Bangalore District Court
Srinivasa Bar & Restaurant vs B.R.Srinivasa on 13 May, 2022
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 13th day of May - 2022
PRESENT: SRI. N.K.SALAMANTAPI, B.A., LL.B.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.20479/2017
Complainant : Srinivasa Bar & Restaurant,
Rep. by its proprietor,
K.Mahesha,
S/o.Kariyappa,
Aged about 45 years,
R/at No.64, Uma Maheshwari Nilaya,
Near Amruthanandamayi Ashrama,
Nagadevanahalli, Bengaluru-56.
(Rep. by Sri.Gavi Siddu.S, Adv.)
V/S
Accused : B.R.Srinivasa,
S/o.Late Ramegowda,
Aged about 29 years,
R/at No.87, T.B.Extn.,
Badrikoppalu, Nagamangala,
Mandya District-571432.
(Rep.by Sri.Chetan.C.P, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 13.05.2022.
(N.K.SALAMANTAPI)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.20479/2017
JUDGMENT
The complainant has presented the instant complaint against the accused on 21.07.2017 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of cheques amount of Rs.30 lakhs.
2. The brief facts of the complaint are as under:
The complainant has submitted that the accused was his friend and well known to him since several years. On 18.05.2016, the accused has obtained hand loan of Rs.30 lakhs from him to meet his urgent needs and personal commitments. The accused and his mother by name Kempamma as a guarantor have executed a loan agreement with an assurance to repay the same within 11 months and on the very same day towards discharge of his liability, the accused has issued 3 post dated cheques bearing Nos.466399, 466399 and 466400 for Rs.10 lakhs each, in all Rs.30 lakhs, all the cheques are drawn on Karnataka Bank Ltd., Nagarabhavi Branch, Bengaluru in favour of complainant.
The complainant has further contended that after completion of agreed period of 11 months, when the complainant asked the accused for repayment of the said hand loan amount, at that time, the accused has requested him to present the said 3 Judgment 3 C.C.No.20479/2017 cheques on 25.05.2017 and assured that the said cheques would be honoured on their presentation. As per instructions of accused, he presented the said cheques for encashment through his banker viz., State Bank of Mysore, Kengeri Satellite Town Branch, Bengaluru, but the same came to be dishonoured returned with an endorsement dated 29.05.2017 stating "Payment Stopped by Drawer". Immediately, he approached the accused and intimated about dishonour of cheques and demanded for repayment of the cheques amount, but the accused has dragged on the same in one or other pretext. Left with no other alternative, he got issued legal notice to the accused through his counsel on 06.06.2017 by way of R.P.A.D and the same was duly served upon accused on 09.06.2017. After service of notice, the accused has issued untenable reply on 24.06.2017 and not repaid the cheques amount to the complainant. Thus, the accused committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
Judgment 4 C.C.No.20479/2017
4. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to accused, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examine as PW.1 and got marked Exs.P1 to P16. The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same. In support of the defence, the accused himself was examined orally as DW.1 and got marked documents at Exs.D1 to D10. The DW.1 was subjected for cross-examination by the advocate for the complainant.
7. Both side counsels have addressed their arguments. The accused's counsel has also submitted his detailed written arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points would arise for determination:
Judgment 5 C.C.No.20479/2017
1) Whether the complainant proves beyond all reasonable doubt that the accused has committed an offence punishable under Section 138 of Negotiable Instrument Act?
2) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : As per final order, for the following:
REASONS
10. POINT No.1: The complainant has filed this complaint for an offence punishable under Section 138 of Negotiable Instruments Act against the accused and prayed to punish the accused for an offence punishable under Section 138 of Negotiable Instruments Act.
11. To attract Section 138 of Negotiable Instruments Act, complainant should prove that; (1) the accused has issued a cheque for discharge of legally recoverable debt. (2) The same was presented through his banker. (3) It was dishonoured on presentation. (4) The notice in terms of provisions was served on the accused and (5) Despite service of notice neither any Judgment 6 C.C.No.20479/2017 payment was made nor other obligations, if any were complied within 15 days from the date of receipt of notice.
12. In order to prove his case, the complainant filed his affidavit and himself examined as PW.1, wherein, he has reiterated the averments made in the complaint. In support of his contention, he relied upon the documents at Exs.P1 to P16. Among them, cheques bearing Nos.466400, 466399 and 466398 issued by the accused for sum of Rs.10,00,000/- each dated 25.05.2017, drawn on Karnataka Bank Ltd., Nagarabavi Branch, Bengaluru are marked as Exs.P1 to P3. The signatures of accused are marked as Exs.P1(a) to P3(a). Exs.P4 to P6 are the Bank Endorsements issued by State Bank of Mysore, the contents of Exs.P4 to P6 disclose that the cheques bearing Nos.466399, 466400 and 466398 drawn for Rs.10,00,000/- each were dishonoured for the reasons "Payment Stopped by Drawer". Ex.P7 is the Legal Notice dated 06.06.2017, the recitals of Ex.P7 disclose that the complainant has issued this notice to the accused through his counsel. By issuing this notice, complainant called upon the accused to repay the cheques amount of Rs.30,00,000/- within 15 days from the date of receipt of notice. Exs.P8 & P9 are the Postal receipts. Exs.P10 and P11 are the postal acknowledgment cards. Ex.P12 is the reply notice dated 24.06.2017 issued by Judgment 7 C.C.No.20479/2017 accused through his counsel to the complainant's counsel by denying the contents of Ex.P7 legal notice. Ex.P13 is the certified copy of ITR-V i.e., Indian Income Tax Return acknowledgment pertaining to the complainant for the assessment year 2012-13. Ex.P14 is the Statement of account pertaining to the complainant for the period from 01.04.2016 to 30.03.2017 issued by HDFC Bank. Ex.P7 is the xerox copy of Form CL-9 i.e., Licence for the sale of Indian Liquor pertaining to the complainant issued by Excise Department and Ex.P16 is the true copy of Form CL-2 i.e., Licence for sale of Indian Liquor pertaining to the complainant issued by Deputy Commissioner of Excise, Mandya District. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of his case, the complainant through his counsel has relied upon the decisions as under:
a) Crl.A.No.362 of 2022 in the case of Tedhi Singh V/s.
Narayan Dass Mahant.
b) Crl.A.No.123 of 2021 in the case of M/s.Kalamani Tex & another V/s. P.Balasubramanian.
c) AIR 2019 SC 1876 in the case of Rohitbhai Jivanlal Patel V/s. State of Gujarat and another.
d) ILR 2019 KAR 493 in the case of Yogesh Poojary V/s. K.Shankara Bhat.
e) (2019) 4 SCC 197 in the case of Bir Singh V/s. Mukesh Kumar.
Judgment 8 C.C.No.20479/2017
f) ILR 2018 KAR 5431 in the case of S.M.Nataraja V/s. B.M.Prakash.
g) (2018) 8 SCC 165 in the case of Kishan Rao V/s. Shankargouda.
h) AIR 2019 SC 2446 in the case of Bir Singh V/s. Mukesh Kumar.
i) (2018) 8 SCC 469 in the case of T.P.Murugan V/s. Bojan.
j) AIR 2010 SC 1898 in the case of Rangappa V/s. Mohan.
k) (2001) 8 SCC 458 in the case of K.N.Beena V/s. Muniyappan and another.
I have gone through the above decisions.
Section 118 (a) of Negotiable Instruments Act provides that:
"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."
Section 139 of Negotiable Instruments Act provides that:
"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."
The above presumptions are rebuttable in nature.
Judgment 9 C.C.No.20479/2017
13. In order to rebut the presumption available under Sections 118(a) and 139 of Negotiable Instruments Act, the accused examined himself orally as DW.1. In his evidence, he has stated that the complainant was childhood friend of him and they are residing in the same locality. He was doing contract work and complainant was running a Srinivasa Wines Shop at Mandya. He has not received any amount from the complainant as stated in the complaint and he has not issued cheque in favour of complainant for discharge of legally recoverable debt.
The accused has further contended that for payment of materials he put his signatures on 3 cheques and same were kept in his house, when the complainant used to visit his house, at that time, the complainant has stolen the said cheques, hence, he gave stop payment intimation to his banker.
14. In this case, the contention of complainant is that himself and accused are well known to each other. On 18.05.2016, the accused has obtained hand loan of Rs.30 lakhs from him to meet his urgent needs. The accused and his mother have entered into loan agreement and they have given an assurance to repay the said amount within 11 months. After completion of 11 months, he has issued 3 post dated cheques. The complainant has Judgment 10 C.C.No.20479/2017 presented the said cheques before his banker for encashment, but they were returned with an endorsement 'payment stopped by drawer'. Thereafter, he issued legal notice to the accused, the accused gave untenable reply and he did not repay the cheques amount to him.
15. On the other hand, the accused has denied the contention taken by the complainant and he stated that the complainant is known to him and he used to visit his house, at that time, without his knowledge he has stolen his 3 signed cheques from his house and he has forcefully taken blank stamp paper from him, hence, he is not liable to pay the amount to the complainant. In support of his defence, the accused has relied upon the documents at Exs.D1 to D10. Among them, Ex.D1 is the certified copy of FIR in C.R.No.112/2017 of Mandya West Police Station and complaint lodged by one B.K.Manjunath before the Sub-Inspector, Mandya West Police Station against Shiva @ Danger Shiva and Machahalli Giri. Ex.D2 is the certified copy of charge sheet and its enclosures in C.R.No.112/2017 on the file of Learned Prl. Civil Judge and JMFC, Mandya. Ex.D3 is the certified copy of FIR in C.R.No.169/2017 pertaining to Kamakshipalya Police Station, Bengaluru. Ex.D4 is the certified copy of written complaint dated 13.04.2017 lodged by one H.V.Naveen Kumar before the Judgment 11 C.C.No.20479/2017 Kamakshipalya Police Station against Dhanalakshmi, Madhu, Doreswamy, Manju and others. Ex.D5 is the certified copy of sworn affidavit on the file of learned XXII ACMM Court, Bengaluru. Ex.D6 is the certified copy of legal notice dated 02.12.2017 issued by complainant herein through his counsel to B.K.Manjunath and Madhu Kumar. Ex.D7 is the certified copy of deposition in PCR No.15620/2017 of PW.1 on the file of learned XXII ACMM Court, Bengaluru. Ex.D8 is the certified copy of private complaint in C.C.No.20473 of 2017 on the file of this court. Ex.D9 is the certified copy of sworn statement and depositions of PW.1 in C.C.No.20473 of 2017 on the file of this court and Ex.D10 is the certified copy of encumbrance certificate. The DW.1 was subjected to the cross-examination by the advocate for the complainant and denied the evidence of accused.
16. I have carefully perused the documents produced by the accused. The said documents are no way concerned to the present case on hand and these documents do not speak that the accused has not taken an amount of Rs.30 lakhs from the complainant. Mere denial in the cross-examination is not sufficient to believe the defence of accused. To prove the defence, the accused should produce cogent and convincing material before the court. But in the present case, there is no Judgment 12 C.C.No.20479/2017 cogent and convincing materials placed by the accused before the court.
17. The advocate for accused posed questions to the complainant in respect of financial capacity. The complainant has deposed that he was running Bar and Restaurant and he has sold the said Bar and Restaurant and he has received consideration amount of Rs.95 lakhs, the said testimony of PW.1 was not denied by the accused in the entire cross-examination of PW.1. In support of his contention, the PW.1 has produced Exs.P15 and P16 - Forms CL-9 and CL-2 i.e., licences and Ex.P13-ITR-V pertaining to complainant for the assessment year 2012-13. It indicates that he is having financial capacity to lend the amount to the accused. But the complainant has not disclosed about the payment made by him to the accused in his income tax returns. Non disclosing the lending of amount to the accused in the income tax returns, it is not a ground to disbelieve the case of complainant that he has not lent an amount of Rs.30 lakhs to the accused.
It is relevant to cite the decision reported in ILR 2019 KAR 493 in the case of Yogesh Poojary V/s. K.Shankara Bhat, which relied upon by the learned counsel for complainant, wherein, the Hon'ble High Court of Karnataka was pleased to held that:
Judgment 13 C.C.No.20479/2017 "Mere making a suggestion to the complainant that he has not disclosed the alleged loan transaction in his income tax returns or eliciting the statement from the complainant that he has not disclosed the alleged loan transaction in his income tax returns by itself is not sufficient. It is also required for the accused to establish that the complainant is an income tax assessee or required to be an assessee and that the nature of his income tax assessment and the income tax return which he files, requires him to disclose the alleged transaction or the liability in question. In the absence of eliciting those details, by merely making a suggestion that the alleged debt or liability, has not been reflected in the income tax returns would not by itself suffice to draw an adverse inference and to hold that there was no legally enforceable debt or the presumption standing in favour of the complainant as successfully rebutted by the accused".
In another decision reported in ILR 2018 KAR 5431 in the case of S.M.Nataraja V/s. B.M.Prakash, which relied upon by the learned counsel for complainant, wherein, the Hon'ble High Court of Karnataka was pleased to held that:
"Non-disclosure of loan transaction in Income Tax returns and absence of corroborative material to prove the source of income to lend money, is not a ground for acquittal where the accused has not denied the loan transaction in his evidence."
Judgment 14 C.C.No.20479/2017
18. On going through the said dictums, they also made clear that in the absence of eliciting those details, by merely making a suggestion that the alleged debt or liability has not been reflected in the income tax returns would not by itself suffice to draw an adverse inference against the complainant.
19. In the present case on hand, the accused merely denied the case of complainant and he has not placed sufficient materials before the court to believe his defence. Mere denial of the case of complainant is not sufficient ground to believe the defence of accused that the complainant has not lent an amount of Rs.30 lakhs to the accused.
It is worthy to cite the decision reported in (2001) 8 SCC 458 in the case of K.N.Beena V/s. Muniyappan and another, which relied upon by the learned counsel for accused, wherein, the Hon'ble Apex Court held that:
"In view of the provisions contained in Sections 118 and 139, the court has to presume that the cheque had been issued for discharging a debt or liability. However, the said presumption could be rebutted by the accused by proving the contrary. Mere denial or rebuttal by accused in the reply to the legal notice sent by the complainant not enough. The accused had to prove by cogent evidence that there was no debt or liability."
Judgment 15 C.C.No.20479/2017
20. In the present case on hand, the accused did not produce any cogent and convincing evidence before this court to believe that he have not issued the alleged cheques in favour of complainant for discharge of legally recoverable debt. It is the burden on the accused to prove his defence by producing sufficient materials before the court. Mere denial of the same is not enough to believe his defence. If really, he has not issued the cheques to the complainant, definitely, he would have taken legal action against the complainant, but in this case there is no legal action taken by the accused against the complainant. It shows that the accused has issued the questioned cheques Exs.P1 to P3 for discharge of legally recoverable debt.
21. In the present case, the complainant has issued legal notice to the accused. The accused, in the cross-examination, admitted that he has received the legal notice sent by complainant and he has given reply notice to the said legal notice. I have carefully perused the reply notice, in the reply notice the accused has not questioned the financial capacity of complainant. Without questioning about the financial capacity of complainant in the reply notice, mere posting question regarding financial capacity of complainant in the cross-examination is not helpful to him to disbelieve the financial capacity of complainant.
Judgment 16 C.C.No.20479/2017 It is worthy to cite the decision reported in Crl.A.No.362 of 2022 in the case of Tedhi Singh V/s. Naayan Dass Mahant, which relied upon by the learned counsel for complainant, wherein, the Hon'ble Apex Court held that:
"Under section 138 of Negotiable Instruments Act, the complainant need not show in the first instance that he had the financial capacity. The proceedings under Section 138 of Negotiable Instruments Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity."
22. In the present case on hand, the accused, in his reply notice, has stated that he was very poor person and he is unable to repay such huge amount, therefore, question of obtaining the such huge amount from the complainant does not arise and he is doing coolie work. But in the chief-examination, the accused has stated that he was having sufficient financial capacity, therefore, question of taking loan from the complainant does not arise. These versions are contradictory to each other. On relying such type of statements, it is difficult to believe the version of accused that he has not issued the alleged cheques in favour of complainant. The accused has admitted the alleged cheques and Judgment 17 C.C.No.20479/2017 signatures appears on the cheques belong to him. When he admitted the cheques and signatures appears on the cheques, then as per Section 139 of Negotiable Instruments Act, the presumption arisen in favour of complainant that the accused has given the questioned cheques for discharge of legally recoverable debt. It is true that this presumption is rebuttable in nature, but to rebut the presumption, the accused has not produced cogent and convincing materials before the court to believe his version. Therefore, the defence taken by the accused is not helpful to him to disbelieve the case of complainant.
It is relevant to cite the decision reported in Crl.A.No.123/2021 in the case of M/s. Kalamani Tex and another V/s. P.Balasubramanian. which relied upon by the learned counsel for complainant, wherein, the Hon'ble Apex Court held that:
"Para N.14 - Adverting to the case in hand, we find on a plain reading of its judgment that the trial court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of Negotiable Instrument Act. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law Judgment 18 C.C.No.20479/2017 has been crystalized by this in Rhitbhai Jivanlal Patel V/s. State of Gujarat".
Further, the Hon'ble Apex Court observed that:
Para No.17: "The appellants have banked upon the evidence of DW.1 to dispute the existence of any recoverable debt. However, his deposition merely highlights that the respondent had an over-extended credit facility with the bank and his failure to update his account led to debt recovery proceedings. Such evidence does not disprove the appellants' liability and has a little bearing on the merits of the respondent's complaint. Similarly, the appellants' mere bald denial regarding genuineness of the Deed of Undertaking dated 07.11.2000, despite admitting the signatures of Appellant No.2 thereupon, does not cast any doubt on the genuineness of the said document."
23. In view of the above decision, once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. In the present case on hand, the accused has admitted the signatures on the question cheques at Exs.P1(a) to P3(a) as belong to him. Therefore, the obligation shifts upon him to discharge the presumption imposed upon him.
Judgment 19 C.C.No.20479/2017 In the case on hand, I do not find any material to create doubt regarding the genuineness of issuance of Exs.P1 to P3-cheques in favour of complainant for discharge of legally recoverable debt.
24. The learned counsel for accused has filed written arguments, wherein he has contended that in order to attract the commission of offence under Section 138 of Negotiable Instruments Act, mere proving the fact that disputed cheques are belonging to accused and they bears his signatures and mere proving of the fact that such cheques were dishonoured itself is not sufficient. The complainant has to prove the fact that the cheques were issued for discharge of legally enforceable debt or liability. In this case, the complainant to prove these contentions, he has filed his evidence affidavit, wherein he has clearly stated that he has lent an amount of Rs.30 lakhs to the accused and for discharge of legally enforceable debt, the accused has issued 3 cheques for Rs.10 lakhs each and he has presented the said cheques before his banker for encashment, the said cheques were returned with endorsement 'payment stopped by drawer' thereafter, he has issued legal notice to the accused, through service of said notice, the accused did not repay the cheques amount.
Judgment 20 C.C.No.20479/2017
25. The advocate for accused has cross-examined the complainant in length, but in the entire cross-examination, the complainant did not admit the suggestions made by accused in respect of non-issuance of cheques and steeling the cheques from his house. Hence, the initial burden of proving defence is on the accused. To prove his defence, he filed his evidence affidavit, the contents of evidence affidavit was denied by the advocate for complainant during the course of cross-examination of DW.1. There is no believable materials available on record on behalf of accused to believe his version. In the absence of sufficient materials on behalf of accused, it is difficult to believe his version that he has not taken an amount of Rs.30 lakhs from the complainant and he has not issued the alleged cheques in favour of complainant for discharge of legally recoverable debt. The materials available on record discloses that the complainant has lent an amount of Rs.30 lakhs to the accused and for discharge of legally recoverable debt, the accused has issued Exs.P1 to P3 cheques in favour of complainant and same were dishonoured, though service of notice, the accused did not repay the cheques amount to the complainant. Thereafter, the complainant has complied all the ingredients of Section 138 of Negotiable Instruments Act and presented the said complaint.
Judgment 21 C.C.No.20479/2017 It is worthy to cite the decision reported in AIR 2019 SC 1876 in the case of Rohitbhai Jivanlal Patel V/s State of Gujarat and another, which relied upon by the learned counsel for complainant, wherein, the Hon'ble Apex Court held that:
"Once presumption of existence of legally enforceable debt drawn in favour of complainant, onus is shifted on accused - Unless onus is discharged by accused that preponderance of probabilities are titling in his favour, doubt on case of complainant cannot be raised for want of evidence regarding source of funds for advancing loan to accused."
In another decision reported in (2019) 4 SCC 197 in the case of Bir Singh V/s Mukesh Kumar, which relied upon by the learned counsel for complainant, wherein, the Hon'ble Apex Court held that:
"Presumption is rebuttable and onus lies on drawer to rebut it by adducing cogent evidence to the contrary. This presumption is not in conflict with human right of presumption of innocence of accused which prosecution is required to dislodge by proving its case against accused beyond reasonable doubt."
In another decision reported in AIR 2018 SC 3601 in the case of T.P.Murugan V/s Bojan, which relied upon by the learned counsel for complainant, wherein, the Hon'ble Apex Court held that:
"The rebuttable of presumption under Section 139 of Negotiable Instruments Act must be by adducing credible evidence. Mere raising a doubt sans cogent evidence with respect to the circumstances, presumption under Section 139 of Negotiable Instruments Act cannot be discharged."
Judgment 22 C.C.No.20479/2017
26. In the present case on hand, there is no cogent and convincing materials on behalf of accused to believe his version that he has not issued the Exs.P1 to P3-cheques in favour of complainant for discharge of legally recoverable debt. Thus the accused has failed to rebut the presumption available under Section 118(a) and 139 of Negotiable Instruments Act in favour of complainant. Thereby, the PW.1 proved his contention, but accused without any base took bald and baseless contention.
27. On overall appraisal of the materials available on record, it is the consider opinion of this court that the accused has failed to discharge initial burden to rebut the statutory presumption as well as the facts and circumstances placed by the complainant in the present case. Thereby, the complainant has proved the guilt of the accused that the accused is liable to pay the amount covered under the Exs.P1 to P3-cheques. There is no substance in the probable defence of the accused, whereas the complainant has discharged his burden and proved the guilt of the accused.
Therefore, keeping in the mind of the object of introduction of Negotiable Instruments Act, it appears this court that it is a fit case to convict the accused.
Judgment 23 C.C.No.20479/2017
28. Therefore, from the perusal of oral and documentary evidence placed on record it reveals that complainant has made out his case and accused has failed to rebut the presumptions arisen in favour of complainant. Thus complainant has proved that accused has committed an offence punishable under Section 138 of Negotiable Instruments Act beyond all reasonable doubt.
Hence, in view of the above said reasons, I hold point No.1 in the Affirmative.
29. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay total fine of Rs.30,20,000/-.
Out of the said fine amount, sum of Rs.30,15,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused shall under go simple imprisonment for 01 (One) Year.
Judgment 24 C.C.No.20479/2017 The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused in free of cost.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 13 th day of May - 2022) (N.K.SALAMANTAPI) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : K.Mahesha List of Exhibits marked on behalf of Complainant:
Exs.P1 to P3 : Original Cheques (3 Nos.) Exs.P1(a) to P3(a) : Signatures of accused Exs.P4 to P6 : Bank endorsements Ex.P7 : Office copy of legal notice Exs.P8 & P9 : Postal receipts Exs.P10 & P11 : Postal acknowledgment cards Ex.P12 : Reply notice Ex.P13 : CC of ITR-V Ex.P14 : Statement of account Exs.P15 & P16 : Form CL-9 & Form CL-2
List of Witnesses examined on behalf of the defence:
DW.1 : Srinivas List of Exhibits marked on behalf of defence:
Ex.D1 : CC of FIR in Cr.No.112/2017
Ex.D2 : CC of charge sheet
Judgment 25 C.C.No.20479/2017
Ex.D3 : CC of FIR in Cr.No.169/2017
Ex.D4 : CC of complaint
Ex.D5 : CC of Sworn statement in PCR No.15620/17
Ex.D6 : CC of reply notice
Ex.D7 : CC of deposition in PCR No.15620/2017
Ex.D8 : CC of private complaint in C.C.No.20473/17
Ex.D9 : CC of sworn statement in C.C.No.20473/17
Ex.D10 : CC of EC
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 26 C.C.No.20479/2017
13.05.2022.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay total fine of Rs.30,20,000/-.
Out of the said fine amount, sum of Rs.30,15,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused shall under go simple imprisonment for 01 (One) Year.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused in free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 27 C.C.No.20479/2017 Later, the convictee's counsel filed application Under Section 389(3) of Cr.P.C seeking for suspend the sentence for the reasons stated in the application.
Heard.
In the present case, the judgment was pronounced and convicted the accused. In view of the same, the convictee's counsel has prayed that to suspend the sentence by appeal period.
For the reasons stated in the application, for the limited period of prefer appeal only, the application filed by the accused's counsel under Section 389(3) of Cr.P.C. is hereby partly allowed and sentence is suspended till appeal period only.
The convictee is hereby directed to
execute bond for fine amount of
Rs.30,20,000/.
XXIII ACMM, Bengaluru.
Judgment 28 C.C.No.20479/2017
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX ACQUIT PURPOSE CONCLUSION PARAGRAPH
24. On overall appreciation of the material facts available on record, it discloses that the complainant has failed to prove with cogent evidence as to the lending of loan to the accused. Thus, that fact itself is sufficient to infer that accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
25. In this case on hand, the complainant failed to prove the alleged transaction, it can gather the probability that the accused is not liable to pay Ex.P1 cheques amount of Rs.21,00,000/- and it is not legally recoverable debt. On perusal of the oral and Judgment 29 C.C.No.20479/2017 documentary evidence placed on record it is crystal clear that accused has made out a probable defence which clearly rebut the presumptions arisen in favour of complainant. Accused has proved that Ex.P1 cheque was not issued on 18.07.2018 in favour of complainant for discharge of legally recoverable debt of Rs.21,00,000/-. The accused has taken his defence at the earliest point of time, while recording of accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablized that complainant has failed to prove that accused issued the cheque for discharge of liability of Rs.21,00,000/-. The complainant has not produced needed evidence to prove that amount of Rs.21,00,000/- is legally recoverable debt. Therefore, as discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 and 2 in the Negative.
26. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence Judgment 30 C.C.No.20479/2017 punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX MIS-USE OF CHEQUES, ACCUSED NOT TAKEN ANY ACTION AGAINST COMPLAINANT:
If at all, the accused was not issued the said cheques to the complainant for any debt or liability definitely, he had every opportunity to cross-examine the PW.1 and extract any contra evidence, but he did not do so. If really there was no any transaction between complainant and accused, then accused could not have kept silent without taking any action against the complainant and also he did not give any stop payment instruction to his bank authority regarding not to honour the alleged cheque.
Therefore, this court has not other go then to accept the evidence of PW.1 that, the questioned cheques were issued by the accused for discharge of existence of legally recoverable debt.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX REVERSE BURDEN ON COMPLAINANT
39. When the accused is able to prove and rebut the statutory presumption as well as very case placed by the complainant as to Judgment 31 C.C.No.20479/2017 put forth his claim, as the amount involved in the cheques at Exs.P1 and P2 are the existence of legally recoverable debt, it is the reverse burden on the complainant to prove his case beyond the reasonable doubt by virtue of Section 139 of Negotiable Instruments Act.
It is well worthy to cite the decision reported in 2008 AIR SCC 7702 (P. Venugopal V/s.Madan P. Sarathi). Wherein, it was pleased to held by the Hon'ble Division Bench of the Hon'ble Apex Court that:
"The presumption raised does not extent to the expenditure that cheque was issued for the discharge of any debt or liability. Which is required to be proved by the complainant. However, it is essentially a question of fact".
In another decision reported in AIR 2008 SC 278 between John K John V/s. Tom Verghees, the Hon'ble Apex court it is held that:
"The presumption under Section 139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally Judgment 32 C.C.No.20479/2017 necessary to know how the complainant advanced such a huge amount".
40. From the point of above dictums also, it was the reverse burden casted upon the complainant to establish the very case beyond the reasonable doubt in order to convict the accused. In that regard, as discussed earlier, the complainant has utterly failed to demonstrate as to his financial capacity of lent huge amount of Rs.23 lakhs, XXXXXXXXXXXXXXXXXXXXXXXXXX
14. It is significant fact to note that, though he came up with the affidavit evidence, for the reasons better known to him, he not choosen to entered into witness box tender for cross-examination, despite, gave sufficient opportunities. Unless, the DW.1 subjected for the cross-examination, the said evidence not fit for appraisal at the most it can be treated as no evidence from the side of accused.
It is worthy to cite the decision reported in Criminal Revision Case No.1486 of 2005 (Syed Dastageer V/s State of A.P.) Wherein, it was pleased to held that:
Evidence Act, Section 138 - Cross-examination - No evidence affecting a party is admissible against that party unless the latter has had an opportunity Judgment 33 C.C.No.20479/2017 of testing its truthfulness by cross-examination - It is certainly implied by Section 138 of Evidence At, that a part must have had an opportunity to cross- examine and it does not mean that merely a right to cross-examine a witness without an opportunity being offered for cross-examination is sufficient compliance with the requirements of law".
"Object of the cross-examination is (1) to test the credibility of the witness (2) to test the truthfulness of the facts which he has stated in chief examination (3) to put the defence version in the mouth of the witness (4) to know the facts which the witness did not state - The further object of the cross-examination is two fold - to weaken, to qualify or destroy the case of the opponent and to establish the party's own case by means of his opponent's witnesses - The further objects are to impeach the accuracy, credibility, and general value of the evidence given in chief, to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts, which will support the case of the cross- examining partly."
In the decision reported in Criminal Misc.No.15266-M of 1995 (Jagvinder Singh V/s. State of Punjab and another). the Hon'ble Punjab and Haryana High Court, it is held that:
"Section 319 criminal trial - Statement of witness without cross - examination cannot be treated as Judgment 34 C.C.No.20479/2017 evidence and cannot be relied to exercise power under section 319 Criminal Procedure Code."
15. From the point of the above said relevant provisions, it made clear that, since the accused not tendered for cross- examination, it should be consider as no evidence from the side of accused. Therefore, whatever the affidavit evidence submitted by the accused is not fit for appraisal.
XXXXXXXXXXXX
38. In this case, the accused has contended that, legal notice at Ex.P3 is not served on him, to that effect the complainant has produced the Ex.P5 unserved postal cover. On meticulous perusal of the address and endorsement made by the postal authority, it discloses, whatever the address made mentioned in the Ex.P3, was not served to the accused, but the postal authority has made shara 'redirected to the sender'. Even, the correct address of the accused is not been mentioned. Backside the postal cover, it clearly mentioned that, the addressee not in station during the beat hours, hence return the sender. Wherein, it is mentioned that, i/d on 24.05.2013. When it is mentioned as absent, to whom the Judgment 35 C.C.No.20479/2017 intimation was delivered, not been explained by the complainant. In order to make believe the said notice was served on the accused.
39. On going through the address made mentioned in the Ex.P3, it is mentioned as Kadaganahalli Village. But in the affidavit evidence of Accused/DW.1, he stated his village Kadiganahalli. In order to show that, to the said address, the R.P.A.D was served as per Ex.P5 or any intimation was delivered as per endorsement, the complainant has not produced any document nor examined the said postal authority. When the said R.P.A.D was redirected to Kadiganahalli and send back to the advocate for the complainant, mere because of mentioning as intimation delivered, it can presume that, in a wrong address of village, how it possible to serve the legal notice is not been explained by the complainant. Since the R.P.A.D is not directly served on the accused, it is complainant has to demonstrate that, he complied the Section 138(b) of Negotiable Instruments Act, but he failed todo so, for the best reasons known to him.
XXXXXXXXXXXXXx Judgment 36 C.C.No.20479/2017
25. No doubt, in this case, the complainant has presented the cheque twice in the complaint as pleaded that, notice issued on 01.06.2017 was duly served on the accused and another notice by R.P.A.D was returned stating left the address. But to show that, serve the legal notice to the accused, no document is been placed by the complainant.
26. On going through the Exs.P8 and P9, R.P.A.D covers issued to the accused which discloses, in the address made mentioned in the cause title of the complaint, the accused is left the address. In order to show that, notice was issued by speed post, the complainant has not produced any other document. Though, there was 4 postal receipts marked as Exs.P4 to P7, but only two R.P.A.D covers at Exs.P8 and P9 were produced, which also mentioned endorsement as 'left address' other two R.P.A.D covers pertaining to the receipts produced not been produced and even what happened to the same is also not been explained. Therefore, as to service of legal notice the evidence led by the PW.1 is to be seen, which runs thus:
"£Á£ÀÄ ZÉPï ¨Ë£ïì DzÀ £ÀAvÀgÀ DgÉÆæUÉ £ÉÆÃn¸ï ¤ÃrzÀ «¼Á¸ÀªÀ£ÀÄß DvÀ SÁ° ªÀiÁrPÉÆAqÀÄ ºÉÆÃVzÀÝ£ÀÄ. DgÉÆæ C°è Judgment 37 C.C.No.20479/2017 ªÁ¸À EgÀ°®è JAzÀgÉ ¸Àj. D PÁgÀtPÉÌ ¤¦.8 DgÉÆæ «¼Á¸À ©nÖzÁÝ£É JA§ÄzÁV PÁtô¹ »A¢gÀÄVzÉ JAzÀgÉ ¸Àj."
27. On going through the above testimony of PW.1, he categorically admitted that, the accused after cheque bounce, he vacated the address of him and he not resided in the said address. When PW.1 himself has admitted that, as on the date of issuance of legal notice the accused is already vacated the said house, therefore, Exs.P8 and P9 were returned. From which, it made clear that, the legal notice as required under Section 138(b) of Negotiable Instruments Act is not served on the accused and complainant has not complied the Section 138(b) of Negotiable Instruments Act. Therefore, it also one of the strong circumstances, as to the non compliance of mandatory provisions. As discussed above, the complainant has utterly failed to prove the very transaction as to he had the requisite fund of Rs.10 lakhs as on 17.09.2015 and handed over as loan to the accused and in turn, after lapse of 1 ½ years, the accused voluntarily got issued the questioned cheque for repayment of portion amount of Rs.5 lakhs is also not been proved. Hence, the accused is entitled for benefit of doubt for acquittal.
Judgment 38 C.C.No.20479/2017 XXXXXXXXXXXXX
The PW.1 has produced the documents at Exs.P12 to P47, the accused till today did not cross-examine the PW.1 on the said documents. Hence, they were remained unchallenged. The unchallenged documents at Exs.P12 to P47 made clear that the accused is liable to pay the alleged Exs.P1 to P3 cheques amount to the complainant. Mere denial of issuing cheques would not be sufficient, as it is time and again noted that once cheques are issued duly signed by the accused, the presumption goes against him as per Section 138 of Negotiable Instruments Act. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXX SECTION 138(B) & (C) NOT COMPLIED BY COMPLAINANT.
32. That apart, the accused has strongly contended that, he resides in the address at Ex.D1. Wherein, it mentioned his address that, Devaraju S/o.Nanjundaiah, No.19/54, Kamalanagar, Vrushabavathinagar, Kamakshipalya, Bengaluru-79. On going through the Ex.D1, it discloses, it was issued on 30.04.2013, it is none other than the Voter Identity Card. The accused has re- produced the said address in his affidavit evidence and Judgment 39 C.C.No.20479/2017 contending that, he used to stay in the said address, legal notice alleged to be issued by the complainant was not served on him. That apart, he also subjected for cross-examination, wherein, the advocate for the complainant had suggested him that, on 28.06.2018 the Ex.P3 notice was issued by the complainant to the accused, but he denied the same. He also denied that, the complainant by mentioning the 2 addresses of his home town as well as present address at Bengaluru, gave the legal notice. The accused was strongly denied the suggestion that, the 2nd address made mentioned in the cause title of the complaint at Dodda Hulikatte was his own home town, but he stated that, he resides in Chikka Hulikatte. He also suggested that, notice at the present address at Bengaluru as per Ex.P7 returned to the complainant is denied by the DW.1. The DW.1 has denied the suggestion that, the place of Chikka Hulikatte and Dodda Hulikatte are situated abutting to each other. But he volunteers that, those villagers are having distance at one kilometer. By deposing that, the complainant has stated that, he got issued legal notice were not served on the accused. The Ex.D1 discloses, the accused resides in different address at Bengaluru and the same address is not been seen either in the Ex.P3 legal notice or in the postal cover as per Exs.P6 and P7 as well as in the complaint cause title Judgment 40 C.C.No.20479/2017 address. From which, it made clear that, even complainant has not sent the legal notice to the correct address of the accused. Thereby, the mandatory requirement as enumerated under Section 138(b) to (c) of Negotiable Instruments Act are not complied.
33. The Ex.D1 discloses altogether different address against the residential address of the accused, as made mentioned in the complaint. In order to show that, the address at Ex.D3, P6 and P7 pertaining to the accused at Bengaluru as well as Huliyurdurga are the exact addresses of the accused, nothing has been produced by the complainant. Ex.P6 notice issued by speed post, to the address at Kamakshipalya returned stating, 'absent intimation delivered'. When in the said address the accused was not resides and he resides in the address at Ex.D1, why the postman has made endorsement 'intimation delivered' against the mentioning absent, itself creates doubt. If at all, accused was absent, question of deliver the intimation to the said address does not arise, unless discloses, who are inmates of the house of accused.
34. That apart, Ex.P7 legal notice issued to the address of the accused at Kunigal Taluk. Wherein, it also endorsed that, since Judgment 41 C.C.No.20479/2017 the addressee resides at Bengaluru, it was returned. From which, the accused has successfully proved that, he not resides in the addresses at Exs.P6 and P7, but resides in different address, hence, legal notice issued by the complainant were not served on him. Thereby, the complainant was not complied the mandatory requirement as per Section 138(b) & (c) of Negotiable Instruments Act. Thereby, the accused was able to rebutted the statutory presumption as well as facts and circumstances put forth by the complainant. Thereby, as per Section 139 of Negotiable Instruments Act, it was reverse burden casted on the complainant to prove his case beyond the reasonable doubt.
It is well worthy to cite the decision reported in 2008 AIR SCC 7702 (P. Venugopal V/s.Madan P. Sarathi). Wherein, it was pleased to held by the Hon'ble Division Bench of the Hon'ble Apex Court that:
"The presumption raised does not extent to the expenditure that cheque was issued for the discharge of any debt or liability. Which is required to be proved by the complainant. However, it is essentially a question of fact".
In the decision of AIR 2008 SC 278 between John K John V/s. Tom Verghees, the Hon'ble Apex court it is held that:
Judgment 42 C.C.No.20479/2017 "The presumption under Section 139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally necessary to know how the complainant advanced such a huge amount".
15. From the point of above dictums also, it was the reverse burden casted upon the complainant to establish the very case beyond the reasonable doubt in order to convict the accused. As observed earlier, the complainant has not disclosed, the complainant and accused being a auto drivers, why the accused was in need of huge amount of Rs.4,50,000/- and what kind of important of business of the accused and with whom the accused had the loan is also not been pleaded nor explained by the complainant in his cross-examination. The alleged request and lent of loan to the accused as pleaded by the complainant require to be prove with documentary evidence as well as oral evidence. First of all, he simply pleaded in the acquaintance of friendship, during 1st week of October, 2017 accused sought for loan, but he not specified, where he came and on whose persons he made such request, even the exact date is also not been whispered.
Judgment 43 C.C.No.20479/2017 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXX 138(b) not complied by the complainant conclusion after discussion add this Hence, the complainant has failed to establish that the address mentioned on cause title of complaint and Ex.P7 belongs to accused. Thus complainant has failed to prove that she has issued legal notice to the correct address of accused and thereby complainant has failed to comply the proviso (b) of Section 138 of Negotiable Instruments Act. When the complainant has not complied the proviso (b) of Section 138 of Negotiable Instruments Act, then the complaint under Section 138 of Negotiable Instruments Act is not maintainable.
XXXXXXXXXXXXXXXXXXXXXXXX ACQUIT PURPOSE CONCLUSION PORTION Thereby, the PW.1 has failed to disprove the probable defence projected by the accused orally as well as documentary evidence. The accused has successfully proved his probable defence and destroyed the very case of complainant based on Ex.P1-cheque. Even legal notice is also not served. From the above discussions, Judgment 44 C.C.No.20479/2017 it is very much clear that the complainant has failed to prove his case beyond all reasonable doubt by adducing cogent and convincing evidence before the court. Thus, the accused has rebutted the legal presumptions available under Sections 139 and 118 of Negotiable Instruments Act. Hence, the accused is entitled for benefit of doubt for acquittal.
19. On overall appreciation of the material facts available on record, it discloses that the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.10 lakhs to the accused, inturn the accused has issued the Ex.P1-cheque in favour of complainant for discharge of legally recoverable debt.
In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
20. In this case on hand, the complaint failed to prove the alleged transaction, it can be gathered the probability that the accused is not liable to pay Ex.P1 cheque amount of Rs.10,00,000/- and it is not legally recoverable debt. On perusal Judgment 45 C.C.No.20479/2017 of the oral and documentary evidence placed on record it is crystal clear that accused has made out a probable case which clearly rebut the presumptions arisen in favour of complainant. Accused has proved that Ex.P1 cheque was not issued in favour of complainant for discharge of legally recoverable debt of Rs.10,00,000/-. The accused has taken his defence at the earliest point of time, while recording of accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablized that complainant has failed to prove that accused issued the cheque for discharge of liability of Rs.10,00,000/-. Therefore, as discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point No.1 in the Negative.
XXXXXXXXXXXX ACCUSED DID NOT TAKE ANY ACTION AGAINST THE COMPLAINANT FOR MISUSE OF HIS CHEQUE AND CONVICTION PURPOSE CONCLUSION PORTION Judgment 46 C.C.No.20479/2017
22. The learned counsel for accused in support of defence taken by the accused, he has relied upon the decision as under:
a) Crl.A.No.2402 of 2014 (Arising out of SLP (Crl.) No.6197 of 2017) in the case of K.Subramani V/s.
K.Damodara Naidu.
23. I have gone through the above decision. The facts and circumstances of the above decision and the facts and circumstances in the present case on hand are totally different. Hence, the above decision does not come to the assistance of accused to prove her defence.
In the present case on hand, the accused did not enter into witness box, but cross-examined the PW.1. In the entire cross- examination of PW.1, the accused has not disputed the service of legal notice sent by complainant. But at the time of recording statement under Section 313 of Cr.P.C. she admitted that she gave reply to the legal notice send by complainant. From which, it made clear that the legal notice as required under Section 138(b) of Negotiable Instruments Act was served upon accused and complainant has complied the Section 138(b) of Negotiable Instruments Act.
It is pertinent to note that the accused has taken her defence in the 313 of Cr.P.C. statement that the complainant has taken her Judgment 47 C.C.No.20479/2017 sighed blank cheque by giving assurance to her that he will lend Rs.5 lakhs, but he did not lend any amount. In the cross- examination of PW.1, the counsel for accused has taken different contention. In order to disprove the said factum, the accused did not choose to enter into witness box and did not produce any single piece of document. From this, it is very much clear that the accused has received sum of Rs.5 lakhs from the complainant and for repayment of the said amount, the accused has issued the Ex.P1-cheque for discharge of legally recoverable debt in favour of complainant. If at all, the accused has not issued the said cheque to the complainant for any debt or liability definitely, she had every opportunity to enter into witness box and give her evidence, but she did not to do so. If really there was no any transaction between complainant and accused, then accused could not have kept mum without taking any action against the complainant. Therefore, this court does not other go then to accept the evidence of PW.1 that the questioned cheque was issued by the accused for discharge of existence of legally recoverable debt. Thus the accused has failed to rebut the presumption available under Section 118(a) and 139 of Negotiable Instruments Act in favour of complainant.
Judgment 48 C.C.No.20479/2017
27. On overall appraisal of the materials available on record, it is the consider opinion of this court that the accused has failed to discharge initial burden to rebut the statutory presumption as well as the facts and circumstances placed by the complainant in the present case. Thereby, the complainant has proved the guilt of the accused that the accused is liable to pay the amount covered under the Ex.P1-cheque. There is no substance in the probable defence of the accused, whereas the complainant has discharged his burden and proved the guilt of the accused. Therefore, keeping in the mind of the object of introduction of Negotiable Instruments Act, it appears this court that it is a fit case to convict the accused.
28. Therefore, from the perusal of oral and documentary evidence placed on record it reveals that complainant has made out his case and accused has failed to rebut the presumptions arisen in favour of complainant. Thus complainant has proved that accused has committed an offence punishable under Section 138 of Negotiable Instruments Act beyond all reasonable doubt. Hence, in view of the above said reasons, I hold point No.1 in the Affirmative.
XXXXXXXXXXXXXXXXXXXXXXXXX Judgment 49 C.C.No.20479/2017 CONVICTION PURPOSE CONCLUSION If at all, the accused has not issued the said cheque to the complainant for any debt or liability, definitely, he had every opportunity to give stop payment instructions to his banker against the alleged cheque, but he did not to do so. If really there was no any transaction between complainant and accused, then accused could not have kept silent without taking any action against the complainant. Therefore, this court has not other go then to accept the evidence of PW.1 that the questioned cheque was issued by the accused for discharge of existence of legally recoverable debt. Thus the accused has failed to rebut the presumption available under Section 118(a) and 139 of Negotiable Instruments Act in favour of complainant.
19. The learned counsel for the accused cross-examined the PW.1 in length, but nothing is elicited from the mouth of PW.1 to believe the defence taken by the accused. The accused has admitted the alleged cheque and signature appears on the cheque belongs to him. When he admitted the cheque and signature appears on the cheque, then as per Section 139 of Negotiable Instruments Act, the presumption arisen in favour of complainant that the accused has given the questioned cheque Judgment 50 C.C.No.20479/2017 for discharge of legally recoverable debt. It is true that this presumption is rebuttable in nature, but to rebut the presumption, the accused has not produced cogent and convincing materials before the court to believe his version. Therefore, the defence taken by the accused is not helpful to him to disbelieve the case of complainant.
20. In the present case on hand, there is no cogent and convenience materials on behalf of accused to believe his version that he has not issued the Ex.P1-cheque in favour of complainant for discharge of legally recoverable debt. Thus the accused has failed to rebut the presumption available under Section 118(a) and 139 of Negotiable Instruments Act in favour of complainant. Even there is no suggestion made by the accused's counsel to the PW.1 with regard to the compliance of mandatory provision. Thereby, the PW.1 proved her contention, but accused without any base, took bald and baseless contention.
21. On overall appraisal of the materials available on record, it is the consider opinion of this court that the accused has failed to discharge initial burden to rebut the statutory presumption as well as the facts and circumstances placed by the complainant in the present case. Thereby, the complainant has proved the guilt of Judgment 51 C.C.No.20479/2017 the accused that the accused is liable to pay the amount covered under the Ex.P1-cheque. There is no substance in the probable defence of the accused, whereas the complainant has discharged her burden and proved the guilt of the accused. Therefore, keeping in the mind of the object of introduction of Negotiable Instruments Act, it appears this court, it is fit case to convict the accused.
22. Therefore, from the perusal of oral and documentary evidence placed on record, it reveals that complainant has made out her case and accused has failed to rebut the presumptions arisen in favour of complainant. Thus complainant has proved that accused has committed an offence punishable under Section 138 of Negotiable Instruments Act beyond all reasonable doubt. Hence, in view of the above said reasons, I hold point No.1 in the Affirmative.
XXXXXXXXXXXXXXXXXXX The RPAD Acknowledgment was not returned, as such complainant's counsel has made complaint before the post master. After receipt of notice, accused neither paid the cheque amount nor replied to the legal notice.
Judgment 52 C.C.No.20479/2017 Ex.P6 is the complaint dated:08.01.2010 lodged by the complainant counsel before the Post Master, regarding report of delivery of notice sent by RPAD.
XXXXXXXXXXXXXXx cheque admitted, signature denied, service of notice denied, address mentioned in cause title not denied PURPOSE
17. The accused has admitted that the cheque belongs to him, but he denied the signature appears on the cheque is not of him. In order to prove the same, the accused has not taken any steps to send the said cheque to hand writing expert to know the signature appears on cheque is of him or not, but he did not do so. The accused has not satisfactorily explained, how the cheque was passed on to the complainant. If really there was no any transaction between complainant and accused, then accused could not have kept mum without taking any legal action against the complainant. In order to disprove the contention of complainant, the learned counsel for accused has cross- examined the PW.1 in length, but nothing has been elicited from the mouth of PW.1 to believe the defence of accused.
Judgment 53 C.C.No.20479/2017
18. In the cross-examination of PW.1, the accused has denied the notice sent by complainant to him. But he has not disputed his address mentioned in cause title of the complaint. When accused has not disputed his address mentioned in the cause title of complaint, an inference can be drawn that accused was well aware of the contents of demand notice. Accused has not replied the notice and thereby accused has not utilized the opportunity available for him to disclose about his defence at the earliest. When the accused has not disclosed his defence at the earliest an inference has to be drawn that accused has taken false defence. Therefore, the accused cannot say that the demand notice was not served on him and he did not aware of the legal notice at Ex.P3. Therefore, the contention of the accused that he did not aware of demand notice is not acceptable.
20. In the present case on hand, there is no cogent and convenience materials on behalf of accused to believe his version that he has not issued the Ex.P1-cheque in favour of complainant for discharge of legally recoverable debt. Thus the accused has failed to rebut the presumption available under Section 118(a) and 139 of Negotiable Instruments Act in favour of complainant. Even there is no suggestion made by the accused counsel to the PW.1 with regard to the compliance of mandatory provision. Thereby, Judgment 54 C.C.No.20479/2017 the PW.1 proved his contention, but accused without any base took bald and baseless contention.
XXXXXXXXXXXXXXXXXX Income tax returns to show hand loan amount it is not compulsory as per citation below It is relevant to cite the decision reported in ILR 2019 KAR 493 in the case of Yogesh Poojary V/s. K.Shankara Bhat. Wherein, the Hon'ble High Court of Karnataka was pleased to held that:
"Mere making a suggestion to the complainant that he has not disclosed the alleged loan transaction in his income tax returns or eliciting the statement from the complainant that he has not disclosed the alleged loan transaction in his income tax returns by itself is not sufficient. It is also required for the accused to establish that the complainant is an income tax assessee or required to be an assessee and that the nature of his income tax assessment and the income tax return which he files, requires him to disclose the alleged transaction or the liability in question. In the absence of eliciting those details, by merely making a suggestion that the alleged debt or liability, has not been reflected in the income tax returns would not by itself suffice to draw an adverse inference and to hold that there was no legally enforceable debt or the Judgment 55 C.C.No.20479/2017 presumption standing in favour of the complainant as successfully rebutted by the accused".
21. On going through the said dictum, it is also made clear that In the absence of eliciting those details, by merely making a suggestion that the alleged debt or liability, has not been reflected in the income tax returns would not by itself suffice to draw an adverse inference against the complainant. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX INTERIM COMPENSATION DEPOSITED BY accused BEFORE COURT PURPOSE
14. In the present case on hand, earlier the complainant has filed an application under Section 143(2)(A) of Negotiable Instruments Act seeking for the interim compensation award at 20% of the cheques amount, the same was allowed by this court. As per the order of this court, the accused has deposited of Rs.7,910/- before this court as interim compensation on 05.01.2021 vide Q.No.3202. Further, the counsel for complainant filed memo and prayed to release the said interim compensation amount of Rs.7,910/- in favour of complainant and thereafter on 09.12.2021, this court was passed an order and direction was issued to cash branch to release the said interim compensation Judgment 56 C.C.No.20479/2017 amount of Rs.7,910/- in favour of complainant, which was already deposited by the accused. Thereafter, this court has permitted to the accused to cross examine the PW.1 and to lead his defence evidence, but he did not do so.
15. On overall appraisal of the materials available on record, it is the consider opinion of this court that the accused has failed to discharge initial burden to rebut the statutory presumption as well as the facts and circumstances placed by the complainant in the present case. Thereby, the complainant has proved the guilt of the accused that the accused is liable to pay the amount covered under the Exs.P1 and P2-cheques. Therefore, keeping in the mind of the object of introduction of Negotiable Instruments Act, it appears this court that it is a fit case to convict the accused coupled with the amount covered under the cheques at Exs.P1 and P2 at Rs.39,550/-. Out of the said fine amount of Rs.39,550/-, the accused was already deposited before this court as interim compensation amount of Rs.7,910/- and out of the remaining amount of Rs.31,640/-, sum of Rs.500/- shall be payable to the state as fine and remaining amount of Rs.31,640/- shall be payable to complainant as compensation as per Section 357 of Cr.P.C. If, the accused fails to pay the said money within Judgment 57 C.C.No.20479/2017 the appeal period, as a default sentence, he shall under go simple imprisonment for 01 month.
ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay total fine of Rs.42,000/-.
Out of the said fine amount, the accused already deposited sum of Rs.7,910/- before this court as interim compensation and out of the remaining amount of Rs.34,090/-, sum of Rs.33,590/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.500/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused shall under go simple imprisonment for 01 (One) Month.
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxx SIGNATURE ADMITTED BY ACCUSED IS NOT SUFFICIENT PROOF & ACCUSED NOT ENTER INTO WITNESS BOX PURPOSE:
Judgment 58 C.C.No.20479/2017
19. No doubt, as per sections 118(a) and 139 of Negotiable Instruments Act, the initial presumption raised in favour of complainant. When the accused admitted the cheque and signature appears on cheque belongs to her, as per Section 139 of Negotiable Instruments Act, it shall be presumed that the cheque was issued for discharge of legally recoverable debt. But the said presumption is rebuttable in nature. It is not necessary to the accused to enter into witness box and give her oral and documentary evidence before the court to prove her defence. She can prove her defence on the basis of materials available on record.
It is an appropriate to cite the decisions of the Hon'ble Supreme Court in (2008) 2 Supreme Court Cases (Criminal) 166 (Krishna Janardhan Bhat V/s. Dattatraya G Hegde) and 2010 AIR SCW 2946 (Rangappa V/s. Mohan).
"The accused need not enter into witness box and he could rebut the presumption envisage under Section 139 of Negotiable Instruments Act by setting up a probable case. As such, there is no strict rule that, the accused should enter into the witness box in support or proof of his defence. The accused has got every right to prove his defence from the cross- examination of PW.1 or the materials already brought on record. It is also held that, the standard of evidence be to led by the accused is preponderance Judgment 59 C.C.No.20479/2017 of probabilities and no proof beyond reasonable doubt. On the contrary, for the complainant he should prove his case beyond all reasonable doubt".
20. As per the said dictums, the accused need not require to enter in to the witness box to prove her probable defence, but she can prove her defence by way of cross-examining the PW.1 and relied upon the documents of the complainant.
21. The materials available on record made clear that the accused has not issued the questioned cheque for discharge of legally recoverable debt in favour of complainant. The learned counsel for accused has argued that the cheque and signature appears on the cheque admitted by the accused. It is presumption that the cheque was given by the accused for discharge of debt or liability.
It is worthy to cite the decision reported in ILR 2009 KAR 2331 in the case of B.Indramma V/s. Sri.Eshwar. Wherein, the Hon'ble High Court of Karnataka observed that:
"When the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by the complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that the cheque in question bears his signature would not be sufficient proof of the fact that Judgment 60 C.C.No.20479/2017 he delivered the said cheque to the complainant and the latter 'received it from the former' so as to raise the presumption U/s 139 of N.I.Act."
In another decision reported in AIR 2019 SC 1983 in the case of Basalingappa V/s. Mudibasappa. Wherein, the Hon'ble Apex observed that:
"Drawing of presumption under, and how said presumption can be rebutted - Standard of proof - While prosecution must establish its case beyond reasonable doubt, accused to prove a defence must only meet standard of preponderance of probabilities."
In view of the above decisions, in an offence punishable under Section 138 of Negotiable Instrument Act, the cheque in question bears with signature would not be sufficient proof of the fact that he delivered the said cheque to the complainant, the prosecution must establish its case beyond reasonable doubt. The accused can prove her defence on the basis of principal of preponderance of probabilities.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXX SIGNATURE AND CHEQUE ADMITTED BY ACCUSED -
ACCUSED LIABLE TO BE CONVICT PURPOSE CITATION Judgment 61 C.C.No.20479/2017 In another decision reported in AIR 2019 SC 1876 in the case of Rohitbhai Jivanlal Patel V/s State of Gujarat and another. Wherein, the Hon'ble Apex Court held that:
"(E) Accused not denying his signatures on cheques but attempting to suggest availability of his signatures on blank stamp paper with friend - No cogent reasons for him to sign blank stamp paper - cheques with all relevant particulars are same cheques forming subject-
matter of complainant's case - Accused liable to be convicted."
21. From the point of above dictums, in the case on hand, those cheques were signed by the accused, but no specific explanation is forth coming from the side of accused who filled the same, therefore, adverse inference has to be drawn against the accused that the said cheque was issued for discharge of existence of legally recoverable debt.
XXXXXXXXXXXXXXXXX JUDGMENT CONCLUSION PURPOSE GROUNDS:
Hence, the allegations made by the revision petition in the criminal revision petition cannot be accepted. There is no acceptable grounds in the revision petition to interfere into the impugned order passed by the trial court. For the said reasons, Judgment 62 C.C.No.20479/2017 this court is the opinion that impugned order is sustainable in law.
Hence, interference of this court is not necessitated.
XXXXXXXXXXXXXXXXXXXX It is relevant to cite the decision reported in Crl.A.No.123/2021 in the case of M/s. Kalamani Tex and another V/s. P.Balasubramanian. Wherein, Hon'ble Apex Court was pleased to held that:
"Para N.14 - Adverting to the case in hand, we find on a plain reading of its judgment that the trial court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of Negotiable Instrument Act. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this in Rhitbhai Jivanlal Patel V/s. State of Gujarat".
Further, the Hon'ble Apex Court observed that:
Para No.17: "The appellants have banked upon the evidence of DW.1 to dispute the existence of any recoverable debt. However, his deposition merely highlights that the respondent had an over-extended credit facility with the bank and his failure to update Judgment 63 C.C.No.20479/2017 his account led to debt recovery proceedings. Such evidence does not disprove the appellants' liability and has a little bearing on the merits of the respondent's complaint. Similarly, the appellants' mere bald denial regarding genuineness of the Deed of Undertaking dated 07.11.2000, despite admitting the signatures of Appellant No.2 thereupon, does not cast any doubt on the genuineness of the said document."
23. In view of the above decision, once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. In the present case on hand, the accused herein has admitted the signatures on the question cheque at Ex.P1(a) and Endorsement/letter at Ex.P6(a) as belong to him. Therefore, the obligation shifts upon him to discharge the presumption imposed upon him. In the case on hand, I do not find any material to create doubt regarding the genuineness of execution of Ex.P6 Acknowledge/letter in favour of complainant and issuance of Ex.P1-cheque in favour of complainant for discharge of legally recoverable debt.
XXXXXXXXXXXXXXXXXXXXXXXX Judgment 64 C.C.No.20479/2017 She also deposes, she had no impediment to examine her son aged about 13 years and her aunt. In that regard, no denial suggestion is made from the side of the accused. XXXXXXXXXXXXXXXXXXXXXXXXXXXXX Service of Notice denied by accused purpose
21. In this case, the accused No.1 has denied the notice sent by complainant was not served on them. But the accused No.1 has not disputed his address mentioned in cause title of the complaint, legal notice at Ex.P4 and R.P.A.D covers at Exs.P7 and P8. When accused has not disputed his address mentioned in the cause title of complaint and demand notice, then an inference can be drawn that accused No.1 was well aware of the contents of demand notice. Accused No.1 has not replied the notice and thereby accused No.1 has not utilized the opportunity available for him to disclose about his defence at the earliest. When the accused No.1 has not disclosed his defence at the earliest then an inference has to be drawn that accused No.1 has taken false defence. Therefore, the accused No.1 cannot say that the demand notice was not served on him and he did not aware of the legal notice at Ex.P4. On perusal of address mentioned in cause title of complaint, legal notice at Ex.P4 and Exs.P7 and P8 Judgment 65 C.C.No.20479/2017
- R.P.A.D covers are one and the same. Therefore, the accused cannot say that the legal notice was not served on him and he does not aware about the notice sent by the complainant.
It is relevant to cite the decision reported in 2006 (4) KCCR 2375 in the case of Mr.Umraz Khan and others V/s. Mr.A.Jameel Ahmed and another. Wherein, Hon'ble High Court of Karnataka was pleased to held that:
"Once there is proof of posting of notice to correct address, it is deemed to have been served, the judgment of acquittal is bad in law".
22. On going through the said dictum, it is also made clear that if the notice was sent with correct address of the accused, it is suffice to draw the inference that the notice was duly served on the accused. If the accused failed to accept the notice and failed to claim the notice sent to him under register post, there is deemed service of notice upon him. In the present case on hand, the address mentioned in the cause title of complaint, RPAD covers at Exs.P7 and P8 are one and the same. Therefore, the contents of accused that the notice was not served on him cannot be accepted. It is relevant to cite the decision reported in (2001) 8 SCC 458 in the case of K.N.Beena V/s. Muniyappan and another, wherein, the Hon'ble Apex Court held that:
Judgment 66 C.C.No.20479/2017 "In view of the provisions contained in Sections 118 and 139, the court has to presume that the cheque had been issued for discharging a debt or liability. However, the said presumption could be rebutted by the accused by proving the contrary. Mere denial or rebuttal by accused in the reply to the legal notice sent by the complainant not enough. The accused had to prove by cogent evidence that there was no debt or liability."
15. In the present case on hand, the accused did not produce any cogent and convincing evidence before this court to believe that they have not issued the alleged cheques in favour of complainant for discharge of legally recoverable debt. It is the burden on the accused to prove his defence by producing sufficient materials before the court. Mere denial of the same is not enough to believe their defence. If really, he has not issued the cheques to the complainant, definitely, he would have taken legal steps against the complainant, but in this case there is no legal action taken by the accused against the complainant. It shows that the accused has issued the questioned cheques Exs.P1 and P2 for discharge of legally recoverable debt by putting his signatures.