Bangalore District Court
Satish Sadasivan vs Ravindran M on 19 February, 2025
KABC0C0119082019
IN THE COURT OF XXXIV ADDL. CHIEF JUDICIAL MAGISTRATE,
MAYO HALL UNIT, BENGALURU (ACJM-34)
PRESENT: Smt.PARVEEN A BANKAPUR,B.Com.LLB.
XXXIV ADDL. CHIEF JUDICIAL MAGISTRATE
Dated : This the 19th day of February, 2025.
C.C.No.53321/2019
COMPLAINANT : Mr. Satish Sadasivan
S/o. Sri M.K. Sadasivan
Aged about 46 years
R/at No.E-311, Grihalakshmi Apts.,
13/2, S M Road, Jalahalli West,
Bengaluru - 560 015.
(By Mr. Sahana Basavapatna -
Advocates)
V/s
ACCUSED : Mr. Ravindran M.
S/o. Bore Muniyappa,
R/at No. A-302, Brigade Courtyard,
HMT Factory Main Road, Jalahalli,
Bengaluru -560 015.
Also R/at C/o Bore Muniyappa,
Chowdanahalli Grama,
Jayamangala Post, Lakkur Hobli,
Malur Taluk, Malur - 563 103.
Kolar District.
(By Mr. Niranjan Gonig - Advocate)
1 Date of Commencement 27.12.2016
of offence
2 Date of report of offence 07.03.2017
3 Presence of accused
3a. Before the Court 28.08.2027
3b. Released on bail 28.08.2027
4 Name of the Complainant Mr. Satish Sadasivan
5 Date of recording of 05.06.2017
evidence
6 Date of closure of evidence 07.11.2024
7 Offences alleged U/s 138 of tche Negotiable
Instruments Act
8 Opinion of Judge Accused is found guilty
2 C.C.No.53321/2019
JUDGEMENT
The Private Complaint filed by the Complainant under Section 200 of Cr.P.C. against the accused alleging that he has committed the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as follows:
The complainant submits that, he had purchased a property for valuable consideration vide absolute sale deed dtd.15.3.2006. All that part and parcel of the property, being residential site plot, bearing site/plot No117 in the layout 'Renaissance HVV Valley", developed on the converted lands bearing Sy.No.43 and 42, situated at JB Kaval, Yelahanka Hobli, Bengaluru North Taluk, Bengaluru and measuring East to West 18.28 meters and North to South 12.19 metres and totally measuring about 222.83 squares (2400 sqft).
It is further submitted by the Complainant that one Mr. Pandian, who is the Gym Trainer introduced the Accused as the real estate dealer, along with many other business in mid 2013. In the year 2014 the Complainant wanted to sell his above said property to fulfill his family necessities. With the suggestion of Mr.Pandian, the Accused was asked to deal in 3 C.C.No.53321/2019 this property and copies of the property documents were handed over to the Accused.
It is further submitted by the Complainant that he had taken loan on this property and payment of Rs.10 lakhs was due. The The original papers are with the bank. Mr. Gopal, the proposed buyer, gave the advance amount of Rs.10 lakhs, by which the Accused was closed and original property papers were obtained. Mr. Bharath witness the said advance payment towards purchase of said property. The total consideration was set at Rs.78 lakhs, out of which Rs.10 lakhs was paid and remaining Rs.68 lakhs was to be paid on or before the registration of the property in the name of Mr.Gopal M. The Complainant further submitted that the Accused came forward to pay the remaining consideration amount in cash, then he requested to transfer the amount to his account. Before transferring the amount to his account, absolute sale deed was entered on 4.7.2014 and was registered same day in Sub. Registrar office. For which the Accused and Mr. Bharath N. became the witnesses. He believing the words of the Accused and as the Accused promised to transfer to his account the balance amount immediately after the registration, executed 4 C.C.No.53321/2019 this sale deed. After registration the Accused along with Mr. Gopal and Mr. Bharat are trying to evade the payments. All of them hand in gloves with other cheated the Complainant.
It is further submitted by the Complainant that he approached the CCB police on 27.4.2015 and filed police complain . After filing of the complaint, the Accused has agreed to pay the balance amount due and in furtherance of the same, the Accused has handed over two Cheques to him, but both were dishonoureded on 19.11.2015.
It is further submitted that when he could not contact the Accused even after many attempts, the again approached the CCB police. The Accused once again Accused accepting liability, had issued a Cheque bearing No.578166 dtd.27.12.2016 for Rs.90,00,000/- drawn on ICICI Bank, Rajajinagar branch, Bengaluru.
It is further submitted that as per the instruction of the Accused, he presented the Cheque for encashment through his banker Citi Bank N.A. Chennai on 30.12.2016. But it was dishonoured for the reason "funds insufficient". He once again presented the said Cheque for encashment, but even on the second time on 18.1.2017, it came to be dishonoured with 5 C.C.No.53321/2019 reason "funds insufficient" on the same day. Thereafter, the Complainant got issued demand notice through RPAD as well as by Ordinary Post on 7.2.2017 through his counsel to the Accused. But the notice sent through RPAD was returned with a shara 'name is not correct'. The Complainant on 20.2.2017 sent legal notice to the Accused permanent address, which was also returned with a shara person is not available. Inspite of knowledge of the legal notice, the Accused has not paid the cheque amount. Hence, the Complainant has filed the present complaint against the Accused for the offence punishable u/Sec.138 of N.I. Act.
3. Based on the complaint, the sworn statement affidavit, and documents etc., took cognizance of an offence punishable Under Section 138 of N.I. Act by following the guidelines of Apex Court issued in Indian Bank Association case and ordered to be registered a criminal case against the accused for the offence punishable Under Section 138 of N.I. Act.
4. After issuance of summons, accused appeared before the court and enlarged himself on bail. Plea was recorded, read over and explained to the accused, who pleads not guilty and 6 C.C.No.53321/2019 claims to be tried. Hence, the case is posted for complainant's evidence.
5. The Complainant got examined himself as PW-1 and got marked documents Ex.P.1 to Ex.P.24 and closed his side. Ex.P25 and 26 documents came to be marked through confrontation during the cross-examination of DW1.
6. Accused was examined U/S 313 of Cr.P.C.
Incriminating evidence appearing in the complainant's evidence was read over and explained to the accused who denies the same. The Accused examined himself as DW1 and no documents were marked from his end and closed his side.
7. Heard both counsels at length in great detail. In addition to the oral arguments, the learned counsel for Complainant has filed the written arguments.
The learned counsel for Complainant has placed the following citations;
1. AIR 2014 SC 3519 in the case of Dashrath Rupsingh Rathod V/s. State of Maharashtra & Another
2. 2022 SCC Online 1089 in the case of Oriental Bank of Commerce V/s. Prabodh Kumar Tiwari
3. 2021 (5) SCC 283 in the case of Kalamni Tex and another V/s. P. Balasubramanian
4. AIR 2020 SC 818 in the case of Rajeshbhai Muljibhai Patel V/s. State of Gujarat 7 C.C.No.53321/2019
5. 2019 (4) SCC 197 in the case of Bir Singh V/s. Mukesh Kumar
6. (2010) 11 SCC 441 in the case of Rangappa Mv. Sri Mohan
7. 2017 (5) SCC 737 in the case N. Parmeswaran Unni V/s G. Kanna and another
8. 2007 (6) SCC 555 in the case of Alavi Haji V/s. Palapetty Muhammad and another
8. Upon hearing the arguments and on perusal of the materials placed on record, the following points arise for my consideration.
1) Whether complainant proves beyond all reasonable doubts that accused in discharge of legally recoverable debt, has issued a Cheque No.578166 dtd.27.12.2016 for Rs.90,00,000/-
drawn on ICICI Bank, Rajajinagar branch, Bengaluru. in favour of the complainant which came to be dishonoured with an endorsement "funds insufficient" and in spite of knowledge of notice accused has not paid the Cheque amount and thereby committed an offence under Section 138 of N.I.Act?
2) What Order?
9. My findings on the above points is:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS Point No.1:-
10. Existence of legally recoverable debt is a sine qua non for prosecuting the case under Section 138 of Negotiable 8 C.C.No.53321/2019 Instruments Act. For convenient purpose the essential ingredients to constitute offence under section 138 of N.I.Act is summarized as below:
(i) That there must be a legally enforceable debt.
(ii) That the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes the legally enforceable debt.
(iii)That the cheque so issued had been returned due to "insufficient funds".
11. It is the core contention of the complainant that, he had purchased a property for valuable consideration vide absolute sale deed dtd.15.3.2006. All that part and parcel of the property, being residential site plot, bearing site/plot No.117. One Mr. Pandian, who is the Gym Trainer introduced the Accused as the real estate dealer, along with many other business in mid 2013. In the year 2014 the Complainant wanted to sell his above said property to fulfill his family necessities. With the suggestion of Mr.Pandian, the Complainant was asked to deal in this property and copies of the property documents were handed over to the Accused. It is further submitted by the Complainant that he had taken loan on this property and payment of Rs.10 lakhs was due. The The 9 C.C.No.53321/2019 original papers are with the bank. Mr. Gopal, the proposed buyer, gave the advance amount of Rs.10 lakhs, by which the Accused was closed and original property papers were obtained. Mr. Bharath witness the said advance payment towards purchase of said property. The total consideration was set at Rs.78 lakhs, out of which Rs.10 lakhs was paid and remaining Rs.68 lakhs was to be paid on or before the registration of the property in the name of Mr.Gopal M.
12. The Complainant further submitted that the Accused came forward to pay the remaining consideration amount in cash, then he requested to transfer the amount to his account. Before transferring the amount to his account, absolute sale deed was entered on 4.7.2014 and was registered same day in Sub. Registrar office. For which the Accused and Mr. Bharath N. became the witnesses. He believing the words of the Accused and as the Accused promised to transfer to his account the balance amount immediately after the registration, executed this sale deed. After registration the Accused along with Mr. Gopal and Mr. Bharat are trying to evade the payments. All of them hand in gloves with other cheated the Complainant. It is further submitted by the Complainant that he approached 10 C.C.No.53321/2019 the CCB police on 27.4.2015 and filed police complaint. After filing of the complaint, the Accused has agreed to pay the balance amount due and in furtherance of the same, the Accused has handed over two Cheques to him, but both were dishonoureded on 19.11.2015.
13. It is further submitted that when he could not contact the Accused even after many attempts, the again approached the CCB police. The Accused once again Accused accepting liability, had issued a Cheque bearing No.578166 dtd.27.12.2016 for Rs.90,00,000/- drawn on ICICI Bank, Rajajinagar branch, Bengaluru, which was dishonoured for the reason "funds insufficient". He once again presented the said Cheque for encashment, but even on the second time on 18.1.2017, it came to be dishonoured with reason "funds insufficient" on the same day. Thereafter, the Complainant got issued demand notice through RPAD as well as by Ordinary Post on 7.2.2017 through his counsel to the Accused. But the notice sent through RPAD was returned with a shara 'name is not correct'. The Complainant on 20.2.2017 sent legal notice to the Accused permanent address, which was also returned with a shara person is not available. Inspite of knowledge of 11 C.C.No.53321/2019 the legal notice, the Accused has not paid the cheque amount. Hence, the Complainant has filed the present complaint against the Accused for the offence punishable u/Sec.138 of N.I. Act.
14. In order to bring home the guilt of the accused, complainant has examined himself as PW1 and reiterated the contents of complaint in his examination-in-chief. He has also placed the original Cheque bearing No.578166 dtd.27.12.2016 at Ex.P.1, bank endorsements at Ex.P2 and 3, office copy of legal notice issued by the Complainant to the Accused on 7.2.2017 at Ex.P4, postal receipts at Ex.P5 and 6, Postal returned postal cover at Ex.P7, Ex.P7 (a) is the original notice, Ex.P8 is the returned cover, Ex.P8(a) is the original notice, Ex.P9 is the complaint and signatures are at Ex.P9(a) and Ex.P9(b), Ex.P10 is the copy of Certificate of Incorporation, Ex.P11 is the company Master Data copy, Ex.P12 is the certified copy of absolute sale deed dtd.4.7.2014, Ex.P13 is the copy of Encumbrance Certificate, Ex.P14 is the copy of Whatsapp chatts, Ex.P15 is the cheque bearing No.578133 for Rs.38 lakhs, Ex.P16 and 17 ares the bank endorsements, Ex.P18 is the cheque bearing No.578131 for Rs.50 lakhs, Ex.P19 and 20 are the bank endorsements, Ex.P21 is the 12 C.C.No.53321/2019 original loan agreement, Ex.P22 is the copy of complaint to Dy. Commissioner of Police, Ex.P23 is the copy of registration of NCR, Ex.P24 is the Certificate u/Sec 65 (B) of Indian Evidence Act, Ex.P25 is the certified copy of judgement in Cri.Apl.No.2371/2019 and Ex.P26 is the certified copy of judgment in C.C.No.50483/2018.
15. The documents produced by the complainant of course established that complainant meets out the procedural requirements of Section 138 of Negotiable Instrument Act, but it is to be considered whether all these documents establish the offence committed by the accused.
16. The Negotiable Instruments Act raises two presumptions. One contained in Section 118 and the other in Sec. 139 thereof. For the sake of convenience Sec 118(1) of the N.I. Act is extracted here below:
118. Presumptions as to negotiable Instruments--
Until 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 transferred, was 13 C.C.No.53321/2019 accepted, indorsed, negotiated or transferred for consideration.
1. To (g) . . . . . . . . . . . .
Provided that where the instrument has been obtained from its lawful owner, or from an person in lawful custody thereof, by means of an offence of fraud, or has been obtained from the maker or acceptor thereof by means of an offence of fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him".
17. Further Section 139 of the Negotiable Instruments Act reads as under:
"139, Presumption in favour of holder. 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."
Scope and ambit and function of the presumption U/s 118(a) and Sec 139 of NI Act came to be considered by the Hon'ble Apex Court of Indian in Krishna Janardhan Bhat Vs Dattatraya G.Hegde (2008 AIAR (Criminal 151) The Supreme Court has laid down the law in the following phraseology.
"D Negotiable Instruments Act 1881, Secs 139, 138--Presumption under-same arises in regard to second aspect of the matter provided under Sec 138-- Existence of legally enforceable debt is not a matter of 14 C.C.No.53321/2019 presumption under Sec 139- It merely raises presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability - Merely an application of presumption contemplated under Section 139 of N.I.Act should not lead to injustice or mistaken conviction."
18. Further, said decision was followed by Hon'ble High Court of Karnataka in Kempanarasimhaiah Vs P.Rangaraju & Others (2008 (5) KCCR 3371). Relevant paragraph of the said judgment reads as under: -
"12. As to the provisions of Sections 138 of N.I.Act, the following principles emerge from the above observations of Hon'ble Supreme Court at para Nos 21, 23, 25, 26 and 34 of its Judgment in the above said case of Krishna Janardhan Bhat Vs Dattatraya G.Hegde, AIR 2008 SC 1325.
(i) Section 139 of the Act merely raises a presumption that the cheque was issued towards discharge in whole or in part in any debt or other liability, which presupposed legally enforceable debt. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability." (para 21)
(ii) The question as to whether the presumption stood rebutted or not, must be determined keeping in view the other evidences on record. Where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their 15 C.C.No.53321/2019 legal requirements are required to be taken into consideration. (para 26)
(iii) An accused, for discharging the burden of proof placed upon him under a statute, need not examine himself.
He may discharge his burden on the basis of the materials already brought on records (para 23)
(iv) Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Further more where as prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities'" ( para 23 & 25)
(v) Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies ( para 25)
(vi) Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be deliberately balanced (para 34)
19. Thus from the observations extracted above, it is clear that presumption Under Section 139 of the N.I,.Act is only to the extent that the cheque was drawn for discharge in full or in part of any debt or other liability and the said presumption do not relate to the existence of legally enforceable debt or liability. Therefore, before drawing the presumption under section 139 of the N.I.Act, it is the duty of the Court to see whether or not the complainant has discharged his initial burden as to existence of legally enforceable debt. No doubt, as 16 C.C.No.53321/2019 per Section 118(a) of the Act, there is a rebuttable presumption that every negotiable instrument, is accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration."
20. Factual matrix of the case is required to be tested on the anvil of principles emerging from the above-referred decisions.
21. The defence taken by the Accused is that, Complainant known to him through one Mr. Gopal, he has not purchased or taken any property from the Complainant, he approached Mr.Gopal for purchase of property and issued 3 cheques to him which were dishonoured by Complainant and there is no relationship between selling of property to Mr.Gopal. It is further submitted by the Accused there is no any transaction between Complainant and Accused and Ex.P1 cheque was issued in favour of one Mr.Gopal.
22. In order to substantiate his claim, the Complainant examined himself as PW1 and he deposed that he had purchased property bearing site No.117 in Sy.No.43 and 42 through absolute sale deed on 15.3.2006. It is further 17 C.C.No.53321/2019 submitted that, one Mr. Pandian who is the Gym trainer introduced the Accused as a real estate dealer in the middle of 2013 and in 2014 Complainant wanted to sell his property which he has purchased for his family necessity and with the suggestion of Mr. Pandian, the Accused was asked to deal this property and copies of property documents were handed over to the Accused. It is further deposed that, the Complainant taken loan on said property and Rs.10 lakhs amount was due and original papers of the said property with the bank. It is further deposed that, Mr. Gopal the proposed buyer gave the advance amount of Rs.10 lakhs by which the loan was closed and original property papers were obtained. It is further deposed that, Mr. Bharat witness to the said advance payment towards the purchase of property. It is further deposed that, the total sale consideration was set at Rs.78 lakhs, out of which, Rs.10 lakhs was paid and remaining Rs.68 lakhs was to be paid on or before registration of the property in the name of Mr. Gopal. It is further deposed that, the Accused came forward to pay the remaining consideration amount in cash, then Complainant requested him to transfer the amount to his account. It is further deposed that, before transferring the amount, absolute 18 C.C.No.53321/2019 sale deed was executed on 4.7.2014 in the name of Mr.Gopal and Accused and Mr.Bharath were witnesses to the said sale deed. It is further deposed that, the Complainant believed the words and promise of the Accused to transfer the balance amount in his account after registration. It is further deposed that, the Accused along with Mr.Gopal and Bharath are trying to evade the payments and all of them in hands in gloves cheated the Complainant. It is further deposed that, the Complainant approached CCB police on 27.4.2015 and filed complaint. It is further deposed that, after filing of complaint, the Accused agreed to pay the balance amount due and handed over two cheques for Rs.50 lakhs and Rs.38 lakhs and both cheques were dishonoured on 19.11.2015 with reason "funds insufficient". It is further deposed that, again the Complainant approached the CCB police and Accused again handed over one Ex.P1 cheque for Rs.90 lakhs and assured honouring of the cheque on the date. But, the said cheque was dishonoured with reason "funds insufficient" as per Ex.P2 and 3. It is further deposed that, accordingly the Complainant got issued legal notice to the Accused as per Ex.P4 and said notice was returned with unserved. It is further deposed that, accordingly, 19 C.C.No.53321/2019 he filed complaint against the Accused for the offence punishable u/Sec.138 of N.I. Act.
23. Considering the oral and documentary evidence of the Complainant., prima facie it presumed that, Ex.P1 cheque was issued by the Accused towards discharge of legally enforceable debt and liability. To rebut the presumption, learned counsel for Accused cross-examined the PW1 in full length. In the cross-examination it is denied by the PW1 that, he did not know the Accused. He stated in his cross- examination that, since from 2014 there is a financial transaction between himself and Accused. He further stated that, the property was purchased by him from Renaissance Builders in the year 2006 and he is absolute owner in possession of the said property. He denied that he was not handed over the original sale deed to the Accused. He further stated that in the year 2014 he paid the entire bank loan amount. It is further denied that, Accused has not proposed to buy the property through Mr.Gopal. It is further denied that Mr.Gopal only proposed to buy the property. It is admitted by the PW1 that, total sale consideration amount is Rs.78 lakhs and out of that, Rs.10 lakhs advance amount was paid and 20 C.C.No.53321/2019 remaining amount Rs.68 lakhs to be paid by Mr. Gopal. He denied that remaining amount of Rs.68 lakhs to be paid Mr. Gopal only, not by the Accused. He further stated that, Accused, Mr.Gopal, Bharat together cheated him and for that, act of 3 persons, he lodged complaint before CCB Crime Branch. He denied that, entire subject matter is come within the purview of civil nature and he ought to file civil suit for recovery of money. He denied that Accused is not liable to pay Rs.68 lakhs to him.
24. It is pertaining to note that, the Accused has not completed the cross-examination of PW1 inspite of giving sufficient time and opportunity.
25. To rebut the presumption, the Accused examined himself as DW1. He deposed that, the Complainant known to him through Mr. Gopal. He further deposed that he was not purchased any property from the Complainant. He further stated that, he approached Mr. Gopal for purchase of property and for purchase of property he issued 3 cheques to Mr. Gopal and 3 cheques were dishonoured by the Complainant and filed this complaint against him. It is further deposed that, tehre is no any relationship with respect of sale of property by the 21 C.C.No.53321/2019 Complainant to Mr.Gopal and there is no transaction between himself and Complainant. It is further deposed that Ex.P1 cheque was issued by him to Mr. Gopal. It is further deposed that he has not received any notice to his residential address and his official address. It is further deposed that the address mentioned in Ex.P11 belongs to him. It is further deposed that for Ex.P12 he is not witness and signature on Ex.P12 belongs to him. It is further deposed that, Ex.P12 and 13 transaction took place between Mr. Gopal and Complainant for Rs.48 lakhs and for that transaction, he approached to the Complainant. It is further deposed that he signed blank paper as per Ex.P8 and handed over to Mr. Gopal. It is further deposed that signature on Ex.P21 is belongs to him. That signature also signed on blank paper and handed over to Mr.Gopal. It is further deposed that on the complaint as per Ex.P22, police are enquired him.
26. In the cross-examination DW1 admits that, he has not stated that, when and why Ex.P1 cheque was given to Mr. Gopal. He further stated that, he has not taken any legal action against the Complainant for misusing of cheque. He denied that Ex.P1 cheque was issued by him to the Complainant with respect of sale of property. He further denied 22 C.C.No.53321/2019 that the Complainant repeatedly asking him to pay the sale amount. He denied that Ex.P1 and 15 cheques were issued by him to the Complainant. Further he stated that he has not taken any legal action against the Complainant for misusing of Ex.P1, Ex.P15 and Ex.P18 cheques. He further admits that he was not explained that Ex.P21 blank stamp paper by putting his signature and hand over to Mr.Gopal. He further stated that he was not taken legal action against the Complainant for misusing the signed blank stamp paper as per Ex.P21. He further admits that, he was not stated that for what amount, he purchased the property from Mr.Gopal. He admits his signature on Ex.P21 agreement in all pages. He admits that after dishonour of Ex.P15 and 18 cheques, Complainant lodged complaint against him at RMC Yard police station. He denied that after filing of police complaint, he issued Ex.P1 cheque to the Complainant. He admits that one Mr. Harish Singh was filed complaint against him for the offence punishable u/Sec.138 of N.I.Act and in that case he was convicted and appeal preferred by him also dismissed.
27. Considering the oral and documentary evidence placed by both parties, it clear that, the sale deed i.e., Ex.P12 is 23 C.C.No.53321/2019 not denied by the Accused and also not denied his signature on Ex.P12 as a witness. Therefore, it clear that, he know the sale transaction between Complainant and Mr.Gopal. The Accused introduced the Complainant through Mr. Pandian who is a Gym Trainer and agreed to help the Complainant to sell the property and property papers are hand over to the Accused by the Complainant. The main defnece of the Accused is that, he gave 3 cheques i.e., Ex.P1, Ex.P15 and 18 to Mr.Gopal for purchase of property. He has not denied issuance of cheques and also not denied his signatures on the cheque. The only defence is that the purchase of property from Mr. Gopal, he issued above 3 cheques in favour of Mr. Gopal. In the cross-examination he himself admits that the said property was not registered in his name till today. On the other hand, the said property was registered in the name of Mr. Gopal and till today neither Mr.Gopal nor the Accused paid remaining sale consideration amount to the Complainant. It is contention fo the Complainant that the Accused undertake to pay the remaining sale consideration amount by him since the said property was to be purchased by him. But the Accused has not placed any cogent documents or evidence before the court to show that, he 24 C.C.No.53321/2019 intending to purchase the said property from Mr. Gopal and all 3 cheques were issued to Mr. Gopal. Further, the Accused has not examined the said Mr.Gopal for proving that, all 3 cheques were issued to him. In the cross-examination the Accused has not stated that when the cheque was given to Mr.Gopal and he has not taken any legal action against the Complainant for alleged misuse of cheques and also not provided details of what property purchased and value of that property.
28. The contention of the Complainant is that, after failed to pay the remaining balance consideration amount, he approached the police as per Ex.P22. At that time the Accused has issued Ex.P15 and 18 cheques, which are dishonoured. Thereafter he again approached police and thereafter he issued Ex.P1 cheque in favour of Complainant, which was dishonoured with reason "funds insufficient".
29. At the time of argument, the learned counsel for Complainant argued that raises the presumption in favour of Complainant u/Sec.139 of N.I. Act, which the Accused does not displace in his evidence is taken into account in its entirety and relied on a decision of Hon'ble Apex Court in Rangappa V/s. 25 C.C.No.53321/2019 Sri Mohan 2010 (11) SCC 441 para No.26 and 24 and in another case Kalamani Tex and Another V/s. P. Balasubramanian 2021 (5) SCC 283 para No.13 and 15 and another decision Oriental Bank of Commerce v/s. Prabhodh Kumar Tiwari 2022(SCC) 1089 para No.16 and also in the case of Rajesh Bhai Mulzi Bhai Patel V/s. State of Gujarat AIR 2020 SC 818 at para No.20 the Hon'ble Supreme court held that;
"Once the issuance of cheque and the signature thereon is admitted by the Accused, the court is required to raise presumption in favour of Complainant stating that, the Accused has issued the cheque for some consideration towards discharge of his legal debt or liability of the Complainant and that the Complainant is the due holder of the said cheque. The burden shifts on the Accused to rebut the statutory presumptions u/Sec.118(a) and 139 of N.I Act.
30. In the present case also the Complainant has denied issuance of cheque as well as his signature on the cheque. Therefore, Ex.P1 cheque was issued by the Accused in favour of Complainant towards discharge of legally enforceable debt.
26 C.C.No.53321/2019
31. As discussed above, it has to be presumed that the cheque in question was issued by the accused to discharge the legally recoverable debt or liability. The accused can place rebuttal evidence so as to show that the cheque was not issued for consideration. As appreciated supra, accused has failed to put acceptable and satisfactory evidence to probabilise the defence. Therefore, there is no question of saying that the cheque was not issued for liability. Therefore, complainant has discharged his initial onus laid on him. When he has discharged his initial onus, it raises presumption U/s 118(a) and 139 of Negotiable Instruments Act. Accused has failed to rebut the presumption either in cross-examining PW1 or in his evidence.
32. So, far as sentence and compensation is concern, an offence punishable under Section 138 of N.I. Act, is a civil wrong and compensatory in nature, punitive is secondary, considering, the above settled principle of law with facts and circumstances of the case, which clearly reveals that, the Accused has liability to pay the cheque amount to the Complainant and towards discharge of his liability, the cheque in question was issued by the accused to the complainant. 27 C.C.No.53321/2019 Therefore, considering the nature of transaction, duration of pendency, litigation expenses, I am opinion that, if sentence of fine of Rs.1,32,12,000/- (Rupees One Crore Thirty-two Lakhs and Twelve Thousand only) is imposed that would meet the ends of justice, accordingly, the accused is hereby sentenced to pay a fine of Rs.1,32,12,000/- (Rupees One Crore Thirty-two Lakhs and Twelve Thousand only), out of that, the complainant is entitled for sum of Rs.1,32,07,000/- (Rupees One Crore Thirty-two Lakhs and Seven Thousand only) as a compensation as per Sec.357(1) of Cr.P.C., remaining amount of Rs.5,000/-, is to be appropriated to the State, in case of default the accused shall undergo simple imprisonment for a period of 6 months. Accordingly, the Point No.1 is answered in Affirmative.
33. POINT No.2: In view of discussion held in Point No.1, I proceed to pass the following:
ORDER Acting U/S 255(2) of Cr.P.C., the accused is convicted for the offence punishable Under Section 138 of Negotiable Instrument Act.
Accused is sentenced to pay fine of Rs.1,32,12,000/- (Rupees One Crore Thirty-two Lakhs and Twelve Thousand only) in default to 28 C.C.No.53321/2019 undergo simple imprisonment for 6 months.
Further, it is made clear that out of fine amount, Rs.1,32,07,000/- (Rupees One Crore Thirty-two Lakhs and Seven Thousand only) is to be paid to the complainant as compensation and Rs.5,000/- is ordered to be remitted to the State.
Bail bond stands cancelled.
Supply the free copy of this judgement to the Accused forthwith.
(Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in the open court on this 19th February, 2025) (PARVEEN A BANKAPUR) XXXIV ACJM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mr. Satish Sadasivan
2. Documents marked on behalf of complainant:
Ex.P.1 Cheque
Ex.P.2 & 3 Bank endorsements
Ex.P.4 Office copy of legal notice
Ex.P.5 & 6 Postal receipts
Ex.P.7 Returned postal cover
Ex.P.7(a) Original notice
Ex.P.8 Returned Cover
Ex.P.8(a) Original notice
Ex.P.9 Complaint
Ex.P.9(a) & Signatures
Ex.P.9(b)
Ex.P.10 Copy of Certificate of Incorporation,
Ex.P11 Company Master Data copy,
Ex.P12 Certified copy of absolute sale deed
dtd.4.7.2014,
Ex.P13 Copy of Encumbrance Certificate
Ex.P14 Copy of Whatsapp chatts
Ex.P15 Cheque bearing No.578133 for Rs.38 lakhs
29 C.C.No.53321/2019
Ex.P16 & 17 Bank endorsements
Ex.P18 Cheque bearing No.578131 for Rs.50 lakhs
Ex.P19 & 20 Bank endorsements
Ex.P21 Original loan agreement
Ex.P22 Copy of complaint to Dy. Commissioner of Police
Ex.P23 Copy of registration of NCR
Ex.P24 Certificate u/sec 65 (B) of Indian Evidence Act
Ex.P25 Certified copy of Judgement in
Cri.Apl.No.2371/2019
Ex.P26 Certified copy of judgment in
C.C.No.50483/2018.
3. Witnesses examined on behalf of Accused:
D.W.1 Mr. Ravindra
4. Documents marked on behalf of Accused: NIL (PARVEEN A BANKAPUR) XXXIV ACJM, BENGALURU.