Bangalore District Court
Kesoram Industries Limited vs Latha Traders on 23 December, 2022
C.C.NO.17530/2018
0
KABC030473502018
Presented on : 28-06-2018
Registered on : 28-06-2018
Decided on : 23-12-2022
Duration : 4 years, 5 months, 25 days
IN THE COURT OF THE XXVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE NRUPATHUNGA ROAD,
BENGALURU CITY
Present:
Soubhagya.B.Bhusher,
BA.,LLB.,LL.M
XXVIII A.C.M.M, Bengaluru City.
DATED: THIS THE 23 rd DAY OF DECEMBER-2022
C.C.NO.17530/2018
Complainant: Kesoram Industries Limited,
(Cement Division)
Rep by its Authorized signatory
Sri.Vikram Kulkarni,
R/o/at. Birla Building, 8th Floor,
9/1, R.N.Mukherjee Road,
Kolkata-700001, West Bengal.
Also at : Birla Shakti Cement
Kesoram Industries Limited,
(Cement Division), Unit-Vasavadatta
Cement Division, 4/A, Bharath Apartment,
44/1 Fair Field Layout, R.C.Road,
Bengaluru-560001.
As per the order dated: 10.10.2022
Complainant company
Rep by its Authorized signatory
Sri.V.A.N.Murthy.
(By Sri.Onkara.K.B.,Adv.,)
C.C.NO.17530/2018
1
V/s
Accused: 1. Latha Traders, Rep by its Proprietor
Ramachandrappa, R/o. Survey No.125/3,
Lingenahalli Village, Madhugiri Sira Road,
Siddapura Gate, Madhugiri Town,
Tumkur District, Karnataka.
2. Ramachandrappa S/o Not Known
Major, Latha Traders R/o. Survey No.
125/3, Lingenahalli Village,
Madhugiri Sira Road, Siddapura Gate,
Madhugiri Town, Tumkur District,
Karnataka.
(By Sri.K.N.Narayanaswamy.,Adv.,)
: JUDGMENT:
This case arises out of the private complaint filed by the complainant against the accused under section 200 of Cr.P.C., for the offence punishable under section 138 of N.I.Act.
2. The case of the complainant's in brief is as under:
It is submitted by the complainant is that the complainant company is the one of the pioneer companies in India. It is under the flagship B.K.Birla Group of Companies. Since long the said company doing business in different areas. Out of that the cement is one of the major manufacturing product and C.C.NO.17530/2018 2 also marketing the same in public and private sector under the brand name Birla Shakti Cement. The complainant manufactures in two locations, one is at Sedam, Gulbarga District in State of Karnataka (the "Vasavadatta Cement Plant") and Basantnagar, Karimnagar District in state of Telangana (the "Kesoram Cement Plant"). The complainant has been established business office at Bangalore for convenient of smoothing running of the business.
3. It is further submitted that the complainant has appointed Mr.C.K.Jain as Attorney under a General Power Attorney has been duly passed in the Board Resolution and executed a General Power Attorney on 01.08.2017. By virtue of the said General Power Attorney Mr.Vikram Kulkarni was appointed for representing the complainant company in the court of law and prosecuting the case on behalf of the complainant company. It is further submitted that the accused No.2 is representative of the accused No.1 and he is sole responsible and functioning all business C.C.NO.17530/2018 3 activates of the accused No.1 as being proprietor. In the course of business the accused No.2 has approached the complainant company office at Bangalore and requested to supply the cement. On his good faith and trust the company generated customer code in the name of the accused No.1 and the accused No.1 has been allotted the customer code L00276 as per the policy of the complainant company.
4. It is further stated that during the course of business on the request of the accused No.2 the complainant company has supplied cement in the name of the accused No.1 through its Vasavadatta Cement Division at Bengaluru from the period till 26.11.2015 in total amounting of Rs.4,28,094/- (Rupees four lakhs twenty eight thousand ninety four) only. That, out of which the accused have so far has not made any payments. When the credit limit permissible as per its credit policy had crossed and their outstanding balance arose to the tune of Rs.4,28,094/- the complainant was constrained to issue a reminder/notice C.C.NO.17530/2018 4 to the accused. Further upon issuing the said reminder notice, as a part payment of the above outstanding liability, on 27.10.2017 the accused have issued a cheque bearing No.793302 for a sum of Rs.4,28,094/- payable at Syndicate Bank, Madhugiri Branch, Madhugiri in favour of the complainant company. Further the accused had also promised at the time of issuing the said cheque that it will be honored whenever the complainant present the same for encashment. The complainant was presented the said cheque for encashment through their banker i.e., the HDFC Bank, Richmond Road Branch, Bengaluru. However the said cheque was dishonored and returned to the complainant with an endorsement "Funds Insufficient" and the same was intimated to the complainant by its banker on 31.10.2017. Further the complainant tried to bring this fact to the notice of the accused but in vain. Thereafter on 09.11.2017 the complainant got issued a statutory demand notice through its counsel intimating him regarding dishonored C.C.NO.17530/2018 5 of the said cheque along with interest at the rate of 18% P.A from 11.03.2015 and Rs.5,000/- towards the cost of the notice. That, it was further demanded him to make the repayment of the cheque amount within 15 days from the date of receipt of the notice, failing which the complainant would initiate both Civil and Criminal legal actions. The said demand notice was served to the accused on 11.11.2017. Inspite of serving the demand notice, the accused has neither paid the cheque amount within 15 days nor has replied to the said notice so far. As such, the accused have committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court on 21.12.2017.
5. After the complaint was filed, the cognizance of the offence cited therein was taken and it was registered as P.C.R.No.7732/2018. Sworn statement of the complainant/Authorized Signatory was recorded. Since there were sufficient materials to proceed against the accused, an order was passed on 27.06.2018 to C.C.NO.17530/2018 6 register the case in Reg.No.III.
6. Thereafter, summons was issued to the accused and the accused have appeared before the court through counsel and secured bail. They were furnished it necessary papers as complied under section 208 of Cr.P.C. Thereafter, the plea of the accused No.2 was recorded by the court. He has pleaded not guilty and make a defence.
7. The complainant in support of its case, has examined its senior officer/Authorized Signatory as PW.1 and got marked total 10 documents at Ex.P.1 to
10.
8. After closer of the evidence of the complainant, the statement under section 313 of Cr.P.C., was recorded. He has denied the incriminating evidence appearing against them. In their defense the accused have not lead any evidence and no documents were marked on their behalf.
9. During the pendency of the case learned counsel for the complainant has filed application for the C.C.NO.17530/2018 7 substitution of the represantative of the company contending that the complainant originally represented by its authorized signatory Mr.Vikram Kulkarni, due to change of circumstances they would like to substitute another representative Mr.V.A.N.Murthy during the course of trial. Accordingly the application was allowed on 10.10.2022 and another representative Mr.V.A.N.Murthy represented the complainant company.
10. I have heard the arguments on both the sides and perused the material placed on record.
11. The learned counsel for the complainant has relied on the citation reported in (2020) 1 MP.L.J 557.
12. Upon hearing the arguments and on perusal of the material placed on record, the following points arise for my consideration:
1.Whether the complainant proves the existence of legally enforceable debt/ liability.?
2. Whether the complainant further proves that the accused had issued the cheque-
C.C.NO.17530/2018 8 Ex.P.4, towards the discharge of the legally enforceable debt/liability.?
3.Whether the complainant further proves that Ex.P.4-cheque was dishonored for the reason "kindly contact the drawer drawee bank and please present again" and thereafter the accused had failed to repay the same within the statutory period, inspite of receipt of legal notice.?
4.Whether the accused have thus committed an offence punishable under section 138 of N.I.Act.?
5. What order or sentence?
13. My answers to the above points are as under:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: In the Affirmative Point No.4: In the Affirmative Point No.5: As per final order, for the following:
:REASONS:
14. POINT NO.1 AND 2: These points are inter- related to each other and finding given on any one point will bearing on the another. Hence, in order to avoid repetition of facts and evidence, I have taken C.C.NO.17530/2018 9 both points together for common discussion. The case of the complainant is that they were acquainted with the accused. Further the complainant company is one of the pioneer companies in India. It is under the flagship B.K.Birla Group of Companies. Since long the said company doing business in different areas. Out of that cement is one of the major manufacturing product and also marketing the same in public and private sector under the brand name Birla Shakti Cement. The complainant manufactures in two locations, one is at Sedam, Gulbarga District in State of Karnataka (the "Vasavadatta Cement Plant") and Basantnagar, Karimnagar District in state of Telangana (the "Kesoram Cement Plant"). The complainant has been established business office at Bangalore for convenient of smoothing running of the business.
15. The accused No.2 is representative of the accused No.1 and he is sole responsible and functioning all business activates of the accused No.1 as being proprietor. In the course of business the C.C.NO.17530/2018 10 accused No.2 has approached the complainant company office at Bangalore and requested to supply the cement. On his good faith and trust the company generated customer code in the name of the accused No.1 and the accused No.1 has been allotted the customer code L00276 as per the policy of the complainant company.
16. Further during the course of business on the request of the accused No.2 the complainant company has supplied cement in the name of the accused No.1 through its Vasavadatta Cement Division at Bengaluru from the period till 26.11.2015 in total amount of Rs.4,28,094/-. That, out of which the accused have so far has not made any payments. Further when the credit limit permissible as per its credit policy had crossed and their outstanding balance arose to the tune of Rs.4,28,094/- the complainant was constrained to issue a reminder/notice to the accused. Upon issuing the said reminder notice, as a part payment of the above outstanding liability, on 27.10.2017 the accused C.C.NO.17530/2018 11 have issued a cheque bearing No.793302 for a sum of Rs.4,28,094/- payable at Syndicate Bank, Madhugiri Branch, Madhugiri in favour of the complainant company. Further the accused had also promised at the time of issuing the said cheque that it will be honored whenever the complainant presents the same for encashment. The said cheque was presented by the complainant for encashment through their banker i.e., the HDFC Bank, Richmond Road Branch, Bengaluru. However the said cheque was dishonored and returned to the complainant with an endorsement "Funds Insufficient" and the same was intimated to the complainant by its banker on 31.10.2017. Thereafter on 09.11.2017 the complainant got issued a statutory demand notice through its counsel intimating him regarding dishonored of the said cheque along with interest at the rate of 18% P.A, from 11.03.2015 and Rs.5,000/- towards the cost of the notice. That, it was further demanded him to make the repayment of the cheque amount within 15 days from the date of receipt C.C.NO.17530/2018 12 of the notice, failing which the complainant would initiate both Civil and Criminal legal actions. The said demand notice was served to the accused on 11.11.2017. Inspite of serving the demand notice, the accused has neither paid the cheque amount within 15 days nor has replied to the said notice so far. As such, the accused have committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court.
17. In support of the case, the complainant has examined its authorized representative i.e., Senior Officer as P.W.1 and 10 documents were marked at Ex.P.1 to 10. In the chief examination P.W.1 has repeated the contents taken by the complainant in the complaint. Ex.P.1 is the Authorization letter. Ex.P.2 is the Certified copy of the Account Extract. Ex.P.3 is the Letter written to the accused by the complainant. Ex.P.4 is the cheque issued by the accused in favour of the complainant on 27.10.2017 for a sum of Rs.4,28,094/-. Ex.P4(a) is the signature of the accused. Ex.P.5 is the C.C.NO.17530/2018 13 bank memo dated 31.10.2017 informing of the dishonor of the cheque for the reason kindly contact the drawer drawee bank and please present again. Ex.P.6 is the office copy of legal notice. Ex.P.6(a) is the postal receipt. Ex.P.7 is the postal acknowledgment. Ex.P.8 is the complaint. Ex.P.9 is the Letter written to the accused company by the complainant company for confirmation of account of the accused. Ex.P.10 is the Letter written by the complainant to the accused on 04.11.2016 for payment of amount.
18. In order to disprove the case of the complainant and in order to prove their defence, the accused not lead any defence evidence and failed to mark the any documents on their behalf. But, the accused have taken the contention that they have issued a blank cheque for the purpose of security. Further the complainant has misused the said blank cheque and filed this false complaint against the accused. The accused in their defense have not disputed Ex.P.4-cheque having been issued by them.
C.C.NO.17530/2018 14 They also does not dispute signature appearing on the said cheque. But, they have taken up the contention that, they have issued a blank signed cheque in favour of the complainant company for the purpose of security. When the said cheque was given to the complainant company it was blank. But the complainant misused the said cheque. Further they contended that they have never admitted regarding repayment of amount and there is no transaction between the complainant and the accused as alleged by the complainant. The accused have specifically denied having agree to repay the amount of Rs.4,28,094/- as part payment in their outstanding balance. The complainant has misused the blank cheque and filed present complaint before this court.
19. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of legally enforceable debt/liability, for which the cheque came to be issued. The learned counsel for the complainant has argued C.C.NO.17530/2018 15 that from the evidence placed on record, the fact that the accused towards of discharge of the said payment, had issued a cheque-Ex.P.4 in favour of the complainant. Further argued that after the repeated request made by the complainant, the accused has not paid any amount to the complainant. He further argued that the accused has not denied the cheque-Ex.P.4 being drawn on their account. When the signature is not disputed, the presumption under section 139 N.I.Act is to be drawn in favour of the complainant. The accused have failed to elicit anything in the cross examination of P.W.1. The defence have failed to rebut the presumption under section 139 N.I.Act. The counsel for the complainant further argued that the accused have failed to produce any believable evidence that the accused had issued a blank cheque in favour of the complainant for the purpose of security and also the defence how the cheque was got the complainant and why they have not returned back the same is not clear. He further argued that under section C.C.NO.17530/2018 16 139 of N.I.Act, there is a presumption that, the cheque has been issued for discharge of legally enforceable debt/liability. In the present case, the accused have not disputed at Ex.P.4 being their cheque drawn on their account. The said presumption is available to the complainant.
20. Further he has argued that the accused have failed to prove the very fact that at Ex.P.4-cheque was given to the complainant company for the purpose of security and it was blank when it was given to the complainant. Moreover, under section 118 of N.I.Act, there is a presumption that the Negotiable Instrument is drawn on the date, for the amount and in favour of the person as shown in it. It is for the accused to rebut the said presumption. But, in the case on hand no such evidence forthcoming. It was also argued by him that as per the defence by the accused that they had given a blank signed cheque as security measure. As such, very defence of the accused is not believable.
21. The main defense of the accused is that there C.C.NO.17530/2018 17 was no legally enforceable debt/balance due to the complainant from the accused for which the cheque- Ex.P.4 was issued. So also they have taken up the defence that they had issued a blank signed cheque to the complainant for the purpose of security. Further the bank issued a memo stating that 'kindly contact the drawer drawee bank and please present again'. But the complainant company not contact the accused. Hence, the alleged reasons mentioned in the bank memo not coming under the offence under section 138 of N.I.Act. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of a legally enforceable debt/liability, for which the cheque came to be issued. It is further defence that the complainant is a company under the Indian Companies Act any authorization on behalf company to conduct case is through board of resolution appointing a person. In this case, in this case the complainant is not produce GPA of C.K.Jain nor board resolution and therefore, it is a legally factual C.C.NO.17530/2018 18 mistake, the above complaint is unsustainable. Further argued that Ex.P.4-cheque in question was collecting in the beginning from the accused for security measure. On looking it Ex.P.4 the signature of the accused is admitted. Whereas, the writing part of the cheque amount in words and in figure is in a different ink and different handwriting. Therefore, the entire cheque was filled up by the complainant as there whims. The complainant created all the documents and filed this false case against the accused. Therefore, from the evidence placed on record, the very supplying cement on credit basis not clearly made out whereas the accused is succeeded in rebutting the presumption available under section 139 of N.I.Act regarding existence of legally enforceable debt.
22. In the case on hand the complainant and the accused having some transaction has not been seriously disputed by the accused. Further, the accused have not seriously disputed they had issued the said cheque in favour of the complainant. It is not C.C.NO.17530/2018 19 disputed that the complainant and the accused are businessman. While according to the complainant, they have during the course of business on the request of the accused No.2 the complainant company supplied cement in the name of the accused No.1 through its Vasavadatta Cement Division at Bengaluru from the period till 26.11.2015 on the credit basis, the accused in order to outstanding balance as part payment of said outstanding liability have issued the said cheque in favour of the complainant and towards discharge of said part payment debt/amount, they had issued Ex.P.4. Whereas, the accused have contended that they had given a blank signed chaque to the complainant for security measure. When they had given signed cheque, which was blank. The accused have specifically denied having debt/liability and issued the cheque Ex.P.4 in the year 2017 towards the discharge of any debt/liability. They contends that the blank cheque given by them to the complainant as was misused by the complainant and a false complaint was C.C.NO.17530/2018 20 filed.
23. In order to attract the offence of the section 138 of N.I.Act, the main ingredients of the existence of the legally enforceable debt/liability, for which the cheque drawn on the account of the accused was given for discharge of the same, are to be proved. The complainant in order to prove its case, has examined its earlier authorized representative i.e., Senior Office as PW.1 and 10 documents are marked at Ex.P.1 to 10. In chief examination, he has repeated the averments made by the complainant in the complaint. In the present case, the accused have not disputed at Ex.P.4 being their cheque drawn on their account. The said presumption is available to the complainant.
24. Under Section 139 of N.I.Act, there is a presumption regarding the existence of legally enforceable debt or liability. Such presumption is rebuttable presumption and it is opinion to the accused to raise defence discharging the existence of a legally enforcible debt or liability. In the case on hand also the C.C.NO.17530/2018 21 accused have disputed the existence of legally enforceable debt/liability, for which Ex.P.4 was issued. In order to prove their defense, the accused have not produced any oral as well as documentary evidence. PW.1 during his cross-examination has specifically denied the suggestions made to him that Ex.P.4 was issued in favour of the complainant as the security and same was blank at the time of issuing the same.
25. Since, the presumption under section 139 of N.I.Act is a rebuttable presumption the accused is firstly required to produce some probable evidence to rebut the same. Though in the criminal cases, the standard of the proof required for the accused is not so strict as required for the complainant to prove the case, further he has to produce some probable evidence, which creates doubt about the existence of legally enforceable debt/liability. In the present case, as per the defence taken by the accused that they had given a blank signed cheque to the complainant as security. Except, said defence, they have not produced any C.C.NO.17530/2018 22 materials to prove such defence. If they had given a blank signed cheque to the complainant, what prevented the accused to file the complaint immediately after the alleged illegal act made by the complainant. Further what prevented the accused to file the complaint against the complainant for misusing of said cheque. On which date the accused came to knew about the alleged illegal act of the complainant, they did not whisper about on what date they came to know the alleged cheque illegally misused by the complainant. Admittedly accused No.2 is a businessman having knowledge of the financial transaction, why he has given a blank signed cheque to the complainant without anticipating the consequence is not explained by him. So also, they have not stated anything as to what steps they took to receive back the blank signed cheque. Moreover, immediately after the alleged blank cheque misused by the complainant they not lodge complaint before concerned police station. No steps have been taken to receive back the blank signed cheque, after C.C.NO.17530/2018 23 they came to know about the same.
26. Once issuance of cheque and signature are admitted, the statutory presumptions would arise under sections 118 and 139 of the N.I.Act that cheque was issued by the drawer for legally payable debt/liability and for valid consideration. The Hon'ble Supreme Court has held in Rangappa V/S Mohan reported in 2010 AIR SCW 296, the presumption that the cheque was drawn in discharge of legally recoverable debt is a presumption of law that ought to be raised in every case, though, it is a rebuttable presumption. Ofcourse, the presumption under section 118 and 139 of the N.I.Act are rebuttal presumption. Further it is also held that mere plausible explanation by the drawer is not sufficient and proof of that explanation is necessary. The principle of law laid-down in the above decision is applicable to the facts of this case. In the instant case, since the complainant is in possession of cheque- Ex.P.4 the court has to draw the initial presumption that he is the payee of that cheque. Once the initial burden C.C.NO.17530/2018 24 is discharged by the complainant, the onus shifts on the accused to rebut the complainant's case.
27. In the defence there is no ill-will between the complainant and the accused. Hence, misuse of cheque and filing false case is not possible. The accused No.2 admittedly is a businessman and having knowledge of business. It is implies, he is conversant with financial transaction. If the complainant's misused the said cheque and had not return the same, inspite of collecting cheque leaves from them, as a prudent man, the accused should have inquired with the complainant and demanded to return that cheque. No ordinary prudent man would keep quite in such circumstances, without taking any steps. The conduct of the accused is very unusual, because they did not take any legal action against the complainant, even after filing of the complaint based on Ex.P.4-cheque. Further the accused could have issued notice to their banker to stop payment. No such steps were taken by the accused. They simply makes a bald allegation of C.C.NO.17530/2018 25 misuse of a blank signed cheque against the complainant. It appears, just to escape from their legal liability, they have taken such contentions without any valid basis.
28. Moreover, the complainant's has got issued a legal notice to the accused by registered through its counsel calling upon the accused to make repayment of said amount to the complainant. Before a person is held to be guilty of the offence punishable under 138 of N.I.Act, the complainant's has to prove the compliance of the requirement under section 138 of N.I.Act. It is not in dispute that, Ex.P.4 is the cheque drawn on account of the accused. In view of the above discussions it is also held to be proved that it was drawn for discharge of legally enforceable debt/liability. From the evidence of P.W.1 and also cheque return memo at Ex.P.5 it is established that the cheque was dishonored for the reason "Kindly contact drawer drawee bank and please present again'' in the account of the accused. The alleged reasons is coming under the offence under C.C.NO.17530/2018 26 section 138 of N.I.Act. Thereafter the complainant issued statutory notice to the accused within 30 days from receiving the information regarding dishonor of the cheque and the said notice was duly served on the accused. A notice being issued as per Ex.P.6 within one month from the date of dishonour is also not in dispute. In the case on hand the accused have not disputed the receipt of the legal notice. But the accused have failed to reply the notice, immediately after they received the demand notice. Thereby, they could have asserted their defence at an earliest available opportunity. In the case on hand the notice is sent to the accused at their address. The same is shown to have been served on the accused as per Ex.P.7. When the accused have not disputed, the notice sent to the correct address is sufficient compliance of under section 138 of N.I.Act. Therefore, there is sufficient proof of due service of the legal notice.
29. It is not the contention of the accused that thereafter they have repaid the cheque amount within C.C.NO.17530/2018 27 stipulated time of 15 days on receiving the notice. Therefore in the case on hand on perusal of the evidence placed on record, all the essential ingredients of section 138 N.I.Act, have been complied with. As the accused have not repaid the cheque amount within stipulated period, the accused have committed an offence punishable under section 138 of Negotiable Instruments Act. The present complaint is filed within the period of one month after the accused failed to repay the cheque amount. Further the said notice was received by the accused. The accused have not given any reply to the notice and they have failed to repay the amount. Even they did not whisper anything about the defence while their plea was recorded under section 251 of Cr.P.C. In view of judgment of Hon'ble Supreme Court in Indian Bank Association V/s Union of India and others, reported in 2010(5) SCC 590, it is clear that while recording the plea under section 251 of Cr.P.C., it becomes the duty of the accused to state whether he has any defence to C.C.NO.17530/2018 28 make or he pleads guilty. Thus, unlike section 240 of Cr.P.C., the accused has no option under section 251 of Cr.P.C., just to deny the allegations made against him. If he is not willing to plead guilty, he must explain what are the defences he wants to take. As such it has to be considered, whatever defence raised by the accused during the trial are all after thought, just to get ride of statutory burden cast on him.
30. In addition to this in the case of T.P. Murugan (Dead) through legal representatives V/s Bojan (2018 (8) SCC 469), the Hon'ble Apex Court held that once the cheque has been signed and issued in favour of the holder of the cheque, there is statutory presumption that the cheque is issued in respect of legally enforceable debt or liability: rebuttal of such presumption must be by adducing credible evidence. Mere raising a doubt without cogent evidence with respect to the circumstances, presumption under section 139 of N.I.Act cannot be discharged. The principle of law laiddown in the above decisions are C.C.NO.17530/2018 29 applicable to the facts of this case. Except some bald contentions, the accused have not been able to make out a probable case on their behalf.
31. The accused have taken defence that except signature other writings on Ex.P.4-cheque is not in their handwriting, which were filled up by the complainant and it amounts to material alterations, so, the complaint is liable to be dismissed. As narrated above, P.W.1 has specifically asserted that the accused after putting his signature on Ex.P.4 to filled up other contents and then handed over it to them. When the accused admits their signature, they cannot take up a defence that other contents of cheque were filled up by the complainant and it amounts to material alteration. In this respect, ruling reported in 2019 SCC On-line (SC) 138), between Bir Singh V/s Mukesh Kumar, the Hon'ble Apex Court held as under:
"37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who C.C.NO.17530/2018 30 signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer, if cheque is otherwise valid, the penal provision of Section 138 would be attracted.
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still the on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
40. Even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment. Would attract presumption Under section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."
C.C.NO.17530/2018 31
32. The principles emerging from the above referred decision make it clear that, it is not mandatory and no law prescribes that the contents of cheque should be written by the signatory to the cheque. A cheque can be written by anybody and if the account holder of the cheque signs it, the presumption under section 139 of N.I.Act arises. The principle of law laid- down in above decision is aptly applicable to the facts of this case. In view of section 20 of N.I.Act, cheque being an inchoate instrument, if the drawer signs and delivers to the drawee, thereby he gives authority to the drawee thereof to make or complete the instrument.
33. The Hon'ble Apex Court in K.Bhaskaran V/s Sankaran Vaidhyan Balan and another, reported in 1999 Cri.L.J.4608 held that if the accused denies issue of cheque although owned his signature therein, the presumption arises that cheque was made or drawn for consideration on the date mentioned in cheque. The holder of cheque presumed to have received it for discharge of liability of the drawer.
C.C.NO.17530/2018 32
34. As per the version of the accused they have nowhere denied transaction. The accused themselves have admitted that they are the holder of alleged cheque. It is sufficient hold that the accused have issued a cheque-Ex.P.4 and even after the accused have not repaid the cheque amount the getting of receipt of notice. However, in any manner as the complainant has complied all the terms of ingredients of the provisions of 138 of N.I.Act. The accused is liable for dishonor of cheque. As per the ruling reported in 2015 (2), Bankman 415, "Section 138 and 139 of N.I Act. 1881. In case of dishonor of cheque, once the execution of cheque is admitted by the accused, then it for him to first rebut presumption arising out of section 139 of N.I.Act. Accordingly, PW.1 has established their case, the accused have issued a cheque-Ex.P.4 in order to pay the legally recoverable amount. Therefore, the accused have failed to probables the defence taken by them that the cheque- Ex.P.4 was a blank signed cheque and given to the C.C.NO.17530/2018 33 complainant for the purpose of security. Therefore, the accused have failed to rebut the presumption under section 139 of N.I.Act. In the said circumstances, the complainant is not at all required to produce any material as to the financial transaction between the complainant and the accused, since the initial presumption is still available, when there is no rebuttal evidence.
35. PW.1 in his evidence has specifically stated that, the complainant's company had supplied the cement on the request of the accused No.2 on credit basis. When the credit limit permissible as per tis credit policy had crossed and their outstanding balance arose to the tune of Rs.4,28,094/- the complainant's was constrained to issued reminder notice to the accused. Upon issuing said reminder notice towards discharge of outstanding balance the accused issued a cheque-Ex.P.4 as a part payment in favour of the complainant. So also it is not in disputed that the complainant and the accused are known to each other, C.C.NO.17530/2018 34 some point of period, further the complainant company is one of the pioneer companies in India and it is under the flagship BK Birla Group of Companies. Since long the said company doing business in different area. Out of that the Cement is one of the major manufacturing product and also marketing the same in public and private sector under the brand name Birla Shakthi Cement, no documents could have been existence the evidencing financial transaction. This factor will not affect case of the complainant to disbelieve the financial transaction. When the accused have failed to rebut the presumption under section 139 of N.I.Act, non furnishing of details of financial transaction no consequences to disbelieve the case of the complainant. The accused have failed to probables their defense. When the accused have failed to rebut the presumption under section 139 of N.I.Act, non furnishing of details of financial transaction no consequences to disbelieve the case of the complainant. The accused have failed to probables C.C.NO.17530/2018 35 their defence. With these reasons, I answer point No.1 and 2 in the Affirmative.
36.POINT NO.3 AND 4: In order to avoid repetition of facts, these points are taken together for common discussion. Before a person is held to have committed an offence punishable under section 138 of N.I.Act, the complainant has to prove all the requirements of section 138 of N.I.Act. The cheque- Ex.P.4 drawn on the account of the accused is not in dispute by the accused. The said cheque having been dishonored, when it was presented by the complainant before the Bank for encashment is also not seriously disputed by the accused. Thereafter, the complainant's have issued a notice to the accused through their counsel. The notice Ex.P.7 is received by the accused, but they have not given any reply to the said notice is further admitted. The accused have not taken up any contention that thereafter they had paid the cheque amount within stipulated time of 15 days, after given of the notice. As such in the present case from perusal of C.C.NO.17530/2018 36 documents, the essential requirements of section 138 of N.I.Act, have been complied with. When the accused immediately after given the notice, they have not paid the cheque amount. In this case the accused why they have not replied the notice and initially why they have not produced any documents or not taken any contention. After service of notice the accused have not paid the cheque amount and they did not reply the notice. Hence, the present complaint came to be filed before this court on 21.12.2017 within the period of one month from the date cause action.
37. While discussing the point No.1 and 2, this court has already observed that the complainant's have proved that the cheque-Ex.P.4 was issued for discharge of legally enforceable liability/debt. In view of the mandatory requirements of section 138 of N.I.Act, being complied with. The accused are found to have committed an offence punishable under section 138 of N.I.Act. Accordingly, I answer point No.3 and 4 in the Affirmative.
C.C.NO.17530/2018 37
38. POINT NO.5: The accused are held to have committed an offence punishable under section 138 of N.I.Act. The complainant has proved their case. The accused have failed to prove their rebuttal for the reasons mentioned above and in view of the mandatory requirements of section 138 of N.I.Act, being complied with. The accused are found to have committed an offence punishable under section 138 of N.I.Act. Since, the said offence is an economic crime, the accused are not entitled for the beneficial provisions of probation of offenders Act. In view of the above discussions and the findings on point No.1 to 4, I proceed to pass the following:
:ORDER:
Acting under section 255(2) of Cr.P.C. the accused are convicted for the offence punishable under section 138 of N.I. Act.
The bail bond executed by the accused No.2 hereby stands canceled.
The accused are sentence to pay Rs.4,33,094/- (Rupees four lakhs thirty three thousand and rupees ninety four C.C.NO.17530/2018 38 only), to the complainant's.
It is further ordered that out of the said fine amount an amount of Rs.4,28,094/-/- (Rupees four lakhs twenty eight thousand and rupees ninety four only), shall be paid to the complainant's as compensation as per section 357(1)(b) of Cr.P.C., and remaining amount of Rs.5,000/- (Rupees five thousand only), shall be remitted to the State.
In default of the payment of fine amount, the accused shall undergo simple imprisonment of one year.
(Dictated to the stenographer directly on computer typed by her, corrected by me and then judgment pronounced in the open court on 23 rd day of December 2022) Digitally signed by SOUBHAGYA SOUBHAGYA B BHUSHER B BHUSHER Date:
2022.12.26 11:10:49 +0530 (Soubhagya.B.Bhusher) XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of witness examined on behalf of the complainant:
PW.1 : Mr.Vikram Kulkarni
C.C.NO.17530/2018
39
List of documents marked on behalf of the complainant:
Ex.P.1 : Authorization letter
Ex.P.2 : Certified copy of the Account Extract.
Ex.P.3 : Letter written to the accused by the
complainant.
Ex.P.4 : Cheque.
Ex.P4(a) : Signature of the accused.
Ex.P.5 : Bank endorsement.
Ex.P.6 : Office copy of legal notice.
Ex.P.6(a) : Postal receipt.
Ex.P.7 : Postal Acknowledgment.
Ex.P.8 : Complaint.
Ex.P.9 : Letter written to the accused company by the
complainant's company for confirmation of account of the accused.
Ex.P.10 : Letter written by the complainant's to the accused on 04.11.2016 for payment of amount.
List of witnesses examined on behalf of the accused:
-Nil-
List of documents marked on behalf of the accused:
-Nil-Digitally signed by SOUBHAGYA
SOUBHAGYA B BHUSHER
B BHUSHER Date: 2022.12.26
11:11:01 +0530
XXVIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
C.C.NO.17530/2018
40
23.12.2022 (Judgment pronounced in the Open
Court Vide Separate Sheet)
:ORDER:
Acting under section 255(2) of Cr.P.C. the accused are convicted for the offence punishable under section 138 of N.I. Act.
The bail bond executed by the accused No.2 hereby stands canceled.
The accused are sentence to pay Rs.4,33,094/- (Rupees four lakhs thirty three thousand and rupees ninety four only), to the complainant's.
It is further ordered that out of the said fine amount an amount of Rs.4,28,094/-/- (Rupees four lakhs twenty eight thousand and rupees ninety four only), shall be paid to the complainant's as compensation as per section 357(1)(b) of Cr.P.C., and remaining amount of Rs.5,000/- (Rupees five thousand only), shall be remitted to the State.
In default of the payment of fine amount, the accused shall undergo simple imprisonment of one year.
XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.