Bangalore District Court
R. Rajesh vs Suresh @ Suri on 15 February, 2020
IN THE COURT OF XXI ADDL.CHIEF METROPOLITON
MAGISTRATE, BENGALURU CITY
Present: Sri. V. NAGARAJA, LL.B., LL.M.,
XXI Addl. Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 15th day of February, 2020
C.C. No.18125/2016
COMPLAINANT: R. RAJESH
S/o. B. Ramu,
Aged about 40 years,
R/at. No.14/1, H-9,
III Cross, M.M. Lane,
Cottonpet,
Bengaluru - 560 053.
(Reptd. By: TCS., Advocate)
V/s.
ACCUSED: SURESH @ SURI
S/o. Basavaraju,
Aged about 30 years,
R/at. No.171, 1st Cross,
Chikkanekkundi Layout,
Muthusandra Main Road,
Madhuranagara III Stage,
Anekal Taluk,
Bengaluru - 560 087.
Also R/at. Muniramaiah Building,
Doddakallasandra,
Kanakapura Main Road,
Bengaluru 560 061.
Also R/at. No.E-204,
Subramanyapura,
Bengaluru South,
Bengaluru - 560 061.
(Reptd. By: SP., Advocate)
2 C.C.No.18125/2016
:JUDGMENT:
Complainant has filed this complaint under Section 200 of Cr.P.C. r/w Section 138 of N.I. Act, seeking for penalizing the accused for the offence punishable under Section 138 of N.I. Act and also for awarding compensation to him.
2. Case of the complainant in a nutshell is that:
He and accused are close family friends. So, in that acquaintance, when complainant's sister Smt. Kantha and her son Krishna, who are staying in Mysore, who used to visit her parents house in Cottonpet Bengaluru, the accused also became familiar to them. It is further averred that his sister's son Krishna and accused being both friends as well as drivers by profession and having close family friendship, taking advantage of said acquaintance, in the month of December 2014, accused had approached the complainant and requested him for hand loan of Rs.5,00,000/- to purchase car for his livelihood. So, believing his words as well as recommendation made by his sister and her son Krishna, on 16.01.2015, complainant advanced Rs.3,00,000/- to him by way of cash, whereas accused after receiving the 3 C.C.No.18125/2016 said amount, he assured to repay the principal along with interest @ 2% per month.
3. It is further averred that on 15.02.2015, the accused once again approached him for further loan of Rs.20,000/- and borrowed the same and executed undertaking agreement on stamp paper to repay earlier principal amount of Rs.3,00,000/- along with present Rs.20,000/- totally Rs.3,20,000/- and also issued four undated cheques bearing No.000101, 000102, 000103 and 000104 all are drawn on Karur Vysya Bank Ltd., White Field Branch, Bengaluru and agreed to honour the said cheques after Ugadi Festival in the year 2016 and also agreed to pay interest regularly @ 2% per month.
4. It is further averred that accused had borrowed above said loan amount for purchasing of SWIFT Desire Car bearing No.KA-51/E-6152 in addition to loan raised i.e., loan of Rs.4,00,000/- raised from Shriram Finance and same facts have been narrated in the above said undertaking agreement dated 15.02.2016.
5. It is further averred that accused agreed to pay interest @ Rs.8,000/- every month for the above said loan 4 C.C.No.18125/2016 amount. But, he failed to pay said interest. So, the complainant started to demand for principal as well as interest and also informed the accused that if he (accused) fails to repay the Rs.3,20,000/- after Ugadi Festival in the year 2016 as agreed by him, the complainant would fill up date, month, year and amount of Rs.3,20,000/- in four cheques and he would present for encashment. But, accused went on postponing the repayment on one or other pretext. So, ultimately on 13.05.2016, the complainant through his counsel issued a intimation to accused stating that if he fails to repay the Rs.3,20,000/-, he will fill up the cheques on 01.06.2016 for Rs.3,20,000/- and present the same as agreed by accused. But, even inspite of said intimation, the accused failed to pay said amount. So, on 01.06.2016, complainant filled up three cheques bearing No.000101, 000102, 000103 each for Rs.1,00,000/- and another cheque bearing No.000104 for Rs.20,000/- all are drawn on Karur Vysya Bank, White Field Branch, Bengaluru and presented the above said cheques through his banker i.e., State Bank of Mysore, Chickpet Branch, Bengaluru. But said cheques were dishonoured for the reason of "Funds Insufficient" in the account of accused. So, the bank authorities issued 5 C.C.No.18125/2016 endorsement dated 02.06.2016. So, he got issued legal notice to accused dated 22.06.2016 through RPAD to accused regarding dishonour of cheques and called upon him to pay cheques amount, but accused failed to pay the cheques amount. Hence, accused has committed offence punishable U/s.138 of NI Act. Hence, he is constrained to file this complaint seeking for penalizing the accused for the offence punishable under Section 138 of N.I. Act., and also seeking for awarding of compensation to him.
6. In pursuance of summons issued by this court, accused made appearance through his counsel and obtained bail and now he is on bail.
7. As these proceedings are summary in nature, substance of accusation read over and explained to accused in language known to him whereas, he pleaded not guilty and claimed for trial.
8. In order to prove the case of the complainant, he has been examined as PW-1 and got documents marked Ex.P-1 to Ex.P-23. He further examined one witness as PW-2. After completion of evidence of complainant, statement of accused as specified U/s.313 of Cr.P.C., has 6 C.C.No.18125/2016 been recorded and he has been examined as DW-1 and got documents marked Ex.D-1 and Ex.D-2. He also examined one witness as DW-2.
9. I have heard arguments of both learned counsels.
10. Perused the records.
11. After perusal of records, the points arise for my consideration are:
1) Whether complainant proves beyond all reasonable doubt that accused in order to discharge his legally enforceable debt, he has issued him four cheques bearing No.000101, 000102, 000103 for Rs.1,00,000/- each and another cheque bearing No.000104 for Rs.20,000/- all are dated 01.06.2016 and drawn on Karur Vysya Bank, White Field Branch, Bengaluru?
2) Whether complainant further proves that he has complied with mandatory requirements as specified under Section 138 of N.I. Act?
3) What Order?
12. My findings on the above points are:
Point No.1 : In the Affirmative
Point No.2 : In the Affirmative
Point No.3 : As per final order,
for the following:
REASONS
13. Point No.1: As I have already stated, in order to prove the case of the complainant, he has been examined as PW-1 and he filed his examination-in-chief by way of 7 C.C.No.18125/2016 affidavit by reiterating entire complaint averments as stated above. In support of his oral testimony, he relied upon Ex.P-1 to Ex.P-23.
14. On the other hand, accused has been examined as DW-1 and got documents marked Ex.D-1 and Ex.D-2.
15. Before appreciation of evidence of both parties, I am of the opinion, it is worth to note presumptions envisaged in N.I. Act as well as ratio laid down by the Hon'ble Apex Court in Three Judges Bench Judgment reported in (2010) 11 SCC 441 (Rangappa V/s. Sri Mohan) wherein it is held:
"The presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is 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 respondent /complainant."
It is further held:
Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the court in favour of the complainant. The presumption referred to Section 139 of the NI Act is a mandatory presumption and not a general presumption, 8 C.C.No.18125/2016 but the accused is entitled to rebut the said presumption.
16. So in the light of above presumptions and ratio decidendi laid down by Hon'ble Apex Court, if the present facts and situations are analyzed, it is obvious that according to complainant, accused has issued cheques for discharging of his liability. On the other hand, on considering the stand taken by the accused, it is obvious that though he disputes his liability as claimed by complainant, but he is not disputing the facts that cheques are belonged to his account and they bear his signatures. So, as I have already stated in view of ratio laid down by Hon'ble Apex court in the Judgments stated supra, that as soon as accused admits the facts that cheques are belonged to his account and they bear his signatures, then the mandatory presumption u/S 139 of N.I. Act comes to the aid of complainant and he can rest upon said presumption.
17. Whereas, learned counsel for defence argued that in order to raise presumption U/s.138 of NI Act, the condition precedent is that complainant must prove the existence of legally recoverable debt or liability, if he is able 9 C.C.No.18125/2016 to prove the same, then only presumption can be raised otherwise not.
18. Having regard to the arguments of learned counsel for accused, it is important to note as I have already pointed out Hon'ble Three-Judges Bench Judgment of Hon'ble Supreme Court in Rangappa's case stated supra, it is clearly held:
"The presumption mandated by Section 139 includes a presumption that there exists a legally recoverable debt or liability"
19. So when above ratio clearly states that presumption includes existence of legally enforceable debt or liability then further proof of that fact is not required that too in summary proceedings. Because Hon'ble Apex Court in the judgment reported in (2009)2 SCC 513 (Kumar Exports V/s. Sharma Carpets) has clearly observed that:
Presumption literally means "taking as true without examination or proof"
20. At this juncture, it is also worth to note ratio laid down by Hon'ble Apex Court in the judgment reported in (2014)5 SCC 590 (Indian Bank Association and others V/s. Union of India and others) wherein it is held by reiterating 10 C.C.No.18125/2016 Section 143 of Negotiable Instruments Act and Section 264 of Cr.P.C., that:
"Section 264, Judgments in cases tried summarily - In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding"
"Thus, the Magistrate is not expected to record full evidence which he would have been, otherwise required to record in a regular trial and his judgment should also contain a brief statement of the reasons for the finding and not elaborate reasons which otherwise he would have been required to record in regular trials"
21. So, in the light of above ratio decidendi and in view of Section 143 of Negotiable Instruments Act and Section 264 of Cr.P.C., as this case is summary case, I am of the opinion it is not necessary to discuss elaborately with respect to legally enforceable debt when presumption includes existence of legally recoverable debt as held in the above said judgment of Hon'ble Apex Court. So, the mandatory presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, 11 C.C.No.18125/2016 that is to say the cheque was not issued for consideration and in discharge of any debt or liability, in other words, onus shifts on the accused to rebut the said mandatory presumption raised in favour of complainant as observed by Hon'ble Apex Court in the Judgment reported in (2009)2 SCC 513 (Kumar Exports V/s. Sharma Carpets).
Now the crucial question arises as to whether accused is able to rebut the said presumption or not?
22. It is significant to note on considering the defence of the accused, he contended that he has not borrowed any loan amount from the complainant and he has not issued present cheques to complainant. In fact, he and brother-in-law of the complainant namely Krishna (i.e., PW-2) are close friends as both of them are drivers by profession, whereas said Krishna had introduced his mother Smt. Kantha and offered to maintain a SWIFT car bearing No.KA-51/A-6152. He further contended that said SWIFT car was originally belonged to Srinivasa Murthy, who had failed to repay the loan amount to said Smt. Kantha. So, she had taken custody of said vehicle and possessing the same. Later, she offered the same to him (accused) with a condition that he (accused) should pay 12 C.C.No.18125/2016 monthly rent/installment of Rs.8,000/- to clear Rs.3,00,000/- which is market value of the said car and accordingly entered into an agreement dated 13.02.2015 and at the same time, she had also received his four signed blank cheques for security purpose and only given Rs.20,000/- in cash for minor repairs of the said car. He further contended that as said Smt. Kantha was residing in Mysore and complainant being her own brother, who is living in Bengaluru. So, she instructed him (accused) to pay monthly rent of Rs.8,000/- directly to the complainant.
23. He further contended that after said agreement, he started to run the car and used to pay Rs.8,000/- every month to the complainant as instructed by Smt. Kantha. He further contended that as RC owner of the said vehicle namely Srinivasa Murthy, who had borrowed loan on the said vehicle from Shriram Finance, he had failed to pay the said loan amount to the said Shriram Finance. So, said Shriram Finance seized the above said car. So, he stopped to pay rents to complainant. So, the complainant and his sister colluded together and in order to grab money from him, they misused his signed blank cheques 13 C.C.No.18125/2016 which were given for security and filed this false compliant through complainant. Hence, present complaint is liable to be dismissed and he may be acquitted.
24. Whereas learned counsel for accused in support of above defence, he argued that there is no financial transaction between complainant and accused. Hence, question of issuance of present cheques to complainant do not arise. In fact, sister of the complainant namely Smt. Kantha had obtained accused's signed four blank cheques for security purpose while handing over the car to the accused for rental basis, whereas she only paid Rs.20,000/- to the accused for minor repairs of the car. He further argued that after taking the car from the Smt. Kantha, the accused was running the same and paying the rents, but as the said vehicle was belonged to its RC owner namely Srinivasa Murthy, who had borrowed loan from Smt. Kantha as well as from Shriram Finance and he had failed to pay the said loan amount to Smt. Kantha. So, initially she had taken possession of the said vehicle from said Srinivasa Murthy as per Ex.D-2 (Ex.D-1 is colour xerox of Ex.D-2) and handed over to accused on rental basis. Later, as said Srinivasa Murthy also failed to pay 14 C.C.No.18125/2016 loan amount to said Shriram Finance, said Shriram Finance seized the above said car from the accused. So, accused stopped to pay rents to complainant. So, the complainant and his sister colluded together and in order to grab money from him, they misused his signed blank cheques by filling up the contents of the cheques for their convenience and complainant filed this false compliant on the instigation of his sister. Hence, complaint is liable to be dismissed. He further argued that statutory notice not at all served on accused. So, on this ground also complaint is liable to be dismissed and accused may be acquitted.
25. Per contra, learned counsel for complainant argued that version of the accused cannot be believable and acceptable, because if really he had given present cheques for security purpose, then definitely he would have taken legal action to get back the said cheques. Even he did not give reply to legal notice issued by the complainant. So, these facts clearly show that accused has given present cheques for discharging of his liability, whereas accused only in order to escape from his liability, he has set up false story of car rent transaction. Hence, 15 C.C.No.18125/2016 his version cannot be believable. Hence, accused has failed to rebut the mandatory presumption. Hence, he has to be convicted and maximum sentence may be imposed.
26. Having regard to the arguments of both learned counsels, it is worth to note ratio decidendi laid down Hon'ble Apex Court in very Rangappa V/s. Sri. Mohan's case, it is clearly observed that:
"A mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the court"
27. At this juncture, it is worth to note ratio decidendi laid down by the Constitution Bench of Hon'ble Apex Court in the judgment reported in AIR 1964 SC 575 (Dhanvantrai Balwantrai Desai V/s. State of Maharashtra) which has been followed in the subsequent judgment reported in (2001)6 SCC 16 (Hiten P.Dalal V/s. Brathindranath Banerjee) wherein it is held that:
"That the distinction between the two kinds of presumption lay not only in the mandate to the court, but also in the 16 C.C.No.18125/2016 nature of evidence required to rebut the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation is offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible"
28. At this juncture, it also worth to note in another judgment of Hon'ble Apex Court reported in (2010)8 SCC 383 (Meghmala and others V/s. Narasimha Reddy and others) wherein it is held that:
"It is not like any other criminal case where the accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right, however, subject to the statutory 17 C.C.No.18125/2016 exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of offence, its seriousness and gravity thereof has to be taken into consideration. Statutes like the Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1998; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. Thus, the legislature has adopted a deviating course from ordinary criminal law shifting the burden on the accused to prove that he was not guilt"
29. So from the above ratio, it is crystal clear that proceedings U/s.138 of NI Act is not like any other criminal case where the accused is presumed to be innocent unless the guilt is proved. On the other hand the legislature has adopted a deviating course from ordinary criminal law by shifting the burden on the accused to prove that he is not guilty. So, the accused must rebut the mandatory presumption by raising probable and acceptable defence to the satisfaction of the court, because the presumption raised in favour of complainant is mandatory presumption, but not general presumption. 18 C.C.No.18125/2016
30. In the light of above ratio decedendi, if the present facts and situations are analyzed, it is important to note, accused has contended that he has not borrowed any loan from complainant and has not issued present cheques to complainant. In fact, the sister of the complainant namely Smt. Kantha had obtained his signed four blank cheques for the purpose of security, while handing over car to him for rental basis and she had also obtained agreement dated 13.02.2015 i.e., Ex.P-5 and now in order to grab money from him, said Smt. Kantha, misused his signed blank cheques and got filed this complaint through her brother i.e., complainant.
31. It is important to note, though accused has raised such contention that he has executed agreement in favour of sister of the complainant namely Smt. Kantha and issued his signed four blank cheques in her favour for security purpose, but it is significant to note, on perusal of Ex.P-5 agreement dated 13.02.2015, it is crystal clear that said agreement is entered into between very complainant and accused, but not between accused and Smt. Kantha as contended by him. It is further significant to note, in the cross-examination of accused, he clearly admitted that: 19 C.C.No.18125/2016
"FUÀ £À£ÀUÉ vÉÆÃj¸ÀÄwÛgÀĪÀ ¤¦-5 gÀ°ègÀĪÀ ¥ÉÇÃmÉÆà £À£ÀßzÉà JAzÀÄ ¸ÀÆa¹zÀgÉ ¸Àj. ¸ÀzÀj ¥ÉÇÃmÉÆà ªÉÄðgÀĪÀ ¸À» ºÁUÀÆ D zÁR¯ÉAiÀÄ°ègÀĪÀ ¸À»AiÀÄÆ £À£ÀßzÉà JAzÀÄ ¸ÀÆa¹zÀgÉ ¸Àj. ¸ÀzÀj ¥ÉÇÃmÉÄÁà ªÉÄðgÀĪÀ ¸À»AiÀÄ£ÀÄß ¤¦-5r JAzÀÄ ºÁUÀÆ ¸ÀzÀj ¥ÀÅlzÀ ¸ÀASÉå 1 ªÀÄvÀÄÛ 2 gÀ°ègÀĪÀ ¸À»AiÀÄ£ÀÄß ¤¦-5E ºÁUÀÆ ¤¦-5J¥sï JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ"
"£Á£ÀÄ ªÀÄÆgÀÄ ZÉPïUÀ¼À£ÀÄß PÀȵÀÚ JA§ÄªÀªÀgÀ ªÀÄÆ®PÀ ¦gÁå¢UÉ ¤ÃrgÀÄvÉÛãÉ"
"£Á£ÀÄ ¦gÁ墬ÄAzÀ 20 ¸Á«gÀ ¥ÀqÉ¢gÀÄvÉÛãÉAzÀÄ ¸ÀÆa¹zÀgÉ ¸Àj"
32. So, from the above clear admissions of the accused coupled with Ex.P-5, which is drafted by an advocate and witnessed by PW-2, who is close friend of accused, it is crystal clear that complainant and accused have entered into above said agreement Ex.P-5 and in the said agreement, it is clearly mentioned that accused had already borrowed Rs.3,00,000/- from the complainant and on the date of execution of said agreement, he had further borrowed Rs.20,000/- from the complainant and issued 20 C.C.No.18125/2016 four undated signed cheques to the complainant. It is further significant to note, admittedly, PW-2 is close friend of accused and witness to Ex.P-5, clearly deposed the above said facts. So, under such circumstances, contention of the accused that he has not borrowed Rs.3,00,000/- from the complainant and not issued cheques to complainant cannot be believable and acceptable. So, under such circumstances, mere production of Ex.D-1 and Ex.D-2 (which are same documents) pertaining to handing over the vehicle by Srinivasa Murthy in favour of Smt. Kantha and evidence of DW-2, will not helpful to the version of the accused. Hence, I do not find any force in the defence of the accused.
33. At this juncture, it is also worth to take note of the conduct of the accused as specified U/s.114 of Indian Evidence Act that as per his contention, complainant has misused his signed blank cheques which were given for security purpose to one Smt. Kantha in connection with car transaction. If that is the case, a reasonable doubt arises in the mind of the court as to why accused has kept quite for along time without taking any legal action against 21 C.C.No.18125/2016 Smt. Kantha to get back his cheques and also alleged misuse of present cheques by the complainant or Smt. Kantha. So, I am of the opinion, if at all accused had not issued present cheques to complainant for discharging of his legally enforceable debt, then definitely accused would have initiated legal proceedings against the complainant or said Smt. Kantha with respect to alleged misuse of his cheques, because no prudent man will keep quite, when his cheques are misused by somebody else. So, non-taking any of these actions by the accused at appropriate time, it creates a reasonable doubt in the mind of the court regarding acceptance of his version that complainant misused the cheques. So, I come to clear conclusion that the defence raised by the accused is not probable and acceptable.
34. Coming to yet another argument of learned counsel for accused that admittedly accused issued signed blank cheques, whereas complainant has filled up the contents of the cheques for his convenience which amounts to material alteration etc.
35. Having regard to the arguments of learned counsel for accused at this juncture, it is worth to note 22 C.C.No.18125/2016 ratio laid down by Hon'ble Apex Court in the recent judgment reported in 2019 SCC On line SC 138 = Crl. Appeal No.230-231/2019 2019 (@SLP(Crl) No.9334- 35/2018) dated 06.02.2019 (Bir Singh V/s. Mukesh Kumar) wherein it is held that:
"A meaningful reading of the provisions of the Negotiable Instruments Act, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had not been issued for payment of a debt or in discharge of a 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. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted"
"If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence"
"It may reasonably be presumed that the cheque was filled in by the appellant-23 C.C.No.18125/2016
complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration"
36. Having regard to the arguments of learned counsel for accused at this juncture, it is worth to note ratio laid down by Hon'ble Apex Court in the judgment reported in (2002)7 SCC 150 (P.K. Manmadhan Kartha V/s. Sanjeev Raj and another) wherein it is held that:
"Difference of handwriting and ink on the cheque did not rebut the statutory presumption U/s.139 and 118 of NI Act"
37. At this juncture it is also worth to note that view taken by Hon'ble High Court of Karnataka reported in ILR 2001 KAR 4127 (S.R. Muralidhar V/s. Ashok G.Y.) wherein it is held that:
Section 20 of NI Act - Inchoate stamped instruments "No law provides that in case of any negotiable instrument entire body has to be written by maker or drawer only. What is material is signature of drawer or maker and not the body writing hence question of body writing has no significance"24 C.C.No.18125/2016
"It is not objectionable or illegal in law to receive a inchoate negotiate instrument duly singed by the maker despite the material particulars are kept blank if done with an understanding and giving full authority to the payee to fill up the material contents as agreed upon. Such a course of action in law cannot vitiate the transaction nor can invalidate the negotiable instrument issued and such transaction fully binds the maker of the Negotiable Instrument"
38. So, in the light of above principle if the present facts and situations are analyzed, as I have already pointed out accused is not disputing issuance of cheques and his signatures thereon, whereas complainant is able to prove the existence of liability of Rs.3,20,000/- (covered under the cheques) by the accused as on the date of issuance of cheques by the aid of mandatory presumption as well as Ex.P-5. So, under such circumstances, filling up body of the cheques by complainant or somebody else will not invalidate the cheque and that itself will not rebut the mandatory presumption raised in favour of complainant when version of the accused itself is not probable and acceptable. Hence, I don't find any force in the arguments of learned counsel for accused. 25 C.C.No.18125/2016
39. As I have already pointed that Hon'ble Apex Court in the Constitution Bench and Larger Bench Judgments stated supra, it is clearly held that presumption envisaged U/s.138 of NI Act is not general presumption but it is mandatory presumption, so the said presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible". So, I come to clear conclusion that accused has utterly failed to rebut the mandatory presumption raised in favour of complainant. Hence, I hold this point in Affirmative.
40. Point No.2: As I have already discussed in point No.1 that accused has issued cheques for discharging of his legally recoverable debt. Whereas, on perusal of bank endorsement given by bank authority clearly reveal that complainant had presented the said cheques within validity period, but said cheques were dishonoured with endorsement "Funds Insufficient". On perusal of Ex.P-6 which is legal notice issued to accused clearly reveal that the complainant got issued said demand notice to accused within specified time of 30 days from the date of receiving of endorsement from bank. On perusal of Ex.P-16 to Ex.P-18, returned postal covers clearly reveals 26 C.C.No.18125/2016 that they were returned with a postal shara "Not Claimed, Returned to Sender"
41. At this juncture, it is worth to note on perusal of address of the accused shown in notice as well as cause title of the complaint, they are properly addressed and sent through RPAD to the correct address of the accused. So in view of Sec 27 of General Clauses Act 1897 as well as ratio laid down by Hon'ble Apex Court in the Judgment reported in (1999)7 SCC 510 (K. Bhaskaran Vs. Sankaran Vaidhyan Balan), (2017)5 SCC 373 (N. Paramesharan Unni V/s. G. Kannan) and another judgment (2004)8 SCC 774 (V. Raja Kumari V/s. P. Subbarama Naidu and another) wherein it is held that:
"Giving of notice is distinguished from receiving of the notice"
"On the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such "giving", the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 27 C.C.No.18125/2016 days "of the receipt" of the said notice. It is, therefore, clear that "giving notice" in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address"
"A payee can send the notice for doing his part for giving the notice. Once it is dispatches his part is over and the next depends on what the sendee does"
It is also held that:
"It is clear from Section 27 of General Clauses Act, 1897 and Section 114 of the Evidence Act, 1872, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. When a notice is sent by registered post and is returned with postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. Then requirements under proviso (b) of Section 138 stand complied with if notice is sent in the prescribed manner. However, the drawer is at liberty to rebut his presumption"28 C.C.No.18125/2016
42. So, in the light of above ratio, if the present facts and situations are analyzed, as I have already pointed out that complainant has given notice in writing and same is sent through RPAD to the proper address of the accused. It is further significant to note, the accused in his cross- examination, he clearly admitted that his address shown in postal covers Ex.P-17 and Ex.P-18 are correct addresses shown in his voter I.D. and his Driving License. So, it is construed as deemed service. Moreover, accused has not placed any contrary evidence to prove that above said notice was sent to wrong address and he is not liable for non-service of legal notice.
43. So on considering the oral coupled with the documentary evidence of the complainant, they clearly proved that complainant has complied with mandatory requirements as specified U/s.138(a) and (b) of N.I. Act. Whereas, accused has not paid the cheques amount within specified time, inspite of service of demand notice. Hence, accused has committed offence punishable U/s.138 of NI Act. Hence, I hold point No.2 in Affirmative. 29 C.C.No.18125/2016
44. Point No.3: For the foregoing reasons discussed on points No.1 and 2, I proceed to pass the following:-
ORDER Acting under Section 255(2) r/w 264 of Cr.P.C., the accused is hereby convicted for the offence punishable u/S.138 of Negotiable Instruments Act.
(V. NAGARAJA) XXI ADDL. C.M.M., BENGALURU.
On considering the facts and circumstances of the case, accused is hereby sentenced to pay fine of Rs.3,25,000/- (Three Lakh and Twenty Five Thousand only). In default he shall undergo simple imprisonment for a period of 3 (Three) months.
In view of Section 357 of Cr.P.C., complainant is entitled for compensation of Rs.3,20,000/- (Three Lakh and Twenty Thousand only) out of above said fine amount.
After collecting the above fine amount, office is directed to pay Rs.3,20,000/- (Three Lakh and Twenty Thousand only) to complainant as compensation and defray remaining fine amount of Rs.5,000/- (Five Thousand only) to state, after appeal period is over.
However, accused shall execute personal bond of Rs.3,25,000/- in view of Sec.437(A) of Cr.P.C.30 C.C.No.18125/2016
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
(Directly dictated to Stenographer on computer, computerized by him, corrected and then pronounced by me in the open court on this the 15th day of February, 2020) (V. NAGARAJA) XXI ADDL. C.M.M., BENGALURU.
ANNEXURE LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
PW-1 : R. Rajesh
PW-2 : M. Krishna
LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P-1 to 4 : Cheques
Ex.P-5 : Agreement
Ex.P-6 : Copy of Legal Notice
Ex.P-7 to 9: Returned Postal Covers
Ex.P-10 to 13: Bank Endorsements
Ex.P-14 : Notice
Ex.P-15 : Postal Receipts
Ex.P-16 to 18: Returned Postal Covers
Ex.P-19 to 21: Receipts
Ex.P-22 : Trip Sheet
Ex.P-23 : Copy of Letter
LIST OF WITNESSES EXAMINED FOR THE DEFENCE:
DW-1 : B. Suresh
DW-2 : Srinivasa Murthy
LIST OF DOCUMENTS MARKED FOR THE DEFENCE:
Ex.D-1 : Color Xerox of Agreement
Ex.D-2 : Agreement
(V. NAGARAJA)
XXI ADDL. C.M.M., BENGALURU.