Bangalore District Court
Sri. K.Natarajan vs Sri.M.Subbaiah on 9 January, 2020
1 C.C.No.15043/2018 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 9th day of January 2020
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.15043/2018
Complainant : Sri. K.Natarajan,
S/o. Krishnaswamy,
Aged about 63 years,
R/at Flat No. T1,
Yoga Apartments, No.47,
Subbarama Chetty Road
East,
Anjaneya Temple Street,
Basavanagudi,
Bengaluru - 560 004.
(Rep.by Sri. P.N.Nanja Reddy,Adv.,)
- Vs -
Accused : Sri.M.Subbaiah,
Major in Age,
Ra/t Flat No.-003,
Ground Floor,
Noris Road,
Richmond Town,
Bengaluru -560 025.
(Rep.by Sri.G.Raghunandan &
Associates ., Adv.,)
2 C.C.No.15043/2018 J
Case instituted : 26.4.2018
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 9.1.2020
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused has approached him on 20.6.2015 for financial assistance for his personal and health problems, since the Accused is very close to him, acceding to the request of the Accused, he paid a sum for Rs.5 Lakhs by way of cash to the Accused, thereafter the Accused has promised him to repay the said amount within 6 months, and after 6 months, he approached the Accused on 1.2.2016 he expressed his inability to pay the said amount because of financial constrains. The complainant further states that, when he approached the Accused, issued cheque 3 C.C.No.15043/2018 J bearing No.516222 dated: 1.3.2018 drawn on ICICI Bank Langford Branch, Bengaluru for Rs.5 Lakhs and advised him to present the said cheque, accordingly he presented the said cheque for encashment on 1.3.2018 through his banker the same came to be returned as unpaid due to "Funds insufficient" on 5.3.2018, thereafter he got issued legal notice dated: 17.3.2018 to the Accused through RPAD demanding the Accused to pay the amount mentioned in the cheque within 15 days from the date of receipt of the demand notice, the said notice was duly served on the Accused on 19.3.2018, the Accused has failed to repay the said amount within the stipulated time inspite of receipt of notice. Hence he has filed the present complaint praying that, the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
3. The Complainant has led his pre-
summoning evidence and he has filed his affidavit- in-lieu of his sworn statement, in which, he has reiterated the complaint averments. In support of his oral evidence has relied upon the documentary 4 C.C.No.15043/2018 J evidence as per Ex.P.1 to P.5 i.e., original cheque dated :- 1.3.2018 which is as per Ex.P1, the signature of the accused on the disputed cheque identified by the complainant is at Ex.P1(a), Bank memo as per Ex.P.2, copy of legal notice as per Ex.P.3, postal receipt as per Ex.P.4, track result as per Ex.P.5.
4. Prima-facie case has been made out against the Accused and has been summoned vide the order of the same date.
5. The Accused has appeared before the court and he has been enlarged on bail and the substance of the accusation has been read over to him, to which he has pleaded not guilty and has stated that, he has the defence to make after recording the plea of the Accused, as he intended to set out his defence.
6. In view of the principles of law laid down and as per the directions of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 5 C.C.No.15043/2018 J 2014 (5) SCC 590, after recording the plea of the accused, as he intended to set out his defence, thereafter the Accused has cross examined the complainant i.e PW.1.
7. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence appearing against him and has chosen to lead his rebuttal evidence subsequently he did not appeared before this court to lead his defence evidence, accordingly defence evidence taken as Nil.
8. Heard the arguments of learned counsel for the complainant and in spite of sufficient opportunity given to the counsel for the accused but learned counsel for the Accused and the Accused were absent, hence arguments by accused side was taken as not advanced.
9. On the basis of complaint, evidence of complainant and documents and having heard the arguments of both learned counsels for the 6 C.C.No.15043/2018 J complainant and the accused, the following points that are arise for my consideration are:
1. Whether the complainant proves that the accused has issued cheque for Rs.5,00,000/= bearing No.516222 dated:-1.3.2018 drawn on ICICI Bank, Langford Road, Bengaluru, to discharge legally recoverable debt to the complainant and when the complainant has presented the cheques for encashment through his banker but the said cheque has been dishonoured for the reasons "Funds Insufficient" on 5.3.2019, and the complainant issued legal notice to the accused dated:-15.3.2019 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
10. The above points are answered as under:
Point No.1: In the Affirmative Point No.2: As per final order for the following:7 C.C.No.15043/2018 J
REASONS
11. POINT No.1. Before appreciation of the facts and oral and documentary evidence in the present case, it is relevant to mention that, under criminal jurisprudence prosecution is required to establish guilt of the accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 146 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act pre-supposes three conditions for prosecution of an offence which are as under:-
1. Cheque shall be presented for payment within specified time i.e., from the 8 C.C.No.15043/2018 J date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
12. It is also one of the essential ingredient of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e.,U/s.118 a presumption 9 C.C.No.15043/2018 J shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even U/Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and are rebuttable one.
13. In the present case the complainant got examined as PW.1 by filing his affidavit evidence wherein he complainant has reiterated the entire averments of the complaint. The complaint testified about the lending of the loan amount and issuance of cheque i.e. Ex.P.1 and presentation of cheque and return of cheque with an endorsement of "Funds Insufficient" as per Ex.P.2 and issuance of legal notice dated: 15.3.2018 as per Ex.P.3, the said notice was served on the Accused Inspite of it, he did not pay the cheque amount or replied to the notice.
10 C.C.No.15043/2018 J14. In support of the oral evidence of the complainant, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.5 i.e., original cheque dated:- 1.3.2018 which is as per Ex.P1, the signature of the accused on the disputed cheque identified by the complainant are at Ex.P1(a), Bank memo as per Ex.P.2, copy of legal notice as per Ex.P.3, postal receipt as per Ex.P.4, track result as per Ex.P.5.
15. In the present case, the accused in his defence has not disputed his acquaintance with the complainant. It is also not in dispute by the accused that the cheque in question is presented for encashment and dishonoured for want of "Funds Insufficient", as a matter of record proved by returned memo issued by the accused Banker as per Ex.P.2 dated: 5.3.2018, therefore it is a matter on record and has been proved that the cheque in question was presented within its validity period and dishonoured as per the Bank endorsement. It is also not in dispute that the cheque in question i.e., Ex.P.1 belongs to the account of the accused and the signature at 11 C.C.No.15043/2018 J Ex.P1(a) is that of the accused. Hence, the complainant has proved that the cheque in question was issued by the accused and it bears his signature. The accused has also not disputed issuance of legal notice by the complainant through RPAD and service of the said notice on him as per Ex.P.3 to P.5 respectively. Even after receipt of the legal notice the accused did not repay the cheque amount to the complainant, hence it goes to show that the complainant got issued legal notice within 30 days from the date of receipt of intimation of dishonour of the cheque and demanded the cheque amount to returned within 15 days from the date of the receipt of the notice. Hence, the complainant has discharged her initial burden that was casted on him by complying mandatory requirements of Sec.138 of the N.I. Act in such circumstances, a presumption can be drawn in favour of the complainant as available U/s. 118 & 139 of N.I. Act.
16. It is the specific defence of the Accused that, he has not borrowed any amount from the complainant much less the loan amount in 12 C.C.No.15043/2018 J question and the complainant has no source of income to lend the alleged loan amount in question and has not issued the cheque in question to the complainant towards discharge of loan amount in question. It is also the defence of the Accused that, the Accused was came to know him while he was leaving his vehicles with the complainant for the purpose of insuring the said vehicles prior to the 2015 and in respect of insuring of the said vehicle there was a transaction between him and the complainant at that time he used to issue cheques to the complainant. It is also the defence of the Accused that, the cheque in question was issued to the complainant as blank signed cheque towards insuring his vehicle but not towards discharge of the loan transaction in question and the said blank signed cheque was misused by the complainant, hence in this back ground now the oral and documentary evidence of the complainant has to be examined by the court.
17. The learned counsel for the Accused during the course of cross-examination of the complainant has cross examined in length but 13 C.C.No.15043/2018 J nothing has been elicited to disbelieve or discredit the oral and documentary evidence of the complainant. It is true that, the complainant in his cross-examination has admitted that, he has received a cheque from the Accused when he was lent an amount of Rs.5 Lakhs on 20.6.2015 to the Accused and except the said cheque he has not received any other cheques from the Accused in respect of the transaction dated:-20.6.2015 between him and the Accused and the said cheque is in Ex.P.1. But in order to accept the admissions which are elicited by the Accused in the cross- examination of the complainant, the Accused has not disputed the contents of the cheque in question i.e. Ex.P.1 and the signature found on cheque in question i.e Ex.P.1(a) and even it is not the defence of the Accused that, he has issued blank signed cheque to the complainant on 20.6.2015 and the same has been filled in by the complainant as per Ex.P.1 but it is specifically denied by the Accused that, the complainant has not paid any loan amount on 20.6.2015 to the Accused, in such circumstances when the Accused himself admitted that, the complainant has not 14 C.C.No.15043/2018 J lent loan amount on 20.6.2015 and has not issued the cheque in question towards discharge of the said amount, then the question of admissions of the complainant i.e. he had collected the cheque in question in respect of the loan amount lend by him dated: 20.6.2015 does not arise at all.
18. The learned counsel for the Accused during the course of cross-examination of the complainant has not disputed the financial capacity of the complainant to advance the loan transaction in question but has only made a suggestion that, the complainant has not given any loan to the Accused and in turn the Accused has not issued cheque towards discharge of the said loan amount and the said suggestions have been denied by the complainant. Therefore when the Accused has admitted that, the cheque in question belongs to him and signature found in it is that of his signature, in such circumstances, a presumption can be drawn with regard to existence of legally enforceable debt as against the Accused. No doubt the said presumptions are rebuttable unless and until the Accused has rebut 15 C.C.No.15043/2018 J the said presumptions, it can be presumed that, the cheque in question was issued by the Accused towards discharge of the debt or liability in question, even in the absence of documents produced by the complainant in respect of loan transaction in question. In this regard, it is relevant here to refer the decisions reported in 2001 AIR Karnataka HCR 2154 between 'M/s.Devi Tyres V/s.Navab Jan' and in 2011 ACD 1521 (KAR) between 'Smt. Usha Suresh V/s. Shashidharn', in 2010 SC 1898 between 'Rangappa Vs. Mohan' and 2011 ACD 1412 (KAR) between 'N.Hasainar Vs. M.Hasainar, S/o. Ibrahim'. The Hon'ble High Court of Karnataka in the above decision i.e., 2001 AIR Karnataka HCR 2154 at para No.6 was pleased to hold that issuance of cheque itself was adequate proof of existence of debt or liability. In another decision of Hon'ble Apex Court of India i.e. Hon'ble Three Judges Bench Decision reported in (2010) 11 SCC 441 in the case of Rangappa Vs. Sri. Mohan ., wherein the Hon'ble Apex Court held that " A. Negotiable Instruments Act, 1881 - S.139 - Presumption under - scope of - Held, 16 C.C.No.15043/2018 J presumption mandated by S. 139 includes a presumption that there exists a legally enforceable debt or liability - However such presumption is rebuttable in nature - Criminal Trial - Proof - Presumptions - Generally. Further held that "Signature on the cheque was his, statutory presumption under S.139 comes into play and the same was not rebutted even with regard to the materials submitted by complainant Appellant not able to prove "lost cheque" theory - Apart from not raising a probable defence appellant was also not able to contest the existence of a legally enforceable debt or liability - hence, his conviction by High Court, held, proper.
19. In another decision of Hon'ble Apex Court of India, reported in CRIMINAL APPEAL NO. 508 OF 2018 DT 15-03-2018 between ROHITBHAI JIVANLAL PATEL Vs STATE OF GUJARAT AND ANR held that "Negotiable Instruments Act facts like source of funds are not relevant if the Accused has not been able to rebut the presumption. It is further held that " When such a presumption 17 C.C.No.15043/2018 J is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the Accused has been able to rebut the presumption or not". In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, " Dishonor of cheque - Statutory presumption under - burden to prove
- the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an 18 C.C.No.15043/2018 J offence U/s.s.138 of NI Act. It is also held that, " the accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the Trial Court and High Court. Both courts not only erred in law but also committed perversity when the due amount is said to be disputed only on the account of discrepancy in the cartons, packing materials or the rate to determine the total liability as if the appellant was proving his debt before the civil court. Therefore it is presumed that, the cheque in question were drawn for consideration and the holder of the cheques received the same in existing debt". It is also held that, " the Trial court and the High Court proceeded as if, the appellant is to prove a debt before civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. A dishonour of cheque carries statutory presumption of consideration. The holder of cheque in due course is required to prove that, the cheque was issued by the Accused and that when the 19 C.C.No.15043/2018 J same presented, it was not honoured Since there is a statutory presumption of consideration, the burden is on the Accused to rebut the presumption that, the cheque was issued not for any debt or other liability ".
20. It is also relevant here to refer the decision of Hon'ble High Court of Karnataka reported in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption mandated by Sec.139 of N.I Act includes the presumption that, there existed a legally enforceable debt or liability, however such presumption is rebuttable in nature". In another decision of Hon'ble High Court of Karnataka in the case of Shri.V.R.Shresti Vs. Shri. Bhaskara.P. in Crl. Appeal No. 2109/2017 dated: 15.10.2019 wherein the Hon'ble High Court of Karnataka held that "the Accused has not given any reply to the notice and also in the cross-examination, he categorically admits that, the cheque has bounced on account of no sufficient fund in 20 C.C.No.15043/2018 J the bank account of the Accused. Mere non producing of the document before the court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The Accused ought to have rebutted the contention of the complainant by producing cogent evidence before the court and mere denial is not enough".
21. Therefore on careful reading of the principles of law laid down by the Hon'ble Apex Court of India and High Court of Karnataka in the above referred decisions makes it very clear that, once the holder in due course i.e. the complainant proved that, the cheque in question belongs to the drawer and signature appearing on the cheque is that of the drawer i.e., Accused and complied the mandatory requirements as required U/s.138 of N.I.Act, a presumptions U/s.118a and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt and when such a presumption is drawn the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence regarding 21 C.C.No.15043/2018 J source of funds were not of relevant unless the Accused rebutted the presumption available to the complainant as held by the Hon'ble Apex Court and High Court of Karnataka in the above decisions. In the present case also the complainant has complied a mandatory requirements and has proved that, the Accused has issued the cheque in question in his favour and the Accused has admitted the cheque belongs to him and signature appearing on the cheque is that of his signature and even the intimation is given by the postal authorities to the Accused regarding legal notice issued by the complainant to him but has not given any reply or complied the terms of the notice, in such circumstances, presumptions have to be drawn towards existence of legally enforceable debt as per Sec.139 of N.I.Act.
22. The Accused in the cross-examination of the complainant has also taken the contention that, he had given a blank signed cheque to the complainant towards getting insurance to his vehicle i.e. to insure his vehicle but the 22 C.C.No.15043/2018 J complainant has misused the said cheque by filing this case. But the complainant in his cross- examination has denied the suggestions made to him in that regard, In this regard, even for sake of discussion if it is assumed that, the contents of the subject cheque are not filled in by the Accused even under such circumstances also, unless and until the Accused has proved his defence by producing cogent and convincible evidence, it cannot be held that, the contents of the cheque have been filled in by the complainant. In this regard, it is a relevant here to refer the decision of Hon'ble Apex Court of India reported in AIR 2019 SC 2446 in the case of Birsingh Vs. Mukesh Kumar., wherein the Hon'ble apex Court held that, "presumption U/s.139 is presumption of law, distinguished from presumption of facts and also held that, presumptions are rules of evidence and do not conflict with presumption of innocence which requires prosecution to prove case against the Accused and also held that obligation on the prosecution may discharged with the help of presumptions of law and presumption of fact unless the 23 C.C.No.15043/2018 J accused adduces evidence showing reasonable plausibility of non existence of presumed fact." In the present case though the Accused has denied the contents of the cheque in question except his signature but he did not prove his defence or produced any documents or satisfactory evidence to rebut the presumptions as available U/s.139 of the N.I. Act, under such circumstances in view of the above principles of law, it can be presumed even on fact also that the complainant has proved his case by discharging his burden and complying the mandatory provisions. In the said decision the Hon'ble Apex court has also held that, "presumption as to legally enforceable debt is rebuttable, the signed blank cheque if voluntarily presented to payee towards payment payee may fill up amount and other particulars and it in itself would not invalidate cheque and onus would still be on the accused to prove that, cheque was not issued or discharge of debt or liability by adducing evidence." In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble 24 C.C.No.15043/2018 J Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, " Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. In such circumstances even if it is assumed that, the Accused has issued blank signed cheque to the complainant and the contents of cheque in question were not filled in by him and the contents of the cheque were filled in by the person other than the Accused, in such circumstances also, in view of the principles of law laid down in the above decision that itself would not invalidates the 25 C.C.No.15043/2018 J cheque in question and it can be presumed that, the cheque was filled in by the person in the presence of the Accused at his consent and the said cheque has been issued towards discharge of legally recoverable debt.
23. The accused during the course of cross examination of complainant has taken specific defense that, he has given the signed blank cheque in question to the complainant for the purpose of insuring his vehicle but the complainant has misused the said cheque and filed this case. No doubt, the defence version claimed by the Accused could be considered only the accused has rebutted the presumption available U/s.118 and 139 of NI Act in favour of the complainant by producing cogent and convincible evidence. But in order to prove the said defence Accused has not entered into the witness box to examine himself or has produced any documentary evidence to show that, on which date, month and year he had given his blank signed cheque to the complainant for getting insurance of his vehicle and has not produced 26 C.C.No.15043/2018 J document to show that, for which vehicle he had given the blank signed cheque to the complainant for getting insurance of the said vehicle, in such circumstances only on the basis of oral and self serving statement of the Accused, the defence of the Accused cannot be acceptable one as it appears to be bald defence. It is also settled law that, the accused can rebut the presumption only on the basis of materials produced by the complainant even without entering into the witness box but in the present case the Accused has failed to substantiate his defence version in order to rebut the presumption available to the complainant and to prove the defense of the accused, the accused while recording his statement as required U/s. 313 of Cr.P.C. though he has denied the incriminatory evidence appearing against him but he did not entered in to witness box to prove his defense or rebut the presumption available to the complainant U/s. 118 and 139 of N.I. Act. Under such circumstance, it is for the accused to disprove the case of the complainant or rebut the presumption then only the onus will be shifted on the 27 C.C.No.15043/2018 J complainant to prove his case.
Admittedly the accused did not entered in to the witness box, therefore an adverse inference can be drawn against the accused that he has failed to rebut the presumption available to the complainant. Therefore it is clear that, except having denial of the case of the Complainant in the cross examination of complainant, the Accused has not taken any interest so as to prove his defence. In this regard, it is relevant here to refer a decision of Hon'ble Apex Court of India reported in "AIR 2018 SC 3173 in a case of Kishan Rao Vs. Shankargouda" wherein the Hon'ble Apex Court held that " Negotiable Instruments Act (26 of 1881), Ss. 138, 139- Dishonour of cheque - Presumption as to - Accused issuing cheque of Rs.2 Lakhs towards repayment of loan to Complainant- said cheque dishonoured on account of insufficiency of funds- Complainant proving issuance of cheque having signatures of Accused - Accused failing to rebut presumption raised against him and no evidence led by him in his support - Acquittal of Accused by High Court 28 C.C.No.15043/2018 J in revisional jurisdiction on ground of doubt in mind of Court with regard to existence of loan, improper- Accused, liable to be convicted. In another decision decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. It is also held that, the accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the Trial Court and High 29 C.C.No.15043/2018 J Court. Both courts not only erred in law but also committed perversity when the due amount is said to be disputed only on the account of discrepancy in the cartons, packing materials or the rate to determine the total liability as if the appellant was proving his debt before the civil court. Therefore it is presumed that, the cheque in question were drawn for consideration and the holder of the cheques received the same in existing debt. Hence, the principles of law laid down in the above decision are aptly applicable to the case on hand, since in this case also the complainant proved that the Accused has issued a cheque in question towards discharge of the loan amount advanced by him and also complied the mandatory requirements of Sec.138 of N.I. Act, but the accused has failed to enter into witness box to rebut the statutory presumption in support of his defense in such circumstances the defense taken by the accused counsel during the course of cross examination of complainant cannot be acceptable one.
30 C.C.No.15043/2018 J24. It is also important to note here that, the Accused has not denied or disputed that the cheque in question as well as the signature therein do belong to him and he has failed to explain as to how his cheque has come to the possession of the Complainant, this would also give rise to an adverse inference against him. This preposition of law finds support from the decisions of Hon'ble High Court of Karnataka reported in 2010(1) KCCR 176 in the case of "Siddappa Vs. Manjappa". In another decision of Hon'ble Apex court of India decided in Crl.A.No.664 of 2012 dated: 19.9.2019 in the case of "M.Abbas Haji Vs. T.M.Chennakeshava" held that, " the Accused has to explain how the cheque entered into the hands of complainant". Hence in the present case also the Accused has failed to explain how the cheque in question was entered into the hands of complainant. Therefore for the above said reasons the defense taken by the accused cannot be acceptable one and accused has miserably failed to rebut the presumption available in favour of the complainant by adducing cogent and convincible evidence 31 C.C.No.15043/2018 J
25. The Accused during the course of cross- examination of the complainant has specifically suggested that, he has given the cheque in question to the complainant in order to get the insurance to his vehicle but the complainant has misused the said cheque by filing this complaint, if really the Accused has given the cheque in question to the complainant in order to get the insurance of his vehicle and even then he complainant misused the said cheque by filing this case, in such circumstances the Accused could have taken any action against the complainant in respect of his alleged misuse of cheque by the complainant either by filing complaint before the police or before the concerned course of law or atleast by issuing notice to the complainant for getting return of his signed blank cheque. Even the Accused has not made any such efforts, in such circumstances, the conduct of the Accused in non taking of action for getting return of his blank signed cheque from the complainant goes to show that, the Accused has issued the cheque in dispute towards discharge of debt or liability in question. In this regard it is 32 C.C.No.15043/2018 J relevant here to refer the decision of Hon'ble Apex Court of India reported in AIR 2018 SC 3601 in a case of T.P.Murugan(dead) Thr. Lrs.V. Bhojan Vs. Posa Nandi, rep. Thr. Lrs. PA holder, T.P. Murugan V. Bhojan, wherein the Hon'ble apex Court held that "Negotiable Instruments Act (26 of 1881) Ss.118, 138, 139 - Dishonour of cheque - Presumption as to enforceable debt- cheques allegedly issued by accused towards repayment of debt- Defence of accused that 10 cheques issued towards repayment of loan back in 1995 - behavior of accused in allegedly issuing 10 blank cheques back in 1995 and never asking their return for 7 years, unnatural - Accused admitting his signature on cheques and pronote, presumption under S.139 would operate against him - Complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt - Conviction, Proper". It is true that, the above principles of law pertains to the case of different set of facts but the ratio laid down by the Hon'ble Apex Court is aptly applicable to the case on hand 33 C.C.No.15043/2018 J since in the present case also the accused has not made any efforts to get return of cheque alleged to have been given to the complainant for getting insurance to his vehicle, under such circumstances, the said unnatural conduct of the accused in non taking of action, an adverse inference can be drawn against the accused that, the cheque in question issued by the accused towards discharge of the liability and presumption U/s.139 of N.I.Act would operate against him, as he has admitted the signature and cheque in question is belongs to him. In another decision reported in 2015 (4) KCCR 2881 (SC) in the case of T. Vasanthakumar Vs. Vijayakumari wherein the Hon'ble Apex court held that, " NEGOTIABLE INSTRUMENTS Act, 1881- Section 138 and 139
- acquittal - If justified- Accused not disputing issuance of cheque and his signature on it - Plea that it was issued long back as security and that loan amount was repaid - Not supported by any evidence - Fact that date was printed, would not lend any evidence to case of accused- Acquittal not proper. It is true that, the above principles of law pertains to 34 C.C.No.15043/2018 J the case of different set of facts but the preposition of law held by the Hon'ble Apex Court is aptly applicable to the case on hand, since in this case also the complainant proved the fact that he has lent an amount of Rs.5,00,000/= to the Accused and the accused in turn issued cheque for discharge of the said amount as per Ex.P.1. The accused has also failed to produce cogent and convincible evidence to rebut the statutory presumption in support of his defense in such circumstances the defense taken by the accused cannot be acceptable one.
26. Therefore considering all these aspects of the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant and accused the complainant has successfully established beyond all reasonable doubt that, he has lent a sum of Rs.5,00,000/= to the accused as a hand loan and the accused in turn has issued cheque in question i.e. Ex.P.1 to the complainant towards repayment of the hand loan, thereafter the complainant has presented the said cheque 35 C.C.No.15043/2018 J through his banker and same was returned dishonoured with an endorsement of "Funds Insufficient" and thereafter he got issued legal notice to the accused and the said notice was served on him and inspite of it, the Accused did not repaid loan amount borrowed by him, hence the complainant filed the present complaint against the accused. On the other hand, the accused has failed to rebut the presumption available infavour of the complainant with regard to the existence of legally recoverable debt under Ex.P.1 Cheque. Therefore accused has committed an offence punishable U/s.138 of N.I. Act, accordingly for the above said reasons this point is answered in the Affirmative.
27. Point No.2: Negotiable Instrument Act was enacted to bring credibility to the cheque and the very purpose of enactment is to promote the use of negotiable instrument, while to discourage the issuance of cheque without having sufficient funds in their accounts. Such being the case the intention of the legislature is that, complainant be suitable compensated while accused be punished 36 C.C.No.15043/2018 J for his act. Hence while awarding the compensation the said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly it will not cause injustice to the accused, accordingly the complainant is entitled for the compensation as ordered by the court and for the said reasons, it is just and proper to pass the following :-
ORDER By exercising the power- conferred u/s 255(2) of Cr.P.C. the Accused is hereby convicted of the offence punishable u/s 138 of the Negotiable Instruments Act.
The Accused is held liable to pay a fine of Rs.5,15,000/= (Rupees Five Lakhs and Fifteen Thousand Only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/s.138 of the NI Act.
Further acting under sec.357(1) of Cr.P.C. out of the fine amount on recovery a sum of Rs.5,10,000/= (Rupees Five Lakhs and Ten 37 C.C.No.15043/2018 J Thousand only) shall be paid as compensation to the Complainant.
Further acting under sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) is ordered to be adjusted towards cost to the State Exchequer.
The bail bond of the Accused stands cancelled.
Issue free copy of the Judgment to the Accused forthwith.
(Directly dictated to the Stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 9th day of January 2020).
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.K.Natarajan;
2. List of documents exhibited on behalf of the Complainant:-
Ex.P.1 : Original Cheque;
Ex.P.1(a) : Signature of the Accused;
38 C.C.No.15043/2018 J
Ex.P.2 : Bank Memo;
Ex.P.3 : Copy of legal notice;
Ex.P.4 : Postal receipt;
Ex.P.5 Track Result;
3. List of witness/s examined on behalf of the Accused:-
- Nil -
4. List of documents exhibited on behalf of the Accused:-
- Nil -
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
39 C.C.No.15043/2018 J
9.1.2020 Accused Absent, counsel for Accused
absent, No representation.
Judgment pronounced since the fine amount and default sentence is only imposed against the Accused and no substantial sentence is imposed against the Accused.
vide separate order.
ORDER
By exercising the power-
conferred u/s 255(2) of Cr.P.C. the Accused is hereby convicted of the offence punishable u/s 138 of the Negotiable Instruments Act.
The Accused is held liable to pay a fine of Rs.5,15,000/= (Rupees Five Lakhs and Fifteen Thousand Only). Within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/s.138 of the NI Act.
Further acting under sec.357(1) of Cr.P.C. out of the fine amount on recovery a sum of Rs.5,10,000/= (Rupees Five Lakhs and Ten Thousand only) shall be paid as compensation to the Complainant.
Further acting under sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) is ordered to be 40 C.C.No.15043/2018 J adjusted towards cost to the State Exchequer.
The bail bond of the Accused stands cancelled.
Issue free copy of the Judgment to the Accused forthwith.
XVI ACMM, B'luru.