Bangalore District Court
N Sathish vs Vijay.V on 1 October, 2024
KABC020145962022
IN THE COURT OF THE JUDGE COURT OF SMALL
CAUSES AND A.C.J.M, AT BENGALURU
DATED THIS THE 01st DAY OF OCTOBER-2024
PRESENT:
Smt.Nirmala.M.C.,,B.Com.,L.L.B.,
JUDGE SMALL CAUSES, ACJM.
C.C.No.6969/2022
Complainant: Sri.N.Satish,
S/o.Narasimha,
R/at No.6/50, 9th Cross,
Adarshanagar, Chamarajpete,
Bengaluru - 560 018.
(By Sri.Bala Reddy - Adv.)
-Vs-
Accused: Sri.Vijay.V.,
S/o.N.Jayalakhmi,
Aged about 41 years,
R/at No.132, 71st Cross,
Near Police Station,
Kumaraswamy Layout I Stage,
J.P.Nagara, Bengaluru South,
Bengaluru - 560 078.
(By Sri.Rajesh.B.L - Adv.)
*****
SCCH-9 2 CC.No.6969/2022
// J U D G M E N T //
This is a private complaint filed by the
complainant u/Sec 200 of Cr.P.C. against the accused
for the offence punishable u/Sec 138 of Negotiable
Instruments Act 1881 (hereinafter referred as 'Act').
2. The case of the complainant in brief is as
under:
The accused and complainant are well acquainted
with each other and on several occasions he availed loan
and used to repay the same within time. In view of that
acquaintance, accused approached the complainant
during the last week of January, 2020 for hand loan of
Rs.8,00,000/- and assured to repay the same within one
year. Considering the request of the accused the
complainant lent Rs.6,00,000/- in cash and
Rs.2,00,000/- through NEFT transfer to the accused
account on 30.01.2020. To discharge his liability issued
two cheques i.e., cheque bearing No.255906 for
SCCH-9 3 CC.No.6969/2022
Rs.4,00,000/- dated 21.02.2022 drawn on Andhra
Bank, Kanakapura Main Road Branch, Bengaluru and
another cheque bearing No.285383 dated 16.02.2022 for
Rs.4,00,000/- in favour of complainant, which was
drawn on Canara Bank, Basavanagudi Branch,
Bengaluru.
3. It is further case of the complainant that, when the
complainant has presented the said cheques through
his banker Bank of Baroda, Mysore Road Branch
Bengaluru, the said cheques were dishonoured with an
endorsement "Non CTS Cheque".
4. It is further case of the complainant that, the
complainant got issued legal notice on dated 15.03.2022
by way of RPAD to the accused. The said notice was
served upon the accused. In spite of service of notice
accused fails to pay the cheque amount. Hence,
complainant having no other option constrained to file
SCCH-9 4 CC.No.6969/2022
this private complaint against the accused for the
alleged offence punishable U/sec.138 of NI Act.
5. After filing the complaint, my predecessor in
office took the cognizance for the offence punishable
u/Sec 138 of N.I.Act and the complaint was registered
as private complaint. The sworn statement of the
complainant was recorded and registered the case as
Criminal Case and the process was issued against the
accused.
6. In response to the summons, the accused
appeared before the court and enlarged on bail. The
accused was on bail during the trial. As per the
directions of Hon'ble Apex Court in a case between
INDIAN BANK ASSOCIATION V/s UNION OF INDIA, in
the instant case on the same day of appearance of the
accused the substance of accusation was framed and
read over and explained to the accused in the language
known to him. The accused pleaded not guilty, but
SCCH-9 5 CC.No.6969/2022
claims to be tried. On the same day sworn statement
affidavit of complainant was treated as chief
examination affidavit and complainant himself examined
as PW1. The documents which were marked at the time
of sworn statement i.e., Ex.P1 to P8 were also
considered as documentary evidence in the chief
examination. Then on the same day statement of
accused as required U/sec 313 of Cr.P.C. was also
recorded. The accused denied all the incriminating
circumstances appeared against him in the evidence to
be false. Then accused had filed application U/sec
145(2) of NI Act, the said application was allowed and
accused was permitted to cross examine the PW1. In
spite of sufficient opportunities given to accused, he did
not cross-examined the PW1 or adduce evidence on his
behalf. Hence, cross-examination of PW1 and defense
evidence taken as Nil.
SCCH-9 6 CC.No.6969/2022
7. Heard the arguments of complainant side.
Repeatedly accused absent, no representation on his
behalf. Hence defense argument taken as not addressed.
8. I have Perused the materials available on
record.
9. Now the points that arise for my
consideration are as under:
1. Whether the complainant proves
beyond all reasonable doubt that, the
accused had issued two cheques
bearing No.255906 dated 21.02.2022
for Rs.4,00,000/- drawn on Andhara
Bank, Kanakapura Main Road Branch,
Bengaluru and another cheque bearing
No.285383 dated Rs.16.02.2022 for
Rs.4,00,000/- Canara Bank ISRO
Layout Branch, Bengaluru drawn in
favour of complainant to discharge his
liability and on presentation of the said
cheques for encashment, the same were
returned as "Funds Insufficient" and in
spite of service of notice, the accused
failed to pay the cheque amount within
the statutory period and thereby
committed an offence punishable under
Section 138 of N.I.Act?
2. What order?
SCCH-9 7 CC.No.6969/2022
10. My answer to the above points for my
consideration are as under:
Point No.1: In the affirmative;
Point No.2: As per final order
for the following:-
REASONS
11. POINT NO.1 : It is the specific case of the
complainant that, hand loan of Rs.8,00,000/- and
assured to repay the same within one year. Thereafter
the accused had issued the two cheque i.e.,cheque
bearing No.255906 dated 21.02.2022 for Rs.4,00,000/-
drawn on Andhara Bani, Kanakpura Main Road Branch,
Bengaluru and cheque bearing No.285383 for
Rs.4,00,000/- dated 16.02.2022 drawn on Canara
Bank, ISRO Layout Branch, Bengaluru in favour of
complainant. The cheques were dishonoured due to the
reasons "Non CTS". Therefore the complainant got
issued the legal notice. In spite of service of notice the
SCCH-9 8 CC.No.6969/2022
accused failed to pay the cheque amount hence, this
complaint.
12. I have perused entire materials available on
record with cautiously. The learned counsel for
complainant has argued the matter and sought for
convicting the accused for the offence punishable u/Sec
138 NI Act.
13. As stated above, in order to prove the guilt of
the accused, the complainant himself examined as PW1
and got marked Ex.P1 to P8. The PW1/complainant has
filed sworn affidavit and it is considered as in lieu of
chief examination and reiterated all the facts mentioned
in his complaint. I have gone through the said
documents. The Ex.P1 & 2 are the cheques, Ex.P1(a) &
2(a) are the signature of the accused, Ex.P3 & 4 are the
bank endorsements, Ex.P5 is the legal notice, Ex.P6 is
SCCH-9 9 CC.No.6969/2022
the postal receipt, Ex.P7 is the postal acknowledgment
and Ex.P8 is the on demand pronote and receipt.
14. Before discussion of the case of the
complainant, it is better to have important ingredients
as contemplated under NI Act, which constitute the
offence punishable u/Sec 138 of the said Act which
reads as under:-
a) The cheque has been presented to the bank
within a period of 3 months from the date on which it is
drawn or within the period of its validity, whichever is
earlier.
b) The payee or the holder in due course of the
cheque, as the case may be makes a demand for the
payment of the said amount of money by giving a notice,
in writing, to the drawer, of the cheque(within 30 days)
of the receipt of information from him from the bank
regarding the return of the cheque as unpaid; and
c) The drawer of such cheque fails to make the
payment of the said amount of money to the payee or, as
the case may be to the holder in due course of the
cheque within 15 days of the receipt of the said notice.
15. Now coming to the present case on hand. On
perusal of materials available on record and on perusal
SCCH-9 10 CC.No.6969/2022
of documents at Ex.P1 to P8 it appears that the
complainant has complied the provisions as
contemplated under Section 138 of the NI Act before
filing the private complaint to the court. When
complainant complied with the provisions as
contemplated under Section 138 of the N.I.Act, the
presumption can be drawn in favour of the complainant
as per Section 139 and 118 of the N.I.Act that the
accused had issued the cheque to discharge his debt or
liability. The aforesaid statutory presumption is a
rebuttable presumption and accused can rebut the
above said presumption on the materials available on
record and even they can prove their defense only on
preponderance of probabilities without entering into the
witness box.
16. Perused the material available on record
Ex.P1 & 2 are the disputed cheques, Ex.P1 (a) & 2 (a)
are the signature of accused, Ex.P3 & P4 are the
SCCH-9 11 CC.No.6969/2022
endorsements. Ex.P5 is legal notice, Ex.P6 is the postal
receipt, Ex.P7 is postal acknowledgment, Ex.P8 is the on
demand pronote and receipt. The above document
shows that presumption arise in favour of the
complainant.
17. On perusal of the records, Ex.P1 & 2 are the
cheques issued by the accused in favour of the
complainant. Ex.P1(a) & 2 (a) is the signatures, it is not
disputed by the accused. Ex.P3 and 8 are endorsements,
legal notice, postal receipts, postal acknowledgment, on
demand pronote and receipts. These documents are also
not disputed by the accused and these documents clearly
shows that there is monetary transaction took place
between the complainant and accused, accused failed to
repay the amount to the complainant as stated in the
complaint. The complainant has clearly established his
case through cogent and documentary evidence. Inspite of
sufficient opportunities given to the accused he did not
SCCH-9 12 CC.No.6969/2022
made any effort to rebut the presumption arise in favour
of the complainant. The evidence of the complainant is
unchallenged. Hence, I am relying upon the decision
reported in 2015(4) KCCR 2881 (SC), in between
"Vasanthakumar V/s Vijayakumari. The aforesaid
citation is amply applicable to the facts and
circumstances of the present case. In this case issuance
of cheque and signature is not in dispute. It is the case of
the complainant that, accused has issued the cheques in
his favour towards discharge of his liability. The
complainant to prove his contention he has filed sworn
statement in lieu of examination in chief. But the accused
has not made any effort either to cross examination PW1
or to evidence adduce on his behalf to disprove the
contention of the complainant. In the instant case
evidence of the complainant is not challenged by the
accused. When the accused fails to rebut the
presumption arise in favour of the complainant, it can be
SCCH-9 13 CC.No.6969/2022
safely held that accused has issued the cheques in favour
of the complainant for legally recoverable debts. In the
instant case the complainant has clearly established his
case by cogent, corroborative documentary and oral
evidence. Hence, I am of the considered opinion that
accused is liable to be conviction for the offence
punishable under Section 138 of N.I. Act. Accordingly,
point No.1 is answered in the Affirmative.
18 . POINT NO.2:- In view of discussions made
above Court proceed to pass the following:
ORDER
Acting under Section 255[2] of Cr.P.C, the accused is hereby convicted for the offence Punishable U/s. 138 of the N.I. Act.
The accused is sentenced to pay total fine amount of Rs.8,10,000/-. In default of payment of fine amount, the SCCH-9 14 CC.No.6969/2022 accused shall under go Simple Imprisonment for a period six months.
After deposit of fine amount of Rs.8,00,000/- shall be paid to the Complainant as compensation as provided U/s.357 (1) Cr.P.C. The remaining amount of Rs.10,000/- to be appropriated to the state as fine.
The bail bond of the accused is hereby stand cancelled.
Office is directed to furnish free copy of this judgment to the accused.
(Dictated to the Stenographer directly on computer, typed by her and corrected then pronounced by me in the open court on this the 01st day of October, 2024.) (Nirmala.M.C) Court of Small Causes, Judge & ACJM, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED FOR COMPLAINANT:
SCCH-9 15 CC.No.6969/2022PW1 - Sri. N.Satish LIST OF WITNESSES EXAMINED FOR ACCUSED:
NIL LIST OF DOCUMENTS EXHIBITED FOR COMPLAINANT:
Ex.P1 & 2 - Cheques Ex.P1(a) & 2(a) - Signature of accused Ex.P3 & 4 - Endorsements Ex.P5 _ Legal notice Ex.P6 - Postal receipt Ex.P7 - Postal acknowledgment Ex.P8 - On demand pronote & receipt
LIST OF DOCUMENTS EXHIBITED FOR ACCUSED:
NIL (Nirmala.M.C.) Court of Small Causes, Judge & ACJM, Bengaluru.