Bangalore District Court
Elcab Engineering Pvt. Ltd vs R.K Power Control on 7 August, 2024
C.C.NO.22382/2019
0
KABC030693802019
Presented on : 23-09-2019
Registered on : 23-09-2019
Decided on : 07-08-2024
Duration : 4 years, 10 months, 14 days
IN THE COURT OF THE XXVIII ADDL. CHIEF JUDICIAL
MAGISTRATE BENGALURU CITY
Present:
Soubhagya.B.Bhusher,
BA.,LL.B.,LL.M
XXVIII A.C.J.M, Bengaluru City.
DATED; THIS THE 07th DAY OF AUGUST-2024
C.C.NO.22382/2019
Complainant: Elcab Engineers Pvt.,Ltd.,
A company incorporated under the
provisions of companies Act, having
O/at No.136, 5th Main, Chamrajpet,
Bengaluru-560018.
R/by its Authorized person Mr.Madhu.
As per the order dated:27.09.2023
The complainant company
R/by its Authorized representative
Sri.Bharatesh.M.C.
(By Sri.K.G.MareGowda.,Adv.,)
V/s
Accused: R.K.Power Control,
No.166, Doreswamyplaya,
Bannergatta Road, Bangalore-560076,
R/by its Proprietor, Smt.Mahadevi.
And also at: R/at: 348, 7th Cross,
K.R.Layout, 6th Phase,
C.C.NO.22382/2019
1
J.P.Nagar, Bangalore-78.
And also at:
Govt. Primary School, Thilak Nagar,
Bangalore.
(By Sri.Mohan Kumar.M.C.,Adv.,)
:JUDGMENT:
This case arises out of the private complaint filed by the complainant against the accused under section 200 of Cr.P.C., for an offence punishable under section 138 of Negotiable Instruments Act.
2. The case of the complainant's in brief is as under:
It is the case of the complainant is that the complainant is a registered company and incorporated under the provisions of companies Act and is engaged in manufacturing and supplying of power cables and allied electrical items. The accused is a proprietorship concern. The accused has been a client of the complainant and the complainant has been doing business with the accused, since 2010 and in the course of the aforesaid transaction, the complainant and the accused are well know to each other. It is further stated that the complainant has supplied the power cables under invoice dated: 19.01.2018 worth of Rs.6,93,501/-. The material have been delivered to the accused as endorsed on the tax invoices and supplied materials is reflected in its statement of accounts.
C.C.NO.22382/2019 2 Further stated that in accordance with the statement of account of business, the accused is liable to pay an amount of Rs.1,03,000/-. It is further stated that when it demanded to the accused then she had issued a duly filled and singed cheque No.894407 dated: 05.03.2019 for Rs.1,00,000/- drawn on Syndicate Bank, Bannergatta Road Branch, Bengaluru as a part payment.
3. Further stated that as per the assurance of the accused, the complainant had presented the said cheque for encashment through its banker the Axis Bank Ltd., Chamarajpet branch, Bangalore. But on 06.03.2019 the said cheque was dishonored with an endorsement 'Drawer signature differs'. When the aforesaid fact was intimated to the accused, the accused requested the complainant to represent the cheque during the 1st week of April, 2019. As per the accused instructions, the complainant represented the cheque during 1st week of April 2019 and the same was dishonored with a banker's endorsement dated:
06.04.2019 as "Funds Insufficient". Thereafter on 29.04.2019 the complainant got issued a legal notice on three addresses of the accused through RPAD calling upon her to make payment within 15 days from the date of receipt of the said notice. The said notice sent to J.P.Nagar address was duly served, and other notices were returned unserved with a shara "no such C.C.NO.22382/2019 3 firm in the given address" and "no such person" on 29.05.2019. After receipt of the legal notice the accused neither reply to the notice nor paid the cheque amount. As such, the accused have committed an offence punishable under section 138 of N.I.Act.
Hence, the present complaint came to be filed before this court on 12.06.2019.
4. After the complaint was filed, the cognizance of the offence cited therein was taken and it was registered as P.C.R No.11479/2019. Sworn statement of the complainant was recorded. Since there were sufficient materials to proceed against the accused, an order was passed on 20.09.2019 to register the case in Register No.III.
5. Thereafter, summons was issued to the accused and she appeared before the court through advocate and secured bail. She was furnished its necessary papers as complied under section 208 of Cr.P.C. Thereafter, the plea of the accused was recorded by the court. She has pleaded not guilty and claimed to be tried.
6. The complainant in support of its case, have examined its Commercial Manager as PW.1 and got marked 09 documents at Ex.P.1 to 09 and closed its side.
7. During the pendency of the case, the learned C.C.NO.22382/2019 4 counsel for the complainant has filed an application for the substitution of the representative of the company contending that the complainant originally represented by its Authorized representative Mr.Madhu, due to change of circumstances they would like to substitute its Authorized representative Mr.Bharatesh.M.C during the course of trial. Accordingly on 27.09.2023 the said application was allowed and another authorized representative Mr.Bharatesh.M.C, represented the complainant. The complainant's have examined this authorized representative as PW.2 and got marked 02 documents at Ex.P.10 and 11 and closed its side.
8. After closer of the evidence of the complainant, the statement under section 313 of Cr.P.C., was recorded. The accused has denied the incriminating evidence appeared against her. In her defence, the accused examined herself as DW.1 and 04 documents were marked at Ex.D.1 to 04.
9. Heard the arguments on both the sides and perused the material placed on record.
10. Upon hearing the arguments and on perusal of the material placed on record, the following points arise for my consideration:
1.Whether the complainant proves the existence of legally enforceable debt/liability.?
C.C.NO.22382/2019 5
2.Whether the complainant further proves that the accused had issued the cheque- Ex.P.4, towards the discharge of the said legally enforceable debt/liability.?
3.Whether the complainant further proves that the cheque-Ex.P.4 was dishonored for the reasons Drawer signature differs and "Funds Insufficient" and thereafter the accused had failed to repay the same within the statutory period, inspite of receipt of legal notice.?
4.Whether the accused have thus committed an offence punishable under section 138 of N.I.Act.?
5. What order?
11. My answers to the above points are as under:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: In the Affirmative Point No.4: In the Affirmative Point No.5: As per final order, for the following:
:REASONS:
12. POINT NO.1 AND 2: These two points are inter-related to each other and finding given on any one point will bearing on the another. Hence, in order to avoid repetition of facts and evidence, I have taken these two points together for common discussion. The case of the complainant is that the accused is a proprietorship concern. The accused has been a client of the complainant and the complainant company has been doing business with the accused, since 2010 and C.C.NO.22382/2019 6 in the course of the aforesaid transaction, the complainant and the accused are well know to each other. The complainant has supplied the power cables under invoice, worth of Rs.6,93,501/-. The material have been delivered to the accused as endorsed on the tax invoices and supplied materials is reflected in its statement of accounts. Further in accordance with the statement of account of business with the accused the accused is liable to pay an amount of Rs.1,03,000/-. When it demanded for payment the accused had issued a duly filled and singed cheque in question in favour of the complainant as a part payment. As per the request of the accused the complainant to present the aforesaid cheque in two times. But the said cheque was dishonor for the reasons drawer signature differs and funds insufficient respectively. Thereafter the complainant got issued a legal notice on three addresses of the accused through RPAD calling upon her to make payment within 15 days from the date of receipt of the said notice. The said notice sent to J.P.Nagar address was duly served, and other notices were returned unserved. After receipt of the legal notice the accused neither reply to the notice nor paid the cheque amount. As such, the accused have committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court.
C.C.NO.22382/2019 7
13. At this juncture, it is necessary to go through the provisions of N.I.Act before proceeding further. The provisions under Section 118(a) and 139 of the Act., 1881 are extracted and they reads thus;
"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 accepted, indorsed, negotiated or transferred for consideration.
(b) as to date:- that every Negotiable Instrument bearing date was made or drawn on such date;
"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."
14. On plain perusal of the provisions under Section 118(a) and 139 of the N.I.Act., as extracted C.C.NO.22382/2019 8 herein above, it can be seen that initially the presumptions constituted under these two provisions favour the complainant. However, it is open to an accused to raise a defence to rebut the statutory presumptions. An accused can raise a defence, wherein the existence of legally enforceable debt or liability can be contested.
15. It is also well established that an accused for discharging the burden of proof placed upon her under a statute need not examine herself. She may discharge her burden on the basis of the materials already brought on record. An accused have constitutional rights to maintain silence. Standard of proof on part of the accused and that of the prosecution in a Criminal case is different. The prosecution must prove the guilt of an accused beyond all reasonable doubts, the standard of proof so as to prove a defence on the part of an accused is "Preponderance of probabilities".
16. Under the light of above extracted provisions of the Act, I have perused the oral and documentary evidence on record. In support of the case, the complainant's have examined its Commercial Manager and Authorized person/Managing Director as P.W.1 and 2 and 11 documents were marked at Ex.P.1 to 11. In the chief examinations they have repeated the contents taken by the complainant in the complaint. Ex.P.1 is the Board resolution. Ex.P.2 is the invoice dated:
C.C.NO.22382/2019 9 19.01.2018. Ex.P.3 is the ledger account dated:
01.04.2018 to 20.03.2019. Ex.P.4 is the cheque issued by the accused in favour of the complainant dated: 05.03.2019 for Rs.1,00,000/-. Ex.P4(a) is the signature of the accused. Ex.P.4(b) and 4(c) are the bank memos dated: 06.03.2019 and 06.04.2019 informing the dishonor of the cheque as Drawer signature differs and Funds Insufficient respectively. Ex.P.5 is the office copy of legal notice dated: 29.04.2019. Ex.P.5(a) to 5(c) are the postal receipts. Ex.P.6 is the postal acknowledgment. Ex.P.7 and 8 are the returned legal notices. Ex.P.7(a) and 8(a) are the returned postal covers. Ex.P.9 is the complaint. Ex.P.10 is the certified copy of the resolution. Ex.P.11 is the amended complaint.
17. I have perused the exhibits on which the complainant have placed their reliance. On perusal of the exhibits, it is clear that cheque in question was presented for encashment within its validity. The bank endorsements with a sharas "Drawer signature Differs"
and "Funds Insufficient". The complainant issued the legal notice within one month from the date of receipt of memos. One notice was duly served to the accused and other two notices were returned as No such person and No such firm in the given address. The complaint was filed on 12.06.2019, which is within limitation. The transaction with the complainant is admitted. The C.C.NO.22382/2019 10 issuance of the cheque and the signature on the cheque-Ex.P.4 is not seriously disputed by the accused. Therefore, the documents on record clearly show that the complainant have complied the ingredients of section 138(a) to (c) of the N.I.Act. Therefore, the presumptions under section 118 and 139 of the N.I.Act arise in favour of the complainant. The presumptions are rebuttable and the burden is on the accused to rebut the presumptions. The presumption is that the cheque was issued for legally enforceable debt/liability. However actual existence debt/liability can be contested. The accused can rebut the presumptions by raising probable defences and proving it relying on the evidence of the complainant or by leading her direct evidence.
18. The case was seriously contested by the accused and the service of notice was disputed. Two notices were not served on the accused. Its were returned with a sharas 'No such firm in the given address' and 'No such person' as per Ex.P.7 and 8 and Ex.P.7(a) and 8(a) and one notice was duly served to the accused. The accused also denied the service of notice. The counsel for the accused cross-examined PW-2 in respect of non service of notice. But PW.2 denied the same. Further contended that the notice sent to the accused not served'; that the accused has no knowledge of the notice as it was not served on her;
C.C.NO.22382/2019 11 that the accused did not give reply to the notice as the notice was not served on her; that she did not produce any documents to show that the accused was not doing business and not residing at the said address and that the accused did not issue reply to the notice as she was not doing business and residing at the said address. The counsel for the accused argued that no legal presumption can be raised as the notice was sent to the wrong address and the accused was not doing business and not residing at the said address. On the other hand, the counsel for the complainant cross examined DW.1 in respect of address of the accused, service of notice. She admitted that the address. When the notice at Ex.P.5, wherein the name of accused is appearing, was confronted.
19. On perusal of Ex.P.5, it is clear that the name of the accused is appearing in the notice. The same notice was sent to the accused. The accused not given reply. There is no evidence on record to show that the accused was doing business and residing at some other address other than the address mentioned in the notice at Ex.P.5. On the other hand, it is clear from the cross-examination of DW.1 that the accused was residing at the said address. The above discussion clearly shows that the address mentioned in the notice is the correct address of the accused. As the notice was given to the accused and the same notice was C.C.NO.22382/2019 12 sent to her through separate RPAD, an inference can be drawn that the notice was also served on the accused. Further the address mentioned in the notice being the correct address of the accused as admitted by her in the cross-examination, the presumption as per section 27 of General Clauses Act can be drawn. It states that the notice sent through post shall be deemed to be served, if it is properly addressed to a person to whom it is sent. Therefore, even though the notice sent to the accused through RPAD returned with a postal shara 'No such firm in the given address return to sender' and "No such person return to sender" and one notice was duly served, it is to be considered as deemed service of notice.
20. In a nutshell it can be said that the statutory notice is an opportunity given to the accused to make payment and avoid the consequences of 138 of N.I.Act. In the case on hand, the summons was duly served on on the accused and she appeared through her counsel. The accused also admitted the service of summons. She appeared before the Court and contested the case by taking all probable defences. Therefore she cannot take the shelter of statutory requirement of service of notice to avoid the consequences of Section 138 of N.I.Act. The complaint was filed on 12.06.2019, which is within limitation. The accused admitted the issuance of cheque and signature in the cheque. It is her C.C.NO.22382/2019 13 defence that the complainant misused the cheque collected with her husband. Therefore, the documents on record clearly show that the complainant have complied the ingredients of section 138(a) to (c) of the N.I.Act. Therefore the presumptions under 118 and 139 of the N.I.Act arise in favour of the complainant. The presumptions are rebuttable and the burden is on the accused to rebut the presumptions. Once the issuance of cheque and signature are proved, the presumption arises in respect of the fact that the cheque was issued for legally enforceable debt/liability. The accused can rebut the presumption by raising probable defence and proving it relying on the evidence of the complainant or by leading her direct evidence.
21. In order to prove her defence, the accused is examined herself as DW.1 by way of affidavit and 04 documents were marked at Ex.D.1 to 04 on her behalf. In her chief examination affidavit she has repeated the defence taken by her. Ex.D.1 is the death certificate of her husband. Ex.D.2 is the VAT registration certificate. Ex.D.3 is the registration certificate. Ex.D.4 is the acknowledgment letter.
22. The accused has taken the defence that she is not running a business in the name of R.K.Power Control, she is one of the Government employee and doing a teacher job. Hence, she is not running a any business. It is further contended that she is not the C.C.NO.22382/2019 14 owner of the R.K.Power Control and there is no any transaction made between the accused and the complainant as per alleged in the complaint. She never issued any purchase order to the complainant and she did not receive any electrical equipment from the complainant because she is neither proprietor nor owner of the said company. Further contended that the said company is running in the name of Ramakrishna, who is her husband and he is only sole proprietor of the said company and all company related documents standing in the name of Ramakrishna. She don't have any knowledge about the said company business. Further contended that she never issued alleged cheque to the complainant to clear her legally enforceable debt. She never made any transaction with the complainant then question of issuance of cheque in question does not arise at all. Further contended that the said cheque misused by the complainant colluded with her husband and filed false complaint against the accused. The accused in her defence has not disputed Ex.P.4 being her cheque drawn on the account of the accused. She also does not dispute her signature appearing on the said cheque. Further she has contended that she has never admitted regarding repayment of amount and there is no transaction between the complainant and the accused as alleged by the complainant. The accused has specifically denied having agree to repay the amount of C.C.NO.22382/2019 15 Rs.1,00,000/-.
23. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of legally enforceable debt/liability, for which the cheque came to be issued. The learned counsel for the complainant has argued that from the evidence placed on record, the fact that the accused is a proprietary concern. The accused has been a customer of the complainant and the accused has been doing business with the complainant, since 2010 and in the course of the said transaction the complainant and the accused are well known to each other. It is further argued that the complainant has supplied the power cables under invoice dated:
19.01.2018 worth of Rs.6,93,501/-. The accused duly received the said materials. In this regard the complainant maintained a statement of account. It is further argued that as per the statement of account and also in the invoice the accused had to pay an amount of Rs.1,03,000/- to the complainant. It is further argued that after the repeated request made by the complainant, the accused has not paid the said amount to the complainant. The accused towards the discharge of the said payment, had issued the cheque in favour of the complainant. Further argued that the accused has not denied Ex.P.4 being her cheque drawn on the account of the accused and signature appearing on the C.C.NO.22382/2019 16 said cheque. When the signature is not disputed, the presumption under section 139 N.I.Act is to be drawn in favour of the complainant. The accused has failed to elicit anything in the cross examination of P.W.2 to disbelieve the case of the complainant. The defence have failed to rebut the presumption under section 139 N.I.Act. He further argued that the accused has failed to produce any believable evidence that the complainant misused the alleged cheque colluded with the husband of the accused & also why she has not returned back the same is not clear. He further argued that the accused has failed to produce any believable documentary evidence regaring her husband had issued the subject cheque in favour of the complainant.
Further argued that to prove under section 139 of N.I.Act, there is a presumption that the cheque has been issued for discharge of legally enforceable debt/liability. In the present case, the accused has not disputed Ex.P.4 being her cheque drawn on the account of the accused. The said presumption is available to the complainant.
24. He further argued that the accused had failed to prove the very fact that cheque in question was given by her husband to the complainant and it was blank when it was given to the complainant. Moreover, under section 118 of N.I.Act, there is a presumption that the Negotiable Instruments is drawn on the date, C.C.NO.22382/2019 17 for the amount and in favour of the person as shown in it. It is for the accused to rebut the said presumption. But, in the case on hand no such evidence forthcoming. It was also argued by him that as per the defence by the accused that her husband given the cheque to the complainant and the complainant have misused the same. As such, very defence of the accused is not believable. The learned counsel for the complainant further argued that the accused has not produced any documentary evidence except Ex.D.1 to 4 to prove her defence. Upon careful perusal of the entire evidence of records both oral as well as documentary evidence the complainant have proved their case. It was further argued that the accused seriously disputed that the complainant company collected blank cheque from her husband and the complainant have misused the same. However, she has miserable failed to prove the said fact.
25. He has further argued that it is specific case of the accused that she not transaction with the complainant and there is no due. Further the materials available on record clearly established that the accused has admitted the issuance of cheque and her signature. The initial burden is the complainant to prove that the cheque was issued in favour of the complainant towards payment of amount, then onus shifts upon the accused to prove her defence and it is for the accused C.C.NO.22382/2019 18 to rebut the legal presumption enumerated under section 138 of Negotiable Instruments Act. But the accused has not produced any documents. As per presumption the cheque was issued for discharge of legal liability and it is for the accused to rebut the said presumption by adducing the cogent and convincing evidence. On perusal of the documents, it clearly reveals that cheque in question was issued in favour of the complainant towards discharge of liability/debt not by her husband, under the facts and circumstances the complainant have proved that the accused had issued the cheque in question for repayment of due amount. On the contrary, the accused utterly failed to prove her probable defence that her husband had issued the cheque. Under these circumstances the complainant have established their case in compliance of 138 of the N.I.Act. Hence, he prays to allow the complaint and convict the accused.
26. The learned counsel for the accused has argued that there was no legally enforceable debt/liability to the complainant from the accused for which the cheque-Ex.P.4 was issued. Further argued that the accused is not running a business in the name of R.K.Power control and the accused is one of the Government employee and she is not running any business in the name of R.K.Power Control. It is further argued that the accused is not the owner of the C.C.NO.22382/2019 19 R.K.Power Control and there is no business transaction with the complainant as alleged in the complaint. It is further argued that the accused never issued any purchase order to the complainant and she not received any electric equipment from the complainant. Further argued that the accused neither proprietor nor the joint owner of the R.K.Power Control and the husband of the accused is a sole proprietor of the said company. It is further argued that all are company related documents standing in the name of husband of the accused i.e., Ramakrishna. The accused don't have any knowledge about the said business transaction. It is further argued that the accused never approached to the complainant and never issued purchase order and she never purchased any power cable items from the complainant. He has further argued that the accused never issued the cheque in question to clear any legally enforceable debt. When the accused not business transaction with the complainant then question of issuance of cheque for repayment of legally enforceable debt does not arise. It is further argued that the alleged cheque misused by the complainant colluded with the husband of the accused. The complainant filed false case against the accused for money grabbing intention. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of a legally enforceable debt/liability, for which the cheque C.C.NO.22382/2019 20 came to be issued.
27. Further argued that PW.2 is only in order give trouble to the accused and with an intention to make illegal money from the accused filed false case. This is not permissible under the law. Further argued that Ex.P.4-cheque was collected from the husband of the accused. On looking it Ex.P.4 the signature of the accused is admitted. Whereas, the writing part of the cheque amount in words and in figure are different handwriting and different ink. Therefore, the entire cheque was filled up by the complainant as there whims. The complainant created all the documents and filed this false case against the accused. Therefore, from the evidence placed on record, the very supplying power cable items to the accused and due amount by the accused is not clearly made out whereas the accused is succeeded in rebutting the presumption available under section 139 of N.I.Act., regarding existence of legally enforceable debt. He further argued that the complainant have misconceived his purported rights in filing the above complaint on the alleged issuance of cheque by the husband of the accused. Further argued that the complainant had received the blank cheque from the husband of the accused. The cheque in question was misused by the complainant colluded with the husband of the accused. The complainant have filed false case against the accused.
C.C.NO.22382/2019 21 The complainant have not made out any case against the accused. Admittedly the said cheque was issued by her husband. By taking undue advantage of possession of the aforesaid cheque, the complainant has foisted a false complaint against the accused. On this ground alone the complaint requires to be dismissed. Further argued that the complainant not produced any documents before this court. Hence, he prays to dismiss the complaint with exemplary costs and acquit the accused.
28. In the case on hand the complainant and the accused having some transaction has not been seriously disputed by the accused. Further the accused has not seriously disputed she had issued the cheque in question. It is not disputed that the complainant is a limited company and the accused is a proprietary concern and she had issued the cheque-Ex.P.4. Whereas, the accused has contended that the complainant misused the cheque colluded with her husband. The accused has specifically denied having debt/liability had issued the cheque-Ex.P.4 on 05.03.2019 towards the discharge of any debt/liability. She contends that the complainant misused the blank cheque colluded with her husband and a false complaint was filed.
29. In order to attract the offence of the section 138 of N.I.Act, the main ingredients of the existence of C.C.NO.22382/2019 22 the legally enforceable debt/liability, for which the cheque drawn on the account of the accused was given for discharge of the same, are to be proved. The complainant in order to prove its case, have examined its Commercial Manager and Authorized person/Managing Director as PW.1 and 2 and 11 documents were marked at Ex.P.1 to 11. In chief examinations, P.W.1 and 2 have repeated the averments made by the complainant in the complaint. In the present case, the accused has not disputed Ex.P.4 being her cheque drawn on the account of the accused. The said presumption is available to the complainant.
30. As per the section 139 of N.I.Act, there is a presumption regarding the existence of legally enforceable debt/liability. Such presumption is a rebuttable presumption and it is opinion to the accused to raise defence discharging the existence of a legally enforceable debt/liability. In the case on hand also the accused has disputed the existence of legally enforceable debt/liability, for which cheque-Ex.P.4 was issued. In order to prove her defence, the accused has failed to produce any documentary evidence before this court except Ex.D.1 to 4. PW.2 during his cross- examination has specifically denied the suggestions made to him that Ex.P.4-cheque was misused by the complainant. Further he has denied the suggestions C.C.NO.22382/2019 23 there is no dues from the accused.
31. Since, the presumption under section 139 of N.I.Act is a rebuttable presumption the accused is firstly required to produce some probable evidence to rebut the same. Though in the criminal cases, the standard of the proof required for the accused is not so strict as required for the complainant to prove the case. Further the accused has to produce some probable evidence, which creates doubt about the existence of legally enforceable debt/liability. In the present case, as per the defence taken by the accused is that the complainant misused the cheque colluded with the husband of the accused. Except, the said defence, she has not produced any materials to prove such defence. If the complainant misused the cheque colluded with the husband of the accused, what prevented the accused to file the complaint immediately after the alleged illegal act made by the complainant. Further what prevented the accused to file the complaint against the complainant for misusing of alleged cheque. On which date the accused came to knew about the alleged illegal act of the complainant, she did not whisper about on what date she came to know the alleged cheque illegally misused by the complainant. Admittedly the accused is having knowledge of the financial transaction, why she has kept blank cheque without anticipating the consequence is not explained C.C.NO.22382/2019 24 by her. So also, she has not stated anything as to what steps she took to receive back the blank signed cheque. Moreover, immediately after the alleged blank cheque misused by the complainant collected with her husband she has not lodge complaint before concerned police station. No steps have been taken to receive back the blank cheque, after she came to know about the same.
32. Once issuance of cheque and signature are admitted, the statutory presumptions would arise under sections 118 and 139 of the N.I.Act that the cheque was issued by the drawer for legally payable debt/liability and for valid consideration. The Hon'ble Supreme Court has held in Rangappa V/s Mohan, reported in 2010 AIR SCW 296, the presumption that the cheque was drawn in discharge of legally recoverable debt is a presumption of law that ought to be raised in every case, though, it is a rebuttable presumption. Of course, the presumption under section 139 and 118 of the N.I.Act are rebuttal presumption. Further it is also held that mere plausible explanation by the drawer is not sufficient and proof of that explanation is necessary. The principle of law laid down in the above decision is applicable to the facts of this case. In the instant case, since the complainant is in possession of the cheque-Ex.P.4 the court has to draw the initial presumption that he is the payee of that C.C.NO.22382/2019 25 cheque. Once the initial burden is discharged by the complainant, the onus shifts on the accused to rebut the complainant's case.
33. In the case of K.S.Ranganatha V/s Vittal Shetty, reported in 2021 SCC Online SC 1191, the Hon'ble Supreme Court held that once the cheque is admitted to be that of the accused, the presumption envisaged in section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability. It is further held that the position of law makes it crystal clear that when a cheque is drawn out and is relied upon by drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount; such presumption of course, is rebuttable by proving to the contrary. The onus is on the accused to raise a probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities.
34. In the case of Kalamani Tex V/s P. Balasubramanian, reported in (2021) 5 SCC 283 has observed that section 138 read with 139 of N.I.Act, presumption as to legally enforceable debt, effect of admission regarding signature on the cheque, in such C.C.NO.22382/2019 26 situation, court held that required to presume that the cheque was issued as consideration for legally enforceable debt.
35. In the present case also, as the accused never disputed her signature and did not deny issuing cheque from the account of the accused. The accused did not dispute cheque return memos also. The cheque was returned for the reasons funds insufficient and Drawer signature differs. Thus, the act clearly lays down presumptions in favour of the complainant with regard to the issuance of the cheque by the accused towards the discharge of the liability in favour of the complainant. Further under scheme of the Act, the onus is upon the accused to rebut the presumption in favour of the complainant by raising a probable defence. Such being the legal position, it would be pertinent to refer to the defences raised by the accused to rebut the presumptions in favour of the complainant in this case.
36. Applying the above said principles to the present case and before considering the point whether the accused succeeded to rebut the presumptions and to establish her defence to the extent of probabilities, it is just and necessary to accumulate undisputed facts in this case.
37. It is not in dispute that bounced cheque belongs to the bank account of the accused. It is also not in dispute that signature appearing on the bounced C.C.NO.22382/2019 27 cheque is the signature of the accused. It is also not in dispute that the cheque presented by the complainant came to be dishonored by the banker of the accused for the reason stated in the dishonor memos. To consider whether the accused succeeded to rebut the presumption and established the defence to the extent of probabilities, the accused has not produced any documents in this regard. It was also contended by the accused that the complainant misused the alleged cheque colluded with her husband. In this regard the accused has failed to produce any believable evidence before this court. Hence, the defence of the accused cannot be accepted that cheque in question was issued by the husband of the accused and the complainant misused the same colluded with her husband.
38. In the defence there is no ill-will between the complainant and the accused. Hence, question of misuse of the cheque and filing the false case is not possible. The accused admittedly having knowledge of business. It is implies, she is conversant with financial transaction. If the complainant misused the said cheque colluded with her husband and had not returned the same, inspite of collecting cheque leaves from her husband, as a prudent man, the accused should have inquired with the complainant and demanded to return that cheque. No ordinary prudent man would keep quite in such circumstances, without C.C.NO.22382/2019 28 taking any steps. The conduct of the accused is very unusual, because she did not take any legal action against the complainant, even after filing of the complaint based on Ex.P.4. Further she could have issued a notice to her banker to stop payment or legal notice to the complainant or she could have given complaint to the police station immediately. No such steps were taken by the accused. She simply makes a bald allegation of misuse of cheque against the complainant. It appears, just to escape from her legal liability, she has taken such contentions without any valid basis.
39. Moreover, the complainant have got issued a legal notice to the accused through its counsel by RPAD calling upon the accused to make repayment of amount to the complainant. Before a person is held to be guilty of an offence punishable under section 138 of N.I.Act, the complainant has to prove the compliance of the requirement under section 138 of N.I.Act. It is not in dispute that Ex.P.4 being her cheque drawn on account of the accused. In view of the above discussions, it is also held to be proved that it was drawn for discharge of legally enforceable debt/liability. From the evidence of P.W.1 and 2 also cheque return memos-Ex.P.4(b) and 4(c) it is established that the cheque was dishonored for the reasons "Drawer signature differs and Insufficient Funds''. A legal notice being issued as C.C.NO.22382/2019 29 per Ex.P.5 within one month from the date of dishonor of the cheque is also not in dispute. In the case on hand the accused has not seriously disputed regarding notice send by the complainant on her address. But the accused has failed to reply the notice, immediately after she received the demand notice. Thereby, she could have asserted her defence at an earliest available opportunity. In the case on hand the notice is sent to the accused at her address. When the accused has not disputed, the notice sent to the correct address is sufficient compliance of section 138 of N.I.Act. Therefore, there is sufficient proof of due service of the legal notice.
40. It is not the contention of the accused that thereafter she has repaid the cheque amount within stipulated time of 15 days on receiving the notice. Therefore, in the case on hand on perusal of the evidence placed on record, all the essential ingredients under section 138 N.I.Act, have been complied with. As the accused has not paid the cheque amount within stipulated period, as such the accused have committed an offence punishable under section 138 of Negotiable Instruments Act. The present complaint is filed before this court within one month after the accused failed to repay the cheque amount. Even she did not whisper anything about the defence while her plea was recorded under section 251 of Cr.P.C,. In view of C.C.NO.22382/2019 30 judgment of Hon'ble Supreme Court in Indian Bank Association V/s Union of India and others, reported in 2010(5) SCC 590, it is clear that while recording the plea under section 251 of Cr.P.C., it becomes the duty of the accused to state whether she has any defence to make or she pleads guilty. Thus, unlike under section 240 of Cr.P.C., the accused has no option under section 251 of Cr.P.C., just to deny the allegations made against her. If she is not willing to plead guilty, she must explain what are the defences she wants to take. As such it has to be considered, whatever defence raised by the accused during the trial are all after thought, just to get ride of statutory burden cast on her.
41. In addition to this in the case of T.P.Murugan (Dead) through legal representatives V/s Bojan, reported in 2018 (8) SCC 469, the Hon'ble Apex Court held that once the cheque has been signed and issued in favour of the holder of the cheque, there is statutory presumption that the cheque is issued in respect of legally enforceable debt or liability: rebuttal of such presumption must be by adducing credible evidence. Mere raising a doubt without cogent evidence with respect to the circumstances, presumption under section 139 of N.I.Act cannot be discharged. The principle of law laid down in the above decisions are applicable to the facts of this case. Except some bald C.C.NO.22382/2019 31 contentions, the accused has not been able to make out a probable case on her behalf.
42. As per the version of the accused she has nowhere denied transaction. The accused herself has admitted that she is the holder of alleged cheque. It is sufficient hold that the accused had issued the cheque and even after she has not repaid the cheque amount the getting of receipt of notice. However, in any manner as the complainant have complied all the terms of ingredients of the provisions of 138 of N.I.Act. The accused is liable for dishonor of cheque. In case of dishonor of the cheque, once the execution of the cheque is admitted by the accused, then it for her to first rebut presumption arising out of section 139 of N.I.Act. Accordingly, P.W.1 and 2 have established the case of the complainant that the accused had issued the cheque in question in order to repay the legally recoverable amount. Therefore, the accused has failed to probables the defence taken by her that Ex.P.4 was the blank cheque misused by the complainant colluded with her husband. Therefore, the accused has failed to rebut the presumption under section 139 of N.I.Act. In the said circumstances, the complainant is not at all required to produce any material as to the transaction between the complainant and the accused, since the initial presumption is still available, when there is no rebuttal evidence.
C.C.NO.22382/2019 32
43. PW.1 and 2 in their evidence have specifically deposed that the accused is a customer of the complainant and she has been purchasing the power cables on credit from the complainant and having a running account with the complainant. The accused makes part payments to the complainant against the purchases made in respect of invoices. The accused is now due in a sum of Rs.1,03,000/- to the complainant, in order to payment of dues she had issued the cheque-Ex.P.4. So also it is not in disputed that the complainant and the accused are known to each other, some point of period. But the accused has failed to rebut the presumption under section 139 of N.I.Act. Hence, non furnishing the details of transaction no consequences to disbelieve the case of the complainant. The accused has failed to probables her defence. With these reasons, I answer point No.1 and 2 in the Affirmative.
44. POINT NO.3 AND 4: These two points are inter-related to each other and finding given on any one point will bearing on the another. Hence, in order to avoid repetition of facts and evidence, I have taken these two points together for common discussion Before a person is held to have committed an offence punishable under section 138 of N.I.Act, the complainant have to prove all the requirements of section 138 of N.I.Act. Ex.P.4 being her cheque drawn C.C.NO.22382/2019 33 on the account of the accused is not in dispute. The said cheque having been dishonored for the reasons Drawer signature differs and funds insufficient, when it was presented by the complainant before the Bank for encashment is also not seriously disputed by the accused. The accused has not taken up any contention that thereafter she had paid the cheque amount within stipulated time of 15 days, after given of the notice. As such, in the present case on perusal of the documents, the essential requirements of section 138 of N.I.Act, have been complied with. In this case if the husband of the accused has issued cheque in favour of the complainant and why she has not produced any documents. After service of notice the accused neither reply to the notice nor paid the said amount. Hence, the present complaint came to be filed before the court on 12.06.2019 before this court. While discussing the point No.1 and 2, this court has already observed that the complainant have proved that the cheque-Ex.P.4 was issued for discharge of legally enforceable liability/debt and in view of the mandatory requirements under section 138 of N.I.Act, being complied with. The accused is found to have committed an offence punishable under section 138 of N.I.Act. With these reasons, I answer point No.3 and 4 in the Affirmative.
45. POINT NO.5: The accused is held to have committed an offence punishable under section 138 of C.C.NO.22382/2019 34 N.I.Act. The complainant have proved its case. The accused has failed to prove her rebuttal for the reasons mentioned above and in view of the mandatory requirements of section 138 of N.I.Act, being complied with. The accused is found to have committed an offence punishable under section 138 of N.I.Act. Since, the said offence is an economic crime, the accused is not entitled for the beneficial provisions of probation of offenders Act. In view of the above discussions and the findings on point No.1 to 4, I proceed to pass the following;
:ORDER:
Acting under section 255(2) of Cr.P.C. the accused is convicted for an offence under section 138 of N.I.Act.
The bail bond executed by the
accused hereby stands canceled.
The accused is sentence to pay fine of
Rs.1,10,000/- (Rupees one lakh ten
thousand only) to the complainant
company.
It is further ordered that out of the said fine amount an amount of Rs.1,02,000/- (Rupees one lakh two thousand only) shall be paid to the complainant company as compensation as per section 357(1)(b) of Cr.P.C., and remaining amount of Rs.8,000/- (Rupees eight thousand only) C.C.NO.22382/2019 35 shall be remitted to the State.
In default of the payment of fine amount, the accused shall undergo simple imprisonment of six months.
(Dictated to the stenographer directly on computer typed by her, corrected by me and then judgment pronounced in the open court on 07th day of August-2024) Digitally signed by SOUBHAGYA SOUBHAGYA B BHUSHER B BHUSHER Date:
2024.08.09 17:01:48 +0530 (Soubhagya.B.Bhusher) XXVIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE List of witness examined on behalf of the complainant:
PW.1 : Sri.Madhu.S. PW.2 : Sri.Bhartesh.M.C.
List of documents marked on behalf of the complainant:
Ex.P.1 : Board Resolution. Ex.P.2 : Invoice. Ex.P.3 : Ledger account. Ex.P.4 : Cheque. Ex.P.4(a) : Signature of the accused. Ex.P.4(b) & (c) : Bank endorsements. Ex.P.5 : Office copy of the legal notice. Ex.P.5(a) to 5(c) : Postal receipts. Ex.P.6 : Postal Acknowledgment. Ex.P.7 & 8 : Returned legal notices.
Ex.P.7(a) & 8(a) : Returned RPAD covers.
Ex.P.9 : Complaint. Ex.P.10 : Certified copy of the resolution. Ex.P.11 : Amended complaint.
List of witnesses examined on behalf of the accused:
DW.1 : Smt.Mahadevi.B
C.C.NO.22382/2019
36
List of documents marked on behalf of the accused: Ex.D.1 : Death certificate of the husband of the accused.
Ex.D.2 : VAT registration certificate.
Ex.D.3 : Registration certificate.
Ex.D.4 : Acknowledgment letter.
Digitally
signed by
SOUBHAGYA
SOUBHAGYA B BHUSHER
B BHUSHER Date:
2024.08.09
17:01:56
+0530
(Soubhagya.B.Bhusher)
XXVIII Addl. Chief Judicial
Magistrate, Bengaluru City.
C.C.NO.22382/2019
37
07.08.2024 (Judgment pronounced in the Open
Court Vide Separate Sheet)
:ORDER:
Acting under section 255(2) of Cr.P.C. the accused is convicted for an offence under section 138 of N.I.Act.
The bail bond executed by the accused hereby stands canceled. The accused is sentence to pay fine of Rs.1,10,000/- (Rupees one lakh ten thousand only) to the complainant company.
It is further ordered that out of the said fine amount an amount of Rs.1,02,000/- (Rupees one lakh two thousand only) shall be paid to the complainant company as compensation as per section 357(1)(b) of Cr.P.C., and remaining amount of Rs.8,000/- (Rupees eight thousand only) shall be remitted to the State.
In default of the payment of fine amount, the accused shall undergo simple imprisonment of six months.
XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.