Bangalore District Court
Bharathi G R vs S Muthuraj on 13 January, 2025
KABC0C0159442021
IN THE COURT OF XXXIV ADDL. CHIEF JUDICIAL MAGISTRATE,
MAYO HALL UNIT, BENGALURU (ACJM-34)
PRESENT: Smt. PARVEEN A BANKAPUR,B.Com.LLB.
XXXIV ADDL. CHIEF JUDICIAL MAGISTRATE,
Dated : This the 13th day of January, 2025
C.C.No.54848/2021
COMPLAINANT : Mrs. Bharathi G R
W/o. Mr. Keshava Murthy
Aged about 46 years
R/at No.21, 2nd Cross,
Saraswathipuram, Ulsoor,
Bengaluru - 560 008.
(By Mr. Punith C & Lokesh A
Advocates)
V/s
ACCUSED : Mr. S Muthuraj
S/o. Late Siddappa,
aged about 30 years,
R/at Kasaba Nijagal Village,
Sompura Hobli, Nelamangala Taluk,
Bengaluru Rural District.
(By Mr.T.S.Lakshmisha & Gangaraju
- Advocates)
1 Date of Commencement 19.07.2021
of offence
2 Date of report of offence 31.08.2021
3 Presence of accused
3a. Before the Court 04.01.2022
3b. Released on bail 04.01.2022
4 Name of the Complainant Mrs.Bharathi G R
5 Date of recording of 31.08.2021
evidence
6 Date of closure of evidence 22.06.2024
7 Offences alleged U/s 138 of the Negotiable
Instruments Act.
8 Opinion of Judge Accused is found guilty.
2 C.C.No.54848/2021
JUDGEMENT
The Private Complaint filed by the Complainant under Section 200 of Cr.P.C against the accused alleging that he has committed the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as follows:
The complainant submits that, she and Accused are cousin brother and sister and well known to each other. The Accused and his elder brother Mr. K.S. Hanumantharaju are the absolute owners of the property bearing Sy.No.1/1A, measuring 1 acre 5 guntas situated Kasaba Nijgal Village, Sompura Hobli, Nelamangala Taluk, Bengaluru Rural District and both are agreed to sell the said property in her favour and entered into a Sale Agreement dtd.14.2.2018 for a total sale consideration of Rs.18 lakhs and on the date of sale agreement the Accused received an advance sale consideration amount of Rs.12 lakhs out of total sale consideration amount of Rs.18 lakhs and also fixed time for 11 months for execution of and registration of absolute sale deed in her favour by furnishing all the necessary revenue documents for registration. 3 C.C.No.54848/2021
It is further submitted by the Complainant that after completion of the stipulated period of 11 months, the Accused and his elder brother went on postponing to execute the registered absolute sale deed in her favour by receiving the balance sale consideration amount. When she once again requested and demanded the Accused to execute sale deed then the Accused has disclosed about the pendency of the civil suit against the said property and in that regard panchayat was held and as per the advise of the well wishers and relatives, both the Accused and his elder brother have decided to return the said advance sale consideration amount of Rs.12 lakhs and out of the said amount, the Complainant has pledged her golden ornaments for Rs.7 lakhs and she is paying the interest amount to the said amount from 2018 to till 17.4.2021 and hence she claimed interest amount of Rs.4.5 lakhs to the Complainant and the Accused has agreed to repay the said total advance sale consideration amount along with interest for an amount of Rs.16,50,000/- within 3 months from 17.4.2021 and on that day before the panchayathdars the Accused and his elder brother have executed a confirmation letter in her 4 C.C.No.54848/2021 favour and on the same day the Accused has issued following 4 post-dated cheques on his behalf and also on behalf of elder;
1. Cheque No.052203 dtd.19.7.2021 for Rs.4,50,000/-
2. Cheque No.052204 dtd.19.7.2021 for Rs.4,00,000/-
3. Cheque No.052206 dtd.19.7.2021 for Rs.4,00,000/-
4. Cheque No.052207 dtd.19.7.2021 for Rs.4,00,000/-
all are drawn on Canara Bank, Rayara Palya, Kasaba Nijagal 562 111 in favour of Complainant to discharge his legal debt and liability and the Accused has assured that that the same would be honoured on their presentation for encashment.
It is further submitted that, as per the instruction of the Accused, the Complainant presented the Cheque bearing No.052204 dtd.19.7.2021 out of said Cheques for encashment through her banker Indian Bank, Halasuru branch, Bengaluru on 19.7.2021. The said Cheque has not honoured and same was returned with endorsement "drawer's signature differs"
on 20.07.2021. Though the said fact was informed to the Accused, he did not pay the cheque amount. Thereafter the Complainant got issued legal notice issued to the Accused by RPAD on 29.7.2021, for demanding payment to the value of Cheque within 15 days from the receipt of notice. But the notice 5 C.C.No.54848/2021 was returned unserved with a shara 'not claimed' on 11.8.2021. Despite knowledge of the notice, the Accused has not paid the Cheque amount. Hence, the Complainant has filed present complaint against the Accused for the offence punishable u/Sec.138 of N.I. Act.
3. Based on the complaint, the sworn statement affidavit, and documents etc., took cognizance of an offence punishable Under Section 138 of N.I. Act by following the guidelines of Apex Court issued in Indian Bank Association case and ordered to be registered a criminal case against the accused for the offence punishable Under Section 138 of N.I. Act.
4. After issuance of summons, accused appeared before the court and enlarged himself on bail. Plea was recorded, read over and explained to the accused, who pleads not guilty and claims to be tried. Hence, the case is posted for complainant's evidence.
5. The Complainant got examined herself as PW-1 and got marked documents Ex.P.1 to 5 & Ex.P.7 and closed her side. Ex.P6 document came to be marked through confrontation during the course of cross-examination of DW1. 6 C.C.No.54848/2021
6. Accused was examined U/S 313 of Cr.P.C. Incriminating evidence appearing in the complainant's evidence was read over and explained to the accused who denies the same. The Accused got examined himself as DW1 and got marked documents Ex.D.1 to 5 and closed his side.
7. Heard both sides.
The learned Counsel for Complainant has placed the following citations;
1. 2021 (5) SCC 283 in the case of Kalamani Tex v/s. P. Balasubramanian
2. 2019 (4) SCC 767 in the case of Ripudaman Singh V/s. Balakrsihna
3. 2021 SCC Online SC 1002 in the case of Sripati Singh V/s. State of Jharkhand
4. 2024 INSC 602 in the case of Sri Sujies Benefit Funds Ltd V/s. M. Jaganathan
5. 2017 (4) KCCR 2740 in the case of K.L. Agarwal V/s. Paramount Solutions
6. 2007 (3) KCCR 1855 in the case of Jayamma V/s. Lingamma
8. Upon hearing the arguments and on perusal of the materials placed on record, the following points arise for my consideration.7 C.C.No.54848/2021
1) Whether complainant proves beyond all reasonable doubts that accused in discharge of legally recoverable debt has issued a Cheque No.052204 dated 19.7.2021 for Rs.4,00,000/- drawn on Canara Bank, Rayara Palya, Kasaba Nijagal in favour in favour of the complainant which came to be dishonoured with an endorsement "drawer's signature differs" and in spite of service of notice accused has not paid the Cheque amount and thereby committed an offence under Section 138 of N.I.Act?
2) What Order?
9. My findings on the above points is:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS Point No.1:-
10. Existence of legally recoverable debt is a sine qua non for prosecuting the case under Section 138 of Negotiable Instruments Act. For convenient purpose the essential ingredients to constitute offence under section 138 of N.I.Act is summarized as below:
(i) That there must be a legally enforceable debt.
(ii) That the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes the legally enforceable debt.8 C.C.No.54848/2021
(iii)That the cheque so issued had been returned due to "insufficient funds".
11. It is the core contention of the complainant that, she and Accused are cousin brother and sister and well known to each other. The Accused and his elder brother Mr. K.S. Hanumantharaju are the absolute owners of the property bearing Sy.No.1/1A, measuring 1 acre 5 guntas situated Kasaba Nijgal Village, Sompura Hobli, Nelamangala Taluk, Bengaluru Rural District and both are agreed to sell the said property in her favour and entered into a Sale Agreement dtd.14.2.2018 for a total sale consideration of Rs.18 lakhs and on the date of sale agreement the Accused received an advance sale consideration amount of Rs.12 lakhs and time fixed for registration of sale deed for 11 months. After completion of the stipulated period of 11 months, the Accused and his elder brother failed to execute the sale deed by stating that about the pendency of the civil suit against the said property and in the intervention of well wishers and relatives, both the Accused and his elder brother have decided to return the said advance sale consideration amount of Rs.12 lakhs along with interest and the Accused has agreed to repay the said total advance sale 9 C.C.No.54848/2021 consideration amount along with interest for an amount of Rs.16,50,000/- within 3 months from 17.4.2021 and on that day before the panchayathdars the Accused and his elder brother have executed a confirmation letter in her favour and on the same day the Accused has issued following 4 post-dated cheques on his behalf and also on behalf of elder;
1. Cheque No.052203 dtd.19.7.2021 for Rs.4,50,000/-
2. Cheque No.052204 dtd.19.7.2021 for Rs.4,00,000/-
3. Cheque No.052206 dtd.19.7.2021 for Rs.4,00,000/-
4. Cheque No.052207 dtd.19.7.2021 for Rs.4,00,000/- all are drawn on Canara Bank, Rayara Palya, Kasaba Nijagal 562 111 in favour of Complainant to discharge his legal debt and liability and the Accused has assured that the same would be honoured on its presentation for encashment. As per the instruction of the Accused, the Complainant presented the Cheque bearing No.052204 dtd.19.7.2021 out of said Cheques for encashment which was dishonoured and same was returned with endorsement "drawer's signature differs" on 20.07.2021 on their presentation. Though the said fact was informed to the Accused, he did not pay the cheque amount. Thereafter the Complainant got issued legal notice issued to the Accused by 10 C.C.No.54848/2021 RPAD on 29.7.2021, for demanding payment to the value of Cheque. But the notice was returned unserved with a shara 'not claimed' on 11.8.2021. Despite knowledge of the notice, the Accused has not paid the Cheque amount. Hence, the Complainant has filed present complaint against the Accused for the offence punishable u/Sec.138 of N.I. Act.
12. In order to bring home the guilt of the accused, Complainant got examined himself as PW1 and reiterated the contents of complaint in his examination-in-chief. He has also placed original Cheque bearing No.052204 dtd.19.7.2021, bank endorsement at Ex.P2, office copy of legal notice issued by the Complainant to the Accused on 29.7.2021 at Ex.P3, postal receipt at Ex.P4, returned postal cover at Ex.P5, RTC bearing Sy.No.1/1A at Ex.P6 and Ex.P7 statement of account pertaining to Indian Bank.
13. The documents produced by the complainant of course established that complainant meets out the procedural requirements of Section 138 of Negotiable Instrument Act, but it is to be considered whether all these documents establish the offence committed by the accused.
11 C.C.No.54848/2021
14. The Negotiable Instruments Act raises two presumptions. One contained in Section 118 and the other in Sec. 139 thereof. For the sake of convenience Sec 118(1) of the N.I. Act is extracted here below:
118. Presumptions as to negotiable Instruments--
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.
1. To (g) . . . . . . . . . . . .
Provided that where the instrument has been obtained from its lawful owner, or from an person in lawful custody thereof, by means of an offence of fraud, or has been obtained from the maker or acceptor thereof by means of an offence of fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him".
15. Further Section 139 of the Negotiable Instruments Act reads as under:
"139, Presumption in favour of holder. It shall be presumed, unless the contrary is proved, that the 12 C.C.No.54848/2021 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."
Scope and ambit and function of the presumption U/s 118(a) and Sec 139 of NI Act came to be considered by the Hon'ble Apex Court of Indian in Krishna Janardhan Bhat Vs Dattatraya G.Hegde (2008 AIAR (Criminal 151) The Supreme Court has laid down the law in the following phraseology.
"D Negotiable Instruments Act 1881, Secs 139, 138--Presumption under-same arises in regard to second aspect of the matter provided under Sec 138-- Existence of legally enforceable debt is not a matter of presumption under Sec 139- It merely raises presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability - Merely an application of presumption contemplated under Section 139 of N.I.Act should not lead to injustice or mistaken conviction."
16. Further, said decision was followed by Hon'ble High Court of Karnataka in Kempanarasimhaiah Vs P.Rangaraju & Others (2008 (5) KCCR 3371). Relevant paragraph of the said judgment reads as under: -
"12. As to the provisions of Sections 138 of N.I.Act, the following principles emerge from the above 13 C.C.No.54848/2021 observations of Hon'ble Supreme Court at para Nos 21, 23, 25, 26 and 34 of its Judgment in the above said case of Krishna Janardhan Bhat Vs Dattatraya G.Hegde, AIR 2008 SC 1325.
(i) Section 139 of the Act merely raises a presumption that the cheque was issued towards discharge in whole or in part in any debt or other liability, which presupposed legally enforceable debt. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability." (para 21)
(ii) The question as to whether the presumption stood rebutted or not, must be determined keeping in view the other evidences on record. Where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. (para 26)
(iii) An accused, for discharging the burden of proof placed upon him under a statute, need not examine himself.
He may discharge his burden on the basis of the materials already brought on records (para 23)
(iv) Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Further more where as prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities"(para 23 &
25)
(v) Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies ( para 25) 14 C.C.No.54848/2021
(vi) Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be deliberately balanced (para 34)
17. Thus from the observations extracted above, it is clear that presumption Under Section 139 of the N.I. Act is only to the extent that the cheque was drawn for discharge in full or in part of any debt or other liability and the said presumption do not relate to the existence of legally enforceable debt or liability. Therefore, before drawing the presumption under Section 139 of the N.I.Act, it is the duty of the Court to see whether or not the complainant has discharged his initial burden as to existence of legally enforceable debt. No doubt, as per Section 118(a) of the Act, there is a rebuttable presumption that every negotiable instrument, is accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration."
18. Factual matrix of the case is required to be tested on the anvil of principles emerging from the above-referred decisions.
15 C.C.No.54848/2021
19. The defence taken by the Accused is that, before the police the cheques were issued by the Accused as a security and guaranty to the payment of earnest amount and cheques were presented without consent of the Accused.
20. To substantiate his claim the Complainant examined himself as PW1. In the evidence she deposed that, Accused and Complainant are relatives. Accused is a cousin brother. It is further deposed and Accused and his elder brother by name Mr.K.S.Hanumantharaju are absolute owners of the land Sy.No.1/1A, measuring 1 acre 5 guntas and both are agreed to sell the said land in favour of Complainant and entered into sale agreement on 14.2.2018 for total sale consideration of Rs.18 lakhs. It is further deposed that, on the date of sale agreement Accused received advance sale consideration of Rs.12 lakhs and fixed time for 11 months for execution of registered sale deed. It is further deposed that, after 11 months the Accused and his brother failed execute the sale deed in favour of Complainant and after repeated requests and demands, the Accused has disclosed about the pendency of civil suit on the said property. It is further deposed that, as per the advise of well wishers and relatives, the Accused and his 16 C.C.No.54848/2021 brother decided to return the advance sale consideration amount. It is further deposed that the advance paid by the Complainant by pledging her golden ornaments. Therefore, Complainant claiming interest amount of Rs.4.5 lakhs and accordingly, the Accused agreed to repay the total advanced sale consideration along with interest total Rs.6.5 lakhs and on the same day, the Accused and his brother executed confirmation letter in favour of Complainant. It is further deposed that, on the same day, the Accused on himself and on behalf of his elder brother, issued 4 post dated cheques in favour of Complainant and assured that, all the cheques were honoured on their presentation. It is further deposed that, out of 4 cheques as per the instruction of the Accused, the Complainant presented Ex.P1 cheque for Rs.4 lakhs through his bank, which was dishonoured with reason 'drawers signature differ' as per Ex.P2. It is further deposed that, thereafter the Complainant intimated same to the Accused, but the Accused not obliged, thereafter the Complainant issued legal notice to the Accused as per Ex.P3 which as returned with endorse 'not claimed' as per Ex.P5.
17 C.C.No.54848/2021
21. Considering the oral and documentary evidence of the Complainant placed before the court, prima facie presumed that, Ex.P1 was issued by the Accused towards discharge of legally enforceable debt. To rebut the presumption, the The learned Counsel for Accused cross examined the PW1 in full length. In cross examination PW1 stated that, the relationship is admitted and also ownership of the land also admitted. In the cross-examination it is stated by the PW1 that the total sale consideration amount is Rs.18 lakhs. It is further stated that out of total sale consideration amount, she has paid Rs.11 lakhs by cash and Rs.1 lakh through cheque to the Accused. It is further stated that, out of Rs.11 lakhs, Rs.7 lakhs was borrowed on pledging the golden ornaments in Indian Bank. It is denied by the PW1 that, she was agreed to purchase the said land after deciding the case O.S.No.97/2017. Int he cross- examination she stated that the Accused has lodged complaint against her and in the intervention of Mr.Swamy before the police, the Accused has issued cheques for returning of advance amount. In the cross-examination it is stated that, at the time of purchase of land, she did not know about the pendency of Civil Suit on the said land. In the cross-examination she stated 18 C.C.No.54848/2021 that, all 4 cheques were issued by the Accused in the police station. She further stated in the cross-examination that, cheques were filled by the Accused and also Accused himself decided to pay interest of Rs.4.5 lakhs. She denied that all cheques were issued by the Accused for the purpose of security and she filed false complaints against the Accused.
22. To rebut the presumption the Accused examined himself as DW1. He admits in the examination in chief about relationship between himself and Complainant. He deposed that he belongs to poor and lower middle class agriculture family and he is not well qualified and not having any legal knowledge and working in local hotels. It is further deposed that in the month of February 2018 his family was in deep financial crunch and his family decided to sell a portion of property in Sy.No.1/1A. It is further deposed that, when a sale process was started, the Complainant came to their house and told they are also in searching of property for a safe investment. It is further deposed that, after negotiation Rs.18,000/- was fixed as a sale consideration amount for sale of 3 guntas land in Sy.No.1/1A. It is further deposed that, as per the instruction given by the Complainant and her husband, the sale agreement 19 C.C.No.54848/2021 was prepared and signed by the Accused and his brother and mother and time fixed to complete the sale procedure for 11 months. It is further deposed that, the Complainant has agreed to pay Rs.7 lakhs as advance in part and Complainant paid that in 4-5 installments. It is further deposed that, his brother made several requests to the Complainant to complete the sale transaction by paying balance considerations amount, but the Complainant not co-operated and intentionally made delay due to her financial problem. It is further deposed that, at the time of purchase of property the Complainant has told that, they are having ready cash and complete the transaction. It is further deposed that, one Smt. Siddagangamma was falsely filed suit against the Accused and his brother in O.S. No.97/2019 before the Civl Court which is pending for adjudication. It is further deposed that, taking said Civil Suit as an advantage, and also the Government order of not making survey sketch for lesser than 5 guntas land, the Complainant was postponing the sale transaction and not shown any interest to complete the sale transaction. It is further deposed that, the brother of the Accused was repeated requesting the Complainant to fulfill the sale transaction, but all of a sudden on 17.4.2021 the 20 C.C.No.54848/2021 Complainant rushed to the house of the Accused and demanded repayment of advance amount paid by her. It is further deposed that, the Accused was trying to convince the Complainant that his brother is a person who was dealing with you and presently his brother was not in the home, but the Complainant pre-planned and rushed to the Dobaspet police station and lodged complaint against the Accused, who was unaware of any past proceedings except rendering his signature to the sale agreement. It is further deposed that, Dobaspet police called him and interrogated and threatened to repay the advance money and at that time, the Complainant started new story that she has pledged gold and paid the advance amount, hence, she want interest also. It is further deposed that, the police and Complainant were already had an hand in glow the police started demanding interest money and finally the Complainant and police have private chat and without asking the Accused, police fixed Rs.16,50,000/- has to be paid to the Complainant which includes Rs.12,000/- which was paid an advance and Rs.4,50,000/- as an interest on the advance money. It is further deposed that, the brother of the Accused rushed to the police station and requested to leave his brother, 21 C.C.No.54848/2021 but the police who was already working for the Complainant scolded the Accused's brother and threatened both at about late night and asked that refund sum of Rs.16,50,000/- to the Complainant. It is further deposed that, the Accused and his brother begged before the police to give some more time to generate money. But police was so adamant not heading the request and started acting as per the verbal of the Complainant. It is further deposed that, few times police tried to assault the Accused. It is further deposed that, it was a late night and they are gulibul and not having any police influence to deal with the police and there is no alternative agreed to give 4 cheques as a security/guaranty to the repayment of the Rs.16,50,000/-. It is further deposed that, Accused handed over 4 signed and filled cheques and later on demand of police, the Accused handed over another blank cheque to the Complainant. It is further deposed that, the cheques were given as a guaranty to the repayment of amount and not presented without his consent. It is further deposed that, the signature on the cheque might be little varied as at the time of execution of cheques Accused was under tremendous pressure and facing extreme torture. It is further deposed that, the transaction was 22 C.C.No.54848/2021 purely civil in nature. The Complainant not able to give balance sale consideration and get the sale deed registered. It is further deposed that, the notice issued by the Complainant and rejoinder issued by the Complainant was not reached to the Complainant and his family members. It is further deposed that, the cheques were issued only for security purpose and Complainant fraudulently by threatening and also using the police power, took the said cheques from the Accused and filed false complaint by misusing the cheques.
23. In support of his evidence, the Accused produced certified copy of order sheet in OS No.97/2019 at Ex.D1 and certified copy of plaint at Ex.D2, Ex.D3 is the interim application and Canara bank account statements at Ex.D4 and
5. In the cross-examination he admits that, whatever document to be signed by him, he was read over and understand then he signed on the document. It is further admits that he has not signed any blank papers. In the cross- examination he admits the relation between himself and Complainant. He further admits that at about 22 years back, his father was died after death of his father, his mother was maintained the home. He also admits that the main source of 23 C.C.No.54848/2021 income is from agriculture. In the cross-examination he admits that Ex.P1 cheque belongs to his bank account tn and also admits his signature on Ex.P1. He further admits that, Sy.No.1/1 unmeaning acre 5 guntas and Sy.No.1/1/3 measuring 1 acre 16 guntas was belongs to him. It is further admits that Sy.No.1/1A measuring 1 acre 5 guntas succeeded by himself and elder brother from their grandmother through gift deed. It is further admits that his and his elder brother name jointly mutated to the said land as per Ex.P6. In the cross-examination he denied that, as per his examination in chief Sy.No.1/1A measuring 3 acres was agreed to sell to the Complainant for Rs.18 lakhs. He further denied that, on agreement of sale he, his brother and his mother were signed. it is further admits by the Accused that, on Sy.No.1/1A Civil suit by one Mrs.Siddagangamma. He unable to say that at the time of agreement of sale Mrs.Siddagangamma was not filed Civil Suit. In the cross-examination he stated that police were called him to police station and stated that, as per the agreement of sale which was executed by him repay the earnest amount by cheque otherwise they send him to lockup. It is further stated that he has not given any complaint to the 24 C.C.No.54848/2021 superior authority against the police threat. He further admits that OS No.97/2019 is still pending.
24. Considering the oral and documentary evidence placed by both parties, the admitted facts are that, both parties are admitted the relationship, both parties are admitted execution of agreement of sale. Both parties are admitted issuance of cheques in the police station. Both parties are admitted pendency of civil suit OS No.97/2019 before the Civil Court, Nelamangala with respect of land Sy.No.1/1A which is agreement of sale executed by the Accused in favour of Complainant. It is further admits that the sale agreement was executed on 14.2.2018 before filing of O.S.No.97/2019. It is pertaining to note that both parties have not produced agreement of sale, but the learned counsel for Complainant confronted the copy of agreement of sale, which was denied by the Accused. As per the agreement of sale the earnest amount is Rs.12 lakhs. Both parties are admitted that total sale consideration is Rs.18 lakhs. Since the Accused has not denied sale agreement and also not denied receipt of advance amount, but he stated that only Rs.7 lakhs was paid by the Complainant. On the other hand, the Complainant stated that 25 C.C.No.54848/2021 she paid Rs.12 lakhs in which Rs.11 lakhs she was paid by cash and Rs.1 lakh was paid by her through cheque. She further stated hat she was pledged golden ornaments and availed loan of Rs.7,96,000/- from Indian bank which is disclosed at Ex.P7. As per bank account statement Rs.8 lakhs was withdrawn from the account of husband of the Complainant. Ex.P7 issued by Indian Bank was disclosed that by pledging the jewellery Rs.7,96,000/- loan availed by husband of the Complainant. Therefore, the Complainant has paid advance amount of Rs.12 lakhs to the Accused. The Accused has not denied issuance of cheque and not denied cheques were filled by himself. He also admits that the signature on the cheques were varied. Therefore, it presumed that the cheque in question was issued by the Accused towards discharge of debt. It is admitted by the Accused as well as Complainant that, Rs.4,50000/- interest on the advance amount was agreed to be paid by the Accused. As per the complaint, advance amount paid on 14.2.2018. The cheques were issued on 19.7.2021. Further the Complainant was paid advance amount by pledging her ornaments availed the loan from the bank. Therefore, in the negotiation the Accused 26 C.C.No.54848/2021 agreed to pay the interest on advance amount and issued 4 cheques in favour of Complainant as mentioned in the complaint. During the course of arguments, the learned Counsel for Accused submitted that, the present case is purely civil in nature and suit filed by Mrs.Siddagangamma was still pending before the Civil Court. Therefore, the present complaint was not maintainable. It is settled position of law that, the complaint for the offence punishable u/Sec.138 of N.I. Act is not barred even during the pendency of civil case also. On the other hand, the learned counsel for Complainant argued that the Accused himself issued cheques and also he admits his signature. Therefor the cheque was issued by the Accused for discharge of legally enforceable debt. Int his regard, the learned counsel for Complainant relied on decision of Hon'ble Supreme court of India in the case of M/s. Kalamani Tex and another V/s. P. Balasubramanian, wherein the Hon'ble Supreme Court held that;
"Once the 2nd; appellant had admitted signature on the cheque and the deed, the trial court ought to have presumed that the cheque was issued as a considerations for a legally enforceable debt." 27 C.C.No.54848/2021
25. Further the learned counsel for Accused relied on decision of Hon'ble Supreme Court of India in Cri.Apl.No.482/2019 arising out of SLP Cri.No.4608/2016 in between Ripudaman Singh V/s. Balakrishna, wherein it is held that, "A payment which is made in the pursuance of such an agreement is hence a payment made in pursuance of a duly enforceable debt or liability for the purpose of Sec.138."
26. Further the learned counsel for Complainant relied on 2021 SCC Online SC 1002 in the case of Sripathi Singh V/s. State of Jharkhand, wherein it is held that;
"Merely issuing of Cheque towards security purpose would not absolve the Accused of the liability as the same would render the Cheque as nothing more than an on demand promissory Note. Thus the position of law on aspect of Cheques issued towards security is un-ambigious and the said defence also fails to safeguard the malafide intention of the Accused."
27. Further the learned counsel for Complainant relied on judgement of Hon'ble Supreme Court of India in Cri.Apl.No.3369/2024 arising out of SLP Cri.No.4022/2022 28 C.C.No.54848/2021 in the case of Sri Sujies Benefit Funds Ltd. V/s. M. Jagannathan wherein the Hon'ble Supreme court held that;
"When the respondent not dispute that he has handed over the cheques or signed on them, it was incumbent upon him, the moment he claims the amount were repaid to the appellant to have either taken back the cheques or instructed the bank concerned to not honour the concerned cheques."
28. In the above case, the only contention of the Accused is that, all cheques were issued by him for the security purpose and not present the cheque without his consent. But, he has not given any instructions to the bank for stop payment and also he has not taken any efforts to take back the cheques from the Complainant. Further the Accused has not taken any legal action against the Complainant for misusing of cheques and filed false complaint against him. Further the Accused has not taken any legal action against the police authority that, by threatening him and his brother obtained the cheque in the police station.
29. As discussed above, it has to be presumed that the cheque in question was issued by the accused to discharge the legally recoverable debt or liability. The accused can place 29 C.C.No.54848/2021 rebuttal evidence so as to show that the cheque was not issued for consideration. As appreciated supra, accused has failed to put acceptable and satisfactory evidence to probabilise the defence. Therefore, there is no question of saying that the cheque was not issued for liability. Therefore, complainant has discharged her initial onus laid on her. When she has discharged her initial onus, it raises presumption U/s 118(a) and 139 of Negotiable Instruments Act. Accused has failed to rebut the presumption either in cross-examining PW-1 or in his evidence.
30. So, far as sentence and compensation is concern, an offence punishable under Section 138 of N.I. Act, is a civil wrong and compensatory in nature, punitive is secondary, considering, the above settled principle of law with facts and circumstances of the case, which clearly reveals that, towards discharge of advanced amount, the cheque in question of issued by the accused to the complainant. Therefore, considering the nature of transaction, duration of pendency, litigation expenses, I am opinion that, if sentence of fine of Rs.4,81,600/- (Rupees Four Lakhs Eighty-one Thousand and Six Hundred only) is imposed that would meet the ends of 30 C.C.No.54848/2021 justice, accordingly, the accused is hereby sentenced to pay a fine of Rs.4,81,600/- (Rupees Four Lakhs Eighty-one Thousand and Six Hundred only) out of that, the complainant is entitled for a sum of Rs.4,76,600/- (Rupees Four Lakhs Seventy-six Thousand and Six Hundred only) as a compensation as per Sec.357(1) of Cr.P.C., remaining amount of Rs.5,000/-, is to be appropriated to the state, in case of default the accused shall undergo simple imprisonment for a period of 6 months. Accordingly, the Point No.1 is answered in Affirmative.
31. POINT No.2: In view of discussion held in Point No.1, I proceed to pass the following:
ORDER Acting U/S 255(2) of Cr.P.C., the accused is convicted for the offence punishable Under Section 138 of Negotiable Instrument Act.
Accused is sentenced to pay fine of Rs.4,81,600/- (Rupees Four Lakhs Eighty-one Thousand and Six Hundred only) in default to undergo simple imprisonment for 6 months.
Further, it is made clear that out of fine amount, Rs.4,76,600/- (Rupees Four Lakhs Seventy-six 31 C.C.No.54848/2021 Thousand and Six Hundred only) is to be paid to the complainant as compensation and Rs.5,000/- is ordered to be remitted to the State.
Bail bond stands cancelled.
Supply the free copy of this judgement to the Accused forthwith.
(Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in the open court on this 13th January, 2025) (PARVEEN A BANKAPUR) XXXIV ACJM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mrs.Bharathi G R
2. Documents marked on behalf of complainant:
Ex.P.1 Cheque Ex.P.2 Bank endorsement Ex.P.3 Office copy of legal notice Ex.P.4 Postal receipt Ex.P.5 Unserved Postal Cover Ex.P.6 RTC Ex.P.7 Bank statement of Gold Loan & NOC
3. Witnesses examined on behalf of Accused:
D.W.1 Mr. Muttaraju
4. Documents marked on behalf of Accused:
Ex.D.1 Certified copy of Roznama in OS No.97/19
Ex.D.2 Certified copy of plaint in OS No.97/19
Ex.D.3 Certified copy of interim application filed in OS
No.97/19
Ex.D.4 & 5 Bank account statements
(PARVEEN A BANKAPUR)
XXXIV ACJM, BENGALURU.