Bangalore District Court
Sanjeevi vs K.R.Jayasree on 1 April, 2025
CC.No.29598/2009
KABC030306632009
Presented on : 07-12-2009
Registered on : 07-12-2009
Decided on : 01-04-2025
Duration : 15 years, 3 months, 25 days
IN THE COURT OF THE XVI ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Dated: This the 1st day of April 2025
Present: Smt.Tejaswini K.M., B.A.L. LL.M,
XVI Addl.C.J.M., Bengaluru City.
CC. No.29598/2009
Sri.S.Sanjeevi
S/o Subbaram
Aged about 31 years
R/at No.209, Manganahalli Slum,
Ullalu Upanagara,
Ullalu Post,
Bangalore North Taluk,
Bangalore.
....Complainant
(By Sri K.N.Krishnareddy, Advocate)
Versus
2 C.C.29598/2009
K.R.Jayashree
R/at No.300, 8th Cross,
Kari Maramma Temple Road,
Manganahalli Slum,
Near Sujatha High School,
Ullalu Upanagara,
Bangalore.
.... Accused
(By Sri Raghavendra Rao J..V., Advocate)
Offence complained : U/Sec.138 of Negotiable
Instrument Act.
Date of commencement
of evidence : 01.06.2011
Date of closing evidence : 11.06.2012
Opinion of the Judge : Accused found guilty
Offence complained : U/Sec.138 of Negotiable
Instrument Act.
Opinion of the Judge : Accused found guilty
3 C.C.29598/2009
JUDGMENT
This case is registered against the accused for the offence punishable U/s 138 of Negotiable Instruments Act.
2. Factual matrix of the complainant's case is as under:
It is stated that the accused has engaged the Complainant and his son for construction of her house. As per terms and conditions, after completion of work, the complainant had surrendered original agreement to the accused. The accused has issued cheque bearing No.488579 dated 31.01.2009 towards balance amount of construction work charges to the accused. As per the instructions of the accused, the complainant has presented the cheque in the month of June 2009. But it 4 C.C.29598/2009 got dishonorued for the reason 'Payment Stopped by Drawer' vide memo dated 16.06.2009. When the complainant intimated the same to the accused, the accused has requested to re-present the cheque. Therefore, the complainant has again presented the cheuqe, but it got dishonoured for the reason 'Payment Stopped by Drawer' on 23.07.2009. Thereafter, the complainant has issued legal notice to the accused on 10.08.2009 demanding the accused to make payment of cheque amount within 15 days, but the accused refused to receive the said notice. However, the accused has not paid the amount. Hence the complainant has constrained to file the present complaint.
3. After receiving the complaint, this court has meticulously gone through the documents and affidavit filed along with it and then took cognizance of the offence 5 C.C.29598/2009 punishable U/sec.138 of Negotiable Instruments Act and ordered for registration of the compliant as P.C.R.
4. Sworn statement of the complainant was recorded and marked 8 documents as Ex.P-1 to P-8. As there were sufficient materials to constitute the offence, this court has proceeded to pass an order for issuing process against the accused.
5. In pursuance of summons, accused has appeared through her counsel and applied for bail. She was enlarged on bail. Then the substance of accusation was read over to the accused in the language known to her, for which she pleaded not guilty.
6. As per the direction of Hon'ble supreme court in "Indian Bank Association V/s Union of India and others reported in (2014)(5) SCC 590, this court treated the sworn statement of the complainant as complainant 6 C.C.29598/2009 evidence and posted matter for cross-examination of PW.1. PW.1 examined two witnesses ie. PW.2 and PW.3. The counsel for the accused has fully cross-examined PW.1 to PW.3.
7. The statement of accused as contemplated under the provisions of Section 313 of Cr.P.C has been recorded vide order dated 23.03.2011 and the incriminating evidence as such forthcoming against the accused in the evidence of PW 1 to PW.3 and the documents has been read over and explained to the accused in the language known to her. She denied all incriminating evidence. The accused has stepped into witness box and got examined as DW1. She has produced and got marked Ex.D1 to D13. The counsel for the complainant has cross examined DW1.
8. After hearing both parties this Court has passed judgment on 20.08.2013 and acquitted the accused. 7 C.C.29598/2009 Thereafter, the complainant has preferred an appeal bearing Appeal No.1019/2013 and the matter has been remanded to provide an opportunity to the accused to give defense evidence orally. As such, this court restored the case and examined the accused orally as DW.1. The counsel for the complainant has cross-examined DW.1.
9. I have heard the arguments of the learned counsel for both side and perused the oral and the documentary evidence placed on record.
10. Points that arise for my consideration are as under:
1. Whether the complainant proves that the accused towards discharge of her liability issued a cheque bearing No.488579 dated 31.01.2009 for Rs.59,000/-, drawn on Kaveri Kalpatharu Grameena Bank, Mallathahalli Branch, Bengaluru in favour of complainant, on presentation of the same for encashment, it was dishonored for 8 C.C.29598/2009 "Payment Stopped by Drawer" in the account maintained by the accused, then in-
spite of issuing demand notice to the Accused and in complying with statutory requirement under Negotiable Instrument Act, Accused did not repay the cheque amount, thereby she has committed an offence punishable U/s 138 of Negotiable Instruments Act?
2. What Order?
11. My Answer to above points are as under:-
Point No.I :- In the Affirmative,
Point No.II :- As per the final order for
the following....
REASONS
12. POINT NO.I:- In nutshell, case of the
complainant is that complainant is a building contractor and he has undertook construction work of the house of the accused. After completion of the construction work, 9 C.C.29598/2009 he has handed over, the original agreement to the accused and for payment of the construction work charges balance, the accused has issued cheque in question, but it got dishonorued for the reason 'Payment Stopped by Drawer', though it has been presented twice. Despite of giving notice, the accused has not repaid the amount. Hence the present complaint.
13. To substantiate his case the complainant stepped into witness box and got examined as PW.1. He has got marked Ex.P1 to P8. He has produced a cheque issued by accused and the same is marked as Ex.P-1, the signature of the accused is marked as Ex.P-1(a), copies of bank memos are marked as Ex.P-2 & P-3, copy of demand notice dated: 10.08.2009 is marked as Ex.P-4, copies of postal receipts are marked as Ex.P-5 & P-6, copy of postal cover is marked as Ex.P-7 complaint is marked as Ex.P-8. 10 C.C.29598/2009
14. Defense of the accused is as follows:
She has a old house in Sy.No.39, behind Sujatha School, Ullala Upanagara, Bengaluru. In order to construct a new house ,she has taken loan from the bank in August 2008. She has appointed the complainant for construction work on 02.08.2008 orally. The bank was releasing the loan amount at different stages of construction and accordingly, she was paying amount to the complainant. She has taken signature of the complainant for the money paid by her towards construction expenses. The complainant has agreed to complete the construction work within 6 months. But he failed to complete the same. In this regard there was a clash between herself and the complainant. That time the complainant told that he will not continue the construction work. Since she had taken bank loan, she 11 C.C.29598/2009 must continue the construction work, that time the complainant started quarreling with her, as she was appointing new workers. She had given complaint to the police in this regard. But police have not registered FIR. One day she received a call from the bank and enquired that her cheque has been presented to the bank, that time she has told the bank officers that she has not given any cheque, as such the bank has not honoured the cheuqe. That time the complainant came near her house and fought with her. Police have called her to the police station stating that she has given cheque to the complainant, but she had not given any cheque to the complainant. Police have registered NCR and asked to solve the dispute in the Court. The accused has snatched her cheque, forcefully. The accused has not completed the agreed construction work, as such she is not bound to pay cheque amount to him. Due to incomplete work of the 12 C.C.29598/2009 complainant, she suffered loss to an extent of 3 lakhs. Demand notice is not served on her, as her address is wrongly mentioned. Hence, on these grounds, accused prays to acquit her from this case.
15. Negotiable Instruments Act provides for some presumption in favour of the complainant i.e., Section 118 reads as here: - "That every negotiable instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration".
16. Further Sec 139 of the Negotiable Instruments Act provides for presumption in favour of a holder. It reads as here: - "It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in sec 138, for the 13 C.C.29598/2009 discharge, in whole or in part, or any debt or other liability."
17. Combined reading of above said sections raises a presumption in favour of the holder of the cheque that he has received the same for discharge in whole or in part of any debt or other liability. However, it is settled principle of law that the presumption available u/s 139 NI Act can be rebutted by the accused by raising a probable defense.
18. The complainant has reiterated the contents of complaint in his chief-examination. During cross- examination by the counsel for the accused, he has deposed that he got to know the accused in the month of September 2008. He is a mason from past 10 years. He does not have any licence to take building contract. There was no financial transaction between himself and the accused. He does not has any document regarding the 14 C.C.29598/2009 house number of the accused. He denied that he has given notice to the incorrect address of the accused. He has voluntarily deposed that he has given the notice to the address given by the accused. He had the document to show that he has contracted the house of the accused, but while giving the cheque, the accused has taken it from him. He further deposed that after completion of the construction work, she has given cheque to him on 31.01.2009. He denied that he has not completed the construction work of the house of the accused. He denied that as such the accused has given complaint against him to the police. He voluntarily deposed when he asked the accused to pay the amount which was due, the accused has given complaint to the police. But in the police station, police have asked to file cheque bounce case to him. He denied that as he had not completed the construction 15 C.C.29598/2009 work of the house, the accused sustained loss of Rs.3 lakhs.
19. PW1 denied the suggestion of the counsel for the accused that by making the accused to believe that he will construct the house, he has taken 3 to 4 cheques of the accused. He denied that he himself has filled the details in the cheque. He denied since he has stopped the construction work in the middle, accused has given 'stop payment instructions' to the bank. he denied while leaving, he has damaged the construction materials of the accused. He denied that the accused is not liable to give any money to him.
20. The complainant has examined 2 witnesses by name Dhanaraju Naidu and R.Mahendra as PW.2 and PW.3 respectively. In their chief-examination they both have deposed that they were working as plumber and bar bender respectively and they know the accused and the 16 C.C.29598/2009 complainant. The complainant has appointed them to plumbing and bar bender work in the house of the accused. In 2009, they went to the house of the accused for seeking the payment, in their presence the accused has given cheque of Rs.59,000/- in favour of the complainant as final settlement to the complainant and the accused has received original agreement from the complainant. But after 3-4 months, they got to know that cheque was dishonoured.
21. During cross-examination by the counsel for the accused, PW.2 has deposed that he has done plumbing work of the house of accused. He denied the suggestion of the counsel for the accused that there was dispute between the accused and him. He cannot tell to which bank, the cheque in question belongs to. He does not know about any the other transaction between the 17 C.C.29598/2009 complainant and the accused. He denied that he does not know for what reason the cheque was given.
22. PW.3 has deposed in his cross-examination that himself and the complainant are friends and through complainant, he went to the house of the accused, to do bar bending work. That time the accused was making payment every week to him. He cannot tell which bank cheque was given to the complainant by the accused. But accused has executed am agreement for Rs.59,000/- to the complainant. Further deposed that the accused gave the cheque, she received the agreement from the complainant. He further deposed that at the time when the complainant has received the cheque, construction work was completed. He denied that he is giving false evidence before the Court as he is friend of the complainant.
18 C.C.29598/2009
23. Percontra, the accused stepped into witness box and she is orally examined as DW.1. Earlier the accused has given evidence by way of affidavit and as complainant preferred an appeal against the acquittal judgment, in Cr Appeal No 1019/2013 it has been observed that accused evidence cannot be taken by of affidavit ,as such matter has been remanded to this court to take evidence of accused orally.
24. Accordingly this recorded the evidence of the accused orally on 06.01.2025. DW1 has deposed that she had a old house in Sy.No.39, behind Sujatha School, Ullala Upanagara, Bengaluru. In order to construct a new house, she has taken loan from the bank in August 2008. She has appointed the complainant for construction work on 02.08.2008 orally. The bank was releasing the loan amount at different stages and accordingly she was paying amount to the complainant. She has taken 19 C.C.29598/2009 signature of the complainant, for the money paid by her towards construction expenses. The complainant has agreed to complete the construction work within 6 months. But he failed to complete the same. In this regard there was a clash between herself and the complainant. That time the complainant told that he will not continue the construction work. Since she had taken bank loan, she must have continue the construction work. That time the complainant started quarreling with her as she was appointing new workers. She had given complaint to the police in this regard. But police have not registered FIR. One day she received a call from the bank and inquired her cheque has been presented to the bank, that time she has told the bank officers that she has not given any cheque, as such the bank has dishonoured the cheque. That time the complainant came near to her house and fought with her. Police have called her to the 20 C.C.29598/2009 police station stating that she has given cheque to the complainant, but she had not given any cheque to the complainant. Police have registered NCR and asked to solve the dispute in the Court.
25. During cross-examination by the counsel for the complainant she has deposed that in 2008 she had appointed the complainant for construction work of her house, but he has not completed the work. She deposed that the complainant resides in Sy.No.39 ie. nearby her house. She deposed that she has not entered into any agreement with the complainant regarding the construction work. She admits that the cheque belongs to her, but Ex.P1(a) is not her signature and the cheque is not filled by her. She denied that after completion of the construction work, for final settlement amount, she had given cheque in question to the complainant. She denied that the complainant has returned the agreement to her 21 C.C.29598/2009 after she gave the cheque. She denied that in front of Dhanaraj and Mahendra, she had given cheque in question to the complainant. She has denied that intentionally she has given stop payment instructions to her bank. She denied when the complainant asked the same, she threatened him as such, he has given complaint against her. She deposed that in this regard police have called her to the police station and registered NCR as it is cheque bounce case. She denied that she has given the cheque, after completion of the enire work. She denied that she owes cheque amount to the complainant. She admits that there are civil and criminal cases against her pertaining to her. She denied that 5 to 6 persons have filed cases against her. Remaining suggestions of the counsel for the complainant are denied by her.
26. I have meticulously gone through the compliant, evidence placed on record and given my anxious 22 C.C.29598/2009 consideration to the arguments canvassed by both sides. The case of the complainant is that he has been appointed for construction of the house of the accused, accordingly he has completed the work and towards final settlement balance amount, the accused has issued the cheque in question for Rs.59,000/-, but to avoid the payment, she had given stop payment instructions to the bank, as such cheque got dis-honoured. Percontra, the accused contended that the complainant has not completed the construction work and he damaged the construction materials, as such she sustained loss of Rs.3 lakhs and she owes nothing to the complainant.
27. At the outset, the accused admits that the cheque in question belongs to her, but she denies her signature on the cheque in question. The cheque in question has been dishonoured for the reason 'payment stopped by drawer' as per Ex.P2 bank memo. The accused 23 C.C.29598/2009 has produced copy of the requisition given to her bank to stop the payment and not to entertain the cheque in question, on 20.03.2009as per ExD.12. In said requisition at Exd12, accused has stated that "'she has appointed the complainant for construction work of her house on 02.08.2009. She had taken housing loan in the said bank. She has paid the amount to him as and when the bank released the amount. But the complainant has not completed the work as agreed and also damaged the construction materials and the complainant was threatening her to damage the house, if she brings any other new workers. But he was forcing her to give advance money, under the threat she had given cheque bearing No.488579 with a condition to complete the construction on or before 31.01.2009, but he has not completed the construction. Therefore, informs 24 C.C.29598/2009 the bank that before completion of the work ,the said cheque shall not entertained.'''
28. Firstly, the court can compare the signature as per sec 73 of Indian Evidence Act. On perusal of the signature at Ex.p1 and Ex.D12, it appears that they are tallying with each other. In Ex.D12 she herself has stated that she has given cheque in question to the complainant and she has not taken any contention stating that she has not signed on the cheque. Moreover, the bank has not dishonoured the cheque for the reason 'signature does not tallies'. If at ExP1(a) is not of her signature, to prove her correct signature, she has not at all produced any evidence. Neither she examined bank official in this regard , nor she produced and proved her admitted genuine signature. Mere denial of her signature at Ex.P1 is not suffice to believe that she has not put her signature at cheque. During earlier cross-examination dated 25 C.C.29598/2009 11.06.2012, the accused admitted that Ex.P1(a) is her signature. Therefore, it is proved that the cheque in question belongs to the accused and it bears her signature.
29. The Honorable Supreme Court of India in "Triyambak S Hegde v Sripad" (2022) 1 SCC 742 while relying upon the the constitution bench judgment of Basalingappa v Mudibasappa (2019) 5 SCC 418, under para 14 of its judgment reiterated that "once the cheque was issued and that the signatures are upon the cheque are accepted by the accused, the presumptions undee Sec 118 and 139 of the NI Act arise against the accused. That is, unless the contrary is proved, it shall be presumed that the cheques in question were drawn by the accused for a consideration and that the complainant had received the cheque in question in discharge of debt/liability from the accused."
26 C.C.29598/2009
30. Therefore, as per Sec.118 and 139 of NI Act initial presumption has to drawn infavour of the complainant that cheque was issued in discharge of legally enforceable debt/liability. The burden lies on the accused to rebut the said initial presumption on the scale of preponderance of probabilities.
31. One of the main defense of the case is that she has not given the disputed cheque to the complainant for payment of the charges of construction work. But it was taken under threat and force. It is materiel to note here that earlier the accused has given her evidence by way of affidavit before this Court, wherein she has mentioned that her cheque was 'snatched from her house and obtained her signature, without filling the contents of the cheque'. During earlier cross-examination dated 11.06.2012, the accused admitted that Ex.P1(a) is her signature. Ex.D12 i.e. requisition given to the bank shows 27 C.C.29598/2009 that the accused is aware that she has given cheque to the complainant. In the cross-examination of PW.1 dated 03.11.2010, the counsel for the accused has suggested that complainant has forcibly taken 3 to 4 cheques of the accused and same is denied by PW.1. In earlier evidence the accused has stated that her cheque was forcefully snatched from her and taken by the complainant. In Ex.D12 she has mentioned she herself voluntarily given the cheque to the complainant as complainant was threatening her to make payment in advance. Therefore, the defense regarding how the cheque in question went into the custody of the complainant is inconsistent and the accused try to improve her case.
32. Percontra, the complainant's case is consisting that after completion of the work, he has handed over the original agreement to the accused and received cheque in question by her. Even during cross-examination the 28 C.C.29598/2009 complainant has deposed the same and the witnesses PW.2 and PW.3 have also consistently deposed that in their presence the accused has given cheque in question to the complainant after receiving the original agreement from the complainant .
33. Further the accused contends that the complainant has not completed the construction work as agreed. She has produced photographs at Ex.D1 to D5 to show that the construction work has not been completed. The complainant counsel has suggested to DW1 that in order to show the bank to get released the loan amount, she has taken those photographs and complainant has completed the assigned work and same has been denied her. It is significant to here that the accused has not disputed the fact that she appointed the complainant for building construction. She also deposed in her evidence, that she has paid the amount, as and when bank has 29 C.C.29598/2009 released the loan amount and also taken signature of the complainant in a book in that regard. This evidence shows since the construction was in progress, the bank has released the amount otherwise, loan amount would have not been released. She has not produced the book in which she claimed that she has taken signature of the complainant to show her payments. Withholding of that book is fatal to her own statement. Further it is also noticed that if she had mentioned every payment details in that book, then she might have mentioned about the cheque in question also. What prevented her from producing that book is not forthcoming.
34. She has not disclosed in ExD12, that her three four cheques were with the complainant and no proof is also produced in that regard. She had given stop payment instruction on 23.03.2009 per ExD12. The cheque bears date 31.01.2009 and it has been presented 30 C.C.29598/2009 twice to bank on 16.06.2009 and 23.07.2009. In evidence she deposed that one day she received a call from the bank and enquired that her cheque has been presented to the bank, that time she has told the bank officers that she has not given any cheque, as such the bank has dishonoured the cheuqe. In view has her requisition, bank would not entertain her cheque. But her oral evidence that bank official has called her enquired appears to be little suspicious. But why did she told to banker that she had not any cheque to complainant is not forthcoming. Further in Ex.D12, there is no reference that her cheque has been stolen or snatched from her hand.
35. Further in order t0 take defence that she has stopped the payment intentionally to avoid her cheque being misused, she has to establish that she had sufficient income in her account as on that day. However she has 31 C.C.29598/2009 not produced any evidence to prove that she had sufficient balance in her account.
36. M/S Laxmi Dyechem vs State Of Gujarat & Ors, reported 2013 AIR SCW 3468, Apex court held that "However, this presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of post-dated cheque, a party should not be allowed to get away from the penal provision of Sec 138 of the Act. Therefore, in order to hold that the stop payment instruction to the bank would not constitute an offence, it is essential that there must have been sufficient funds in the accounts in the first place on the date of signing of the cheque, the date of presentation of the cheque, the date on which stop payment instructions were issued to the bank. Hence, in Goaplast matter (supra), when the magistrate had disallowed the application in a case of 'stop payment' to the bank without hearing the matter merely on the ground that there was no dispute about the dishonour of the cheque issued by the accused, since the signature was admitted and therefore held that no purpose would be served in examining the bank manager since the dishonour was not in issue, this Court held that examination of the bank manager would have enabled the Court to know on what date stop payment order was sent by the drawer to the bank 32 C.C.29598/2009 clearly leading to the obvious inference that stop payment although by itself would be an offence, the same is subject to rebuttal provided there was sufficient funds in the account of the drawer of the cheque".
37. As no documentary evidence is produced by the accused to establish that she had sufficient balance in her account, it has to be inferred that the stop payment instruction is issued to the bank by her when there is no sufficient amount in the account. In view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. But the presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. In instant case, accused has not led any such rebuttal evidence.
38. The accused has given complaint to the police station as per Ex.D10 i.e. NCR No.82/20009. The police have given endorsement that the y called the complainant and warned him as per Ex.D11. The copy of the complaint 33 C.C.29598/2009 is not produced before the Court. In Ex.D10 it is mentioned that the complainant is causing problem for construction work. But there is no reference about taking her cheque forcibly by the complainant. Therefore, Ex.P10 and P11 are not suffice to believe her version. Neither she had taken immediate steps to recover her cheque legally nor she has given notice to him that she had terminated the service of the complainant.
39. Further she simply deposed that construction work was not completed. The burden is on the accused to prove that what are all the terms and conditions or stage of construction which has assigned to the complainant, what has been completed and which work has been left. But except her oral statement no iota of evidence brought on record to establish it before the court. Sections 101 and 102 of Indian Evidence Act , one who asserts must prove i.e. burden of proof is the obligation to adduce evidence to the 34 C.C.29598/2009 satisfaction of the Court in order to establish the existence or non-existence of a fact contended to by a party. Percontra, the complainant contends that he has completed the work which has been assigned to him. Therefore, it is not forthcoming which work has been left by the complainant. Thus for want of evidence, such defence of the accused cannot be accepted.
40. Further the accused has deposed that she was forced to appoint new masons to complete the construction. If at all, she had appointed such persons, then she could have examined those persons to establish before the Court that the part of the construction work was completed by them and what was the cost incurred for such construction work. Except her oral evidence no iota of evidence produced on record to prove that the complainant has stopped the construction work in the middle and remaining work was completed by other 35 C.C.29598/2009 contractor or mason. Though she conted that she sustained loss of Rs 3 lakhs, there is no proof to believe that she had sustained loss of Rs.3 lakhs due to the incomplete construction work of the complainant.
41. At one stretch accused had deposed that cheque has been voluntarily given by her under the threat as complainant forced to give advance money. At another stretch she deposed that her cheque has been stolen from her house or snatched from her hand. Therefore, there is no consistency in the evidence. At relevant point of time she had not given complaint to the police station stating that complainant has stolen her cheque or snatched cheque from her hand. Such imprudent conduct of the accused creates suspicion about the defense.
42. Yet another defence of the accused is that the notice is not served on her. The complainant has given the notice as per Ex.P3 dated 10.08.2009 through RPAD and 36 C.C.29598/2009 also under the UCP i.e. Under Certificate of Posting. The notice has been returned with an endorsement 'refused' as per Ex.P7. The accused is contending that the door number shown in the address is wrong. Her correct door number is 169, whereas it is mentioned in the notice that the door number is 300.
43. It is pertinent to note here that during cross- examination she admits that complainant house is situated near to her house and the road where her house is situated is called as 'Karimariyamma Temple Road' near Sujatha High School. The postal authority has returned the notice with an endorsement as 'refused'. If at all, they could not identified the door number of the accused then notice would have been returned with shara 'insufficient address' or 'addressee not found', but that is not the case here. Therefore, as per Sec.27 of General Claused Act the notice is deemed to be served.
37 C.C.29598/2009
44. K. Bhaskaran vs Sankaran Vaidhyan Balan And Anr reported in AIR 1999 SUPREME COURT 3762, Apex court held that "No doubt Sec 138 of the Act does not require that the notice should be given only by `post'. Nonetheless the principle incorporated in Sec 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice. "
45. In C.C. Alavi Haji vs Palapetty Muhammed & Anr (2007) 6 SCC 555, the Hon'ble Apex court has held; "
17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 38 C.C.29598/2009 days of receipt of summons from the court in respect of the complaint under Sec 138 the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Sec 138 of the Act, cannot obviously contend that there was no proper service of notice as under Sec 138 , by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Sec 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation... "
46. Therefore, such defense of the accused holds no water and not giving any reply to the demand notice is also fatal to the case.
47. The counsel for the accused has questioned there is a difference on ink and handwriting in Ex.P1 and same is denied by PW.1. In view of Sec.20 of NI Act it is not necessary that the drawee has to fill the cheque. As long as existence of legally enforceable debt is proved the difference in the ink or handwriting at cheque does not 39 C.C.29598/2009 come to the aid of accused. It is pertinent to note here that Section 20 of N.I. Act confers right to the holder of the cheque to fill details in cheque. No longer law requires that whole body of the cheque should be filled by the drawer himself. If the signature on the cheque is admitted, the same is sufficient. Recently in ((2019) 4 SCC
197) ie Bir Singh V Mukesh Kumar, Apex court has held that "A meaningful reading of the provisions of the Negotiable Instruments Act including, 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 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".
40 C.C.29598/2009
48. Principle laid down in above case law aptly applicable to present case. Once the execution of the cheque is admitted, it shall be taken that the cheque was issued by the accused in favour of the complainant towards the discharge of the liability. Therefore though there is difference of ink, or handwriting in cheque, it cannot be ground to exonerate the liability of the accused, unless she proves contrary.
49. Nothing contrary is elicited from the mouth of PW.1 to rebut the presumption drawn U/Sec.139 of N.I. Act. No cogent evidence is produced on record to prove her defence. It is argued by the counsel for the accused that PW2 and 3 couldn't give details about bank from which cheque was given. Admittedly PW2 and 3 are labours and not educated persons. Thus their inability to give details as to date of cheque , it's bank name would 41 C.C.29598/2009 not in any way affects the case. Defence is not at all crystallized. There is total dearth of evidence. Hence looking from any angle this court is of the view that the accused has utterly failed to prove her defence. Having scrutinized the entire evidence this Court is of the view that the complainant has proved his case beyond reasonable doubt. The accused has failed to rebut the initial presumption given in favour of the complainant U/Sec.118 and 139 of NI Act. The defense is not probablized on the scale of preponderance of probabilities. Moreover, there is inconsistency and lot of improvements in the defense of the accused. Therefore, accused has utterly failed to probablize her defense. Accordingly court proceed to answer POINT NO.I IN THE AFFIRMATIVE.
50. POINT NO.II:- In view of the reasons assigned in above point, it is ample clear that accused has committed 42 C.C.29598/2009 the offence punishable u/s 138 of the Act. A bare reading of sec.138 of the NI Act indicates that the purport of sec.138 is to prevent and punish the dishonest drawers of cheques who evade their liability. The Hon'ble Apex Court in its recent decision in M/s. Meters & instrument Pvt Ltd. Vs. Kanchana Mehta reported in (2018)1 SCC-560 held at para 18(ii) that"(ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found." In view of the reasons assigned in above point, it is ample clear that accused has committed the offence punishable u/s 138 of the Act.
51. Therefore, having regard to the amount, time consumed for trail, and keeping in mind the primary 43 C.C.29598/2009 object of the provision, this court is of the opinion that, rather than imposing punitive sentence, if sentence of fine is imposed with a direction to compensate the complainant for its monitory loss, by awarding compensation U/Sec.357 of Cr.P.C, would meet the ends of justice. Accordingly, this court proceeds to pass following .....
ORDER The accused is found guilty for the offence punishable U/s.138 of Negotiable Instruments Act.
Hence, acting U/sec.255(2) of Cr.P.C, the accused is convicted and sentenced to pay a fine of Rs.1,10,000/- (Rupees One Lakh Ten Thousand Only), in default of fine amount, she shall undergo simple imprisonment for Six Months for the offence punishable under section 138 of N.I.Act.
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Out of the fine amount collected from the accused, an amount of Rs.1,05,000/- (Rupees One Lakh Five Thousand only) shall be paid to the complainant as compensation U/s.357 of Cr.P.C. and the remaining fine of Rs.5,000/- shall be adjusted towards the cost of state expenses.
The bail bonds of the accused shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.
Office to supply the copy of the Judgment to the accused forthwith at free of cost.
(Dictated to the Stenographer, typed by her, corrected by me and then judgment pronounced in the open court on this the 1 st day of April 2025).
Digitally signed by Tejaswini K
Tejaswini M
KM Date:
2025.04.02
12:22:21 +0530
(Smt.Tejaswini K.M),
XVI ACJM, Bengaluru
45 C.C.29598/2009
ANNEXURE
I. List of witnesses on behalf of complainant:
P.W.1: Sri. S.Sanjeevi II. List of documents on behalf of complainant:
Ex.P-1 : Original Cheque. Ex.P-1(a) : Signature of the accused Ex.P-2 & 3 : Bank memos.
Ex.P-4 : Copy of Legal notice. Ex.P-5 : Postal receipt.
Ex.P-6: Copy of Under Certificate of Posting. Ex.P-7 : Postal Cover.
Ex.P-8 : Complaint.
III. List of witnesses for the accused:
D.W.1: Smt.K.R.Jayashree
IV. List of documents for accused:
Ex.D-1 to 5 : Photos.
Ex.D-6 & 7 : Photo Negatives.
Ex.D-8 : Photo Receipt.
46 C.C.29598/2009
Ex.D-9 : Copy of Election ID Card
Ex.D-10 : Copy of NCR.
Ex.D-11 : Acknowledgment given by police. Ex.D-12 : Copy of letter addressed to bank. Ex.D-13 : Bank Account Extract.
Digitally
signed by
Tejaswini K M
Tejaswini Date:
KM 2025.04.02
12:22:30
+0530
(Smt.Tejaswini K.M ),
XVI ACJM, Bengaluru
47 C.C.29598/2009