Bangalore District Court
M.S Cauvery Homes Pvt Ltd vs Mr. Anwar Ahamed on 23 September, 2024
SCCH-17 1 C.C. No. 22768/2014
KABC020149522014
IN THE COURT OF THE XIX ADDL. JUDGE COURT OF SMALL
CAUSES AND A.C.M.M AT BENGALURU
Dated this the 23rd day of September- 2024
Present: Sri. KANCHI MAYANNA GOUTAM B.A.L, LL.M.,
Member, MACT
XIX ADDL. JUDGE,
Court of Small Causes,
CC No.22768/2014
Complainant: M/s. Cauvery Homes Pvt.
Ltd., No.2-525/5, Old
Airport Road, Behind Pope
Layout, Bajpe,
Mangalore Tq & Dist,
PIN- 574 142
Rep. By its Managing
Director,
Mr. M.V. Raghunath
(By Sri. Shaji T. Verghese., Advocate)
-V/s-
Accused: Mr. Anwar Ahamed,
Aged major,
Proprietor,
Home Land, Realtor &
Property Managers,
SCCH-17 2 C.C. No. 22768/2014
No.9, Jakkur Plantation, NH-7,
International Airport Road,
Yelahanka, Bangalore - 560 064
(By Sri. Venkatesha N., Advocate)
1. The offence Under Sec. 138 of NI Act
2. Plea of accused Pleaded guilty
3. Final order Conviction
4. Date of judgment 23.09.2024
JUDGMENT
The complainant company filed this private complaint under section 200 of Cr.P.C. against the accused for the offence punishable under section 138 of Negotiable Instruments Act.
2. The brief facts of the complainant's case is as follows:
It is alleged that the accused in the month of September 2009 had approached the complainant and promised that he will procure the lands in and around Rajanakunte, Doddaballapura road, for the complainant who was dealing real estate business. Accordingly, on 7.10.2009 the Memorandum of Understanding was SCCH-17 3 C.C. No. 22768/2014 entered between the complainant and accused and on the basis of the terms and conditions stipulated in the MOU, the accused received Rs.90,00,000/- as advance from the complainant and assured that he will procure the land to the complainant within six months of the date of MOU.
It is further alleged that as per the assurance the accused failed to procure the lands within the stipulated time. When the complainant demanded for the repayment of the amount received by the accused, the accused issued three cheques to the complainant on 20.9.2013 and assured that the said cheques will be encashed on its presentation.
3. It is further alleged that the accused issued cheque bearing No. 066682, dated 10.10.2013 for Rs.30,00,000/- , cheque bearing No. 066684, dated 10.11.2013 for Rs.30,00,000/- and cheque bearing No. 066683, dated 28.11.2013 for Rs.30,00,000/- all the cheques drawn on Bank of India Bank, R.T. Nagar Branch in favour of the complainant towards the amount SCCH-17 4 C.C. No. 22768/2014 repayable by him. The complainant presented the said cheques to the drawee bank through Corporation Bank, Hebbal- Gangenahalli Branch. The said cheques was dishonored and returned to the complainant with the endorsement dated 30.11.2013 with a shara of "Funds Insufficient".
4. Thereafter, the complainant issued legal notice, dated 26.12.2013 to the accused calling upon him to pay the amount mentioned in the cheques. The said notice was retunred unserved on 30.12.2013 with a shara of 'Addressee left'.
5. It is alleged by the complainant company that the accused issued the said cheques by knowing fully well that there are insufficient funds in his bank account and have committed the offence punishable under Sec. 138 of NI Act. Hence, the present complaint.
6. Upon taking cognizance and after recording the sworn statement of the complainant, the summons was issued against the accused. Thereafter the accused SCCH-17 5 C.C. No. 22768/2014 appeared when the proclamation is issued. The accused released on bail by taking personal bond and cash surety. The plea of the accused recorded by this court. The accused pleaded not guilty and claimed that he has defence to make.
7. In order to discharge the burden cast upon the complainant company, the Managing Director of the complainant company examined as PW.1 by filing his evidence affidavit in lieu of chief examination and Ex.P1 to P13 are marked and closed their side evidence. Thereafter, the accused was explained about all the incriminating circumstances available against him by framing the statement under section 313 of Cr.P.C. The accused denied all the incriminatory materials found against him and also submitted that he has evidence to lead. In spite of sufficient opportunity, the accused has not lead any defence evidence. Hence the defence has taken as not filed, but the case is posted for arguments. SCCH-17 6 C.C. No. 22768/2014
8. Heard the arguments of complainant. In spite of sufficient opportunity, the arguments is not canvassed by the accused hence, the arguments of the accused side taken as not canvassed and case is posted for judgment.
9. On the basis of above contentions and documents, the points that arise for my consideration are:
1) Whether the complainant proves beyond all reasonable doubts that the accused issued cheque bearing No. 066682, dated
10.10.2013 drawn on Bank of India Bank , R.T. Nagar Branch for a sum of Rs.30,00,000/-, towards the discharge of legally recoverable debt, which came to be dishonoured as "Funds Insufficient" and further the failed to clear the cheque amount within the statutory period in spite of issuance of legal notice by the complainant and thereby the accused committed an offence punishable under section 138 of Negotiable Instruments Act?
2) Whether the complainant further proves beyond all reasonable doubts that the accused issued cheque bearing No. 066684, dated 10.11.2013 drawn on Bank of India Bank, R.T. Nagar Branch for a sum of Rs.30,00,000/-, towards the discharge of legally recoverable debt, which came to be dishonoured as "Funds Insufficient" and further the failed to clear the cheque amount within the statutory SCCH-17 7 C.C. No. 22768/2014 period in spite of issuance of legal notice by the complainant and thereby the accused committed an offence punishable under section 138 of Negotiable Instruments Act?
3) Whether the complainant further proves beyond all reasonable doubts that the accused issued cheque bearing No. 066683, dated 28.11.2013 drawn on Bank of India Bank, R.T. Nagar Branch for a sum of Rs.30,00,000/-, towards the discharge of legally recoverable debt, which came to be dishonoured as "Funds Insufficient" and further the failed to clear the cheque amount within the statutory period in spite of issuance of legal notice by the complainant and thereby the accused committed an offence punishable under section 138 of Negotiable Instruments Act?
4) What order?
10. My findings to the above points are as under:
Point No. 1 to 3: In the affirmative. Point No. 4 : As per final order for the following reasons.
REASONS
11. Point No. 1 to 3 :- The present case is filed on the basis of three cheques allegedly issued by the accused towards the discharge of his liability in respect of SCCH-17 8 C.C. No. 22768/2014 repayment for the alleged amount received by complainant. These three cheques belongs to the same transaction hence, these three points taken together for common discussion.
Before proceeding on the facts of this case it is much relevant to discuss about the ingredients of section 138 of N.I. Act to constitute the offence under this Act. In this regard, the complainant has to show:
• That the cheque and signature in it belongs to the accused • Such cheque was issued towards legally recoverable debt;
• The said cheque came to be dishonoured; • The accused not paid the amount covered under the cheque even after receipt of notice within stipulated time;
12. To substantiate their case, the Managing Director of the complainant company has examined as PW 1 and Ex.P1 to 13 are marked. No evidence is lead by the accused. First, for the purpose of establishing the prima SCCH-17 9 C.C. No. 22768/2014 facie case, if we perused the documentary evidence filed by the complainant which were marked as Ex.P1 to 13, the Ex.P2 is a cheque, dated 10.10.2013. The said Ex.P2 was presented on and returned unpaid as per Ex.P5 dated 30.11.2013, which is within the stipulated period. As such, The requirement under section 138(a) of N.I. Act is fulfilled. Further, upon presentation of the said cheque Ex.P2, the bank has given endorsement that the said cheque Ex.P2 was returned unpaid for the reason of "Funds Insufficient". The said endorsement of the bank is marked as Ex.P5. The Ex.P5 is dated 30.11.2013.
13. In respect of the Ex.P3 cheque, dated 10.11.2013, the said Ex.P3 was presented on and returned unpaid as per Ex.P6 dated 30.11.2013, which is within the stipulated period. As such, The requirement under section 138(a) of N.I. Act is fulfilled. Further, upon presentation of the said cheque Ex.P3, the bank has given endorsement that the said cheque Ex.P3 was returned unpaid for the reason of "Funds Insufficient". The said SCCH-17 10 C.C. No. 22768/2014 endorsement of the bank is marked as Ex.P6. The Ex.P6 is dated 30.11.2013.
14. In respect of Ex.P4 cheque, dated 28.11.2013. The said Ex.P4 was presented on and returned unpaid as per Ex.P7 dated 30.11.2013, which is within the stipulated period. As such, The requirement under section 138(a) of N.I. Act is fulfilled. Further, upon presentation of the said cheque Ex.P4, the bank has given endorsement that the said cheque Ex.P4 was returned unpaid for the reason of "Funds Insufficient". The said endorsement of the bank is marked as Ex.P7. The Ex.P7 is dated 30.11.2013.
15. The Ex.P2 to 4 cheques were returned as per Ex.P5 to 7 bank endorsements dated 30.11.2013. Thereafter, the complainant has issued legal notice for all the three cheques which is marked as Ex.P8. The Ex.P8 is written legal notice, dated 26.12.2013. The Ex.P8 is issued within the 30 days of the cheques being unpaid as per Ex.P5 to 7. Hence, the requirement under section SCCH-17 11 C.C. No. 22768/2014 138(b) of N.I. Act is fulfilled. The said legal notices was posted as per Ex.P9 postal receipt dated 26.12.2013. The said legal notice was returned unserved on 30.12.2013 as per Ex.P10 postal cover. As such the complaint was filed by the complainant on 25.1.2014 Hence, The requirement under section 138(c) R/w. Sec. 142 (b) of N.I. Act is also fulfilled. Hence, the prima- facie the procedure as envisaged under Sec. 138 & 142 of NI Act is complied by the complainant in respect of Ex.P2 to 4 cheques.
16. At this stage, the accused has not given any reply. But on 26.2.2024 has filed statement of objections to the complaint. On the prayer made by the learned counsel for the accused the said statement of objections was taken on record. In his statement of objections, the accused has denied the entire allegations of the complaint and also denied the transaction as alleged by the complainant. In his objection statement, the accused submitted that the complainant introduced one Venkatesh to the accused and the accused to develop his business, SCCH-17 12 C.C. No. 22768/2014 borrowed sum of Rs.21,00,000/- from the said Venkatesh and has issued the said Ex.P2 to 4 cheques to the Managing Director of the complainant company i.e., Raghunath and the said Raghunath was the Escrow Agent between the accused and the complainant. The complainant mis-used the cheques issued to the said Venkatesh.
17. To prove its case, the Managing Director of the complainant company examined himself as PW.1 and produced Ex.P1 to Ex.P13- documents. Amongst these documents, Ex.P1 is the MOU dated 7.10.2009. In the said Ex.P1 it is allegedly executed between the complainant and accused. On perusal of the contents of Ex.P1 document, it is stated that the accused shall procure the lands to the complainant and for the same, the accused has received the advance of Rs.90,00,000/- by way of cash. The accused has not denied his signature on the Ex.P1- document. It is very important to note that SCCH-17 13 C.C. No. 22768/2014 at the time of cross-examination no suggestions or questions were put to the PW.1 by denying the signature on the Ex.P1 document or the execution of the said Ex.P1. The accused has not made any minimum effort to deny the MOU as per Ex.P1. On perusal of contents of Ex.P1 it is supported the case of the complainant that the accused has taken the advance of Rs.90,00,000/- to procure the lands to the complainant.
18. Coming to the another face of the defence of the accused, the accused has denied the financial capacity of the complainant company. To prove the financial capacity of the complainant company, the complainant has produced Ex.P11 to 13 documents. The Ex.P11 & 12 are the account statements of the complainant company for the period of 1.4.2008 to 31.12.2009 wherein it shows that the complainant company was having sufficient balance in their account and in some time it was having the cash in their account upto Rs.16,00,000/-. The complainant also produced Ex.P13 receipts 54 in Nos. SCCH-17 14 C.C. No. 22768/2014 which shows that the customers of their company used to pay the amount to the complainant company towards the purchase of sites. By producing these documents, the complainant trying to establish their financial capacity.
19. On the oral evidence of PW.1 and documents produced by PW.1 he was cross-examined by the accused wherein he has stated that he was doing the real estate business and the suggestions were put to the PW.1 by stating that there were no transactions between himself and the accused and the accused has never made any signature on the Ex.P1 MOU.
20. Except these suggestions no other efforts are made out by the accused to deny the execution of MOU as per Ex.P1. The contents of Ex.P1 shows that the accused entered with an MOU by agreeing to procure the lands to the complainant by taking the advance of Rs.90,00,000/-.
21. The accused denies the liability or receipt of Rs.90,00,000/-, but the contents of Ex.P1 shows that the accused has received Rs.90,00,000/- as advance. The SCCH-17 15 C.C. No. 22768/2014 mere denial of a document which is in typed format is not sufficient to disbelieve the contents of a document. The oral evidence on the contents of documents is not permissible under section 92 of Indian Evidence Act. Even though the oral evidence is admissible on the contents of documents, it has to be under the proviso mentioned in section 92 of Evidence Act. By considering this, if we rely on section 92 of Evidence Act, the Ex.P1 is documentary evidence and on the contents of Ex. P1 document the oral evidence is not admissible. Section 92 of Indian Evidence Act is herewith reproduced:
Section 92 - Exclusion of evidence of oral agreement When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:SCCH-17 16 C.C. No. 22768/2014
Proviso (1).-Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party [want or failure] of consideration, or mistake in fact or law:
Proviso (2).-The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document:
Proviso (3).-The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4).-The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5).-Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with the express terms of the contract :SCCH-17 17 C.C. No. 22768/2014
Proviso (6).-Any fact may be proved which shows in what manner the language of a document is related to existing facts
22. By applying this, the Ex.P1 is the document wherein when the party seeks for the production of oral evidence on the contents and also on the intention of the document it has to be as per proviso 1 to 6 of section 92 of Indian Evidence Act. If the parties have intended to reduce all the terms of the contract or writing, then no oral evidence is admissible. But, if the parties intended only to reduce a writing portion of the terms of the contract, then they are entitled to give oral evidence of the terms which they did not intend to reduce to writing. In section 92 of Evidence Act it has prevented the oral evidence being adduced for the purpose of varying the contents of written documents. No grounds are made out to disbelieve the contents of Ex.P1 MOU.
23. By considering this and also on the evidence available on the record it is admitted that the Ex.P2 to 4 SCCH-17 18 C.C. No. 22768/2014 cheques are belongs to the accused and the Ex.P2(a), P3(a) and P4(a) signature is also of accused. The complainant examined himself as PW.1 by reiterating the entire contents of the complaint and also by alleging that the accused has received the advance amount of Rs.90,00,000/- on executing the Ex.P1 MOU. In this regard the learned counsel for the accused has cross- examined the PW 1. But, nothing been elicited from the mouth of the PW 1 to disprove the case of the complainant or to disbelieve the contents of Ex.P1- MOU. The complainant has properly answered in the cross- examination. In the cross-examination also the PW 1 has answered that he has given Rs.90,00,000/- to the accused on 7.10.2009. The suggestion was put to the PW 1 by suggesting that he knows one Venkatesh. The said suggestion is denied by the PW 1. Except this suggestion nothing been elicited during the time of cross-examination of PW 1 which supports the defence of the accused. SCCH-17 19 C.C. No. 22768/2014
24. Admittedly the accused has not given any reply to the legal notice and also no grounds are made out by showing that the address mentioned in the Ex.P8- legal notice not belongs to him. The accused even after sufficient opportunity has not lead any defence evidence to probabalise his defence. In the objection statement filed by the accused he has stated that he has never borrowed the loan from the complainant, but issued the Ex.P2 to 4 cheques to one Venkatesh while borrowing Rs.21,00,000/- from the said Venkatesh. By considering the same, if we summarized the statement of objections filed by the accused it is the defence of the accused that he has borrowed the loan of Rs.21,00,000/- from one Venkatesh and he has given three cheques to the complainant as a security of the said transaction, but the complainant instead of returning the Ex.P2 to 4 cheques has filed the present false case even though there is no transaction with the present complainant. But the said statement is merely become an statement and the accused SCCH-17 20 C.C. No. 22768/2014 has not probabalised the said defence by adducing a probable evidence in support of said defence. No grounds or probable evidence is produced by the accused in support of said contentions urged by the accused in his statement of objections.
25. The accused has not lead any evidence in support of his defence. Whether the said Venkatesha is an imaginary person or really is in existence is also not made out before this court. The accused stated that he has received Rs.21,00,000/- from the said Venkatesha, but no efforts are made to prove the said transaction of Rs.21,00,000/- with the said Venkatesha. Further, if the cheques are issued in respect of the transaction with Venkatesha, why the accused has not taken back those cheques from the complainant after the transactions of Venkatesha is completed is also not explained by the accused.
26. It is already noted that the accused admitted that Ex.P2 to 4 cheques belongs to him. The signature on the SCCH-17 21 C.C. No. 22768/2014 Ex.P2 to 4 cheques are also admitted by the accused. The complainant has filed his affidavit in lieu of chief examination by deposing that the accused has issued Ex.P2 to 4 cheques to them for the repayment of the amount due by the accused. In this regard, the learned counsel for the accused even though has cross-examined the PW 1, nothing been elicited to disprove the case of the complainant. Mere suggestion in the cross-examination of the PW 1 by denying the alleged transaction is not sufficient to disprove the oral evidence of the PW 1 as the accused failed to bring out the negative evidence at the time of cross-examination of PW 1.
27. When the accused failed to disprove the case of the complainant and also failed to prove the documentary evidence which were marked as Ex.P1 to P13, and also when the accused has admitted that Ex.P 2 to 4 cheques and the signatures on the cheques belongs to him, there can be a positive finding in respect of issuance of cheque. SCCH-17 22 C.C. No. 22768/2014
28. Further, the accused himself deposed that the Ex.P2 to 4 cheques were issued by him to the complainant for the purpose of security of the transaction with one Venkatesh and the complainant was a escrow agent. Thereby, the issuance of the cheque for some financial transaction is admitted by the accused. Such being the case, when the issuance of cheque for the purpose of some financial transaction is admitted by the accused, it is the burden of the accused to prove that the legal liability which was there at the time of issuance of cheque is cleared and it is also the burden of the accused that the amount mentioned in the Ex.P2 to 4 cheques are not transferred to him. As per section 114(c) of Indian Evidence Act it speaks about the court may presume that the bill of exchange is accepted or endorsed, was accepted or endorsed for good consideration. Further, section 114
(i) also speaks about the court may presume that when the document creating an obligation is in the hands of the SCCH-17 23 C.C. No. 22768/2014 obliger, the obligation has been discharged. In the present case, the accused himself has admitted that the Ex.P2 to 4 cheques were issued for the purpose of financial transaction. The accused has not produced any documents or evidence to prove the alleged financial transaction between himself and Venkatesha. The said Venkatesh is not examined before the court. No efforts are made out to summon the said Venkatesh in support of the defence of the accused. Such being the case, the accused has not produced any documents or evidence to probablize his defence. Such being the case, no grounds are made out to presume under section 114(i) of Indian Evidence Act or no grounds are made out to rebut the presumption under section 114(c) of Indian Evidence Act. If the accused really issued cheques in respect of the transactions of one Venkatesha, why the accused has not taken back his cheques from the complainant after the said transaction with the Venkatesha was completed is also not explained by the accused. Further, the SCCH-17 24 C.C. No. 22768/2014 accused would have been examined or summoned Venkatesha or any other persons who are involved in the said transaction to probablize his defence. No persons or no documents produced by the accused to show the transactions with the said Venkatesha. Such being the case, the accused failed to probablize his defence.
29. Once the issuance and signature is proved, it is the burden of the accused to rebut the presumptions under section 138 and 139 of the N.I. Act, which is available in favour of the complainant. The same was observed in the following judgement of the Hon'ble High Court of Karnataka.
K.L.J. 2000(3) Page 481 Dr.K.G. Ramachandra Gupta & Another V/S Dr. G. Adinarayana.
"NEGOTIABLE INSTRUMENTS ACT,
1881, Sections 138 and 139 - Cheque -
Presumption about drawing of -
Signature on cheque, admitted to be that of accused - Held, presumption envisaged in Section 139 that cheque SCCH-17 25 C.C. No. 22768/2014 was issued for discharging antecedent liability existing on date which cheque bears, can be legally drawn."
30. The accused not led any evidence to prove his defence and to rebut the statutory presumption available under section 138 and 139 of N.I. Act. Further the accused has not given any complaint or taken any legal action against the complainant for misuse of the cheques.
31. The learned counsel for complainant has made stress on the defence taken by the accused and argued that if the Ex.P2 to 4 cheques was misused by the complainant without any financial transaction as stated by the accused, why the accused has not taken any legal action again st the said Venkatesh or the present complainant by alleging the misusing of the cheques. It is the contention of the learned counsel for the complainant that, why the accused has not taken minimum effort of summoning Venkatesha or producing the evidence to show the transactions with the said SCCH-17 26 C.C. No. 22768/2014 Venkatesha. In the absence of such details the contentions taken by the accused is not admissible and not acceptable. In the absence of these details, how the accused is trying to put up the defence before the court in the name of Venkatesha. This question raised by the learned counsel for complainant is not answered by the accused. The accused would have been produced any documents to show the existence of the financial transaction with Venkatesha or the accused would have taken summons to Venkatesha to probablize his defence. If Venkatesha not supported the accused, the accused was having every opportunity to cross-examine the said Venkatesha to probablize his defence by treating the said Venkatesha as a hostile witness. The accused has not given any satisfactory minimum explanation for these questions.
32. Further, it is very important to note that the accused has not given any details of the said Venkatesha or about the transaction of said Venkatesha with the SCCH-17 27 C.C. No. 22768/2014 accused. Hence, without those details by making mere suggestions to the PW 1 will not serve any purpose.
33. If the cheques are not returned by complainant and mis used by the complainant, the accused would have given police complaint or stop payment instructions to the bank. Further, the accused has not given any instruction to his bank to stop the payment in case of present of the Ex.P2 to 4 cheques. Why the accused has not given any instruction to the bank when the cheques are not returned by complainant as alleged by the accused? In this regard, it is very important to quote the following judgment, which has the persuasive value to the present case.
Hemanth Pavel Gracias V/S Socorro Santhan Fernandes 2008 (1) Civil Court Cases 0743 (Bombay) "Dishonour of cheque - Blank cheque
- Misuser of blank cheque - Reply to statutory notice is not given - 'Stop Instructions' not issued to the bank -
SCCH-17 28 C.C. No. 22768/2014Unusual conduct of accused -
Failure of accused to rebut the presumption - Accused held guilty under section 138 of N.I. Act.
34. Further, the following judgment of the Hon'ble High Court of Kerala is also has the persuasive value in deciding the facts of this case. The same is quoted below:
K.P. Rathikumar V/S N.K. Santhamma & Another.
2007 (4) Civil Court Cases 0546 (Kerala) "Dishonour of cheque - Discharging of liability - Blank signed cheque given as security not taken back - No explanation as to why acknowledgement/voucher not taken when liability was discharged - Plea of discharge is so fragile and brittle i.e. must fall to the ground as a probable and unacceptable."
35. The trial of cases under N.I. Act is supported with the presumption available under section 118 and 139 of N.I. Act. For the proper adjudication of the matter the accused has to rebut the above said presumption SCCH-17 29 C.C. No. 22768/2014 provided under the N.I. Act in favour of complainant through other evidence. In support of the defence, no probable evidence placed by the accused.
36. Further, in this case, no probable defence is made out by the accused to hold that the complainant has no financial capacity to lend the amount mentioned in the cheques. Mere denial is not enough to rebut the presumption to the extent that the Ex.P 2 to 4 cheques were not backed up by the consideration as the accused admitted the signature in the Ex.P2 to 4 cheques. Hence, without any hesitation it can be held that the presumption available under section 138 of N.I. Act in favour of the complainant stands unrebutted.
37. Thereby, further, the transaction and issuance of cheque is proved before this court. Section 139 and 118 of N.I. Act has favourable presumptions in favour of the complainant. These presumptions are supported by the SCCH-17 30 C.C. No. 22768/2014 admissions made by the accused in respect of cheque and the signature. When the presumptions are not rebutted and the defence not proved by the evidence placed by the complainant, the burden shifts upon the accused to rebut the presumption. The accused not placed any probable defence to disprove the case of the complainant. Hence, the defence of the accused is not acceptable in the absence of proper evidence. Thereby, it can be concluded that the Ex.P1 cheque was issued in the nature provided under section 138 of N.I. Act. Mere denial is not sufficient to rebut the presumption in favour of the complainant. Bare denial is not sufficient to disprove the case of complainant. In this regard, it is very incumbent to quote the following judgments of the Apex Court.
Kumar Exports V/S Sharma Carpets, (2009) 2 SCC 513, In paragraph No. 20 it is held that:
".............The accused may adduce direct evidence to prove that the note in question SCCH-17 31 C.C. No. 22768/2014 was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist..............."
A.I.R. 2010 SC 1898 Rangappa V/S Mohan:
"The presumption mandate by Sec.
139 of the Act does indeed including the existence of the legally enforceable debt or liability."
Further, it is also held that:
"The burden of the drawer of the instrument is not just to create a SCCH-17 32 C.C. No. 22768/2014 doubt or offer explanation, but such explanations has to be proved satisfactorily".
A.I.R. 2001 SC 2895 K.N. Beena V/S Muniyappan and Another:
"The burden to prove the consideration for the cheque lies on the accused if not rebutted, the presumption is that the cheque was issued for consideration. It is for the accused to prove that the cheque was not issued towards a debt or liability. He has to lead credible evidence for the rebuttal of this presumption. Mere denial of averments will not be suffice to shift this burden on to the complainant."
38. These citations are squarely applicable to this case as there is admission regarding the relationship, signature on Ex.P2 to 4 cheques and issuance of Ex.P2 to 4 cheques. The accused has not made out any sufficient grounds to disprove the complainant's case. There is no satisfactory evidence to accept the defence of the accused. On the other hand, the complainant successfully proved his case beyond all SCCH-17 33 C.C. No. 22768/2014 reasonable doubt. As such, the point No. 1 is answered in the affirmative.
39. Point No. 2: The present case is filed on 25.1.2014. Nearly the ten years of time is lapsed in the trial of this case. Thereafter both the parties have taken sufficient adjournments and time for the trial of the case. Hence, this court is of the opinion that while awarding the quantum of fine and compensation the period spent by both the parties has to be considered. In view of the above findings on point No.1, I proceed to pass the following order.
ORDER The accused found guilty of an offence punishable under section 138 of Negotiable Instrument Act.
In exercise of powers vested under section 255(2) of Cr.P.C. 1973, the accused is convicted for the offence punishable under section 138 of Negotiable Instruments Act. SCCH-17 34 C.C. No. 22768/2014 Further, the accused sentenced to pay fine of Rs.95,00,000/- (Rupees Ninety Five Lakhs only) towards the amount of all three cheques. In default, the accused shall undergo Simple Imprisonment for the period of six months. It is clarified that the serving on default sentence will not absolve the accused on payment of the fine amount.
Further it is held that after realizing the fine amount from the accused, a sum of Rs.94,95,000/- (Rupees Ninety four lakhs ninety five thousand only) shall be paid to the complainant as compensation under section 357(1)(b) of Cr.P.C. and the remaining Rs.5,000/- (Rupees five thousand only) shall be adjusted towards the expense of the State.
The bail bond and surety bond of the accused stands canceled.
(Dictated to the Stenographer directly on the computer, corrected by me and then pronounced in the open court on this the 23rd day of September, 2024) (KANCHI MAYANNA GOUTAM) XIX ADDL.JUDGE, Court of Small Causes & ACJM, BENGALURU.
SCCH-17 35 C.C. No. 22768/2014ANNEXURE List of witnesses examined for the complainant:
PW 1 : M.V. Raghunath List of witnesses examined for the accused :
********* NIL List of documents marked for the complainant:
Ex.P1 : Memorandum of understanding
Ex.P2 to 4
and 2(a)
to 4(a) : 3 Cheques and signatures of the accused
to 3 : Cheques
Ex.P5 to 7 : 3 Bank endorsement
Ex.P8 : O/c. Of the legal notice
dated 26.12.2023
Ex.P9 : Postal receipt
Ex.P10 : Returned postal cover
Ex.P11 and 12 : Account extracts
Ex.P13 : 54 receipts collectively marked
List of documents marked for the accused:
NIL XIX ADDL.JUDGE, Court of Small Causes & ACJM, BENGALURU.Digitally signed
KANCHI by KANCHI
MAYANNA
MAYANNA GOUTAM