Bangalore District Court
C.V.Srinivasa vs M/S.R.K.Developers on 24 May, 2023
1 C.C.No.6526/2017
KABC030145062017
Presented on : 27-02-2017
Registered on : 27-02-2017
Decided on : 24-05-2023
Duration : 6 years, 2 months, 25 days
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated : This the 24th day of May 2023
Present: Sri.N.M. RAMESHA, B'Com.,L.L.M.
XVI Addl.C.M.M., Bengaluru City.
Case No. C.C.No
: C.C.No.6526/2017
Complainant : C.V.Srinivasa,
Aged about 53 years,
S/o.Late.S.Venkatakrishnaiah,
No.9, Banashankari 3rd Stage,
3rd phase, 4th Block,
100 Feet Ring Road,
Opp: To Udbhav Hospital,
Bangalore-560 085.
(By Sri.Satyanarayana S.Chalke.,
Adv,)
V/s
Accused : 1. M/s.R.K.Developers
No.520, 17th 'E' Main,
5th Cross, KHB Colony,
Koramangala,
Bangalore-560 078.
Represented by its Proprietor
T.K.Raghavendra
2 C.C.No.6526/2017
2. T.K.Raghavendra, Proprietor,
M/s.R.K.Developers
S/o.Late.T.R.Krishnamurthy,
Aged about 35 years,
No.520, 17th 'E' Main,
5th Cross, KHB Colony,
Koramangala,
Bangalore-560 078.
(By Sri.Melvi Sebstian.Adv.,)
Case instituted : 27.02.2017
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 24.05.2023
JUDGMENT
The Complainant has filed this complaint against the accused under the provisions of Sec.200 of the Code of Criminal Procedure, for the offence punishable U/Sec.138 of the Negotiable Instruments Act.
2. The case of the Complainant is as under:-
The first accused is a Proprietoryship concern and he is in the business of real estate and land development. The accused No.2 is a Proprietor of first accused. The complainant is an Advocate enrolled with the Karnataka State Bar Counsel and he is practising in 3 C.C.No.6526/2017 the City of Bengaluru. The second accused was known to complainant and met him in his law office on several times since 2012 seeking legal advice to get the relief of multiple legal issues that he had. The complainant has represented the accused in civil and criminal cases and has got the relief in several cases during the year 2014-
15. The civil and criminal cases filed against the accused are being handled by the complainant at City Civil Court and Chief Metropolitan Magistrate Court, Bengaluru.
But the accused had not paid any legal fee to the complainant for the services rendered by the complainant stating that he had incurred heavy loss in the real estate business and he is going to make up for the pending payment of legal fee of previous cases that were handled by the complainant and current cases that are being handled by the complainant and pay the fee during 2016. Therefore, by believing the words of the accused and reposing trust on him, the complainant had filed vakalathnama and got the anticipatory bail for the accused in several criminal cases and stopped eventually of him going to jail.
3. It is further averred in the complaint that after filing the vakalathnama, the accused has become due and liable to pay an amount of Rs.12 lakhs to the complainant towards the legal fees. In discharge of part 4 C.C.No.6526/2017 liability, the accused has issued a post dated cheque bearing No.001648 dated 15.08.2016 for Rs.6 lakhs drawn on City Union Bank Ltd, Yelahanka Branch, Bengaluru, in favour of the complainant with an assurance to honour the cheque on presentation of the same before the Bank. The accused has also issued two more post dated cheques bearing No.001649 and 001650 dated 15.10.2016 and 04.02.2017 respectively for Rs.3 lakhs each drawn on City Union Bank Ltd, Yelahanka branch, Bengaluru in favour of the complainant towards the remaining part liability. The complainant has already filed case bearing CC.No.22691/2016 against the accused in respect of cheque bearing No.001648 for Rs.6 lakhs and case bearing CC.No.2508/2017 against the accused in respect of cheque bearing No.001649 for Rs.3 lakhs. The accused has requested the complainant to present third cheque bearing No.001650 for encashment. Therefore, the complainant has presented the cheque bearing No.001650 for Rs.3 lakhs before the Vishveshwaraiah Co-operative Bank Ltd., Banashankari III Stage, Bengaluru for encashment. But the cheque was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 06.02.2017. Therefore, the complainant got issued a 5 C.C.No.6526/2017 legal notice dated 08.02.2017 calling upon the accused to pay the cheque amount within 15 days from the date of service of legal notice. But the notice has been returned with an endorsement as 'Not claimed, returned to sender' on 20.02.2017. The accused has deliberately not claimed the notice and did not choose to pay the cheque amount to the complainant and thereby committed an offence punishable U/s.138 of N.I.Act. Hence, this complaint.
4. After presentation of complaint, it was ordered to be registered as PCR No.2617/2017 vide order dated 27.02.2017.
5. The sworn statement of the complainant has been recorded and the documents were got marked as per Ex.P.1 to P.13.
6. My Learned Predecessor in office having heard the arguments of learned counsel for the complainant and having satisfied with the complaint averments, sworn statement of complainant and documents at Ex.P.1 to P.13 and having satisfied with the prima facie materials placed on record has taken the cognizance for the offence punishable U/s.138 of N.I.Act and the criminal case was ordered to be registered as 6 C.C.No.6526/2017 CC.No.6526/2017 and the process was ordered to be issued against the accused vide order dated 27.02.2017.
7. On service of summons, the accused has appeared before the court through his learned counsel and obtained the bail by depositing cash surety of Rs.3,000/- vide Q.No.5951/2017 dt:22.07.2017. Copies of all the prosecution papers were supplied to accused.
8. The Plea of accused for the offence punishable U/s.138 of N.I.Act has been recorded vide dated on 22.07.2017 and the substance of accusation has been read over and explained to accused in the language known to him. The accused has pleaded not guilty, but claims to be tried.
9. In order to establish the guilt against the accused, the complainant got himself examined as PW-1 and got the documents marked as Ex.P.1 to P.55.
10. In spite of sufficient opportunities were given, the accsued and his learned counsel continuously remained absent and did not choose to cross-examine PW.1. Therefore, my learned predecessor in office has taken the cross-examination of PW-1 as nil vide order dated 07.12.2017.
7 C.C.No.6526/201711. The accused and his learned counsel also continuously remained absent and not available for recording the statement of accused U/s.313 of Cr.P.C. Therefore, my learned predecessor in office has dispensed the recording of statement of accused U/s.313 Cr.P.C. and also taken the defence evidence as nil vide order dated 26.12.2017.
12. My learned Predecessor in office having heard the arguments and on considering the oral evidence and documenary evidence placed on record has convicted and sentenced the accused to pay a fine of Rs.3,25,000/- vide Judgment and order dated 08.01.2018 and out of the fine collected from the accused, an amount of Rs.3,15,000/- was ordered to be paid to the complainant as compensation and the remaining fine of Rs.10,000/- was ordered to be adjusted to the cost of State Exchequer and in default of compensation amount and fine amount, the accused shall undergo simple imprisonment for one year for the offence punishable U/s.138 of N.I.Act.
13. The accused being aggrieved by the Judgment and sentence passed by this Court has preferred Crl. Appeal No.445/2018 which was came to be dismissed 8 C.C.No.6526/2017 vide Judgment dated 17.11.2018 by confirming the Judgment of Conviction and order passed by this Court.
14. The accused being aggrieved by the Judgment of Hon'ble Appellate Court has preferred Crl. Revision Petition No.1372/2018 clubbed with Criminal Revision Petition No.1370/2018 and Crl. Revision No.1371/2018 before the Hon'ble High Court of Karnataka which were came to be allowed vide order dated 13.02.2023 and the Judgment and sentence passed by this Court dated 08.01.2018 and Judgment passed by the Hon'ble Appellate Court dated 17.11.2018 were came to be set- aside and the matter has been remitted back to this Court to re-conduct the proceedings with a direction to the accused to furnish surety to the satisfaction of the Court to ensure his presence in all the dates of hearing and shall appear before the Trial Court on 13.03.2023 and shall without fail to cross-examine the complainant on the said date and the complainant will be at liberty to lead further evidence and be subjected to cross- examination which shall be conducted by 31.03.2023 and there is no requirement of the Trial Court of recording the statement of accused U/s.313 of Cr.P.C. in view of the Judgement of the Hon'ble Apex Court in Suomotu writ petition (Criminal) No.2 of 2019-20 in "
Re-expeditious trial of cases U/s.138 of N.I.Act 1881"9 C.C.No.6526/2017
and the accused shall lead his evidence in defence by 10.04.2023 and shall be cross-examine on 17.04.2023 and the Trial Court may dispose off the proceedings by the end of June 2023 and the accused shall pay cost of Rs.15,000/- to the complainant on the next date of hearing on 13.03.2023 and if the accused failed to pay the cost on the said date, he shall not entitle to the benefit of the order.
15. In obidience and direction of the Hon'ble High Court of Karnataka, the case was ordered to be restored to its original file vide order dated 10.03.2023 and the complainant and accused and their respective learned counsels have appeared before the Court on 13.03.2023 and furnished cash surety of Rs.3000/- and PW-1 was subjected for cross-examination by the learned counsel for the accused. The learned counsel for the complainant submits no further evidence to lead.
16. In view of the observation made by the Hon'ble High Court of Karnataka that there is no requirement of the trial Court to record the statement of accused U/s.313 of Cr.PC as per the Judgment of the Hon'ble Apex Court in Suo moto writ petition No.02/2020 in "Re- expeditious Trial of cses U/s.138 of N.I.Act 1881" the recording of the statement of accused under section 313 10 C.C.No.6526/2017 Cr.P.C was dispensed with vide order dated 13.03.2023 and posted the case for defence evidence to 25.03.2023.
17. It is pertinent to note here that the proceedings of this nature where the accused is charged for the offence punishable U/Sec.138 of N.I.Act is a summary in nature as per Sec.143 of N.I.Act and the provisions of Sec.262 to 265 of Cr.P.C. are applicable to the trials. As per Sub Sec.2 and 3 of Sec.143 of N.I.Act, the trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing and every trial under section 138 of NI Act, shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within 6 months from the date of filing of the complaint.
18. Further, as per the principles laid down and directions issued by the Hon'ble Supreme Court of India in a decision reported in (2014) 5 SCC 590 in between Indian Association Bank V/s Union of India, the chief-examination, cross-examination and re- examination has to be conducted on the same day and on day to day basis untill its conclusion and the entire 11 C.C.No.6526/2017 trial of the proceedings U/Sec.138 of N.I.Act has to be concluded with a span of 3 months.
19. But, in the present case, the records would indicate that from 25.03.2023 till 10.04.2023, there were more than 5 dates of hearing running around for more than 15 days for defence evidence. But, inspite of sufficient opportunities were given, the accused has failed to enter the witness box and failed to comply the direction of the Hon'ble High Court of Karnataka. Therefore, considering the nature of proceedings U/sec.138 of NI Act being summary in nature, the defence evidence was ordered to be taken as nil and closed vide order dated 10.04.2023.
20. I have heard the arguments of learned counsels for both the sides. The learned counsel for the complainant has also filed notes of arguments and memo with citations.
21. In the light of the arguments canvassed by the learned counsel for both side, I have carefully perused the oral and documentary evidence placed on record and also gone through the principles laid down in the cited decisions.
12 C.C.No.6526/201722. Now, the points that would arise for my consideration are as under:-
1. Whether the complainant proves that the accused has issued a cheque bearing No.001650 dated 04.02.2017 for Rs.3,00,000/- drawn on City Union Bank Ltd, Yelahanka branch Bengaluru, in his favour towards the legally recoverable debt of Rs.3 lakhs and on presentation of cheque for encashment before the Vishveshwaraiah Co-operative Bank Ltd, Banashankari III Stage, Bengaluru, it was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dt:06.02.2017 and in spite of issuance of legal notice dt: 08.02.2017 and in spite of service of legal notice, the accused has failed to pay the cheque amount within 15 days from the date of service of legal notice and thereby committed an offence punishable U/s.138 of N.I.Act?
2. What Order?
23. On considering and assessing the oral and documentatry evidence placed on record, now my answers to the above points are as under:
[ Point No.1: In the Affirmative.
Point No.2: As per final order for the following :-
REASONS 13 C.C.No.6526/2017
24. Point No.1 : The provisions of Sec.20 of Negotiable Instrument Act deals about Inchoate Stamped Instruments. As per this provisions of law, where one person signs and delivers to another a paper stamped in accorance with the law relating to negotiable instrements then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima-facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, or any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instruemnt, in the capacity in which he signed the same, to any holder in due course for such amount.
25. The provisions of Sec.118 of Negotiable Instrument Act deals about presumptions as to neogtiable instruments. As per this provisions of law, unit the contrary is proved, the following presumptions shall be made:-(a) of consideration: that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transfered, was accepted, indorsed, negotiated or transferred for considertaion: (b) as to date: that every negotiable instrument bearing a 14 C.C.No.6526/2017 date was made or drawn on such date; (c) as to time of acceptance- that every accepted bill of exchange was accpted within a reasonable time after its date and before its maturity. (d) as to time of transfer-that every transfer of a negotiable instrument was made before the maturity; (e) as to order of indorsement; that the indorsements appearing upon a negotiable instrument were made in the order in which they apear thereon; (f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped and (g) that holder is a holder indue course- that the holder of a negotiable instrument is a holder in due course. [
26. The provisions of Sec.138 of Negotiable Instrument Act deals about dishonour of cheque for insufficiency etc., of funds in the accounts. As per this provisions of law, where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or inpart, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement 15 C.C.No.6526/2017 made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other proviosn of this Act, be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both.
27. As per the proviso attached to the above said provisions of law, nothing contained in this section shall apply unless-(a) the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing , to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
[ 28. The provisions of Sec.139 of Negotiable Instrument Act deals about presumption in favour of 16 C.C.No.6526/2017 holder. As per this provisions of law, it shall be presumed, unles the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability.
29. The provisions of Section 146 of the Negotiable Instruments Act, 1881 deals about the Bank's slip prima facie evidence of certain facts. As per this provisions of law, the Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.
30. Now keeping the above said provisions of Section 20, 118, 138, 139 and 146 of N.I.Act, in mind, let us consider as to whether the complainant could able to comply all the mandates, ingredients, terms and conditions of Section 138 of N.I.Act, so as to draw the presumption in his favour as per Section 118 and 139 of N.I.Act.
31. It is averred in the complaint and stated by PW.1 in his oral evidence that he is an Advocate enrolled with Karnataka State Bar Counsel and practising in the 17 C.C.No.6526/2017 City of Bengaluru and the accused met him in his law office on several times since 2012 seeking legal advice to get the relief of multiple legal issues and hence, he has represented the accused in civil and criminal cases and got the relief in several cases during the year 2014-15, but the accused had not paid any legal fee to him stating that he had incurred heavy loss in the real estate business and he is going to make up for the pending payment of legal fee of previous cases and therefore, he had filed vakalathnama and got the anticipatory bail for the accused in several criminal cases and stopped eventually of him going to jail.
32. It is further averred in the complaint and stated by PW.1 in his oral evidence that the accused has become due and liable to pay an amount of Rs.12 lakhs towards the legal fees and in discharge of part liability, the accused has issued a post dated cheque bearing No.001650 dated 04.02.2017 for Rs.3 lakhs drawn on City Union Bank Ltd, Yelahanka Branch, Bengaluru, in his favour and therefore, he has presented the cheque before Vishveshwaraiah Co-operative Bank Ltd., Banashankari III Stage, Bengaluru for encashment, but the cheque was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 06.02.2017 and hence, he got issued a legal notice 18 C.C.No.6526/2017 dated 08.02.2017 calling upon the accused to pay the cheque amount within 15 days from the date of service of legal notice, but the notice has been returned with an endorsement as 'Not claimed, Return to Sender' on 20.02.2017, but the accused has deliberately not claimed the notice and did not choose to pay the cheque amount and hence, he has filed the complaint before the court.
33. The complainant has produced the cheque dated 04.02.2017, Bank endorsement dated 06.02.2017, Legal notice dated 08.02.2017, Postal receipts dated 08.02.2017, returned notices, postal covers, postal acknowledgements, certified copies of vakalathnamas in Crl.Misc.No.2016/2014, Crl.Misc.No.2625/2014, Crl.Misc.No.2626/2014, Crl.Misc.No.2628/2014, Crl.Misc.No.3079/2014, Crl.Misc.No.3081/2014, Crl.Misc.No.3082/2014, O.S.No.212/2016, Crime No.57/2016, Case details of Crl.Misc.No.2625/2014, Crl.Misc.No.2626/2014, Crl.Misc.No.2628/2014, Crl.Misc.No.3079/2014, Crl.Misc.No.3081/2014, Crl.Misc.No.3082/2014, Ordersheet in Crime No.57/2016, certified copies of ordersheet in O.S.No.212/2016, certified copies of notice dated 27.02.2017, postal cover, postal receipt dated 27.02.2017, postal acknowledgement, certified copies of 19 C.C.No.6526/2017 case details in CC.No.8818/2012, CC.No.8748/2013, CC.No.8750/2013, CC.No.8760/2013, CC.No.8778/2013, CC.No.8767/2013, CC.No.8783/2013 CC.No.8749/2013, PCR.No.26146/2013, CC.No.2202/2014, Crl.Misc.1980/2015. The Proceedings for the case in O.A.No.221/2012, O.A.No.222/2012, O.A.No.225/2012, O.A.No.217/2012, O.A.No.224/2012, O.A.No.220/2012, O.A.No.203/2013. Certified copies of FIR in Crime No.903/2014 of Koramangala Police Station and they are marked at Ex.P.1 to P.55.
34. The accused has not seriously disputed about either filing of vakalathnama by the complainant to represent his cases in different Courts at Bengaluru or issuance of cheque in question to the complainant or his signature on the cheque or drawing of cheque on an account maintained by him with his banker or presentation of cheque for encashment before the Bank or dishonour of cheque for want of sufficient funds in his account or issuance of legal notice.
35. In fact, there are no material suggestions to PW-1 either to deny the filing of vakalathnama by the complainant to represent the accused in different Court of law at Bengaluru City or to deny the issuance of 20 C.C.No.6526/2017 cheque in question to the complainant or to deny the signature of the accused on the cheque or to deny the drawing of cheque in question by the accused on an account maintained by him with his banker or to deny the presentation of cheque or to deny the dishonour of cheque for want of sufficient funds in the account of the accused or to deny the issuance of legal notice.
36. But, on the other hand, it is suggested to PW-1 during the course of his cross-examination that his name also mentioned in the vakalathnama vide Ex.P.14 to P.20 and the vakalathnama vide Ex.P.21 and P.22 are pertains to O.S.No.212/2016 and Crime No.57/2016 and he and M.R.Manjunath have filed vakalath in both the cases wherein his residential address is mentioned in Ex.P.21 and P.22. It is also suggested to PW-1 that the accused was produced before the Court in Crime No.57/2016 and released on bail. It is also suggested to PW-1 that he has filed vakalathnama in S.C.No.443/2021. It is also suggested to PW-1 that the State Bank of Travancore was the complainant in all three cases in which the Chamarajpet Police have conducted the investigation and filed the chargesheet and he has taken three blank cheques from the accused for the purpose of expences to conduct the cases.
21 C.C.No.6526/201737. From these materials placed on record, it is crystal clear that the accused by necessary implications has admitted about the filing vakalathnama by the complainant to represent him in different cases as per the documents at Ex.P.14 to P.31 and Ex.P.37 to P.55 and also admitted about the issuance of cheque in question to the complainant and the signature on the cheque including drawing of cheque on an account maintained by him with his banker. The accused has also admitted about the presentation of cheque for encashment before the Bank and dishonour of cheque for want of sufficient funds in his account and issuance of legal notice. The accused has also admitted about the address mentioned in the notice. Under these circumstances, it is said that the admissions are the best proof for the complainant to comply the mandates of Section 138 of N.I.Act so as to draw the presumption U/s.118 and 139 of N.I.Act.
38. However, on perusal of complaint averments, sworn statement of complainant and the documents at Ex.P.1 to P.55, it clearly establishes that there was a relationship of Advocate and litigant between the complainant and accused and the complainant has filed vakalathnama representing the accused in different cases before the Court of law situated in and around 22 C.C.No.6526/2017 Bengaluru City and got obtained the relief in favour of the accused as per the documents at Ex.P.14 to 31 and Ex.P.37 to P.55.
39. The materials placed on record also clearly establishes that the cheque vide Ex.P.1 dated 04.02.2017 is belongs to accused and has drawn the same on an account maintained by him with his banker namely City Union Bank Ltd., Yelahanka branch, Bengaluru and the signature of the accused also finds a place as per Ex.P.1(a). The accused has issued the cheque in question to the complainant towards the payment of legal fee and on presentation of cheque for encashment before the Bank, it was dishonoured for want of sufficient funds in the account of the accused vide Ex.P.2 and therefore, the complainant got issued a legal notice vide Ex.P.3 dated 08.02.2017 calling upon the accused to pay the cheque amount within 15 days from the date of the service of legal notice, but the accused has refused to receive the notice and therefore, the complainant has presented the complaint before the Court on 27.02.2017.
40. It is pertinent to note that the cheque vide Ex.P.1 is dated 04.02.2017. As could be seen from the document at Ex.P.2, the cheque was dishonoured for 23 C.C.No.6526/2017 want of sufficient funds in the account of the accused vide dated 06.02.2017. So, it is crystal clear that the cheque vide Ex.P.1 was presented before the Bank well within its validity and it was dishonoured for want of sufficient funds in the account of the accused.
41. As could be seen from the documents at Ex.P.3 to P.13, the complainant got issued a legal notice dated 08.02.2017 within stipulated period of time from the date of receipt of bank endorsement giving 15 days time to the accused to comply the demands made in the notice. As could be seen from the documents at Ex.P.7 and 11, the notice sent by the complainant has been refused by the accused.
42. It is well settled position of law that if the notice is issued to the proper address of the accused, then even if the said notice returned with endorsement as "Refused", "Not claimed", "Unclaimed", "Left the Address", and "No such person" etc., then it amounts deemed service of legal notice as per Section 27 of General Clauses Act. The accused has not seriosly disputed the address mentioned in the notice. But, in spite of deemed service of legal notice, accused neither replied notice nor made necessary arrangements to pay the cheque amount. Therefore, the complainant without 24 C.C.No.6526/2017 any alternative has presented the complaint before the Court on 27.02.2017 which was well within time.
43. So, it is crystal clear that the complainant has complied the mandates of Section 138 of N.I.Act by adducing the oral evidence of PW-1 and by producing the documentary at Ex.P.1 to P.55. Therefore, when once the complainant has complied the mandates of Section 138 of N.I.Act, this Court has no option but to draw the presumption available in favour of the complainant under the provisions of Section 118 and 139 of N.I.Act.
44. Admittedly, the presumption available in favour of the complainant under the provisions of Section 118 and 139 of N.I.Act are not conclusive proof, but they are rebuttable in nature. Therefore, when once the complainant has complied the mandates of Section 138 N.I.Act and when once the Court has drawn the presumption in favour of the complainant under the provisions of Section118 and 139 of N.I.Act, then the onus shifts on the accused to raise a probable defence and to prove the same before the Court with legal evidence and to rebut the statutory presumption available in favour of the complainant under the provisions of Section 118 and 139 of N.I.Act.
25 C.C.No.6526/201745. The learned counsel for the complainant has argued with force that the complainant has complied all the mandates of Section 138 of N.I.Act by adducing the oral evidence of P.W.1 and by producing the documentary evidence at Ex.P.1 to P.55 which clearly establishes that the complainant has represented the accused in Civil and Criminal cases by filing vakalath as mentioned in Ex.P.14 to P.31 and Ex.P.37 to 55 and got the relief in favour of the accused and the materials placed on record clearly establishes that the accused was due for legal fees of Rs.12 lakhs and therefore, he has issued a cheque vide Ex.P.1 in favour of the complainant for discharge of legally recoverable debt of Rs.3 lakhs and on presentation of cheque for encashment, it was dishonoured for want of sufficient funds in the account of the accused vide Ex.P.2 and therefore, the complainant got issued a legal notice vide Ex.P.3 which was refused by the accused which amounts to deemed service as per Section 27 of the General Clauses Act, but in spite of service of legal notice, the accused neither replied the notice nor made necessary arrangement to pay the cheque amount and thereby committed an offence U/s.138 of N.I.Act and therefore, the complainant has presented the complaint before the Court within time.
26 C.C.No.6526/201746. It is further contended that the accused neither disputed the relationship of Advocate and client between him and complainant nor the availment of legal services from the complainant or issuance of cheque in question or his signature on the cheque or presentation of cheque for encashment before the Bank within time or dishonour of cheque for want of sufficient funds in his account or issuance of legal notice and therefore, the presumptions are available in favour of the complainant under the provisions of Section 118 and 139 of N.I.Act.
47. It is further contended that while cross- examining PW-1, the accused has taken a defence that the complainant has taken the blank signed cheque and he has already repaid the excess legal fees to the complainant and the complainant has failed to return the cheque and misused the cheque issued by the accused and the accused has also taken a contention that the complainant has not conducted any cases and therefore, he is not due for any legal fees towards the complainant and the complainant has misused the cheque. But contention taken by the accused has not been proved before the Court in any manner. The accused neither entered into witness box to adduce defence nor produced any documentary evidence before the Court or elicited anything in the evidence of 27 C.C.No.6526/2017 complainant and thereby the accused has failed to rebut the statutory presumptions, but the complainant has complied all the mandates of Section 138 of N.I.Act and therefore, the accused is liable for conviction U/s.138 of N.I.Act.
48. In support of his submission, the learned counsel for the complainant has relied upon a decision reported in (2018) 8 SCC 165 in between Kishan Rao Vs. Shankargowda, wherein while dealing with the provisions of Section 118, 138 and 139 of N.I.Act, the Hon'ble Supreme Court has pleased to held that the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose.
49. The learned counsel for the complainant has also relied upon a decision reported in (2019) 4 SCC 165 in between Beersingh Vs. Mukeshkumar, wherein while dealing with the provisions of Section 118, 138 and 139 of N.I.Act, the Hon'ble Supreme Court has pleased to held that once the accused has admitted signature on the cheque in question, then the Court is bound to raise presumption U/s.139 of N.I.Act.
50. The learned counsel for the complainant has also relied upon a decision reported in (2019) 18 SCC 28 C.C.No.6526/2017 106 in between Rohit Bhai Jeevanlal Patel Vs. State of Gujarath, wherein while dealing with the provisions of Section 118, 138 and 139 of N.I.Act, the Hon'ble Supreme Court has pleased to held that on the aspects relating to preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the Court to conclude either that the consideration did not exists or that it is non existence was so probable that a prudent man would under the circumstances of the cases act upon plea that the consideration did not exists.
51. The learned counsel for the complainant has also relied upon a decision reported in (2019) 16 SCC 83 in between Dhaneshwari Traders Vs. Sanjay Jain, wherein while dealing with the provisions of Section 118, 138 and 139 of N.I.Act, the Hon'ble Supreme Court has pleased to held that Section 139 of N.I.Act creates a stuatory presumption that a cheque received in the nature referred to U/s.138 of N.I.Act is for the discharge in whole in part of any debt or other liability.
52. The learned counsel for the complainant has also relied upon a decision reported in (2015) 9 SCC 622 in between Mainuddin Abdul Sattar Shaikh Vs.Vijay Saveel, wherein while dealing with the 29 C.C.No.6526/2017 provisions of Section 118, 138 and 139 of N.I.Act, the Hon'ble Supreme Court has pleased to held that the Courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine of twice cheque amount keeping in view the cheque amount and simple interest thereon at 9% per annum as the reasonable quantum of loss and directed payment of such amount as compensation.
53. The learned counsel for the complainant has also relied upon a decision reported in (2021) 5 SCC 283 in between Kalamani Tex Vs.P.Balasubramaniyan, wherein while dealing with the provisions of Section 118, 138 and 139 of N.I.Act, the Hon'ble Supreme Court has pleased to held that the objective of the chapter XVII of the N.I.Act is not only punitive but also compensatory and restitution provisions of N.I.Act is a single window for criminal law for dishonour of cheque as well as civil liability for realization of the cheque amount.
54. Per contra, the learned counsel for the accused has vehemently contended that the oral evidence of PW-1 and the documentary evidence at Ex.P.1 to P.55 do not establish that the complainant has represented the accused in any case on his own and not 30 C.C.No.6526/2017 conducted any cases for and on behalf of accused and also do not establish that the accused was due for any legal fees of Rs.12 lakhs or Rs.3 lakhs as alleged by the complainant in his notice, complaint and affidavit and also do not establish the existence of legally recoverable debt of Rs.3 lakhs and issuance of cheque in question towards the legal debt of Rs.3 lakhs and thereby the complainant has failed to establish the guilt against the accused for the offence punishable U/s.138 of N.I.Act.
55. It is further contended that the accused need not enter into the witness box and need not produce any documentary evidence before the Court, he can rebut the presumption by make use of the materials produced by the complainant and accordingly, the accused is in successful in eliciting the material facts in the cross- examination of PW-1 which clearly establishes that the complainant has obtained blank cheques from the accused and the complainant has already received more than legal fees from the accused, but in spite of payment of legal fees, the complainant has faield to return the cheque issued by the accused and misused the cheque in question and therefore, the accused is not liable to pay any cheque amount to the complainant and view of the complainant failed to establish the existence of 31 C.C.No.6526/2017 legally recoverable debt of Rs.3 lakhs, the accused is entitled to an order of acquittal.
56. Now, keeping the arguments canvassed by the learned counsel for both the sides and the principles laid down in the cited decisions in mind, let us consider as to whether the accused could able to raise a probable defence and whether the accused could able to prove the probable defence before the Court and whether the accused could able to rebut the statutory presumptions available in favour of the complainant under the provisions of Section 118 and 139 of N.I.Act.
57. It is necessary to note here that while recording the plea on 22.07.2017, the accused has pleaded not guilty, but claims to be tried. In other words, while recording the plea, the defence of the accused was as that of total denial and there was no specific defence. It is to be noted here that the accused has not stated anything about the cheque including the signature on the cheque and he has not stated as to how and in what manner the cheque in question was came to the possession of the complainant.
58. However, as could be seen from the material suggestions put to PW-1 during the course of his cross- examination, the accused tried to raises a probable 32 C.C.No.6526/2017 defence that the complainant has not represented him in any Civil or criminal cases on his own and the complainant has already received huge legal fees and also obtained three blank signed cheques to conduct the cases and in respect of expenses of other cases and even after payment of legal fees, the complainant has failed to return the cheques and misused the cheques and filed the false case and therefore, he is not liable to pay any cheque amount to the complainant.
59. But, though the accused has taken this bald defence, same has not been amplified before the Court in any manner. The accused neither adduced any oral evidence nor produced any documentary evidence either to substantiate his probable defence or to falsify the case made out by the complainant or to falsify the oral evidence of PW-1 or to falsify the documentary evidence at Ex.P.1 to P.55.
60. No doubt, it is well settled position of law that in a case of this nature where the accused is charged for the offence punishable U/s.138 of N.I.Act, the accsued in order to rebut the statutory presumption available in favour of the complainant under the provisions of Section 118 and 139 of N.I.Act need not enter into the witness box or need not produce any documentary 33 C.C.No.6526/2017 evidence, but he can definitely make use of the materials produced by the complainant by eliciting material facts in the cross-examination of PW-1.
61. But, in the present case, the accused has not only failed to enter the witness box to adduce oral evidence, but also failed to produce cogent documentary evidence and also failed to elicite the material facts in the cross-examination of PW-1 either to rebut the statutory presumptions available in favour of the complainant under the provisions of Section 118 and 139 of N.I.Act or to falsify the case made out by the complainant or to falsify the oral evidence of PW1 or to falsify the documentary evidence at Ex.P.1 to P.55.
62. No doubt, it is suggested to PW-1 during the course of his cross-examination that he has filed only vakalathnama, but not conducted any case for and on behalf of accused; that he has not appeared before any Court on his own and also not conducted any cases; that his associates were appearing before the Court to conduct the case; that he has received an amount of Rs.1,50,000/- from the accused to obtain certified copies of the documents and applications; that he has also received an amount of Rs.1,50,000/- from the accused for appointment of Senior Counsel to conduct 34 C.C.No.6526/2017 the civil cases of the accused; that he has received an amount of Rs.50,000/- from the accused in respect of case bearing Crime No.57/2016; that he has not conducted any other cases except 9 cases belongs to accused; that Advocate Sri.C.V.Nagesh came to know about recovery of huge fees from the clients and therefore, he sent him from the office in the month of January 2015.
63. It is also suggested to P.W.1 that he has received an amount of Rs.2 lakhs each from the accused in respect of 7 cases amounting to Rs.14 lakhs; that he has received three blank cheques from the accused towards expenses of cases; that the accused has requested him to return the blank cheques after payment of legal fee; but he has failed to return the cheqeus; that except the signature of the accused, he has filled all the contents of the cheque; that he do not know the elementary principles in criminal cases and therefore, the accused did not met him at any point of time; that the accused has met him in the month of April 2014 seeking anticipatory bail; that he has demanded the accused for a site so as to return the cheque for which the accused has refused and therefore, he has misused the cheque in question and filed the false case and deposing false evidence.
35 C.C.No.6526/201764. But all these material suggestions have been specifically denied by the PW-1. Therefore, it is said that the denied suggestions are always remained as suggestions only and not come in the way of accused either to substantiate his probable defence or to falsify the case made out by the complainant or to falsify the oral evidence of PW-1 and or to falsify the documentary evidence at Ex.P.1 to P.55.
65. However, there are no material suggestions to PW-1 either to deny the issuance of cheque or to deny the signature of the accused on the cheque or to deny the presentation of cheque for encashment before the Bank or to deny the dishonour of cheque for want of sufficient funds in the account of accused or to deny the issuance of legal notice or to deny the address of the accused mentioned in the notice. There are also no material suggestions to PW-1 as to how and in what manner the complainant has concocted and created the documents at Ex.P.1 to P.55 and as to how and in what manner the complainant has misused the cheque in question.
66. It is pertinent to note here that if really the accused has not availed any legal assistance from the complainant and if really the complainant has not filed 36 C.C.No.6526/2017 any vakalath for and on behalf of accused in any Court of law in and around Bengaluru City and if really the complainant has not conducted any case for and on behalf of accused in any Court of law and if really the complainant has received either Rs.14 lakhs or Rs.2 lakhs or Rs.1.5 lakhs or any amount from the accused and if really the complainant has obtained blank cheques from the accused and if really the complainant has misused the cheque and if really the complainant has demanded accused for any property to return the cheque in question and if really the complainant has faield to return the cheque in question to the accused, then the accused could have definitely issued "Stop Payment Instructions" to the concerned Bank or the accused could have replied the notice narrating the real fact or the accused could have lodged a complaint against the complainant before the Jurisdictional Police Station or before any police station or atleast before any Court or the accused could have taken some legal action against the complainant or the accused could have adduced evidence on his behalf. But he has not done so. No explanation as such forthcoming from the accused. In the absence of such an explanation, an adverse inference has to be drawn against probable defence raised by the accused and also for with holding the 37 C.C.No.6526/2017 material witnesses being examined before the Court and also for with holding the material documents being produced before the Court.
67. It is pertinent to note here that at one point of time, the accused has taken a contention that the complainant has not filed any vakalath to conduct the case. But, at another point of time, the accused has taken a defence that the complainant has filed vaklath along with other associates. But, at another point of time, the accused has taken a contention that the complainant has not conducted any case on his own. But, at another point of time, the accused has contended that he has paid Rs.2 lakhs each for 7 cases amounting to Rs.14 lakhs. But, another point of time, the accused has contended that he has paid Rs.1,50,000/- towards miscellaneous expenses and incidental expenses and also paid Rs.1.5 lakhs to engage a Senior Counsel to conduct the cases before the Special Court. But, at another point of time, the accused has taken a contention that he has issued signed blank cheques to the complainant and the complainant has misused the cheque. But, another point of time, the accused has taken a contention that he has already paid all the legal fees. But, at another point of time, the accused has taken a contention that the complainant 38 C.C.No.6526/2017 has misused blank signed cheque and filed the false case. But, at another point of time, the accused has taken a contention that the complainant does not know the elementary principles of law.
68. From these inconsistent pleas raised by the accused during the cross-examination of PW-1 and from the material suggestions put to PW-1 during the course of his cross-examination, it is crystal clear that the accused has kept on changing his version from stage to stage and also kept on changing his defence from stage to stage and thereby lied on the material facts before the Court with respect to availment of legal assistance from the complainant and issuance of cheque in question towards the legal fees to the complainant. Therefore, utmost confidence cannot be reposed on the defence raised by the accused.
69. On appreciation of entire oral and documentary evidence placed on record, it is found that the accused has taken legal assistance from the complainant commencing from 2014-15 to 2015-16 and the complainant has represented the accused before different Courts of law in and around Bengaluru City as per the documents at Ex.P.14 to 31 and Ex.P.37 to P.55. The materials placed on record also clearly establishes 39 C.C.No.6526/2017 that the accused was due for legal fees for a sum of Rs.12 lakhs and in discharge of part liability, the accused has issued the cheque vide Ex.P.1 and on presentation of cheque for encashment before the Bank within its validity, it was dishonoured for want of sufficient fudns in the account of the accused vide Ex.P.2, but in spite of issuance of legal notice, the accused has failed to receive and refused to receive the legal notice and thereby failed to pay the cheque amount within stipulated time from the deemed service of legal notice and therefore, the complainant has lodged the complaint before the Court within time.
70. The document at Ex.P.1 being acheque raises the presumption under the provisions of Section 118 and 139 of N.I.Act. The document at Ex.P.2 being a bank endorsement also raises the presumption under the provisions of Section 146 of N.I.Act. The documents at Ex.P.3 to P.13 being a legal notice, postal receipts, postal acknowledgements, postal covers and courier receipts clearly establishes the deemed service of legal notice. The documents at Ex.P.14 to P.31 and P.37 to P.55 being the certified copies of vakalathnama, case details, affidavit order sheets and police records also clearly establishes the legal assistance obained by the accused from the complainant.
40 C.C.No.6526/201771. The accused neither disputed the issuance of cheque nor his signature on the cheque or presentation of cheque for want of sufficient funds in his account or issuance of legal notice. Under these circumstances, the presumptions are always available in favour of the complainant under the provisions of Section 118, 139 and 146 of N.I.Act. The accused neither adduced any oral evidence nor produced any documentary evidence or elicited any material facts in the cross-examination of PW-1 and thereby failed to substantiate his probable defence and also failed to rebut the statutory presumption available in favour of the complainant under the provisions of Section 118, 139 and 146 of N.I.Act. Under these circumstances, there are no reasons to disbelieve or to discard the oral evidence of PW-1 and the documentary evidence at Ex.P.1 to P.55.
72. Under these circumstances, there is some legal and considerable force in the submission of the learned counsel for the complainant that the complainant has complied all the mandates of Section 138 of N.I.Act by adducing the oral evidence of PW-1 and also by producing the documentary evidence at Ex.P.1 to P.55, but the accused neither disputed the cheque nor his signature on the cheque and therefore, the presumptions are available in favour of the complainant 41 C.C.No.6526/2017 U/s.118 and 139 of N.I.Act and the accused has failed to raise a probable defence and also failed to prove the same before the Court and thereby failed to rebut the statutory presumption and nothing is elicited in the cross-examination of PW-1 to substantiate the probable defence that the accused has issued signed blank cheques and the complainant has misused the cheque in question and the accused has also not placed any material to show that the complainant has not represented him before any Court of law and also not conducted any case on his behalf, but the material produced by the complainant clearly establishes the guilt against the accused and the inconsistent pleas taken by the accused has not been proved before the Court, the complainant has established his cases before the Court and therefore, the accused is liable for conviction for the offence punishable U/s.138 of N.I.Act and the decisions cited in this regard are also applicable to the present facts and circumstances of the case.
73. But, on the other hand, the arguments of the learned counsel for the accused that the oral evidence of PW-1 and the documentary evidence at Ex.P.1 to P.55 do not establish the mandates of Section 138 of N.I.Act and the accused has raised a probable defence and proved the same before the Court by eliciting the 42 C.C.No.6526/2017 material facts in the evidence of PW-1 which clearly establishes that the accused has not availed any legal assistance from the complainant and the complainant has obtained blank cheques from the accused and misused the cheques by filing false complaint and the complainant has not conducted any case on his own and also not represented the accused before any Court of law and the complainant has already received huge amount from the accused, but failed to return the cheques in favour of the accused and the complainant has faield to establish the case against the accused, but the accused has rebutted the presumptions and therefore, the accused is entitled to an order of acquittal for the offence punishable U/s.138 of N.I.Act is not sustainable under law and therefore, cannot be accepted.
74. Therefore, for the reasons discussed above, this Court is of the considered view that the materials placed on record clearly establishes the guilt against the accused for the offence punishable U/s.138 of N.I.Act. Hence, I hold that the complainant has proved the guilt against the accused for the offence punishable U/s.138 of N.I.Act.. Hence I answer the Point No.1 in the Affirmative.
43 C.C.No.6526/201775. POINT. No.2:- The provisions of Section 138 of N.I.Act provides punishment for imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of cheque or with both. In the present case, the relationship between the complainant and the accused is as that of an Advocate and Litigant. The accused has availed legal assistance from the complainant and was due for legal fees and therefore, he has issued the cheque for Rs.3 lakhs towards the legal fees. The records would indicate that this Court has already passed the Judgment and sentence vide dated 08.01.2018. The matter relates to the year of 2017. The appeal preferred by the Accused vide Crl. Appeal No.445/2018 was dismissed confirming the Judgment and sentence passed by this Court and thereafter, the accused has preferred Crl. Revision Petition No.1372/2018 clubbed with 1370 and 1371/2018 which were came to be allowed and the matter has been remitted back to this Court for fresh disposal. But, the accused has not complied the other direction of the Hon'ble High Court of Karnataka and thereby failed to enter into the witness box to adduce the defence evidence. The accused has conducted this case commencing from 2017 till 2023. Therefore, considering the relationship between the complainant and accused 44 C.C.No.6526/2017 and facts and circumstances of the case and also regard being had to the time taken for disposal of the case and the way in which the accused has conducted the case from 2017 to 2023, this Court is of the considered view that if the following sentence is awarded, then it would meet the ends of justice. Hence, in view of my findings on point No.1, I proceed to pass the following:-
ORD ER The accused is found guilty for the offence punishable U/s.138 of Negotiable Instruments Act.
Hence, acting U/sec.255(2) of Cr.P.C, the accused is convicted and sentenced to pay fine of Rs.4,25,000/- (Rupees Four lakhs Twenty Five Thousand Only), in default of fine amount, he shall undergo simple imprisonment for One Year for the offence punishable under section 138 of N.I.Act.
Out of the fine amount collected from the accused, an amount of Rs.4,15,000/- (Rupees Four Lakhs Fifteen Thousand only) shall be paid to the complainant as compensation U/s.357 of Cr.P.C. and the remaining fine of Rs.10,000/-45 C.C.No.6526/2017
shall be adjusted towards the cost of state expenses.
Office to supply the copy of the Judgment to the accused forthwith at free of cost.
(Dictated to the stenographer, transcribed by him, print out taken by him, verified, corrected and then pronounced by me in the open Court on this the 24th May 2023).
(N.M.RAMESHA) XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.C.V.Srinivasa
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 : Copy of Legal Notice.
Ex.P.4 & 5 : Postal Receipts.
Ex.P.6 : Notice
Ex.P.7 : Postal Cover.
Ex.P.8 : Postal Receipt.
Ex.P.9 : Acknowledgement
Ex.P.10 : Notice
Ex.P.11 : Postal Cover.
Ex.P.12 : Postal Receipt
Ex.P.13 : Acknowledgement
46 C.C.No.6526/2017
Ex.P.14 to 28 : Vakalaths
Ex.P.29 to 31 : Ordersheets
Ex.P.32 : Notice.
Ex.P.33 : Postal cover
Ex.P.34 & 35 : Postal receipts
Ex.P.36 : Acknowledgements.
Ex.P.37 to P.54 : Details of cases.
Ex.P.55 : F.I.R.
3. List of witness/s examined on behalf of the Accused:-
Nil
4. List of documents exhibited on behalf of the Accused:-
Nil (N.M.RAMESHA) XVI ACMM, Bengaluru City.