in - " 2019 (1) KAR.L.J.689 (SC) Bir Singh V/s Mukesh Kumar, wherein it is held that - the object of Section 138 of the Negotiable Instruments Act is to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments including cheques in financial transactions. The penal provision of Section 138 of the Negotiable Instruments Act is intended to be a deterrent to callous issuance of negotiable instruments such as cheques without serious intention to honour the promise implicit in the issuance of the same.
Sec. 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Sec.139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the SCCH-09 26 CC.1268/2021 prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non- existence of the presumed fact."
29. As discussed above, accused has miserably failed to adduce evidence to show a reasonable possibility of non- existence of debt. Therefore, this Court is of the opinion that accused has committed an offence punishable U/Sec. 138 of N.I. Act.
30. Mere, plausible explanation is not sufficient or enough to rebut the presumption available in favour of complainant. Sec.139 of N.I.Act mandates that unless the contrary is proved, it is to be presumed that holder of the cheque received the cheque of the nature referred to U/Sec. 138 of N.I.Act for the discharge in whole or in part, of any debt or other liability. Needless to mention that the presumption contemplated U/Sec.139 of N.I.Act is rebuttable presumption. SCCH-09 27 CC.1268/2021 However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque.
Sec.139 introduces an exception to the General Rule as to the burden of proof and shifts the onus on the accused. The presumption U/Sec.139 of N.I.Act is presumption of law, as distinguished from presumption of facts.
Presumption or rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond all reasonable doubt. The obligation on the prosecution may be discharged with the help of presumption of law and presumption of facts, unless the accused adduces evidence showing the reasonable possibility of the non existence of presumed fact as held by Hon'ble Apex Court in the decision of - Hiten P Dalal V/s Bratindranath Banerjee reported in (2001) 6 SCC
16.
31. A meaningful reading of the provision of N.I.Act including, in particular Sec.20, 87, 118, 138 , 139 makes it amply clear that - a person who signs a cheque and makes it SCCH-09 28 CC.1268/2021 over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of liability. Further, it is immaterial that the cheque may have been filled by any person other than the drawer, if the cheque is duly signed by the drawer and it would attract the provisions of Sec.138 of N.I.Act. As discussed above, except some plausible explanation accused has not placed any iota of evidence to accept his contention. Even the alleged explanation offered by accused is not acceptable and believable one. Accused has not placed any probable defense in this regard to displace the presumption available in favour of complainant.
32. 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 complainant and accused, the complainant has successfully established beyond all reasonable doubt that accused is due an amount of Rs.2,50,000/- and for due discharge of said amount accused has issued Ex.P1 cheque for Rs.2,50,000/- in favour of complainant. On the other SCCH-09 29 CC.1268/2021 hand, accused has miserably failed to rebut the presumption available in favour of complainant with regard to the existence of legally recoverable debt under Ex.P1 cheque. Therefore, accused has committed an offence punishable U/Sec.138 of N.I.Act. Thus, for the above reasons, I answer Point No.1 in the Affirmative.
33. Point No.2: As discussed in point No.1, the complainant has proved the guilt of the accused. It is worth to note that the offence is of the nature of quasi civil and quasi criminal wrong. Hence, it is proper to award sentence of fine only instead of imposing sentence of imprisonment to the accused. At this juncture, it is worth to place the reliance of recent decision of Hon'ble Apex Court reported in 2020 (1) SCC 283 Kalamani Text. and another V/s. P Balasubramaniam, Wherein the Hon'ble Apex court at head note D has held that Negotiable Instrument Act 1881- Sec. 138 - compensation under - there needs to be a consistent approach towards awarding it compensation and unless there exist special circumstance, the court SCCH-09 30 CC.1268/2021 should uniformly Levy fine of up to the double of cheque amount along with simple interest at 9%. So considering the pendency of the case from 2021 and the transaction this court, feels an amount of Rs.3,00,000/- can be awarded as compensation to the complainant, which would meet the ends of justice. Thus for the above reasons, I proceed to pass the following:
ORDER Acting under Section 255[2] of Cr.P.C, the accused is hereby convicted for the offence Punishable U/s. 138 of the N.I. Act. The accused is sentenced to pay total fine amount of Rs.3,05,000/-. In default of payment of fine amount, the accused shall under go Simple Imprisonment for a period six months.
After deposit of fine amount an
amount of Rs.3,00,000/- shall be paid to
the Complainant as compensation as
provided U/s.357 (1) Cr.P.C. The remaining Rs.5,000/- be appropriated to the state as fine.SCCH-09 31 CC.1268/2021
The bail bond of the accused is hereby stand cancelled.
Office is directed to furnish free copy of this judgment to the accused.
(Dictated to the stenographer on computer, corrected and then pronounced by me in the open court on this the 30 th day of March, 2022.) (Umesha.H.K) Judge, Court of Small Causes & ACMM Bengaluru.
ANNEXURE List of Witnesses examined on behalf of complainant:
PW -1 : K.B.Shivanna List of Documents marked on behalf of complainant:
Ex.P1 Cheque Ex.P1(a) Signature of accused Ex.P2 Bank endorsement Ex.P3 Notice Ex.P4 Postal receipt Ex.P5 Postal acknowledgment Ex.P6 Bank Statement
List of Witnesses examined on behalf of accused:
D.W.1 Rajashekhar SCCH-09 32 CC.1268/2021 List of documents marked on behalf of accused Ex.D1 Note book Ex.D2 Notarized copy of Aadhaar card (Umesha.H.K) Judge, Court of Small Causes & ACMM, Bengaluru.