Bangalore District Court
Sri.Shivananda I.Bagalkot vs Sri.Ningu L Pawar on 12 April, 2022
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C.C.No/6186/2018
IN THE COURT OF THE XIX ADDL. CHIEF
METROPOLITAN MAGISTRATE AT BENGALURU CITY.
Dated this the 12th day of April 2022.
PRESENT:SRI.FAROOQ ZARE, B.A.(Law)LL.B.L.L.M.
XIX ADDL.C.M.M.,BENGALURU.
Case No: :- C.C.No.6186 of 2018
COMPLAINANT :- Sri.Shivananda I.Bagalkot
S/o Irappa,
Aged about 37 years,
R/at No. 3918,
2nd Floor, 14th Main Road,
M.C.Layout, Vijayanagar,
Bengaluru-560040.
(By A.S.P.,Advocate)
-V/s -
ACCUSED :- Sri.Ningu L Pawar
No. 339, 2nd Floor, 9th Cross,
M.S.Ramaiah Layout Main Road,
Havanur Layout,
Bengaluru-560073.
Permanent Address:-
Ningu L.Pawar,
Kalkeri Sub Post Office,
Taluk-Sindagi,
Dist/Bijapur/Vijayapur-586118.
(By Sri.L.Y.,Advocate)
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C.C.No/6186/2018
Offence complained of: :- U/sec.138 of N.I.Act.
Plea of accused: :- Pleaded not guilty.
Opinion of the Judge: :- Accused found guilty.
Date of order: :- 12th April, 2022.
J UD GME N T
The complainant has filed this complaint
U/sec.200 of Cr.P.C. against the accused for the offence
punishable U/sec.138 of N.I.Act.
2. The brief facts of the complaint are that;
The complainant has been working in a
multinational company while the accused has been
wording as a sub contractor. Both the complainant as
well as accused are friends since there school days for
the past 18 years. In the first week of August 2016 the
accused had approached the complainant for availing
hand loan of Rs.1,00,000/- as he was in need of money
for his business purpose. Accordingly, the complainant
lent a sum of Rs.1,00,000/- to the accused. Again on
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17.08.2016 the accused had approached the
complainant seeking a sum of Rs.1,00,000/- for his
contractor business. The complainant advanced a sum
of Rs.1,00,000/- to the accused. The accused had
promised to repay a sum of Rs.2,00,000/- in the month
of July or August 2016.
3. Again in the months of May and June 2017,
the accused had approached the complainant for
financial help. The complainant had advanced a sum of
Rs.30,000/- on 17.05.2017, a sum of Rs.1,20,000/- on
18.05.2017, a sum of Rs.1,00,000/- on 12.05.2017, a
sum of Rs.1,00,000/- on 25.05.2017, a sum of
Rs.1,00,000/- on 01.06.2017 and a sum of Rs.25,000/-
on 11.06.2017. The complainant has totally paid a sum
of Rs.6,75,000/- as a hand loan to the accused and the
accused had to repay the said amount within the
stipulated period on 15.08.2017. The accused has also
acknowledged for having received a sum of
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C.C.No/6186/2018
Rs.6,75,000/- by e-mail. On request made by the
complainant, the accused issued a cheque bearing
No.194322 dated 05.12.2017 for Rs.4,75,000/- drawn
on Vijaya Bank, Whitefield Branch, Bengaluru towards
discharge of debt in part.
4. When the complainant presented the cheque
on 05.12.2017 for encashment through his banker,
ICICI Bank, Koramangala Branch, Bengaluru, which
was returned with an endorsement "Funds
Insufficient" on 11.12.2017. As per the request made
by the accused, the complainant again presented the
cheque on 28.12.2017 which was returned unpaid with
an endorsement "Funds Insufficient" vide outward
memo dated 01.01.2018. The complainant got issued
legal notice on 25.01.2018 to the accused through
registered post acknowledgment due calling upon the
accused to pay the cheque amount. In spite of receipt of
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C.C.No/6186/2018
demand notice, the accused has neither made any
payment towards cheque amount nor has issued any
reply.
5. On presentation of the complaint, the
cognizance was taken of the offence punishable
U/sec.138 of N.I.Act and registered it as P.C.R No.3112
of 2018. The sworn statement of the complainant was
recorded. Since there were sufficient materials to
proceed against the accused, it was registered in
register No.III and the process was issued to the
accused.
6. On receipt of the summons, the accused has
appeared before the court through his counsel and
secured bail. He was furnished with the prosecution
papers. The substance of the accusation was read over
and explained to him. He pleaded not guilty and
claimed to tried.
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C.C.No/6186/2018
7. The complainant has himself got examined as
PW1 and got marked documents Exs.P1 to Ex.P8.
8. The statement of the accused U/sec.313 of
Cr.P.C., was recorded. He denied the incriminating
evidence appearing against him. However, inspite of
availing sufficient opportunities, the accused had not
adduced defence evidence and as such defence evidence
taken as nil.
9. Heard the arguments of learned counsel for
complainant and he has also filed written arguments.
As the defence side has not addressed arguments
inspite of providing sufficient opportunities, their side
arguments was taken as nil.
10. The points that arise for my consideration
are as under;
1.Whether the Complainant proves that the accused has issued the 7 C.C.No/6186/2018 cheque at Ex.P1 for Rs.4,75,000/-
in his favour towards discharge of legally enforceable debt.?
2. Whether the complainant further proves that the said cheque got dishonored as "Funds Insufficient"
when it was presented for
encashment.?
3. Whether the complainant further proves that he has complied with the mandatory provisions of Section 138 of N.I.Act.?
4. What order ?
11. My findings to the above points for consideration are as under:
Point No.1 :- In the Affirmative. Point No.2 :- In the Affirmative. Point No.3 :- In the Affirmative. Point No.4 :- As per final order for the following;
:: R E A S O N S ::
12. Point No.1:- As regards legally enforceable debt or liability the Hon'ble Supreme Court in the case of Rangapa v/s Sri.Mohan reported in (2010) 11 SCC 8 C.C.No/6186/2018 441 has held that "The presumption mandated by Sec.139 of the Act includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and its open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, herein, there can be no doubt that there is an initial presumption which favours the complainant. When an accused has to rebut the presumption U/sec. 139, the standard of proofs for doing so is that of preponderance probabilities. Therefore, when the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the presumption can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own". 9
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13. If the facts and circumstances of the case are considered in the light of above said principle of law it is clear that the accused has not disputed during the trial that the cheque in question is drawn on his bank account and it bears his signature. Therefore, the statutory presumption arises U/sec.118(a) and section 139 of N.I. Act in favour of the complainant that the cheque in question is issued for consideration in discharge of debt or liability. The burden of rebutting the said presumption by probable defence is on the accused.
14. PW1 in his examination chief has reiterated the averments of the complaint and has relied upon documents Ex.P1 to Ex.P8. PW1 is subjected to cross examination. PW1 has denied the suggestion that he has collected bank ATM card belongs to accused. During the trial the accused has raised a defence that he has given a signed blank cheque to the complainant. 10
C.C.No/6186/2018 PW1 has denied that he has lodged a police complaint regarding collecting blank cheque. He has stated that the accused himself has lodged police complaint. It is relevant to note here that either of the party has not produced copy of complaint before the court . PW1 has further denied that he has admitted in the police station that he collected blank cheque from the accused. It is the contention of the accused that he has given signed blank cheque in favour of the complainant. It is to be noted here that once signature on the negotiable instrument is admitted, section 20 of the N.I.Act comes into play. In terms of section 20 of N.I.Act, if the blank or incomplete negotiable instrument is given to the holder of the cheque, it is to be presumed that he had given authority to the holder of the cheque to fill up the remaining portion. Hence, in view of this clear position of law as stated above, the contention raised by the accused that he has given signed blank cheque to the complainant cannot be accepted. As already stated the 11 C.C.No/6186/2018 accused has not let in defence evidence. Form the material placed on record it is clear that the accused has failed to rebut the statutory presumptions operating in favour of the complainant U/sec.118 (a) and 139 of N.I.Act. In other words the case of the complainant stands unrebutted and the complainant has established that the accused has issued cheque in question at Ex.P1 towards discharge of legally enforceable debt in part.
15. It is to be noted here that the chaque in question at Ex.P1 is for a sum of Rs.4,75,000/-. The learned counsel for the complainant in the written arguments at para No.9 has stated that during the pendency of the case the accused has paid a sum of Rs.1,50,000/- in three installments. In the memo dated 10.03.2020 filed by the accused, it is also stated that the accused has paid a sum of Rs.1,50,000/-. I have care fully perused entire order sheet. The proceedings dated 16.05.2019 discloses that both the parties were 12 C.C.No/6186/2018 absent and learned counsel for accused had given a post dated cheque bearing No.114891 dated 25.06.2019 for a sum of Rs.75,000/- to learned counsel for accused. The proceedings dated 14.08.2019 discloses that both the parties were present and the accused issued cheque bearing No.114892 for Rs.25,000/- drawn on Canara Bank, Bengaluru and complainant also had endorsed on the order sheet that he received a sum of Rs.25,000/-. In the above said two proceedings the accused had paid a sum of Rs.1,00,000/-. The order sheet does not indicate that the accused paid a sum of Rs.1,50,000/- to the complainant as stated in the written arguments submitted on behalf of the complainant and in the memo filed by the accused. As the accused has paid a sum of Rs.1,00,000/- to the complainant out of cheque amount of Rs.4,75,000/-, the accused has to pay a sum of Rs.3,75,000 to the complainant. Accordingly point No.1 is answered in the Affirmative.
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16. Point No.2:- According to the complainant the cheque in question at Ex.P1 was returned unpaid with an endorsement as "Funds Insufficient". The bank memos produced by the complainant at Ex.P2 and Ex.P3 reveal that cheque was returned unpaid for the reasons "Funds Insufficient". The bank memos at Ex.P2 and Ex.P3 prove dishonour of cheque for the reasons "Funds Insufficient" by virtue of presumption raised U/sec.146 of N.I.Act and during the trial Ex.P2 and Ex.P3 were went uncontroverted. Hence, I answer point No.2 in the Affirmative.
17. Point No.3:- The cheque in question at Ex.P1 was returned unpaid with bank endorsements on 11.12.2017 and 30.12.2017 as per bank memos at Ex.P3 and Ex.P2. It is clear from Ex.P4 the office copy of legal notice that, the complainant caused demand notice on 25.01.2018 informing the accused about dishonour of the cheque and making demand for 14 C.C.No/6186/2018 repayment of amount covered under the cheque in question. On perusal of Ex.P1 to Ex.P4 it is evident that the complainant has presented the cheque within its validity and it was returned unpaid on 11.12.2017 and 30.12.2017 as well as he caused legal notice within one month from the date of intimation of dishonour of the cheque. During the trial the accused has not denied the service of demand notice.
18. The records disclose that after causing demand notice, the accused has not repaid amount covered under cheque Ex.P1 after expiry of 15 days statutory period from the date of service of notice, the complaint is filed well within the period of limitation. As accused has failed in paying amount covered under cheque at Ex.P1, all the essential ingredients of section 138 of N.I.Act have been complied with and thereby accused has committed the said offence. Accordingly point No.3 is answered in the Affirmative. 15
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19. Point No.4:-In view of my findings on the above points, I proceed to pass the following;
O RDE R Accused is convicted U/sec.255 (2) of Cr.P.C., for the offence punishable u/Sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.4,30,000/-. In default of payment of fine, the accused shall undergo simple imprisonment for a period of 6 (six) months. Out of the total fine amount, an amount of Rs. 4,25,000/- shall be paid to the complainant as compensation U/sec.357(1)(b) of Cr.P.C and the remaining amount of Rs.5,000/- shall be remitted to the state.
The bail bond of the accused and his surety bond stands cancelled.
Office to furnish a free copy of this Judgment to the accused forthwith.
(Directly dictated to the Stenographer on computer, typed by him, corrected by me and then pronounced in the Open Court on 12th April, 2022.) (FAROOQ ZARE) XIX ADDL.C.M.M., Bengaluru.
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C.C.No/6186/2018 ANNEXURE:
Witnesses examined on behalf of the Complainant :-
PW.1 :- Shivananda I. Bagalkote.
Documents marked on behalf of the Complainant:-
Ex.P1 :- Cheque, Ex.P1(a) :- Signature of the Accused.
Ex.P2 & Ex.P3 :- Bank Endorsements. Ex.P4 :- Office copy of the legal notice. Ex.P5 & Ex.P6 :- Postal receipts.
Ex.P7 :- Postal Acknowledgment. Ex.P8 :- Postal Track Consignment.
Witnesses examined on behalf of the Accused:-NIL- Documents marked on behalf of the Accused:-NIL-
(FAROOQ ZARE) XIX ADDL.C.M.M., Bengaluru.