Bangalore District Court
Smt. Padma @ Padmavathi vs Sri Venkatappa on 3 May, 2016
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 3rd day of May, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No. 4013/2014
Complainant: Smt. Padma @ Padmavathi
W/o. Late V. R. Madalli,
R/at House No.547,
1st Betalian Block No.57,
Police Qtrs.,
Koramangala,
Bangalore -560 034.
Accused: Sri Venkatappa
H.No.548,
1st Betalian Block No.57,
Police quarters,
Koramangala,
Bangalore -560 034.
Offence complained of: U/s.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found guilty
Date of order: 3rd May 2016
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act.
2. The brief facts of the complaint that;
The Complainant stated that the deceased husband of the Complainant Sri Madalli and the accused were working in KSRP at 2 C.C.No.4013/2014 Koramangala and both were neighbours in the police quarters. The Complainant's deceased husband has retired during the year 2009 from his service and he received the retirement benefit. Out of the acquaintance, the accused and his wife had approached the Complainant requesting for the financial help as they were in the financial problem. The Complainant and her deceased husband by considering the request of the accused, had advanced a hand loan of Rs.2,00,000/- and the accused and his wife had executed a Loan Agreement in favour of the Complainant. It is further submitted by the Complainant that her husband Sri Modalli was expired before the accused return the loan amount and after the death of her husband the accused and his wife once again approached this Complainant and requested to advance further hand loan of Rs.1,50,000/- as they were urgent need of money and the Complainant had advanced another sum of Rs.1,50,000/-. The Complainant had paid totally sum of Rs.3,50,000/- to the accused. The accused in order to repay the said loan amount, had issued a cheque bearing No.261468 dtd. 21.03.2013 for Rs.3,50,000/- drawn on Vijaya Bank, Trinity Circle, Bangalore with a request to present the said cheque for encashment and it will be honoured on presentation.
3. It is further submitted that, the Complainant presented the said cheque before her banker for encashment on 14.5.2013 but the said 3 C.C.No.4013/2014 cheque returned dishonoured with an endorsement "insufficient funds" and the same was informed to this Accused.
4. She further stated that as the Accused has failed to make payment of the cheque amount, she got issued the Legal Notice through her Counsel on 27.5.2013 by RPAD, calling upon the Accused to make payment of the cheque amount within 15 days from the date of receipt of notice and the said notice was returned unserved with a postal shara "not claimed". The Accused even inspite of knowledge of Legal Notice, has failed to make payment of the cheque amount. The Accused knowing fully well that he has no sufficient funds in his bank account, had issued a bogus cheque and thereby, the Accused has committed an offence punishable u/Sec.138 of N.I. Act.
5. After recording of sworn statement of the complainant the Private Complaint lodged by the complainant was registered as a Criminal Case, summons was issued as against the accused. The accused appeared through his Counsel and he was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claims to be tried.
6. The complainant herself got examined as PW1 and she got produced 4 documents marked as Ex.P1 to Ex.P4 and closed her side of evidence.
4 C.C.No.4013/2014
7. After closure of the complainant side evidence, accused Statement u/Sec.313 Cr.P.C. recorded and read over to the accused. The accused denied the incriminating evidence in toto and he intended to lead his evidence. The accused himself examined as D.W.1 and he got produced 2 documents and marked as Ex.D.1 and Ex.D2 and closed his side of evidence.
8. I have heard the arguments on the both sides and perused the entire records.
9. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
10. My findings to the above point are as under:
Point No.1 : In the affirmative
Point No.2 : As per final order
for the following:
REASONS:
11. Point No.1: The entire burden is on the complainant to prove her case and also to prove the above point. In order to prove the same, the complainant stepped into the witness box, got examined as PW-1 and she filed her affidavit in lieu of the oral evidence by reiterating the complaint averments.
5 C.C.No.4013/2014
12. PW1 deposed that her deceased husband Sri Madalli and the accused were working in KSRP at Koramangala and both were neighbours in the police quarters and out of acquaintance, the accused and his wife had approached them requesting for the financial help as they were in the financial problem and they by considering the request of the accused, had advanced a hand loan of Rs.2,00,000/- out of the retirement benefit received by her husband from his employer after his retirement from the service. She deposed that the accused and his wife after the receipt of the loan amount, had executed a Loan Agreement in her favour and subsequently her husband was expired before the accused return the loan amount and after the death of her husband the accused and his wife once again approached her and requested to advance further hand loan of Rs.1,50,000/- as they were urgent need of money. She further deposed that she once again advanced the hand loan of Rs.1,50,000/- and she had totally paid a sum of Rs.3,50,000/- to the accused. She further deposed that the accused in order to repay the said loan amount, had issued a cheque bearing No.261468 dtd. 21.03.2013 for Rs.3,50,000/- drawn on Vijaya Bank, Trinity Circle, Bangalore with a request to present the said cheque for encashment and it will be honoured on presentation.
13. She further deposed that she presented the said cheque before her banker for encashment on 14.5.2013 but the said cheque 6 C.C.No.4013/2014 returned dishonoured with an endorsement "insufficient funds" and the same was informed to this Accused.
14. She further deposed that as the Accused has failed to make payment of the cheque amount, she got issued the Legal Notice through her Counsel on 27.5.2013 by RPAD, calling upon the Accused to make payment of the cheque amount within 15 days from the date of receipt of notice and the said notice was returned unserved with a postal shara "not claimed". She deposed that the Accused even inspite of knowledge of Legal Notice, has failed to make payment of the cheque amount. She deposed that the Accused knowing fully well that he has no sufficient funds in his bank account, had issued a bogus cheque and thereby, the Accused has committed an offence.
15. PW1 in order to prove her case got produced the original cheque marked as Ex.P1. She deposed that the signature found on Ex.P.1 is that of this accused. She got identified the signature of the accused marked as Ex.P1(a). She got produced the bank endorsement marked as Ex.P2. She got produced copy of the legal notice along with the RPAD Receipt marked as Ex.P3, Ex.P3(a) respectively. She got produced the unserved postal cover marked as Ex.P.4 and the notice kept in the said cover is marked as Ex.P.4(a).
7 C.C.No.4013/2014
16. Even though the accused has denied the entire case of the Complainant and denied the very fact that he had borrowed the total hand loan of Rs.3,50,000/- from this complainant and he in order to repay the loan amount, had issued Ex.P.1 cheque and the same was bounced, even the learned Counsel for the accused subjected PW1 for cross-examination and he extensively cross-examined the PW1.
17. Even though the PW1 in her cross-examination stated that she is not remembered when exactly she advanced the loan amount to this accused and on which date, but she has stated that the accused had borrowed the loan amount for the medical expenses of his children and after receipt of the loan amount of Rs.2,00,000/- had executed a loan agreement in her favour by agreeing to repay the loan amount along with interest thereon. However, the accused during the cross- examination of PW1 suggested her that she is doing money-lending business for higher rate of interest without any licence from the concerned authorities after collecting cheques from the borrowers. Even though the said suggestion was denied by PW1 in her cross- examination however, the accused has categorically admitted that he has also given his duly signed Ex.P1 cheque towards the security of the loan amount and also admitted that he had executed bond in favour of this Complainant towards the security of the loan amount and also admitted that along with the bond, he has also issued his ATM Card in 8 C.C.No.4013/2014 favour of this Complainant by furnishing his ATM Card PIN Number and with the help of ATM Card with the PIN number the Complainant had withdrawn every month principal loan amount along with interest thereon by monthly installments.
18. The accused during the cross-examination of PW1 even admitted that the PW1 had advanced a sum of Rs.2,00,000/- to this accused and when she went to the accused to demand to return the loan amount the accused once again had borrowed further hand loan of Rs.1,50,000/- even without repaying the earlier loan amount borrowed by him amounting to Rs.2,00,000/-. Even though the PW1 denied the suggestion that she has collected ATM Card along with PIN number from this accused at the time of collecting the bond from this accused and with the help of ATM Card with its PIN number she had withdrawn monthly installment amount along with principal amount and interest, from the bank account of the accused, however, she has categorically admitted the advancement of loan amount of Rs.2,00,000/- to the accused and even admitted the advancement of further loan amount of Rs.1,50,000/- to accused before he repay the earlier loan amount of Rs.2,00,000/- borrowed by him from PW1. The accused by suggesting these suggestions to PW1, has categorically admitted the entire case of the Complainant along with the loan transaction and also 9 C.C.No.4013/2014 execution of the Loan Agreement in favour of PW1 after receipt of the loan amount of Rs.2,00,000/-.
19. The accused has taken up defence that he has not personally received the notice issued by this PW1 prior to filing of this complaint and as such the very complaint filed by the Complainant is not maintainable as this Complainant has not complied the mandatory provision of Section 138 of N.I. Act. Though the accused during the cross-examination of PW1 suggested that she has not sent the notice to the correct address of this accused and as such the accused has not received Ex.P3 notice. The said suggestion was denied by PW1. She further denied the suggestion that as on date of issuance of Ex.P3 notice the accused was not residing in the address disclosed in Ex.P3 notice. She further denied the suggestion that she by misusing the duly signed blank cheque issued by this accused towards the security of the financial transaction, filed this false complaint with an intention to make a wrongly gain for herself and to cause monetary loss to this accused. However, PW1 in her cross-examination denied the entire suggestions put to her and denied that she by misusing the duly signed blank cheque of this accused, created the same for Rs.3,50,000/- and filed this false complaint based on a created and concocted document. 10 C.C.No.4013/2014
20. The accused except putting some suggestions to PW1 that he is not liable to pay cheque amount, nothing has been elicited from her mouth to disbelieve her testimony or to discard her evidence.
21. The accused has not chosen to deny a fact that Ex.P1 is belong to him. The accused even admitted his signature found on Ex.P1 - Cheque marked as Ex.P.1(a). The accused even did not chosen to deny a fact that his Ex.P1-cheque was bounced with a specific reason "insufficient funds". The accused did not chosen to deny a fact that his Ex.P1 - Cheque was produced before this court by PW1. No doubt, the accused during the cross-examination of PW1 put a suggestion that his duly signed blank cheque was misused by this Complainant issued towards the security. However, the defence of the accused was categorically denied by PW1 in her cross-examination.
22. However, the accused has not chosen to deny the documentary evidence adduced by the PW1 before this court marked as Ex.P.1 to Ex.P4. Likewise, PW1 categorically deposed that immediately after the receipt of Ex.P2 bank endorsement, she got issued Ex.P3 notice and the same was returned with a postal shara "not claimed by the addressee". Though these facts were denied by the accused and he denied the very fact that this Complainant has sent the Ex.P3 notice to his correct address and even inspite of service of notice, he has refused 11 C.C.No.4013/2014 to receive the notice. However, PW1 during her cross-examination denied the entire suggestion put to her with respect to service of notice to this accused and also denied the suggestion that she intentionally did not send the notice to the correct address of this accused and as such no notice is served on this accused.
23. Admittedly, the accused except putting suggestion to PW1 during her cross-examination that she has not sent the notice to his correct address and therefore, it is not served on him, has not chosen to suggest what is his correct address and where exactly he is residing as on date of Ex.P3 notice. Admittedly, no such suggestion was put to PW1 by suggesting the correct address of this accused. Moreover, the Ex.P3 notice was not returned as "no such address or the accused is not residing in the address". However, admittedly, the Ex.P4 postal cover discloses that "not claimed by the addressee". In such situation, the testimony of PW1 that she has sent the notice to the last known address of this accused and this accused intentionally avoided to receive the notice is fully convinced this court.
24. Admittedly, after knowledge of Ex.P3 notice the accused neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. In such situation, an adverse inference has to be drawn against this accused that he after knowledge 12 C.C.No.4013/2014 of the Legal Notice, by admitting the contents of the notice and also by admitting his liability to pay the cheque amount, did not resisted the claim of the Complainant
25. However, PW1 has deposed that the accused even after knowledge of the Legal Notice as per Ex.P3, has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction and also by denying the contents of the notice.
26. The oral and documentary evidence adduced before this court by the Complainant clearly proves that the accused even inspite of knowledge of Legal Notice, has failed to make payment of the cheque amount.
27. However, the PW1 by adducing oral and documentary evidence before this court proved that the notice issued u/Sec.138 (b) of N.I. Act was served on this accused and he intentionally avoided to receive the notice and even after completion of statutory period of limitation, the accused has failed to make payment of the cheque amount. Admittedly, the entire burden is on this accused to rebut the case of the Complainant and also to rebut the presumption available to this Complainant u/Sec.139 of N.I Act.
13 C.C.No.4013/2014
28. The accused in order to prove his defence and to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act, stepped into the witness-box and got examined as DW1. He deposed that he was also working as a KSRP Constable and he has taken voluntary retirement in the month of October 2012. He deposed that he has not borrowed any loan from this Complainant and even he has not issued his Ex.P1 cheque towards the repayment of the loan amount. He deposed that he is not aware how his duly signed blank cheque came into the hands of this Complainant, however he has kept his duly signed blank cheque for his convenience at his house and his cheque was misplaced from his house. He deposed that the Complainant might have thefted his cheque from his house and she has misused his cheque for her convenience and filed this false complaint. He deposed that he is residing at No.150, 1st Main Road, Jakkasandra Extn., I Block, Koramangala, Sarjapura Road, Bangalore since from 1.9.2013 for a period of one year and he got produced the Rent Agreement marked as Ex.D1.
29. He further deposed that previously he was resided at Devarachikkanahalli and the Rent Agreement was made in the name of his son Sri. Narayanaswamy and he got produced the Rent Agreement marked as Ex.D2. He has categorically deposed that he is not liable to 14 C.C.No.4013/2014 pay the cheque amount to the Complainant. DW1 prays to dismiss the complaint.
30. The Complainant has denied the testimony of DW1 and his learned Counsel subjected DW1 for cross-examination. DW1 in his cross-examination categorically admitted that prior to he has taken his voluntary retirement from his service he was very much residing in the address disclosed in this complaint and this Complainant is his neighbour. He admitted the suggestion that as his son was suffering from T.B. he was regularly providing him treatment. However, he has categorically denied the suggestion that for the medical expenses of his son he has taken loan of Rs.3,50,000/- from this Complainant and towards repayment of the loan amount, he had given his Ex.P1 cheque. Even though the DW1 denied the entire suggestions put to him and denied that he has issued his Ex.P1 towards repayment of the loan amount of Rs.3,50,000/- to this Complainant and he with an intention to ran away from his liability, is deposing false before this court. On the contrary, DW1 has categorically admitted that Ex.P1 cheque is belonged to his bank account number and even admitted that Ex.P1(a) signature is that of him.
31. Even though the DW1 denied his liability to pay the cheque amount to PW1 however, as I have discussed supra, the DW1 himself 15 C.C.No.4013/2014 has categorically admitted that the address disclosed in the cause title is that of his residential address and even he was resided in the address disclosed in Ex.P3 prior to his retirement from the service. The accused except taking the defence that the Complainant has not issued the notice to his correct address and no notice was served on him before filing this complaint, has utterly failed to prove that as on date of Ex.P3 notice he was not resided in the address disclosed in Ex.P3. Moreover, the Ex.D1 and Ex.D2 documents are subsequent to the date of Ex.P3 notice relating to 1.9.2013. In such situation the testimony of DW1 that as on date of Ex.P3 he was not resided in the address disclosed in Ex.P3 and as such no notice is served on him, cannot be acceptable and believable.
32. Moreover, As I have discussed supra, the accused during the cross-examination of PW1 by suggesting PW1 that he had borrowed total hand loan of Rs.3,50,000/- from her and towards the repayment of the loan amount, he had given his duly signed blank cheques and a bond paper.
33. Admittedly, the DW1 except adducing the oral evidence that he had given his duly signed blank cheques in favour of this Complainant as a security to the loan amount of Rs.3,50,000/-, has utterly failed to prove his defence to the satisfaction of the court by 16 C.C.No.4013/2014 adducing documentary evidence before this court. Likewise, the defence of the accused that the Complainant has misused his duly signed blank cheques issued towards the security of the loan amount of Rs.3,50,000/- and created the cheque for Rs.3,50,000/- and filed this false complaint, cannot be believable and acceptable. Admittedly, the accused has not produced any piece of document before this court to believe his defence and to believe his testimony. The oral evidence of DW1 itself is not sufficient and convincing to believe his defence and to discard the case of the Complainant.
34. As I have discussed supra, the DW1 has utterly failed to prove his defence that his duly signed blank cheque was misused by the Complainant and created the cheque for Rs.3,50,000/- and filed this false complaint.
35. The entire burden is on this accused to prove that he had issued his duly signed blank cheques in favour of this Complainant towards the loan amount of Rs.3,50,000/- and his cheque has misused for Rs.3,50,000/- and created the same as Ex.P1 and presented the same before this court. The accused has utterly failed to prove his defence to the satisfaction of the court by adducing cogent and convincing evidence before this court.
17 C.C.No.4013/2014
36. The oral evidence adduced before this court by the accused is not convinced this court and it will not rebut the case of the Complainant and also his oral and documentary evidence as well as it will not rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. The accused has utterly failed to prove that there was no any loan transaction in between him with this Complainant much less amounting to Rs.3,50,000/- and he has not issued the Ex.P1 cheque towards repayment of the debt or other liability. In such situation, the defence taken by the accused during the course of trial, cannot be believable and acceptable. Even when this accused was questioned u/Sec.313 of Cr.P.C. by this court, accused except denying incriminating evidence deposed against him by PW1, has not chosen to put forth any defence from his side. Likewise, the Accused has utterly failed to rebut the presumption available to this Complainant u/Sec.118 and also u/Sec.139 of N.I. Act it reads thus respectively.
37. As per the provisions of Sec.118, which reads thus:
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 transferred, was accepted, indorsed, negotiated or transferred for consideration; b. As to date - that every negotiable instrument bearing a date was made or drawn on such date;
c. As to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;18 C.C.No.4013/2014
d. As to time of transfer - that every transfer of a negotiable instrument was made before its maturity;
e. As to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
f. As to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped;
g. That holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course;
38. Likewise, the accused also failed to rebut the presumption available to this Complainant u/s.139 of N.I. Act which reads:
It shall be presumed, unless 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, of any debt or other liability.
39. The arguments of the learned Counsel for the accused that the Complainant has utterly failed to prove the advancement of loan amount of Rs.3,50,000/- by way of cash to this accused by adducing documentary evidence before this court. He further argued that the Complainant had thefted the duly signed blank cheque from the house of this accused kept by him for his convenience and created the same as Ex.P1 for Rs.3,50,000/- and presented the same for encashment even though this accused was not liable to pay a sum of Rs.3,50,000/- to this Complainant. He further argued the notice issued by this Complainant as per Ex.P3 was not served on this accused and this Complainant has 19 C.C.No.4013/2014 not served the notice to the correct address of the accused and therefore, the very complaint filed by the Complainant without complying the mandatory provision of Section 138 of N.I. Act is not maintainable and therefore, complaint has to be dismissed.
40. He further argued that this accused by adducing evidence before this court, has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act and by considering all these facts and records available on record by giving the benefit of doubt in favour of this accused, accused has to acquitted. His arguments is not convinced this court and it cannot be acceptable. The arguments of the learned Counsel for the accused is that the accused has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act by adducing oral evidence before this court and by considering the evidence adduced before this court by the accused, the accused has to be acquitted, is also not convinced this court and it holds no merit. His further arguments that the Complainant has failed to prove her financial capacity to advance the huge loan amount of Rs.3,50,000/- to this accused and there is no document from the side of this Complainant to prove that as on date of Ex.P1 cheque there existing a legally enforceable debt or other liability on this accused and he by 20 C.C.No.4013/2014 admitting his liability, had issued his Ex.P1 cheque is also not convinced this court and it can not be acceptable.
41. As I have discussed supra, the accused during the cross- examination of PW1 by putting suggestions to PW1, has categorically admitted the entire case of the Complainant along with issuance of cheque towards repayment of the loan amount. In such situation, the arguments canvassed by the learned Counsel for the accused cannot be acceptable and it holds no merit. The judgement relied by the learned Counsel for the accused in support of his arguments reported in 2016 (1) AKR 211 between A.M. Govindegowda Vs. B. V. Ravi wherein it is held that;
"Negotiable Instruments Act (26 of 1881) S.138 - Dishonour of cheque - "Legally enforceable debt " - Accused categorically denied having taken loan from Complainant - Complainant failed to produce his pass book or any other document to show that as on relevant day, he had that much of amount so as to lend same to accused - In absence of legally enforceable debt, accused liable to be acquitted".
ILR 2007 KAR 2709 between M. Senguttuvan Vs. Mahadevaswamy wherein it is held that;
"That the presumption u/Sec.139 of the Accused need not be rebutted only by leading defence evidence and the said presumption can be rebutted even on the basis of the facts elicited in the cross-examination of the Complainant as has been done in the present case - Judgment of acquittal is justified. "21 C.C.No.4013/2014
AIR 2008 Supreme Court 1325 between Krishna Janardhan Bhat Vs. Dattatraya G. Hedge wherein it is held that;
"Accused not required to step into witness-box to prove his defence. He may discharge his burden on the basis of materials already brought on record - Question whether statutory presumption rebutted or not - Must be determined in view of other evidences on record."
ILR 2007 KAR 3368 between Nagaraja Upadhya Vs. M. Sanjeevan wherein it is held that;
"N.I. Act 1881 -Secton 138 - Offence under - Acquittal - Appealed against - Re-appreciation of evidence on record- Contents of the cheque has been filled up by the employee of the Complainant and not by the accused - Disputed signature of the accused on the cheque - Failure to prove - Accounts was closed not at the instance of the accused but at the instance of the Bank
- Held, offence under Sec.138 of the N.I. Act is not attracted - Judgement of acquittal is confirmed."
ILR 2009 KAR 172 between Sri A. Viswanatha Pai Vs. Sri Vivekananda S. Bhat wherein it is held that;
"Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act; as, Section 139 merely raises a presumption in favour of the Complainant that the Accused has issued for discharge of any debt and other liability."
ILR 2008 KAR 4629 between Shiva Murthy Vs. Amruthraj wherein it is held that;
"Before considering the conduct of the Accused to find out as to whether or not he has been able to rebut the Statutory Presumption available under Section 139, the Court ought to have considered as to whether the Complainant has proved the existence of legally enforceable debt. It is only after satisfying that the 22 C.C.No.4013/2014 Complainant has proved existence of legally enforceable debt or liability, the courts ought to have proceeded to draw presumption u/Sec. 139 of N.I. Act and thereafter find out as to whether or not the Accused has rebutted the presumption."
The law laid down in these judgments is not applicable to the facts of the present case on hand and it is nowhere helpful to the defence taken by the accused.
42. On the contrary, the learned Counsel for the Complainant has vehemently argued that the Complainant before filing of this complaint, has followed all the procedures prescribed u/Sec.138 of N.I. Act and this Accused even after knowledge of the Legal Notice, the accused intentionally avoided to receive the notice and even after knowledge of the notice, he neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction and by drawing an adverse inference against this Accused, the Accused has to be convicted in accordance with law, is fully convinced this court. Likewise, his arguments that the accused only with an intention to ran away from his liability to make payment of the cheque amount, has taken up the false defence during the course of trial, is also convinced this court and therefore, it is accepted.
43. His further arguments that the accused except taking the defence that he has kept his duly signed blank cheque at his house for 23 C.C.No.4013/2014 his convenience, without explaining why he has left duly signed blank cheque at his house and his cheque was thefted by this Complainant and this accused has totally failed to give explanation and to prove that his cheque was thefted by this Complainant. He further argued that the accused only with an intention to ran away from his liability has taken up the false defence before this court during the stage of trial, therefore, his defence cannot be believable and acceptable is also fully convinced this court. The learned Counsel for the Complainant in support of his arguments also relied upon the judgements reported in 2012 (1) AIR Kar R. 739 between Smt. Umadevi Kumar Vs. Goverdhan Dass wherein it is held that;
"(A) N.I. Act (27 of 1881), S.138 - Dishonour of cheque -
Version of accused that Complainant had stolen a cheque from his house -Accused has not made it clear as to why he had left signed blank cheque in his house - He did not mention date on which he noticed theft of his signed bank cheque - Accused has no case that contents of cheque were filled up by Complainant - His plea of discharge is not tenable - Complainant has proved that accused has drawn disputed cheque in favour of Complainant to discharge legally recoverable debt - Conviction of accused held is proper".
2012 (5) Kar. L.J. 211 High Court of Karnataka between Satish Shetty Vs. Victor D'souza wherein it is held that;
"Petitioner - accused not produced any material to rebut presumption - Finding of guilt of accused by courts below neither perverse nor illegal - keeping in view nature of offence, order relating to sentence modified. "24 C.C.No.4013/2014
2009 (1) Kar. L. J. 481 between N. Hasainar Vs. M. Hasainar wherein it is held that;
"N.I. Act, 1881, Sections 118, 138 and 139 - dishonour of cheque - Trial court acquitted respondent - accused for offence committed under Section 138 of the N.I. Act - Point for consideration - Whether order of acquittal passed by Trial Court is incorrect, illegal, perverse and capricious? - Merely because there is discrepancy in amount mentioned in words and figure, cheque cannot be termed as invalid- Under Sections 139 and 118 of the N.I. Act presumption is to be drawn in favour of appellant - Complainant that respondent issued said cheque towards repayment of the legally recoverable debt - Mere denial will not constitute rebuttal of evidence of appellant - Complainant - It cannot be held that respondent had successfully rebutted presumption available in favour of Complainant - appellant - Trial Court dismissed complaint on technical ground without proper appreciation of evidence - Appeal allowed".
The law laid down in these judgements are amply applicable to the facts of the present case on hand and it is helpful to the case of the Complainant.
44. The complainant by adducing oral and documentary evidence before this court has proved the guilt of the accused beyond all reasonable doubt. There is no whatsoever doubt in the mind of court about the case of the complainant. The oral and documentary evidence adduced before this court by the complainant is fully corroborating with each other and convinced this court about this case. The complainant by adducing oral and documentary evidence before this 25 C.C.No.4013/2014 court bring home the guilt of the accused beyond all reasonable doubt. Therefore, by taking into consideration the facts and circumstances and evidence available on record, I answer this Point No.1 in affirmative.
45. Point No.2. In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255 (2) of Cr.P.C. the accused is hereby convicted for the offence punishable u/Sec.138 of N.I. Act.
The accused is sentenced to pay a fine of Rs.4,50,000/- (Rupees Four Lakhs and Fifty Thousand only). In any default to pay fine amount shall under go simple imprisonment for 6 months.
Out of fine amount recovered under Section 357 of Cr.P.C. a sum of Rs.4,45,000/- (Rupees Four Lakhs and Forty- five thousand only) shall be paid to the complainant which includes the cheque amount and also cost of the proceedings. Remaining fine amount of Rs.5,000/- shall be forfeited to State.
The bail bond and surety bonds of the accused stands cancelled.
Office to furnish free copy of the judgement to the accused forthwith.
(Dictateda to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 3rd day of May 2016) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bangalore 26 C.C.No.4013/2014 ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mrs.Padma @ Padmavathi Witnesses examined on behalf of the Accused: D.W.1 Mr. Venkatappa
Documents marked on behalf of the Complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of the accused
Ex.P.2 Bank endorsement
Ex.P.3 Copy of the legal notice
Ex.P.3(a) RPAD Receipt
Ex.P.4 Unserved Postal Cover
Ex.P.4(a) Notice kept in the cover
Documents marked on behalf of the Accused:
Ex.D1 & Ex.D2 Two Rent Agreements
XIX ACMM, B'lore.