Bangalore District Court
R.Priya vs Smt.Tulasi.S @ Tulasiyamma on 12 November, 2020
1
C.C.No.14939/2015
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 12th day of November, 2020
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.14939/2015
Complainant : R.Priya,
D/o. Late Ramakrishna,
Residing at No.231/A,
7th Main, 5th Cross,
Marenahalli Tank Bund,
Jayanagar,
Bengaluru.
(By Sri. G.S.Narayana Swamy,
Adv.,)
Vs
Accused : Smt.Tulasi.S @ Tulasiyamma,
W/o. Subramani,
Aged about 52 years,
Shakthi Condiments,
Kothanur Dinne Main Road,
J.P.Nagar 8th Phase,
Near BWSSB Water Tank,
J.P.Nagar,
2
C.C.No.14939/2015
Bengaluru 560 076.
(By Samanva Law Associates.,
Advs .,)
Case instituted : 12.3.2015
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted.
Date of order : 12.11.2020
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the accused is well known to her and known to each other for the past several years, in this regard, the accused has approached her in the first week of September 2013 seeking financial assistance a sum of Rs.4,27,000/ to improve her business in Bakery, considering the request the accused, she has paid the said sum of Rs.4,27,000/ to the accused by way 3 C.C.No.14939/2015 of cash on 23.9.2013 for which, the accused has acknowledged the receipt of the said sum and at the time of acknowledging the receipt has agreed and undertaken to repay the same on or before 31.12.2014 and even after completion of period, the accused has failed and neglected to repay the above said sum of Rs.4,27,000/ to her, and she demanded the accused to repay the same, for which the accused has issued a cheque bearing No.273891 dated:
14.1.2015 for a sum of Rs.4,27,000/ drawn on Corporation Bank, RBI Layout Branch, JP Nagar Bengaluru drawn in her favour and as per the words of the accused, she presented the said cheque on 14.1.2015 for encashment through her banker, the same came to be returned dishonored as "Funds Insufficient' vide bank endorsement on 20.1.2015, thereafter she got issued legal notice to the accused on 10.2.2015, the said notice was duly served on the accused on 12.2.2015, even after service of the legal notice, the accused has failed and neglected to neither comply nor reply to the said legal notice.
Hence she has filed this present complainant against 4 C.C.No.14939/2015 the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed her affidavitinlieu of her sworn statement, in which, she has reiterated the averments of the complaint along with original documents.
4. Primafacie case has been made out against the accused and summons was issued against the accused in turn has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to her, to which she pleaded not guilty and claims to be tried.
5. The complainant herself examined as PW.1 and she has filed her affidavit in lieu of her chief examination, in which she has reiterated the averments made in the complaint. In support of his evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P6 i.e, Original Cheque 5 C.C.No.14939/2015 dated: 14.1.2015 is as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank memo as per Ex.P.2, the office copy of Legal Notice as per Ex.P.3, postal receipt as per Ex.P.4, postal acknowledgement as per Ex.P.5, Bank pass book as per Ex.P.6, the relevant entries on the bank pass book as per Ex.P.6(a) and P.6(b).
6. As per the direction of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the Accused, as she intended to set out her defence, then the case was posted for the complainant evidence and complainant was crossexamined by the accused and closed her side.
7. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. She has denied the incriminating evidence appearing against her and has chosen to lead her 6 C.C.No.14939/2015 rebuttal evidence subsequently the Accused has examined as DW.1 and on her behalf she has produced her bank pass book as per Ex.D.1 to D.3 respectively.
8. Heard by learned counsel for the complainant and the Accused and perused the written arguments and materials on record and the decisions relied upon by the learned counsel for the complainant i.e.
1) AIR 2010 SC 1898 in case of Rangappa Vs. Mohan; 2) 2008 AIR SCW 738 in case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde; 3) ILR 2008 KAR 4629 in case of K.N.Keshavanarayana Vs. Shiva Murthy Vs. Amruthraj. The decisions relied upon by the learned counsel for the accused are 1) (2019) 5 SCC 418 in case of Basalingappa Vs. Mudibasappa ; 2) 1995 (32) DRJ, High Court of Delhi in case of Citi Bank Financial Services Ltd., Vs. Gitanjli Motors Ltd and others., 3) 2012 Cril.LL.J 804, (2012) AIR Kant R 389 in case of H.P.Moodalappa Vs. C.A. Chowrappa; 4) Cr.l.J 7 C.C.No.14939/2015 1222(Del)1995 in case of Can Bank Financial Services Ltd., Vs. Gitanjali Motors Ltd., 5) M.S.Narayana Menon @ Mani Vs. State of Kerala and Another in AIR 2006 SC 3366; 6) Bharat Barrel & Drum Manufacturing Company Vs. Amin chand Payrelal MANU/SC/0123/199: [1999] 1 SCR 704; 7) Kamala.S. Vs. Vidhyadharan.M.J and another in MANU/SCC/7124/2007 (2007) 5 SCC 264; 8) (2008) 7 SCC 655.
9. On the basis of complaint, evidence of complainant and documents the following points that are arise for consideration are:
1. Whether the complainant proves that the accused has issued cheque bearing No.273891 dated:
14.1.2015 for Rs. 4,27,000/ drawn on Corporation Bank, RBI Layout, JP Nagar, Bengaluru to discharge legally recoverable debt to the complainant and when the complainant has presented cheque for encashment through her banker but the said cheque has been dishonoured for the reasons 8 C.C.No.14939/2015 "Funds Insufficient" on 20.1.2015 and the complainant issued legal notice to the accused on 10.2.2015 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
10. The above points are answered as under:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
..
REASONS
11. Point No.1: Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of 9 C.C.No.14939/2015 N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act presupposes conditions for prosecution of an offence which are as under:
1. Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
2. Cheque shall be presented for payment within specified time i.e., from the date of issue before expiry of its validity.
3. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and 10 C.C.No.14939/2015
4. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer in respect of bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
12. It is also one of the essential ingredient of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e., U/s.118 presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these 11 C.C.No.14939/2015 presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and are rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
13. In the present case the complainant in her complaint and affidavit evidence has specifically contended that, the accused is well known to her and known to each other for the past several years and the accused has approached her in the first week of September 2013 seeking financial assistance and requested to lend sum of Rs.4,27,000/ to improve her business in Bakery, considering the request of the accused, she has paid the said sum of Rs.4,27,000/ to the accused by way of cash on 23.9.2013 for which, the accused has acknowledged the receipt of the said sum and at the time the accused has also agreed and undertaken to repay the same on or before 31.12.2014. The 12 C.C.No.14939/2015 complainant/PW.1 further testified that, even after completion of period, the accused has failed and neglected to repay the above said sum of Rs.4,27,000/ to her and she demanded the accused to repay the same, for which the accused has issued a cheque bearing No.273891 dated: 14.1.2015 for a sum of Rs.4,27,000/ drawn on Corporation Bank, RBI Layout branch, JP Nagar Bengaluru drawn in her favour, thereafter she presented the said cheque on 14.1.2015 for encashment through her banker the same came to be returned dishonored as "Funds Insufficient' vide bank endorsement on 20.1.2015, thereafter she got issued legal notice to the accused on 10.2.2015, the said notice was duly served on the accused on 12.2.2015, even after service of the legal notice, the accused has failed and neglected to neither complied nor replied to the said legal notice.
14. In support of the oral evidence of the complainant, she produced and marked the documents as per Ex.P.1 to P.6 i.e. Original Cheque dated: 14.1.2015 is as per Ex.P.1, the signature on 13 C.C.No.14939/2015 the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank memo as per Ex.P.2, the office copy of Legal Notice as per Ex.P.3, postal receipt as per Ex.P.4, postal acknowledgement as per Ex.P.5, Bank pass book as per Ex.P.6, the relevant entries on the pass book as per Ex.P.6(a) & P6(b).
15. In the present case, there is no dispute between the complainant and Accused with regard to their acquaintance, and it is also not in dispute that, the cheque in question i.e. Ex.P.1 to belongs to the account of the accused and the Accused has also not disputed her signature which is appearing at Ex.P1(a). The accused has also not disputed that, the cheque in question presented for encashment within its prescribed period and dishonoured for the reason of "Funds Insufficient" on 14.1.2015 as matter on record, proved by return memo dated:
20.1.2015 i.e. Ex.P2 issued by the concerned bank, therefore it is a matter on record and has been proved that, the cheque in question was presented 14 C.C.No.14939/2015 within its validity period and dishonoured as per the bank endorsement issued by the banker of accused.
It is also not in dispute that, after dishonour of the cheque in question and receipt of bank memo within 30 days from the date of receipt of bank memo, legal notice was caused as per Ex.P3 to the Accused calling upon her to pay amount covered under the dishonoured cheque along with the cost of the notice within 15 days from the date of receipt of the notice. The Accused though during her cross examination has disputed service of the legal notice upon her but during the cross examination of complainant , the accused has not disputed the issuance of legal notice i.e Ex.P.3 through RPAD and its service on her as per Ex.P.4 and P.5, hence it goes to show that, as per the documents i.e Ex.P.3 to P.5 the complainant has issued legal notice dated: 10.2.2012 through RPAD and same has got served on the accused as per Ex.P.5. In addition to that, the accused has not disputed the signature on the acknowledgement i.e Ex.P.5 and even it is not the defence of the accused that, the complainant got created the postal 15 C.C.No.14939/2015 acknowledgement and produced in this case, hence it goes to show that, the accused has admitted the postal documents produced by the complainant and the said documents inspires the confidence about the service of notice on the accused. Apart from that, the accused/DW.1 during the course of her cross examination at page No. 1 clearly admitted that, " It is true to suggest that, prior to it, I was doing the business in the name of Shakthi Condiments in Kothanur Dinne Main Road, J.P.Nagar, 8th Phase, Near the BWSSB Water Tank" and also admitted that, she has given instructions to her counsel in respect of the contents of her affidavit and it bears her signature. Hence, the above admissions of the accused makes it clear that, the accused has admitted her address as shown by her in her affidavit and also the address shown by the complainant in the legal notice, postal acknowledgement i.e., Ex.P.3 and P.5 and the perusal of the address of the accused mentioned by the complainant in Ex.P.3 and P.5 and the address admitted by the accused in her 16 C.C.No.14939/2015 crossexamination and address mentioned by the accused in her affidavit evidence are one and the same, therefore it appears that, the legal notice issued by the complainant through RPAD is to the correct address of the accused, in such circumstances it can be held that, the complainant has sent legal notice through RPAD to the correct address of the accused and the accused has not denied her address mentioned in the legal notice and postal acknowledgement, in such circumstances it can be held that, the legal notice sent to the correct address of the accused is deemed to have been served on the accused through RPAD in view of Sec. 27 of the General Clauses Act. In this regard, it is relevant here to refer the decision of Hon'ble High Court of Karnataka reported in 2011 ACD 1572 (KAR) in the case of Jayamma Vs. Lingamma, wherein the Hon'ble High Court held that, "Notice sent at correct address returned unclaimed - is deemed to be served. It is also relevant here to refer the decision reported in 2008(4) Civil code 17 C.C.No.14939/2015 cases 027 (SC) "M/s. Indo Automobiles Vs., M/s. Jai Durga Enterprises and others." Wherein the Hon'ble Apex Court held that, notice sent by registered post with acknowledgement to a correct addressservice of notice has to be presumed. Therefore in view of the principles of law in the above decisions, in the present case also the Accused has not disputed her address mentioned on the RPAD cover, postal receipt and acknowledgement, in such circumstances it can be safely held that, the service of notice on accused in this case is presumed to have been served on her, since in this case also the complainant has issued notice to the accused to her correct address through registered post and the said notice was served on the accused which is evidenced by Ex.P.5 postal acknowledgement hence, the notice issued by the complainant through registered post is held to be proper service and for the above said reasons, the contentions taken by the learned counsel for the accused in the written arguments that, the notice issued by the complainant was not served on the accused and the complainant 18 C.C.No.14939/2015 has not complied the mandatory requirements of Sec.138(b) of N.I.Act and complaint is not maintainable cannot be acceptable and are not sustainable. Hence, the complainant has complied the mandatory requirements as required U/s.138(a) to (c) of Negotiable Instruments Act.
16. The defence of the Accused discloses that, she has denied the transaction in question and source of income i.e, financial capacity of the complainant and also denied the lending of loan amount to her. In order to prove the financial capacity of the complainant and transaction in question, the complainant has produced her Bank pass book pertaining to her account in the Karnataka Bank which is at Ex.P.6 and the relevant entries in the said pass book marked as Ex.P.6(a) and (b). On careful perusal of the Ex.P.6, 6(a) and (b) it appears that, as on the date of lending of the loan amount and prior to the lending of loan amount in question the accused was having sufficient source of funds in her account. In addition to that, during the course of 19 C.C.No.14939/2015 crossexamination of complainant, the accused has clearly admitted that, the Ex.P.6 belongs to the complainant and also admitted the withdrawal of amount of Rs.4,27,000/ on 23.9.2013 by the complainant as per Ex.P.6(a) entry, but it is contended by the accused that, the said amount was used by the complainant for other purpose but not lend to the accused, this particular admissions of the accused makes it clear that, the accused not only admitted the financial capacity of the complainant but also admitted the fact of withdrawal of the amount of Rs.4,27,000/ on 23.9.2013 by the complainant but the accused contends that the said amount has not been given to her it has been utilized for other purpose by the complainant, in such circumstances to that extent the burden is on the accused to prove that, the amount of Rs.4,27,000/ which was withdrawn on 23.9.2013 utilized by the complainant for her other purpose, but no material is produced by the accused to accept her defence, under such circumstances an adverse inference can be drawn against the accused that, she has admitted 20 C.C.No.14939/2015 the financial capacity of the complainant. In addition to that, the accused has also admitted that, she used to receive loan amounts from the complainant and the complainant used to lend the loan amounts on interest basis, but the accused has not produced the document to show that, the loan amount lent by the complainant was charged by the interest as stated by the accused, in such circumstances also it can be held that, the accused herself admitted the financial capacity of the complainant as complainant used to lend the loan amount to her in the earlier occasions, therefore in view of the above said admissions it can be held that, the complainant has proved her financial capacity not only by producing oral and documentary evidence but also by the admissions of the accused, in such circumstances for the said reasons, the arguments canvassed by the learned counsel for the accused at para No.11 and 12 of written arguments cannot be acceptable one and with due respect to the principles of law laid down by the Hon'ble Apex Court and Hon'ble High Court of Delhi in the decision relied upon by the learned 21 C.C.No.14939/2015 counsel for the accused are not applicable to the defence of the accused in the present case.
17. The learned counsel for the accused has cross examined the complainant in length but nothing has been elicited to discard or discredit the evidence of the complainant i.e. PW.1. The PW.1 has clearly stated in her crossexamination about her acquittance with the accused and how and when she used to visit the business place of the accused and also clearly stated that, the accused has borrowed a loan of Rs.4,27,000/ by way of cash from her and the suggestions made by the accused were stoutly denied by her. It is seen from the cross examination of PW.1 that, the accused rather concentrated on collection of documents by the complainant at the time of lending of the loan amount in question instead of eliciting anything material to discard the evidence of the complainant or to rebut the evidence of the complainant. It is interesting to note here that, the learned counsel for the accused at page No.3 of crossexamination of the PW.1 suggested that, "the 22 C.C.No.14939/2015 amount of Rs.4,27,000/ is inclusive of the simple interest" and at page No.4 suggested that "I have charged interest on the loan from the accused for the period from 23.9.2013 to 31.12.2014" but the complainant has denied the said suggestions and stated that, she has lent Rs.4,27,000/ to the accused on 23.9.2015 and she had not told the accused anything about the interest , hence the very suggestions made by the accused makes it clear that, the accused not only admitted the receipt of loan amount of Rs.4,27,000/ from the complainant but also contends that, the said amount includes the simple interest but there are no evidence produced by the accused to show that, the loan amount received by the accused carries simple interest as contended by the accused, hence the accused has clearly admitted that, complainant has lent an amount of Rs.4,27,000/ to her by way of making suggestions. In such circumstances the arguments canvassed by the learned counsel for the accused at para No.10 of his written argument 23 C.C.No.14939/2015 cannot be acceptable one.
18. In addition to the above on careful perusal of the entire crossexamination of the complainant conducted by the accused it appears that, nothing has been elicited from the PW.1 i.e complainant that, the cheque in question has not been issued to the complainant and the legal notice caused by the complainant was not served on the accused and even nothing has been elicited from the complainant that, as per the defence of the accused the cheque in question i.e. Ex.P.1 was given as a security towards the loan amount of Rs.1 Lakh borrowed by the accused on 4.7.2011, therefore as it is already held in the above that, the complainant complied the mandatory requirements as required u/s 138 of N.I. act, in such circumstances initial presumption can be drawn U/s 118a and 139 of N.I. Act that, the cheque in question issued by the accused towards discharge of legally recoverable debt as held by the Hon'ble Apex Court of India in "Rangappa Vs. Mohan", reported in (2010) 11 SCC 441 and in 24 C.C.No.14939/2015 Crl.Appeal No.508/2018 dated:15.3.2018 between ROHITBHAI JIVANLAL PATEL VS. STATE OF GUJARATH AND ANR. It is true that, some minor discrepancies have been elicited by the accused during the course of crossexamination of the complainant with regard to the non securing of documents at the time of lending of the loan amount and the complainant has not examined the person by name Sri. Sampath Kumar who was present at the time of lending of the loan amount but only on the basis of said minor discrepancies the entire documentary evidence of the complainant cannot be thrown out unless and until the accused has been able to rebut the presumption available to the complainant u/s 118a and 139 of NI Act. In this regard it is relevant here to refer the decision of Hon'ble Apex Court decided in Crl.Appeal No. 1545/2019 dated:17.10.2019 in the case of Uttam Ram Vs. Devindar Singh Hudan and Anr." wherein the Hon'ble Apex Court held that "the burden is on the accused to rebut the 25 C.C.No.14939/2015 presumption that, cheque was issued not for any debt or other liability and it is immaterial that, cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer" and also held that, "Complainant cannot be insisted to prove a debt in question as if it required to be proved before the Civil Court". Hence, in this case also the arguments canvassed by the learned counsel appears that, complainant is required to prove the existence of debt as if it require to be proved in Civil court, in such circumstances and in view of the principles of law laid down by the Hon'ble Apex Court of India in the above referred decision the arguments canvassed by the learned counsel for the accused in the written arguments cannot be acceptable one and in support of his arguments the decisions relied upon by him are not applicable to the defence of the accused in this case, with due respect to the principles of law laid down by the Hon'ble Apex Court in the decisions relied upon by the learned counsel for the accused 26 C.C.No.14939/2015 are not applicable in this case as the facts and circumstances of the present case and facts and circumstances of the decided cases referred in the decisions are not one and the same.
19. In addition to the above, as it is held that, the complainant has successfully proved the transaction in question and her financial capacity by producing the documentary evidence along with her oral evidence. Apart from that, it is relevant here to refer the decisions reported in 2001 AIR Karnataka HCR 2154 between 'M/s.Devi Tyres V/s.Navab Jan' and in 2011 ACD 1521 (KAR) between 'Smt. Usha Suresh V/s. Shashidharn', in 2010 SC 1898 between 'Rangappa Vs. Mohan' and 2011 ACD 1412 (KAR) between 'N.Hasainar Vs. M.Hasainar, S/o. Ibrahim'. The Hon'ble High Court of Karnataka in the above decision i.e., 2001 AIR Karnataka HCR 2154 at para No.6 was pleased to hold that issuance of cheque itself was adequate proof of existence of debt or liability. In another decision of 27 C.C.No.14939/2015 Hon'ble Apex Court of India i.e. Hon'ble Three Judges Bench Decision reported in (2010) 11 SCC 441 in the case of Rangappa Vs. Sri. Mohan ., wherein the Hon'ble Apex Court held that "
A. Negotiable Instruments Act, 1881 - S.139 -
Presumption under - scope of - Held, presumption mandated by S. 139 includes a presumption that there exists a legally
enforceable debt or liability - However such presumption is rebuttable in nature - Criminal Trial - Proof - Presumptions - Generally. Further held that "Signature on the cheque was his, statutory presumption under S.139 comes into play and the same was not rebutted even with regard to the materials submitted by complainant Appellant not able to prove "lost cheque" theory - Apart from not raising a probable defence appellant was also not able to contest the existence of a legally enforceable debt or liability - hence, his conviction by High 28 C.C.No.14939/2015 Court, held, proper. In another decision of Hon'ble Apex Court of India, reported in CRIMINAL APPEAL NO. 508 OF 2018 DT 15032018 between ROHITBHAI JIVANLAL PATEL Vs. STATE OF GUJARAT AND ANR held that "Negotiable Instruments Act facts like source of funds are not relevant if the Accused has not been able to rebut the presumption. It is further held that " When such a presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the Accused has been able to rebut the presumption or not". In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, " Dishonor of cheque - Statutory presumption under - burden 29 C.C.No.14939/2015 to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other 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 - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.138 of NI Act. It is also held that, " the accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the Trial Court and High Court. Both courts not only erred in law but also committed perversity when the due amount is said to be disputed only on the account of discrepancy in the cartons, packing materials or the rate to determine the total liability as if the appellant was proving his debt before the civil 30 C.C.No.14939/2015 court. Therefore it is presumed that, the cheque in question were drawn for consideration and the holder of the cheques received the same in existing debt". It is also held that, " the Trial court and the High Court proceeded as if, the appellant is to prove a debt before civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. A dishonour of cheque carries statutory presumption of consideration. The holder of cheque in due course is required to prove that, the cheque was issued by the Accused and that when the same presented , it was not honoured Since there is a statutory presumption of consideration, the burden is on the Accused to rebut the presumption that, the cheque was issued not for any debt or other liability". It is also relevant here to refer the decision of Hon'ble High Court of Karnataka reported 31 C.C.No.14939/2015 in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption mandated by Sec.139 of N.I Act includes the presumption that, there existed a legally enforceable debt or liability, however such presumption is rebuttable in nature". In another decision of Hon'ble High Court of Karnataka in the case of Shri.V.R.Shresti Vs. Shri. Bhaskara.P. in Crl. Appeal No. 2109/2017 dated: 15.10.2019 wherein the Hon'ble High Court of Karnataka held that "the Accused has not given any reply to the notice and also in the crossexamination, he categorically admits that, the cheque has bounced on account of no sufficient fund in the bank account of the Accused. Mere non producing of the document before the court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The Accused ought to have rebutted the contention of 32 C.C.No.14939/2015 the complainant by producing cogent evidence before the court and mere denial is not enough".
Therefore on careful reading of the principles of law laid down by the Hon'ble Apex Court of India and High Court of Karnataka in the above referred decisions makes it very clear that, once the holder in due course i.e. the complainant proved that, the cheque in question belongs to the drawer and signature appearing on the cheque is that of the drawer i.e., Accused and complied the mandatory requirements as required U/s.138 of N.I.Act, presumptions U/s.118a and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt and when such presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence regarding source of funds were not of relevant unless the Accused rebutted the presumption available to the complainant as held by the Hon'ble Apex Court and High Court of Karnataka in the above decisions. In the present case also the complainant has complied the mandatory requirements and has 33 C.C.No.14939/2015 proved that, the Accused has issued the cheque in question in her favour and the Accused has admitted the cheque belongs to her account and her signature on the cheque and complainant has proved that the legal notice issued by her was served on the Accused and accused has not given reply to the said notice, in such circumstances, presumptions have to be drawn even towards existence of legally enforceable debt as per Sec.118a and 139 of N.I.Act.
20. Therefore, for the above said reasons the defence taken by the Accused that, the complainant has not produced the documents to show that, she was having source of income or funds to lend the loan amount to the Accused as on the date of lending of the loan amount and has not collected the documents for having advancing the loan amount to the Accused at the time of alleged lending of loan amount cannot be acceptable one. The defence taken by the Accused appears that, the complainant has to prove her claim by producing her evidence as if it is required for proving her debt before the Civil Court, 34 C.C.No.14939/2015 but same cannot be permissible in proceeding initiated U/s.138 of N.I. Act, as held by the Hon'ble Apex court of India in the above referred decisions, therefore in view of the principles of law laid down in the above referred decisions it is presumed that, cheque in question was drawn for consideration as the Accused has admitted the cheque in question belongs to her account and complainant proved that, the signature found on the cheque in question is signature of the accused. Therefore for the above said reasons the arguments canvassed by the learned counsel for the defence cannot be acceptable one, as the accused has miserably failed to rebut the presumptions available to the complainant.
21. It is relevant here to mention that, as it is already decided in the above that, the complainant has proved that the cheque in question i.e Ex.P1 belongs to the Accused and signature found at Ex.P.1(a) is that of the signature of the Accused and also proved that, the cheque in question was presented within its validity period and the same 35 C.C.No.14939/2015 was dishonoured for the reason of "Funds Insufficient" as per Ex.P.2 and thereafter the legal notice caused by her through RPAD to the Accused and the said notice was served on her and the Accused has not given reply to the legal notice, in such circumstances, it can be held that, the complainant has discharged her initial burden by complying the mandatory requirements as required U/s.138 of N.I. Act and initially the presumptions are available in favour of the complainant U/s.118a and 139 of the N.I. Act. Consequently it is for the Accused to rebut the said presumptions available in favour of the complainant to show that, the cheque in question was not issued either to the complainant or towards discharge of any legally recoverable debt by producing cogent and convincible evidence but not mere suggestions or even by plausible explanation. In such circumstances, when the presumptions U/s.118 and 139 of N.I.Act are available to the complainant, even the said presumption can be drawn to the extent of existence of legally recoverable debt or liability against the Accused, unless and until 36 C.C.No.14939/2015 the said presumptions are rebutted by the Accused even though the documents are not produced by the complainant with regard to loan transaction in question.
22. It is the specific defence of the accused that,the cheque in question was not at all issued on the date alleged in the complaint instead the same was given on some other date as security for some other transaction i.e, the alleged cheque was issued on 4.7.2011 when the accused availed Rs.1 Lakh hand loan from the complainant which the complainant lent through a bearer cheque on 4.7.2011 pertains to the Bengaluru City Central Co operative Bank, Jayanagar 9th Block Branch, Bengaluru and the said hand loan of Rs.1 Lakh was repaid to the complainant and there was no left in what so ever manner. In order to prove her defence i.e., to rebut the presumptions available to the complainant U/s.118(a) and 139 of N.I. Act and to substantiate her defence herself examined as DW.1 by reiterating her defence in her affidavit evidence. In 37 C.C.No.14939/2015 support of oral evidence the accused has produced three bank pass books pertains to her which are marked as Ex.D.1 to D.3. It is also contended by the accused that, as per the statement of the accounts and pass books produced by her there are no entry disclosing the fact that, the cheque in question presented before her banker for encashment during the year 2012 to 2016 and the cheque in question did not came for clearing as per the serial number of cheques for a particular period.
23. It is important to note here that, the accused has not produced any documents or satisfactory evidence to show that, the cheque in dispute i.e. Ex.P.1 was issued on 4.7.2011 at the time of availing hand loan of Rs.1 Lakh to the complainant towards security of the said loan amount. It is true that, the complainant during the course of her crossexamination has admitted that, she had lent a loan of Rs.1 Lakh to the accused on 4.7.2011 through a bearer cheque, but the complainant specifically stated that, the said amount 38 C.C.No.14939/2015 has been repaid by the accused and complainant has also specifically denied the suggestion made to her that, the cheque in question was issued towards the security of the said loan of Rs.1 Lakh and the complainant has filled up the contents of the cheque in dispute for an amount of Rs.4,27,000/ and presented it to the bank and filed this false case. Hence, the entire perusal of the crossexamination of the complainant by the accused nothing has been elicited that, the cheque in question was issued on 4.7.2011 as a security to the complainant towards the loan amount of Rs.1 Lakh as alleged by the accused in her defence. In addition to that, the Accused herself has admitted that, the cheque in question issued to the complainant and signature found at Ex.P.1 (a) is that of her signature, therefore once signature on the Negotiable Instrument Act is admitted , in that circumstances sec. 20 of N.I. Act comes into play i.e. as per Sec. 20 of N.I.Act if the blank or incomplete Negotiable Instrument is given to the holder in due course, it is to be presumed that, he/she had given authority to the holder in due 39 C.C.No.14939/2015 course to fill up the remaining portion. In this regard, it is relevant here to refer the decision of Hon'ble High Court of Karnataka reported in ILR 2006 KAR 2054 in the case of H.S.Srinivasa Vs. Girijamma and another wherein the Hon'ble High Court held that " a reading of sec.20 of the act which is extracted above reveals that, the words used are ' either wholly blank or having written therein an incomplete negotiable instrument'. The instrument may be wholly blank or incomplete in a particular in either case, the holder has authority to make or complete the instrument as a negotiable one. The authority implied by a signature to a blank instrument is so vide that, the party so signing is bound to be a holder in due course. Promissory notes are often executed in the name of the payer and left unfilled to be afterwards filled by the actual holder, the object being to enable the owner to pass it off to another without incurring the responsibility as 40 C.C.No.14939/2015 an endorser. Thus, it is seen that, person in possession of an incomplete instrument in maternal particulars has the authority prima facie to fill it and thus the executants becomes liable to pay the amount due'. In another decision of Hon'ble High Court of Madras reported in 2005 (1) DCR 85 in the case of P.A. Thamatharan Vs. Dalmia cements (B) Ltd., wherein it is held that "
Negotiable Instrument Act 1991 - Sec. 138 - dishonour of cheque - plea -body of cheque was not written by Accused - held it is not mandatory and no law prescribes that, the body of cheque should also be written by the signatory to the cheque, a cheque could be filled up anybody and if it is signed by the account holder of the cheque'. In another decision of Hon'ble Apex court to India reported in (2002) 7 SCC in the case of P.K. Manmadhan Karthra Vs.Sanjeeva Raj., wherein it is held that " As long as signature on the cheque is admitted, whether the ink with 41 C.C.No.14939/2015 which the other particulars are filled up is different or that the hand writing is not that of drawer does not matter. Until rebutted, the presumption that, cheque was issued for consideration exists". In another decision of Hon'ble High Court of Karnataka at Bengaluru in a case of Crl. Appeal No. 1664/2003 C/w. Crl.Appeal No.1663/2003 dated: 18.6.2008 in the case of R.Mallikarjuna Vs. H.R.Sadashivaiah wherein the Hon'ble High Court at para No.19 held that " But, the question is, whether that renders instrument unenforceable. In this regard, it must be observed that, this court similar circumstances in the case of S.R. Muralidar Vs. Ashok G.Y. reported in 3001 (4) KAR. LJ K. 122 referring to the provisions of Sections 20, 138, 139, and 140 of the Act and after interpreting alteration and filling up of the cheque observed thus " The trial court has made much about the difference in ink. Admittedly, Accused cheque is 42 C.C.No.14939/2015 issued bearing signature of the Accused. It is the contention of the defence that, blank cheques issued for the business transactions have been illegally converted as a subject matter to this case fastening false liability........ It is not objectionable or illegal in law to receive a inchoate negotiable instrument duly signed by the maker despite the material particulars are kept blank if done with an understanding and giving full authority to the payee to fill up the material contents as agreed upon. Such a course of action in law cannot vitiate the transaction nor can invalidate the negotiable instrument issued and such transaction fully begins the maker of the negotiable instrument to the extent it purports to declare........ The fact that, a document executed is inchoate with regard to some of the material particulars would not render such contract invalid nor make the instrument illegal or inadmissible. Voluntarily, 43 C.C.No.14939/2015 if a person were to deliver an inchoate instrument authorizing the receiver to fill up the material contents as agreed upon, the cheque does not get tainted as in admissible nor it amounts to tampering with the material particulars...... In the present case there is no categorical defence version, it is only by conjunctures and surmises, a case is made out from the difference in ink between the signature of the cheque and the other handwritten contents. Therefore in view of the principles of law of Hon'ble Apex court of India and also Hon'ble High Court of Karnataka referred above, In the present case the Accused has also admitted her signature on Negotiable Instrument i.e. cheque and she also admitted issuance of the cheque to the complainant, it is primafacie proof of authorizing the holder in due course i.e. the complainant to fill up the remaining contents of the Negotiable Instrument, therefore it cannot lie in the mouth of the Accused that, the complainant had misused or fabricated the cheque in 44 C.C.No.14939/2015 question given by her and the defence of the Accused cannot be acceptable one as the instrument i.e., cheque in question cannot be rendered unenforceable merely because the contents have been filled by different ink, as it would not render such instrument illegal or inadmissible, the complainant certainly can base action on it.
24. The learned counsel for the accused in his written argument has specifically contended that, during the crossexamination of the complainant it was suggested by the accused that, the ink and writings in respect of the signature is different when compared to the rest of the contents of the cheque but the complainant falsely denied the said suggestion but the contents of the cheque ie the signature and other writings were subjected to expert opinion and the expert opinion clearly says that, both were written in different ink and pen and also gives opinion stating that, the other contents were not written under natural flow of writing which clearly estbalishes the fact that, only signature was signed 45 C.C.No.14939/2015 by the accused and other contents were filled up by some other person known to the complainant, hence the cheque in question is fabricated by the complainant.
25. But as it is already held in the above that, in view of the principles law laid down by the Hon'ble Apex court and also High Courts that, cheque in question cannot be rendered unenforceable merely because the contents have been filled by different ink, as it would not render such instrument illegal or inadmissible, the complainant certainly can base action on it and when the Accused has admitted issuance of cheque and signature on the cheque is that of her signature in such circumstances prima facie proof of authorizing the holder in due course to fill up the remaining contents of the Negotiable Instruments, therefore the arguments canvassed by the learned counsel for the Accused cannot be acceptable one. Apart from that in order to prove the said defence except the oral denial of the accused and self serving statement nothing has been placed 46 C.C.No.14939/2015 before the court and the accused has also filed an application U/s 293 of Cr.P.C. R/w sec. 45 of Evidence Act seeking direction of the court to refer the dispute and admitted signatures of the accused to the Government Forensic Science Laboratory and also for find out the age of ink in the signature and the other contents of it and the said application was allowed by the court and thereafter Ex.P.1 has been sent to the Hand writing Expert ie., Truth Labs Forensic Services, Bengaluru and the report has been received by the said Laboratory. But on careful perusal of the said report wherein the Expert has opined that, it is not possible to offer opinion on the age of writings and signature in the questioned cheque ie Ex.P.1, hence the report of the hand writing expert given in this case is not helpful for the accused to prove her defence and even the accused has not opposed the said report and has examined the expert to prove her defence, in such circumstances as per the report submitted by the Handwriting expert there are no scientific methods available to ascertain the exact or accurate age of ink 47 C.C.No.14939/2015 or writings. In addition to that, the accused has miserably failed to prove that, the complainant has fabricated the cheque in question by writing the contents of the cheque as alleged by the accused. Even for sake of discussion if it is assumed that, Accused has given cheque in question without mentioning the name of the payee and date to the complainant in such circumstances also it attracts the penal liability as contemplated U/s.138 of N.I. Act. In this regard, it is relevant here to refer decision of Hon'ble Apex Court of India reported in AIR 2019 SC 2446 in the case of Birsingh Vs. Mukesh Kumar., wherein the Hon'ble apex Court held that, "presumption U/s.139 is presumption of law, distinguished from presumption of facts and also held that, presumptions are rules of evidence and do not conflict with presumption of innocence which requires prosecution to prove case against the Accused and also held that obligation on the prosecution may discharged with the help of presumptions of law and 48 C.C.No.14939/2015 presumption of fact unless the accused adduces evidence showing reasonable plausibility of non existence of presumed fact." In the present case though the Accused has denied the contents of the cheque in question except her signature but she did not proved her defence or produced any documents or satisfactory evidence to rebut the presumptions as available U/s.139 of the N.I.Act, under such circumstances in view of the above principles of law, it can be presumed even on fact also that the complainant has proved her case by discharging her burden by complying the mandatory provisions. In the said decision the Hon'ble Apex court has also held that, "presumption as to legally enforceable debt is rebuttable, the signed blank cheque if voluntarily presented to payee towards payment payee may fill up amount and other particulars and it in itself would not invalidate cheque and onus would still be on the accused to prove that, cheque was not issued or discharge of debt or liability by adducing evidence." In another 49 C.C.No.14939/2015 decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, "
Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other 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 - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. In view of the principles of law laid down as above, even if it is assumed that, the complainant has written her name and date on the 50 C.C.No.14939/2015 cheque in question in such circumstances also in view of the principles of law laid down in the above decision that itself would not invalidates the cheque in question and it can be presumed that, the said cheque has been issued towards discharge of legally recoverable debt.
26. It is also relevant here to refer the decision of Hon'ble Apex court held in (2016) 10 SCC 458 in the case of Sampelly Sathyanarayana Rao Vs. Indian Renewable Energy Development Ltd, wherein the Hon'ble Apex Court held that " (a) Negotiable Instrument Act 1881 - S.138 - If on the date of the cheque liability or debt exist or the amount has become legally recoverable S.138 will apply - not otherwise". In another decision of Hon'ble High Court of Bombay decided in CRMM No.2607/2018 (O & M) dated: 27.8.2019 in the case of Kailash vati Vs. M/s. Ludhiyana Beverages., wherein the Hon'ble High Court held that " A. Negotiable Instrument Act 1881 - S.138 51 C.C.No.14939/2015 and 6 - Dishonour of cheque date of drawn - Determination of - The date on which the cheque is drawn has to be with reference to the date mentioned in the column in the cheque and not the date on which it is bar was signed Date when the cheque is drawn is not defined in the act - If date of singing cheque is accepted then all post dated cheques cannot be treated as valid cheques within and drawer of cheques would stand absolved from criminal prosecution if cheques are presented after three months of the date on which signature were appended". Hence in view of the principles of law laid down by the Hon'ble Apex Court of India, it can be held that, the liability of the debt existed as on the date mentioned on the cheque not as on the date of signature on the cheque, even for sake of discussion the arguments canvassed by the learned counsel for the Accused taken into consideration but in view of the principles of law laid down by the Hon'ble Apex Court and High Court of Bombay it is to be considered that the date 52 C.C.No.14939/2015 on which cheque is drawn has to be with reference to the date mentioned in the cheque but not the date on which it is or was signed., therefore the arguments canvassed by the learned counsel for the defence cannot be acceptable one.
27. It is also relevant here to mention that, the Accused/DW.1 in her evidence has taken specific defence that, the cheque in question had issued to the complainant as a security towards the loan amount of Rs.1 Lakh availed on 4.7.2011 and she had repaid the said loan amount to the complainant but the complainant has filled the cheque and missued it. In support of her evidence nothing has been produced before the court to show that, she has given the cheque in question on 4.7.2011 to the complainant, except the oral evidence nothing has been placed before the court. If really the cheque in question was issued in the year 2011 to the complainant, definitely the same would have been intimated to the complainant by giving reply to the legal notice issued by the complainant but no such 53 C.C.No.14939/2015 reply has been given by the accused despite service of the legal notice on her, on this count also the defence of the Accused cannot be acceptable one. Even for sake of discussion, if the defence of the Accused i.e. the cheque in question has been given to the complainant towards security of the alleged loan amount of Rs.1 Lakh is taken into consideration, in such circumstances also it attracts the offence U/s.138 of N.I. Act, unless the accused proved her defence, in this regard, it is relevant here to refer the decision of Hon'ble Apex court of India reported in (2016) 10 SCC 458 in the case of Sampelly Sathyanarayana Rao Vs. Indian Renewable Energy Development Ltd, wherein the Hon'ble Apex Court held that " Even cheque issued as security for payment of loan installments also covered under the purview of sec. 138 of Negotiable Instruments Act" In another decision of Hon'ble High Court of Karnataka reported in 2015 (1) KCCR 235 in the case of Lale Patel Vs. Sharanabasappa., wherein the Hon'ble High Court 54 C.C.No.14939/2015 held that " NEGOTIABLE ISNTRUCEMTNS ACT, 1881 section 138 - Dishonour of cheque for insufficiency of funds Plea of accused that he had given a blank cheque signed as security for a transaction and complainant filled up the contents and denied existence of any debt or loan - Conviction by Trial court Affirmed by Appellate Court - Revision against. Hence the Hon'ble High Court of Karnataka in the above decision clearly held that, if the Accused has taken defence that, blank signed cheque has been issued as a security for transaction and the complainant filled up the contents and the accused denied the existence of debt or loan in such circumstances it is for the accused to prove his/her defence by producing cogent and convincible evidence, if the Accused has not proved the same in such circumstances, it cannot be held that, the cheque in question was issued for the purpose of security in connection with the alleged transaction. In another decision reported in 2015 (4) KCCR 2881 (SC) in 55 C.C.No.14939/2015 the case of T. Vasanthakumar Vs. Vijayakumari wherein the Hon'ble Apex court held that "
NEGOTIABLE INSTRUMENTS Act, 1881 Section s138 and 139 - acquittal - If justified Accused not disputing issuance of cheque and his signature on it Plea that it was issued long back as security and that loan amount was repaid Not supported by any evidence - Fact that date was printed, would not lend any evidence to case of accused Acquittal not proper. Hence in the present case also it is the main defence of the Accused that the cheque in dispute was given to the complainant as a security towards the loan amount of Rs.1 Lakh but in this regard the accused has not produced documents or proof in such circumstances by applying the principles of law laid down in the above decision the defence of the Accused cannot be acceptable one. In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.271/2020 in the case of APS Forex Services Pvt. Ltd., Vs. Shakthi International Fashion Linkers and 56 C.C.No.14939/2015 others., wherein the Hon'ble Apex Court held that "the defence of the Accused that, cheques were given by way of security is not believable in the absence of further evidence to rebut the presumption. It is also held that, once the issuance of the cheque has been admitted and even the signature on the cheque has been admitted, there is always presumption infavour of the complainant that there exists legally enforceable debt or liability and thereafter it is for the Accused to rebut such presumption by leading evidence". In the present case the Accused has admitted that, the cheque was issued and signature is also admitted but it is the defence of the Accused that, it was issued towards security and complainant has fabricated the cheque, in such circumstances the defence of the Accused cannot be acceptable one in the absence of further proof of evidence to rebut the presumption.
28. It is also relevant here to mention that, the 57 C.C.No.14939/2015 accused /DW.1 in his evidence has stated that, the cheque in question was issued to the complainant as a security on 4.7.2011 towards loan amount of Rs.1 Lakh borrowed by her and she has signed on the cheque but the other writings on the cheques are not in her writings and the same have been fabricated by the complainant, hence the complainant has misused the cheque which was issued in the year 2011 by mentioning her name and putting the date on the cheque and has presented the same to the bank and has filed this case. If really the Accused has returned the loan amount of Rs.1 Lakh to the complainant and the complainant has misused the cheque in question which was given to her in the year 2011, in such circumstances, definitely the Accused would have taken or initiate action against the complainant either by lodging the complaint before the police or court or at least by issuing notice to the complainant for return of her alleged signed cheque handed over to her as a security or by issuing stop payment instructions to her banker, but no such efforts have been made by the Accused even after receipt of the 58 C.C.No.14939/2015 legal notice by her and even after her appearance in this case, therefore except the bare denial of the Accused is not sufficient to hold that, she has rebutted the presumptions available to the complainant U/s.118 and 139 of the N.I. Act. It is also relevant here to mention that, the conduct of the Accused in not taking the action against the complainant for alleged misuse of the cheque in question by the complainant may leads to draw an adverse inference against her that, the Accused has not initiated any action against the complainant since the cheque in question has been issued by the Accused to the complainant towards discharge of the liability in question but not for any other purpose. In this regard it is relevant here to refer the decision of Hon'ble Apex Court of India reported in AIR 2018 SC 3601 in a case of T.P.Murugan(dead) Thr. Lrs.V. Bhojan Vs. Posa Nandi, rep. Thr. Lrs. PA holder, T.P. Murugan V. Bhojan, wherein the Hon'ble apex Court held that "Negotiable Instruments Act (26 of 1881) Ss.118, 138, 139 -
59C.C.No.14939/2015 Dishonour of cheque - Presumption as to enforceable debt cheques allegedly issued by accused towards repayment of debt Defence of accused that 10 cheques issued towards repayment of loan back in 1995 - behavior of accused in allegedly issuing 10 blank cheques back in 1995 and never asking their return for 7 years, unnatural - Accused admitting his signature on cheques and pronote, presumption under S.139 would operate against him - Complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt Conviction, Proper". Hence in view of the principles of law laid down by the Hon'ble Apex Court are aptly applicable to the case on hand since in the present case also the accused has not made any efforts to get return of cheque alleged to have been given to the complainant for security toward the loan amount of Rs.1 Lakh in the year 2011 itself, under such 60 C.C.No.14939/2015 circumstances, the said unnatural conduct of the accused in non taking of action, an adverse inference can be drawn against the accused that, the cheque in question issued by the accused persons towards discharge of the liability and presumption U/s.139 of N.I.Act would operate against her, as she has admitted the signature and cheque in question is belongs to Accused.
29. It is also important to note here that, the Accused has not denied or disputed that the cheque in question as well as the signature therein do belong to her and though she has taken the specific defence that, the cheque in question has been given to the complainant as security towards the loan amount of Rs.1 Lakh borrowed on 4.7.2011 and it has been misused by the complainant and has filed this false case against her, but the Accused has not proved the said defence by producing cogent and convincible evidence , in such circumstances it can be held that, the Accused has failed to explain and prove how the cheque in question has come to the possession of the 61 C.C.No.14939/2015 complainant, this would also give rise to an adverse inference against her, this proposition of law finds support from the decisions of Hon'ble High Court of Karnataka reported in 2010(1) KCCR 176 in the case of "Siddappa Vs. Manjappa" and in the decision of Hon'ble Apex court of India decided in Crl.A.No.664 of 2012 dated: 19.9.2019 in the case of "M.Abbas Haji Vs. T.M.Chennakeshava"
held that, " the Accused has to explain how the cheque entered into the hands of complainant".
Therefore for the above said reasons the defense taken by the accused cannot be acceptable one and accused has miserably failed to rebut the presumption available in favour of the complainant by producing cogent and convincible evidence.
30. Therefore considering all these aspects of the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant and accused the complainant has successfully established beyond 62 C.C.No.14939/2015 all reasonable doubt that, she has lent loan amount of Rs.4,27,000/ to the Accused and in order to discharge the said loan amount, the accused has issued the Ex.P.1 cheque in question for sum of Rs. 4,27,000/ in favour of the complainant and thereafter the complainant has presented the said cheque through her banker and same was returned dishonoured with an endorsement of "Funds Insufficient" and thereafter she got issued legal notice to the accused and the said notice was served on her, inspite of it, the Accused did not paid the cheque amount, hence the complainant filed the present complaint against the accused. On the other hand, the accused has failed to rebut the presumption available infavour of the complainant with regard to the existence of legally recoverable debt under Ex.P.1 Cheque. Therefore accused has committed an offence punishable U/s.138 of N.I. Act, accordingly for the above said reasons this point is answered in the Affirmative.
31. Point No.2: Negotiable Instrument Act 63 C.C.No.14939/2015 was enacted to bring credibility to the cheque and the very purpose of enactment is to promote the use of negotiable instrument, while to discourage the issuance of cheque without having sufficient funds in their accounts. Such being the case the intention of the legislature is that, complainant be suitable compensated while accused be punished for her act. Hence while awarding the compensation the said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly it will not cause injustice to the accused, accordingly the complainant is entitled for the compensation as ordered by the court and for the said reasons, it is just and proper to pass the following : ORDER Acting U/sec.255(2) of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs. 4,50,000/= (Rupees Four Lakhs and Fifty Thousand only) within one month from the date of 64 C.C.No.14939/2015 order, in default she shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs. 4,45,000/= (Rupees Four Lakhs and Forty Five Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
Her Bail bond stands cancelled after appeal period is over.
. Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 12th day of November 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
65C.C.No.14939/2015 ANNEXURE
1. List of witness/s examined on behalf of the Complainant: P.W.1 : R.Priya;
2. List of documents exhibited on behalf of the Complainant: Ex.P1 : Original Cheque;
Ex.P1(a) : Signature of the Accused;
Ex.P2 : Bank Memo Ex.P3 : Office copy of the Legal Notice; Ex.P4 : postal receipt; Ex.P5 : Postal acknowledgement; Ex.P.6 : Bank pass book Ex.P6(a) & 6(b) : Relevant Entries
3. List of witness/s examined on behalf of the Accused: DW.1 : Smt.Tulasi.S @ Tulasiyamma,
4. List of documents exhibited on behalf of the Accused: Ex.D.1 to D.3 : Bank Pass books of Accused (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
66C.C.No.14939/2015 12.11.2020 case called, Both complainant and accused are absent, counsel for the Complainant absent, counsel for the Accused present and EP filed for accused. Heard and allowed.
Judgment pronounced in the open court vide separate order.
ORDER Acting U/sec.255(2) of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.4,50,000/= (Rupees Four Lakhs and Fifty Thousand only) within one month from the date of order, in default she shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.4,45,000/= (Rupees Four Lakhs and Forty Five Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery 67 C.C.No.14939/2015 a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
Her Bail bond stands cancelled after appeal period is over.
. Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
XVI ACMM, B'luru.