Bangalore District Court
Mohammed Mansur Pasha vs Seenappa.B on 11 May, 2023
1
C.C.No.10944/2017
KABC030254382017
Presented on : 11-04-2017
Registered on : 11-04-2017
Decided on : 11-05-2023
Duration : 6 years, 1 months, 0 days
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 11th day of May 2023
Present: Sri.N.M. RAMESHA, B'Com.,L.L.M.
XVI Addl.C.M.M., Bengaluru City.
Case No. C.C.No
: CC.No.10944/2017
Complainant : Mohammed Mansur Pasha
S/o Arif Pasha
Aged about 35 years
R/at No.472, II Cross, II Main
Near Nimrah Masjid,
Iliyas Nagar,
Bengaluru -560 078.
(By Sri.Nagraj.R., Adv,)
V/s
Accused : Seenappa.B
S/o Late. Bungappa
Aged about 48 years
R/at No.1636, V.T.Residency
26th Main, II Sector,
2
C.C.No.10944/2017
HSR Layout,
Bengaluru - 560102.
(By Sri.Gopalakrishna., Adv.,)
Case instituted : 07.03.2017
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 11.05.2023
JUDGMENT
The Complainant has filed this complaint against the accused under the provisions of Sec.200 of the Code of Criminal Procedure, for the offence punishable U/Sec.138 of the Negotiable Instruments Act.
2. The case of the Complainant is as under:-
The accused was well acquinted with complainant since 8 years in the business circle and the accused is a family friend of complainant. The accused was facing financial difficulties and hence, he has approached the complainant for financial help for family necessities. Therefore, the complainant has paid a loan of Rs.36 lakhs to the accused through RTGS on various dates. The accused having acknowledged the loan has promised to repay the loan within 4 months. The 3 C.C.No.10944/2017 accused has issued a cheque bearing No.178797 dated 05.01.2017 for Rs.36 lakhs drawn on HDFC Bank, KIADB Industrial Area, 1st Stage, Peenya, Bengaluru in favour of the complainant towards the discharge of debts and liability.
3. It is further averred in the complaint that the complainant has presented the cheque for encashment before the Axis bank Ltd., Service Branch, Bengaluru. But the cheque was dishonoured with an endorsement as 'Payment Stopped by Drawer' vide bank endorsement dated 07.01.2017. Therefore, the complainant has approached the accused and informed about dishonour of cheque for which the accused has requested the complainant to re-present the cheque for encashment before the bank in the 3 rd week of January 2017. Therefore, the complainant has re-presented the cheque for encashment before the Axis Bank Ltd., Service Branch, Bengaluru. But, the cheque was again dishonoured with an endorsement as 'Account Closed' vide bank endorsement dated 18.01.2017. Therefore, the complainant got issued a legal notice dated 30.01.2017 calling upon the accused to pay the cheque amount within 15 days from the date of receipt of legal notice. The legal notice was served on the accused on 01.02.2017. But, inspite of receipt of legal notice, the 4 C.C.No.10944/2017 accused has failed to pay the cheque amount, but issued an untenable reply on 18.02.2017 and thereby committed an offence punishable U/s.138 of NI Act. Hence, this complaint.
4. After presentation of complaint, it was ordered to be registered as PCR No.3151/2017 vide order dated 07.03.2017.
5. The sworn statement of the complainant has been recorded and the documents were marked as Ex.P1 to P7.
6. My Learned Predecessor in office having heard the arguments of learned counsel for complainant and having satisfied with the complaint averments, sworn statement of complainant and documents at Ex.P1 to P7 and prima facie materials placed on record has taken the cognizance for the offence punishable U/s.138 of N.I.Act and the case was order to be registered as CC.No.10944/2017 and the process was ordered to be issued against the accused vide order dated 04.04.2017.
7. On service of summons, the accused has appeared before the court through his learned counsel on 20.07.2017 and obtained the bail vide order dated 5 C.C.No.10944/2017 11.08.2017 by furnishing the surety. The copies of all the prosecution papers were supplied to the accused.
8. The Plea of accused for the offence punishable U/s.138 of N.I.Act has been recorded vide dated 11.08.2017 and the substance of accusation has been read over and explained to the accused in the language known to him. The accused has pleaded not guilty, but claims to be tried.
9. In order to establish the guilt against the accused, the complainant got himself examined as PW-1 and got the documents marked as Ex.P.1 to P.8. PW.1 was subjected for cross-examination at length by the learned counsel for the accused.
10. The statement of accused as contemplated under the provisions of Section 313 of Cr.P.C has been recorded vide dated 14.12.2018 and the incriminating evidence as such forthcoming against the accused in the evidence of complainant and documents has been read over and explained to the accused in the language known to him. But the accused has denied the entire evidence of complainant and documents. The accused did choose to enter the defence evidence.
6C.C.No.10944/2017
11. In order to substantiate his defence, the accused got himself examined as DW.1 and got the documents marked as Ex.D1 to D6.
12. It is at this stage of proceedings and when the case was set down for cross-examination of DW.1, both the parties have settled their dispute for Rs.36 lakhs and accordingly, have filed the joint memo before the court on 06.03.2019 and prayed to pass the judgment in terms of the joint memo filed by them.
13. My learned predecessor in office having heard the arguments of learned counsel for both the side and on considering the terms and conditions of the joint memo has passed the judgment vide dated 12.03.2019 and convicted the accused and sentenced to pay a fine of Rs.36 lakhs and directed the accused to pay the fine amount to the accused within 8 months on or before 06.11.2019 without fail and indefault of payment of compensation, the accused shall undergo simple imprisonment for one year.
14. The accused being agrrieved by the judgment and sentence passed by this court vide dated 12.03.2019 has preferred Crl.A.No.1673/2019 before the Hon'ble LX Addl.City Civil and Sessions Judge, Bengaluru City which was came to allowed vide 7 C.C.No.10944/2017 judgment dated 16.02.2021 and the judgment and order of sentence passed by this court has been set aside and matter has been remanded back to this court with a directon to dispose off the same in accordance with law and the parties were directed to appear before this court on 22.03.2021 without expecting any notice from the Trial Court.
15. In obedience to the direction of the Hon'ble Appellate Court, the case was ordered to be restored to its original file and registered in Criminal Register.
16. Accordingly, the complainant and accused have appeared before this court through their respective learned counsels.
17. The complainant being agrrieved by the order of the Hon'ble Appellate Court has preferred Crl.R.P.No.796/2021 before the Hon'ble High court Karnataka which was came to be dismissed and the Hon'ble High Court of Karnataka has pleased to directed this court to pass the judgment based on the available evidence and thereafter, consider the joint memo and all issues concerning it, at the time of sentencing the accused, in the event of his conviction.
8C.C.No.10944/2017
18. In obedience to the direction of the Hon'ble High Court of Karnataka, the case was ordered to be restored to its original file and registered in Criminal Register.
19. Accordingly, the complainant and accused have appeared before this court through their respective learned counsels.
20. I have heard the arguments of learned counsel for both the side. The learned counsel for the accused has also filed notes of arguments. The learned counsel for both the side have also filed memo with citations.
21. In the light of the arguments canvassed by learned counsel for both the side, I have carefully perused the oral and documentary evidence placed on record and also gone through the principles laid down in the cited decisions.
22. Now, the points that would arise for my consideration are as under:-
1. Whether the complainant proves that the accused has issued a cheque bearing No. 178797 dated 05.01.2017 for Rs.36 lakhs, drawn on HDFC Bank, KIADB Industrial Area, 1st Stage Peenya, Bangalore in his favour towards the legally recoverable debt of Rs.36 9 C.C.No.10944/2017 lakhs and on presentation of cheque for encashment before Axis Bank Ltd., Service Branch, Bangalore, it was dishonorued with an endorsement as 'Payment Stopped by Drawer' vide bank memo dt:07.01.2017 and with an endorsement as 'Account Closed' vide bank memo dated 18.01.2017 and in spite of issuance of legal notice dt:30.01.2017 and in spite of service of legal notice on 01.02.2017, the accused has failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of N.I.Act?
2. What Order?
23. On considering and assessing the oral and documentatry evidence placed on record, now my answers to the above points are as under :
[ Point No.1: In the Affirmative Point No.2: As per final order for the following :-
REASONS
24. Point No.1 : The provisions of Sec.20 of Negotiable Instrument Act deals about Inchoate Stamped Instruments. As per this provisions of law, where one person signs and delivers to another a paper stamped in accorance with the law relating to negotiable instrements then in force in India, and either wholly blank or having written thereon an incomplete 10 C.C.No.10944/2017 negotiable instrument, he thereby gives prima-facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, or any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instruemnt, in the capacity in which he signed the same, to any holder in due course for such amount.
25. The provisions of Sec.118 of Negotiable Instrument Act deals about presumptions as to neogtiable instruments. As per this provisions of law, unit the contrary is proved, the following presumptions shall be made:-(a) of consideration: that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transfered, was accepted, indorsed, negotiated or transferred for considertaion: (b) as to date: that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance- that every accepted bill of exchange was accpted within a reasonable time after its date and before its maturity. (d) as to time of transfer-that every transfer of a negotiable instrument was made before the maturity; (e) as to order of indorsement; that the indorsements appearing upon a negotiable instrument 11 C.C.No.10944/2017 were made in the order in which they apear thereon; (f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped and (g) that holder is a holder indue course- that the holder of a negotiable instrument is a holder in due course. [
26. The provisions of Sec.138 of Negotiable Instrument Act deals about dishonour of cheque for insufficiency etc., of funds in the accounts. As per this provisions of law, where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or inpart, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other proviosn of this Act, be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both.
12C.C.No.10944/2017
27. As per the proviso attached to the above said provisions of law, nothing contained in this section shall apply unless-(a) the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing , to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
[ 28. The provisions of Sec.139 of Negotiable Instrument Act deals about presumption in favour of holder. As per this provisions of law, it shall be presumed, unles the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability.
13C.C.No.10944/2017
29. The provisions of Section 146 of the Negotiable Instruments Act, 1881 deals about the Bank's slip prima facie evidence of certain facts. As per this provisions of law, the Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.
30. Now keeping the above said provisions of Section 20, 118, 138, 139 and 146 of N.I.Act, in mind, let us consider as to whether the complainant could able to comply the mandates, ingredients, terms and conditions of Section 138 of N.I.Act, so as to draw the presumptions in his favour as per Section 118 and 139 of N.I.Act.
31. It is averred in the complaint and stated by PW.1 in his oral evidence that the accused was well acquinted with him since 8 years in the business circle and the accused was facing financial difficulties and hence, he has approached him for financial help for family necessities and therefore, he has paid a loan of Rs.36 lakhs to the accused through RTGS on various dates and the accused having acknowledged the loan 14 C.C.No.10944/2017 has promised to repay the loan within 4 months and the accused has issued a cheque bearing No.178797 dated 05.01.2017 for Rs.36 lakhs drawn on HDFC Bank, KIADB Industrial Area, 1st Stage, Peenya, Bengaluru in his favour towards the discharge of debts and liability.
32. It is further averred in the complaint and stated by PW.1 in his oral evidence that he has presented the cheque for encashment before the Axis bank ltd., Service Branch, Bengaluru, but the cheque was dishonoured with an endorsement as 'Payment Stopped by Drawer' vide bank endorsement dated 07.01.2017 and therefore, he has approached the accused and informed about dishonour of cheque for which the accused has requested him to re-present the cheque for encashment before the bank during 3 rd week of January 2017 and therefore, he has re-presented the cheque for encashment before Axis Bank Ltd., Service Branch, Bengaluru, but, the cheque was again dishonoured with an endorsement as 'Account Closed' vide bank endorsement dated 18.01.2017 and therefore, he got issued a legal notice dated 30.01.2017 calling upon the accused to pay the cheque amount within 15 days from the date of receipt of legal notice and the legal notice was served on the accused on 01.02.2017, but, inspite of receipt of legal notice, the accused has failed to 15 C.C.No.10944/2017 pay the cheque amount, but issued an untenable reply on 18.02.2017 and therefore, he has presented the complaint before the court on 07.03.2017.
33. The complainant has produced the cheque dated 05.01.2017, bank endorsement dated 07.01.2017, legal notice dated 30.01.2017, postal receipt dated 31.01.2017, postal acknowledgement dated 01.02.2017, reply notice dated 18.02.2017, bank statement and they are marked at Ex.P1 to P8.
34. The accused neither disputed the fact that the cheque in question is belongs to him nor drawing of the cheque in an account maintained by him with his banker or issuance of cheque or his signature on the cheque or presentation of cheque for encashment or dishonour of cheque or issuance of legal notice or its service or issuance of reply notice. In fact, there is absolutely no material suggestions to PW.1 either to deny the fact that the cheque belongs to the accused or to deny the drawing of cheque in an account maintained in the account of the accused or to deny the issuance of cheque or to deny the signature of the accused on the cheque or to deny the presentation of cheque for encashment or to deny the dishonour of cheque or to 16 C.C.No.10944/2017 deny the issuance of legal notice or to deny the service of legal notice or to deny the issuance of reply notice.
35. But, on the other hand, it is suggested to PW.1 that as per the relevant entries dated 26.07.2016 in Ex.P8, he has transferred a sum of Rs.9 lakhs from his account to the account of the accused through RTGS and on 27.07.2016, he has transferred an amount of Rs.9 lakhs to the account of the accused by way of cheque and transferred an amount of Rs.9 lakhs each on 01.08.2018 and 02.08.2016 to the account of the accused. It is also suggested to PW.1 that the accused has issued the signed cheque to the complainant in respect of transaction of Sri.Annapoorneshwari Enterprises. It is also suggested to PW.1 that the amount of Rs.36 lakhs transferred by him to the account of the accused was the amount payable to the accused by Primo Inc Company.
36. Be that as it may, DW.1 in his evidence has stated that when the complainant was working with him, he has issued the signed cheque to clear the bills and payments and also issued the cheque book to the complainant in respect of car loan transaction. DW.1 in his entire evidence has not disputed either the cheque or his signature on the cheque or presentation of cheque 17 C.C.No.10944/2017 for encashment or dishonour of cheque or issuance of legal notice or service of legal notice or issuance of reply notice.
37. From these materials placed on record, it is crystal clear that the accused by necessary implications has admitted that the cheque vide Ex.P1 dated 05.01.2017 is belongs to him and he has drawn the cheque on an account maintained by him with his banker namely HDFC Bank, KIADB 1 st Stage, Peenya Branch, Bangalore and issuance of cheque to the complainant and presentation of cheque for encashment and dishonour of cheque including issuance of legal notice, its service and issuance of reply notice.
38. However, on careful perusal of complaint averments, oral evidence of PW.1 and the documentary evidence at Ex.P1 to P8, it clearly establishes that the complainant has paid an amount of Rs.36 lakhs to the accused by way of NEFT and RTGS as per bank statement vide Ex.P8. The cheque vide Ex.P1 dated 05.01.2017 is belongs to accused who has drawn the same in his account maintained with HDFC Bank, KIADB 1st Stage, Peenya Branch, Bengaluru and he has issued the cheque to the complainant and on presentation of cheque for encashment, it was 18 C.C.No.10944/2017 dishonoured with an endorsement as "payment stopped by drawer" and as "account closed" vide bank memos at Ex.P2 & P3 vide dated 07.01.2017 and 18.01.2017 and therefore, the complainant got issued a legal notice vide Ex.P4 vide dated 30.01.2017 calling upon the accused to pay the cheque amount within 15 days from the date of receipt of legal notice and the notice has been served on the accused as per Ex.P6 on 01.02.2017. But the accused has failed to pay the cheque amount within 15 days from the date of receipt of legal notice and he has issued a reply notice and therefore, the complainant has presented the complaint before the court on 07.03.2017.
39. It is pertinent to note here that the cheque vide Ex.P1 is dated 05.01.2017. The bank endorsements vide Ex.P2 & P3 are dated 07.01.2017 and 18.01.2017. It is well settled position of law that the cheque can be presented for any number of times within its validity. So, it is crystal clear that the complainant has presented the cheque for encashment before the bank within the validity of the cheque. The cheque was dishonoured with an endorsement as 'Payment Stopped by Drawer' and 'Account Closed'. The accused has not placed any materials to show that he had maintained sufficient funds in his account as on the date of presentation of cheque and therefore, he has issued the stop payment 19 C.C.No.10944/2017 instructions and closed the account. In the absence of such materials on record, it has to be held here that the cheque was dishonoured for want of sufficient funds in the account of the accused.
40. As could be seen from the documents at Ex.P4 & P5, the complainant has issued the notice on 30.01.2017 within the stipulated period of time from the date of receipt of bank endorsements giving 15 days time to the accused to comply the demands made in the notice. As could be seen from the document at Ex.P6, the notice has been served on accused vide dated 01.02.2017. Since, the accused has failed to pay the cheque amount within 15 days from the date of receipt of legal notice and since the accused has issued the reply notice denying to pay the cheque amount, the complainant has presented the complaint before the court on 07.03.2017 which was well within time.
41. So, from the oral evidence of PW.1 and the documentary evidence at Ex.P1 to P8, it is crystal clear that the complainant has complied the mandates of Sec.138 of NI Act by adducing the oral evidence of PW.1 and by producing the documentary evidence at Ex.P1 to P8. Under these circumstances, when once the complainant has complied the mandates of Sec.138 of NI 20 C.C.No.10944/2017 Act, this court has no option but to raise the presumptions in favour of the complainant as contemplated under the provisions of Sec.118 and 139 of NI Act.
42. Admittedly, the presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act are not conclusive proof, but they are rebuttable in nature. Therefore, when once the complainant has fulfilled the mandates of Sec.138 of NI Act and when once the court has drawn the presumptions in favour of the complainant U/Sec.118 and 139 of NI Act, then the onus shifts on the accused to raise a probable defence and to prove the same before the court with legal evidence and to rebut the statutory presumptions available infavour of the complainant under the provisions of Sec.118 and 139 of NI Act.
43. The learned counsel for the complainant has argued with force that the oral evidence of PW.1 coupled with documentary evidence at Ex.P1 to P8 clearly establishes that the complainant has paid an amount of Rs.36 lakhs to the accused through RTGS as per the bank statement vide Ex.P8 and the accused has issued the cheque in question vide Ex.P1 to the complainant towards the repayment of loan of Rs.36 21 C.C.No.10944/2017 lakhs which was dishonoured with an endorsement as 'Payment Stopped by Drawer' and 'Account Closed' vide bank memo at Ex.P2 & P3, but in spite of issaunce of legal notice as per Ex.P4 & P5 and in spite of service of legal notice as per Ex.P6, the accused has failed to pay the cheque amount and therefore, the accused has committed an offence U/Sec.138 of NI Act.
44. It is further contended that the accused neither disputed the transfer of amount of Rs.36 lakhs from the account of the complainant to his account as per Ex.P8 nor issuance of cheque vide Ex.P1 or presentation of cheque for encashment or dishonour of cheque as per bank memo vide Ex.P2 & P3 or issuance of legal notice at Ex.P4 or service of legal notice at Ex.P6. But, the accused has admitted that the cheque in question is belongs to him and he has admitted the signature on the cheque including service of legal notice and therefore, the presumptions are available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
45. It is further contended that the accused has taken a contention that the complainant has received an amount of Rs.36 lakhs from Kushru Basha and transferred the same his account through RTGS and the 22 C.C.No.10944/2017 complainant has received the amount from companies and misused the said amount and he has issued the cheques to the complainant to clear the bills and for payments and also issued the cheques in respect of car loan transaction which has been misused by the complainant and therefore, he has lodged a complaint before HSR Layout Police Station. But the accused has failed to prove the contention before the court and thereby failed to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
46. It is further contended that the accused has admitted his liability and hence, filed the joint memo and based on the joint memo judgment was already passed, but instead of payment of cheque amount, the accused has preferred an appeal which was allowed and thereafter, the complainant has preferred Criminal Revision Petition before the Hon'ble High Court of Karnataka which was dismissed with a direction to pass the judgement based on the available evidence on record and to consider the joint memo in the event of conviction of the accused and now the available materials clearly establishes the guilt against the accused for the offence punishable U/Sec.138 of NI Act and the complaint lodged by the accused agaisnt the complainant has been 23 C.C.No.10944/2017 stayed by the Hon'ble High court of Karnataka and therefore, the oral evidence of PW.1 and the documentary evidence at Ex.P1 to P8 deserves to be accepted and the accused is liable for conviction U/Sec.138 of NI Act.
47. In support of her submission, the learned counsel for the complainant has relied upon a decision rendered by the Hon'ble Supreme Court in SLP(Crl) No.5241/2016 in between Jain .P Jose V/s Santhosh and another, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption U/Sec.139 of NI Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. On the same principles, the learned counsel for the complainant has also relied upon a decision reported in (2021) 5 SCC 283 in between Kalamani Tex and another V/s P.Balasubramanian.
48. The learned counsel for the complainant has also relied upon a decision rendered by the Hon'ble High Court of Madhya Pradesh in W.P.No.2058/2014 in between Kanhaiyalal V/s Teekaram and others, 24 C.C.No.10944/2017 wherein, the Hon'ble High Court of Madhya Pradesh has pleased to held that the burden to prove is on the person who alleges that the compromise arrived at under order 23 rule 3 of CPC was tainted by coertion or fraud. It is the duty of the court to maintain sanctity of compromise entered into by the parties. The party cannot be permitted to withdraw from compromise, easily, that is why against decree passed on the basis of compromise the appeal is not maintainable. On the same principles, the learned counsel for the complainant has also relied upon a decision reported in (2013) 3 SCC 353 in between Ghulam Nabi Dar and others V/s State of Jammu and Kashmir and others.
49. The learned counsel for the complainant has also relied upon a decision reported in (2015) 8 SCC 378 in between T.Vasanth Kumar V/s Vijaya Kumari, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that there is a presumption U/Sec.139 of NI Act that the holder of cheque received it for discharge of debt or other liability. It is for the accused to rebut the presumption.
50. The learned counsel for the complainant has also relied upon a decision reported in (2010)11 SCC 441 between Rangappa V/s Sri. Mohan, wherein while 25 C.C.No.10944/2017 dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that the presumption mandated by Sec.139 of NI Act includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested.
51. Per-contra, the learned counsel for the accused has vehemently contended that the oral evidence of PW.1 and the docoumentary evidence at Ex.P1 to P8 do not establish the guilt against the accused. The oral and documentary evidence adduced by the complainant do not establish the existence of legally recoverable debt of Rs.36 lakhs as on the date of cheque or issuance of cheque in question towards the legally recoverable debt of Rs.36 lakhs and therefore, the accused is not liable to pay any cheque amount to the complainant.
52. It is further contended that the oral evidence of DW.1 and the documentary evidence at Ex.D1 to D6 clearly establishes that the complainant has received an amount of Rs.36 lakhs from Kshru Basha and also received more than Rs.4,12,00,000/- from Primo Inc 26 C.C.No.10944/2017 Company and other companies which was due towards Sri.Annapoorneshwari Enterprises and the accused has transferred a meger amount of Rs.36 lakhs only to the account of the accused through RTGS and the complainant has misused the amount and the accused has issued the cheques to the complainant to clear the bills and for payments to the companies and also issued the cheques in respect of car loan transaction which has been misused by the complainant and therefore, he has lodged a complaint before HSR Layout Police Station who have filed the charge sheet agaist the complainant and his associates which is pending for consideration before the court and the complainant has failed to retun the cheques and filled the cheques and misused the cheques by filing false complaint against the accused and therefore, the accused is not due towards the complainant and thereby the accused has raised a probable defence and also proved the same before the court with legal evidence and thereby rebutted the presumptions available in favour of the complainant under the provisions of Sec.118 and 138 of NI Act.
53. It is further contended that the documents at Ex.P1 to P8 do not indicate that the accused has taken any loan from the complainant at any point of time. But on the other hand, the evidence adduced by the accused 27 C.C.No.10944/2017 clearly establishes that the complainant has received more than Rs.4, 12,00,000/-. The complainant has not paid any amount to the accused and therefore, the accused has lodged a complaint against the complainant for misappropriation of funds, cheating, forgery etc. The joint memo filed by the complainant and accused has been set aside by the Hon'ble Appellate Court and the evidence of the accused also remained unchellenged by the complainant. The complainant has released all his rights and claims on all the assets of the partnership firm and therefore, the complainant cannot claim cheque amount from the accused and thereby failed to prove loan transaction. But, the accused has raised a probable defence and proved the same before the court with prepondernace of probabilities by eliciting the mateiral facts in the cross examination of PW.1 and also by adducing the oral evidence of DW.1 and by producing the documentary evidence at Ex.D1 to D6 and therefore, the accused is entitled to an order of acquittal U/Sec.138 of NI Act.
54. In support of his submission, the learned counsel for the accused has relied upon a decision reported in (2006) 6 SCC 39 in between M.S.Narayana Menan @ Mani v/s State of Kerala and another , wherein while dealing with the provisions of Sec.138 of 28 C.C.No.10944/2017 NI Act, the Hon'ble Supreme Court has pleased to held that the initial burden of proof is on the accused to rebut the presumptions by rising the probable defence - if he discharges the said burden, the ouns thereafter shifts on to the complainant to prove his case. Burden of proof on accused is not heavy. He need not disprove the prosecution case in its entirity.
55. The learned counsel for the accused has also relied upon a decision reported in 2020 (3) KCCR 2373 in between Vishal V/s Prakash Kadappa Hegganvar wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble High Court of Karnataka has pleased to held that when no evidence let in regarding lending of money to a huge extent, then the accused is entitiled to an order of acquittal.
56. The learned counsel for the accused has also relied upon a decision repoted in (2009) 2 SCC 513 in between Kumar Exports V/s Sharma Carpets, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that presumption U/Sec.118 of NI Act is to facilitate negiotiability of an instrument. It is for this purpose, Sec.118 and NI Act has departed from General Law of contract wherein, existence of consideration has to be 29 C.C.No.10944/2017 proved in the first instance. The Act also creates special rules of evidence for negotiable instruments.
57. The learned counsel for the accused has also relied upon a decision reported in (2015) 1 SCC 99 in between K.Subramani V/s K.Damodhar Naidu, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that when the complainant not proved the legally recoverable debt as the complainant could not prove the source of income from which alleged loan was made to accused, then the presumption in favour of holder of cheque stood rebutted and the accused is entitled to an order of acquittal.
58. Now keeping the arguments canvassed by the learned counsel for both the side and the principles laid down in the above cited decisions in mind, let us consider as to whether the accused could able to raise a probable defence and whether the accused could be prove the same before the court with legal evidence and whether the accused could able to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
59. It is the evidence of DW.1 that he was working as a scientist and a research head commencing from 30 C.C.No.10944/2017 1989 to 2007 in different institution in India and also Abroad and he married with daughter a Senior Police officer namely Subash Bharani which was later on divorced and he came in contact with complainant through the personal secretary of his father in law in the year 2007 and at that time, the complainant was working as a driver.
60. It is the further evidence of DW.1 that he has obtained a licence to conduct a quarry business in the year 2010 and started Sri Annapoorneshwari Enterprises in the year 2012 and he has taken the complainant as a pertner to the said enterprises on the recommendation of his father in law and the enterprises was reconstituted for several times commencing from 2012 to 2016 and the complainant retired from the firm on 03.05.2016, but, however the complainant was looking after the affairs of the company and introduced one Kshuru Basha to him on 21.07.2016 who is the partner of Primo Inc and there was a memorandum of understanding vide Ex.D3 between Sri.Annapoorneshwari Enterprises and Primo Inc and Primo Inc company was due for Rs.4,12,00,000/- towards Sri.Annapoorneshwari Enterprises which is required to supply bolder stones to Primo Inc and the complainant has received an amount of Rs.36 lakhs 31 C.C.No.10944/2017 from Kshru Basha and transferred to his account through RTGS which was payable to him and the compalinant has misued the cheques which were issued for clearance of bills and payments and also issued for car loan transaction and the complainat has misappropriated an amoun of Rs.4,12,00,000/- and therefore, he has lodged a complain before HSR Layout Police Station which is pending for investigation and therefore, the complaint is liable to be dismissed.
61. The accused has produced an Acknowledgement of Registration of Firms, Deed of Partership Dated 11.11.2012, Agreement for supply of building stone bolders, complaint dated 27.03.2018 lodged before HSR Layout Police Station, Decree in M.C.No.103/2014 and they are marked at Ex.D1 to D6.
62. But, though the accused has taken the above said bald contention, same has not been amplied before the court in any manner. Though the defence taken by the accused is appears to be more attractive, but on deeper scrunity of the documents placed on record, it do not have any substance. The accused has not elicited anything in the evidence of PW.1 either to substantiate his probable defence or to rebut the statutory presumptions available in favour of the complainant or 32 C.C.No.10944/2017 to falsify the case made out by the complainant or to falsify the oral evidence of PW.1 or to falsify the documentary evidence at Ex.P1 to P8.
63. No doubt, it is suggested to PW.1 that he retired from partnership firm on 03.05.2016; that the amount which he has received from Primo Inc Company is in respect of an agreement vide Ex.D3; that the amount transferred from Primo Inc Company to his account as shown in the entries vide Ex.P8 are the amounts due from the said company as per agreement vide Ex.D3; that he do not possessed or owned any trucks and therefore, he has not produced any documents; that he was working as a driver with accused; that he has misused the cheques issued by the accused in respect of transaction of Sri.Annapooreneshwari Enterpirses; that the amount of Rs.36 lakhs transferred by him to the account of the accused was the amount due to the accused from Primo Inc Company.
64. But, all these material suggestions have been specifically denied by PW.1. Therefore, it is said that the denied suggestions are always remained as suggestions only and not come in the way of accused either to substantiate his probable defence or to rebut the 33 C.C.No.10944/2017 statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act or to falsify the case made out by the complainant or to falsify the oral evidence of PW.1 or to falsify the documentary evidence at Ex.P1 to P8.
65. However, there is no material suggestions to P.W.1 either to deny the transfer of amount of Rs.36 lakhs by the complainant to the account of accused as per Ex.P8 or to deny the transaction between the complainant and the accused or to deny the issuance of cheque vide Ex.P1 or to deny the signature of the accused on the cheque vide Ex.P1(a) or to deny the presentation of cheque for encashment before the bank within its validity or to deny the dishonour of cheque with an endorsement as 'Payment Stopped by Drawer' and with an endorsement as 'Account Closed' vide bank memos vide Ex.P2 & P3 or to dney the issuance of legal notice vide Ex.P4 or to deny the service of legal notice vide Ex.P6 or to deny the issuance of reply notice vide Ex.P7.
66. There is also no material suggestions to PW.1 as to how and in what manner the complainant has concocted and created the documents and as to how and in what manner the complainant has misused the 34 C.C.No.10944/2017 cheque. If really the complainant has concocted and created the documents and misused the cheque in question, then there must be some material suggestions to PW.1 as to how and in what manner the complainant has concocted and created the documents and as to how and in what manner the complainant has misused the cheque. But there is no material suggestions in this regard to PW.1.
67. But, on the other hand, it is forthcoming in the evidence of PW.1 that the accused being known to complainant who was facing financial difficulties has approached the complainant for loan and therefore, the complainant has paid an amount of Rs.36 lakhs to the accused through NEFT and RTGS as per Ex.P8 and the accused has issued the cheque vide Ex.P1 in favour of the complainant for legally recoverable debt of Rs.36 lakhs which was dishonoured as per bank endorsements vide Ex.P2 & P3 and in spite of issuance of legal notice vide Ex.P4 and in spite of service of legal notice as per Ex.P6, the accused has failed to pay the cheque amount within time and therefore, the complainant has lodged a complaint before the court against the accused.
68. No doubt, as rightly pointed out by the learned counsel for the accused that PW.1 has admitted that he 35 C.C.No.10944/2017 has received the amount from Primo Inc firm towards the transporation of advance to the extent of Rs.1,50,00,000/- and received Rs.50,00,000/- as per entry dated 25.07.2016 vide Ex.P8 from Primo Inc Firm and received a sum of Rs.50 lakhs from Primo Inc Firm through cheque vide dated 28.07.2016 and received an amount of Rs.50 lakhs from Primo Inc Firm. It is also admitted by PW.1 that there was an agreement between him and Primo Inc Firm in respect of payment of Rs.1,50,00,000/- towards transporation advance and there were two agreements between him and Primo Inc Firm in his individual capacity and a sum of Rs.1 crore has been received from Manum Enterprises towards transporation charges and he has not obtained any loan agreements for having paid Rs.36 lakhs to the accused.
69. But, as rightly pointed out by the learned counsel for the complainant and it is also not in dispute that the accused being a scientist and research head was working in different institutions in and around India including abroad and the accused himself taken the complainant as a partner to Sri.Annapoorneshwari Enterprises in the year 2012 as per Deed of Partnership dated 11.01.2012 vide Ex.D2 and the complainant and accused have also obtained business licence as per Ex.D1 to conduct quarry business and there was also an 36 C.C.No.10944/2017 agreement for supply of building stone boulders vide Ex.D3.
70. It is also forthcoming in the evidence of PW.1 that whatever the amount received by him from Primo Inc Firm and other firms was towards the transporation advance and the complainant being one of the partner of Sri.Annapoorneshwari Enterprises and in view of agreements between Sri.Annapoorneshwari and Primo Inc firm, the complainant has received the amount from the said firm towards the transporation advances. Moreover, the facts remained unchallenged that the complainant has paid an amount of Rs.36 lakhs to the accused through account transfer vide Ex.P8 and the accused has admitted the issue of cheque in question including his signature on the cheque. Under these circumstances, merely on the basis of above admissions made by PW.1 during the course of his cross- examination, it cannot be come to the conclusion that there was no existence of legally recoverable debt of Rs.36 lakhs and the accused has not issued the cheque in question vide Ex.P1 to the complainant.
71. No doubt, as rightly pointed out by the learned counsel for the accused that the evidence of DW.1 remained unchallenged. Because DW.1 was not 37 C.C.No.10944/2017 subjected for cross-examination by the complainant. It is also no doubt true that based on the complaint vide Ex.D5 dated 27.03.2018 lodged by accused, the HSR Layout Police have registered Cr.No.93/2018 vide FIR at Ex.D4 against complainant and 5 others for the offence punishable U/Sec.408, 420, 468, 504 and 506 R/w.Sec.34 of IPC and it is an admitted fact that on completion of investigation, the HSR Police Station have filed the charge sheet.
72. But, as rightly pointed out by the learned counsel for the complainant that the Hon'ble High Court of Karnataka has pleased to stayed the criminal proceedings in Cr.No.93/2018. Under these circumstances, whether the complainant and others have committed the alleged offences U/Sec.408, 420, 468, 504 and 506 R/w.Sec.34 of IPC or not is a matter which requires evaluation of evidence to be recorded at the trial before the Hon'ble 4th ACMM, Bengaluru in which the case is pending and therefore, in view of stay of proceedings as per the order of the Hon'ble High Court of Karnataka and in view of the pendency of case before the Hon'ble 4th ACMM, Bengaluru, it is not permissable and not advisable for this court to consider the documents at Ex.D4 to D6 including the merits of the said case. But, this court has to consider as to 38 C.C.No.10944/2017 whether the material evidence available on record attracts the offence U/Sec.138 of NI Act against the accused or not and whether the complainant has proved the guilt against the accused for the offence punishable U/Sec.138 of NI Act or not. The oral evidence of PW.1 and the documentary evidence at Ex.P1 to P8 clearly establishes the compliance of Sec.138 of NI Act and guilt against the accused for the offence U/Sec.138 of NI Act.
73. It is pertinent to note here that if really the accused had not availed a loan of Rs.36 lakhs from the complainant as per Ex.P8 and if really the accused has issued the cheque in question to the complainant for payment of amount to the different companies or for car loan transaction or for any loan of companies and if really the accused has not issued the cheque in question towards the legally recoverable debt of Rs.36 lakhs and if really the complainant has misused the cheque and filed the false case against the accused and if really the complainant has created and concocted the documents, then the accused could have definately lodged a complaint at the earliest point of time against the complainant for misuse of cheque and for concoction and creation of documents or could have taken some legal action against the complainant at the earliest point of time. But, he has not done so. No explanation as such 39 C.C.No.10944/2017 forthcoming either in the evidence of DW.1 or during the course of cross-examination of PW.1. In the absence of such an explanation and in the absence of such materials on record, the defence of the accused that he has not availed a loan of Rs.36 lakhs and has not issued the cheque in question for legally recoverable debt and the amount transferred by the complaianant was not the loan, but the said amount was in fact received from the companies which was due towards him and the complainant has misused the cheque is not sustainable under law and therefore, cannot be accepted.
74. But, on the other hand, as could be seen from the materials placed on record, the payment of Rs.36 lakhs was made on 26.07.2016, 27.07.2016, 01.08.2016 and 02.08.2016 as per Ex.P8. The cheque is dated 05.01.2017. The cheque was dishonoured on 07.01.2017 and 18.01.2017. The complainant got issued the legal notice on 30.01.2017 which was served on the accused on 01.02.2017 and in fact, the accused has issued the reply notice on 18.02.2017. The complainant has filed the complaint before the court on 07.03.2017. Cognizance was taken on 04.04.2017 and process was issued. The accused has appeared before the court and obtained the bail on 11.08.2017 and plea was also recorded on the same day on 11.08.2017 and the 40 C.C.No.10944/2017 defence of the accused was as that of total denial and there is no specific defence at the time of recording the plea. He has not disclosed his probable defence at the time of recording the plea including at the time of recording the statement U/Sec.313 of Cr.P.C. vide dated 14.12.2018. But the accused has not taken action against the complainant at the earliest point of time for misuse of cheque and creation and concoction of documents till the adjournment of case for cross- examination of PW.1.
75. But, as could be seen from the documents at Ex.D4 & D5, when the case is set down for cross- examination of PW.1, the accused has lodged a complaint only on 27.03.2018 after more than 1 year from the date of loan transaction, date of cheque, date of presentation, date of dishonour, date of legal notice and date of service of legal notice. The police after investigation of the case have filed the charge sheet and the Hon'ble High Court of Karnataka has pleased to stayed the proceedings initiated in Cr.No.93/2018. The accused has not explained before the court for all these delay in taking action against the complainant for misuse of cheque. In the absence of such an explanation, it has to be held here that in order to avoid the repayment of loan and cheque amount and in order 41 C.C.No.10944/2017 to take a bald contention to the case made out by the complainant, the accused has filed the complaint after more than one year for the reasons best known to him. Under these circumstances, the very inaction on the part of the accused in this regard leads to an adverse inference and consequently, the defence of the accused is not sustainable under law and therefore, cannot be accepted. Therefore, utmost confidence cannot be reposed on the evidence of DW.1 including defence put forth by the accused and much reliance cannot be placed on the documents at Ex.D1 to D6.
76. Therefore, the evidence of DW.1 and the documents at Ex.D1 to D6 and criminal proceedings in Cr.No.93/2018 do not come in the way of accused to rebut the presumptions available in favour of the complainat under the provisions of Sec.118 and 139 of NI Act. But, on the other hand, the oral evidence of PW.1 is very much consistent and also inconfirmity with case made out by the complainant and the documents at Ex.P1 to P8. Therefore, there are no reasons to disbelieve or to discard the oral evidence of PW1 and the documents at Ex.P1 to P8.
77. On appreciation of entire oral and documentary evidence placed on record, it is found that 42 C.C.No.10944/2017 the accused has availed a loan of Rs.36 lakhs from the complainant through RTGS and NEFT as per the bank statement vide Ex.P8 and has issued a cheque vide Ex.P1 towards the repayment of loan amount of Rs.36 lakhs and on presentation of cheque for encashment within its validity, it was dishonoured vide bank memo at Ex.P2 & P3 and therefore, the complainant got issued a legal notice vide Ex.P4 dated 30.01.2017 within the stipulated period from the date of receipt of bank endorsement giving 15 days time to the accused to comply the demands made in the notice, but in spite of service of legal notice as per Ex.P6, the accused has failed to pay the cheque amount of Rs.36 lakhs and therefore, the complainant has presented the compaint before the court on 07.03.2017 which was within time.
78. It is pertinent to note here that the document at Ex.P8 being a bank statement clearly establishes the loan transaction of Rs.36 lakhs between the complainant and the accused through NEFT and RTGS. The document at Ex.P1 being a cheque raises the presumptions in favour of the complainant as per Sec.118 and 139 of NI Act. The documents at Ex.P2 & P3 being the bank memos also raises the presumptions as per Sec.146 of NI Act. The accused has not disputed the documents at Ex.P1 to P8. The accused has not 43 C.C.No.10944/2017 disputed the issuance of cheque and his signature on the cheque including presentation of cheque for encashment and its dishonour and service of legal notice. The accused has failed to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act and thereby failed to substantiate his probable defence before the court.
79. Therefore, there is some legal and considerable force in the arguments of the learned counsel for the complainant that the accused has issued the cheque vide Ex.P1 in favour of the complainant for repayment of loan amount of Rs.36 lakhs obtained by him through NEFT and RTGS as per Ex.P8 and on presentation of cheque for encashment, it was dishonoured as per Ex.P2 & P3, but in spite of service of legal notice, the accused has failed to pay the cheque amount and therefore, the complainant has presented the complaint before the court on 07.03.2017 and thereby complied all the mandates of Sec.138 of NI Act and therefore, the presumptions are available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act, but the accused has failed to raise a probable defence and thereby failed to substantiate the probable defence taken by him and also failed to rebut the statutory 44 C.C.No.10944/2017 presumptions available in favour of the complainant U/Sec.118 and 139 of NI Act, but the complainant has proved the guilt against the accused with oral evidence of PW.1 and the documentary evidence at Ex.P1 to P8 and therefore, the accused is liable for conviction U/Sec.138 of NI Act and the decisions cited in this regard are also applicable to the present facts and circumstances of the case.
80. But, on the other hand, the arguments of the learned counsel for the accused that the oral evidence of PW.1 and the documentary evidence at Ex.P1 to P8 do not establish either the loan transaction of Rs.36 lakhs or existence of legally recoverable debt of Rs.36 lakhs or issuance of cheque in question to the complainant towards the legally recoverable debt of Rs.36 lakhs and thereby the complainant has failed to prove the guilt against the accused, but the accused has raised a probable defence and proved the same before the court with oral evidence of DW.1 and the documents at Ex.D1 to D6 and also by eliciting the material facts in the evidence of PW.1 which clearly establishes that the accused has not availed any loan from the complainant or issued any cheque to the complainant towards the repayment of loan amount and the accused is not due for any amount and the complainant has misused the 45 C.C.No.10944/2017 cheque which was issued for payment of bill amount and car loan transaction and has also misused the amount received from the companies and thereby the accused has rebutted the presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act, but the complainant has failed to prove the guilt against the accused and therefore, the accused is entitled to an order of acquittal is not sustainable under law and therefore, cannot be accepted and the decisions cited in this regard are also not applicable to the present facts and circumstances of the case.
81. Therefore, for the reasons discussed above, this court is of the considered view that the materials placed on record clearly establishes the guilt against the accused for the offence punishable U/Sec.138 of N.I.Act. Hence, I hold that the complainant has proved the guilt against the accused for the offence punishable U/s.138 of NI Act. Hence, I answer point No.1 in the 'Affirmative'.
82 . POINT. No.2:- The provisions of Section 138 of N.I.Act provides punishment for imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of cheque or with 46 C.C.No.10944/2017 both. In the present case, the complainant and the accused were known to each other. The complainant has paid Rs.36 lakhs to the accused through NEFT and RTGS as per Ex.P8 and the accused has availed the loan for family necessities and issued the cheque in question towards repayment of loan of Rs.36 lakhs. The Hon'ble High Court of Karnataka has pleased to directed this court to pass the judgment based on the available evidence and thereafter, consider the joint memo at the time of sentencing the accused in the event of his conviction. As per the joint memo, the accused has admitted his liability and agreed to pay the cheque amount of Rs.36 lakhs for which the complainant has admitted and also accepted in the joint memo. Therefore, considering the nature of loan transaction between the complainant and the accused including the facts and circumstances of the case and time taken for disposal of this case, this Court is of the considered view that if the following sentence is awarded, then it would meet the ends of justice. Hence, in view of my findings on point No.1, I proceed to pass the following:-
ORD ER The accused is found guilty for the offence punishable U/s.138 of Negotiable Instruments Act.47
C.C.No.10944/2017 Hence, acting U/sec.255(2) of Cr.P.C, the accused is convicted and sentenced to pay fine of Rs.36,00,000/-(Rupees Thirty Six Lakhs Only), in default of fine amount, he shall undergo simple imprisonment for One Year for the offence punishable under section 138 of N.I.Act.
The fine amount of Rs.36 lakhs collected from the accused, shall be paid to the complainant as compensation U/s.357 of Cr.P.C.
The bail bond and surety bonds of the accused shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.
Office to supply the copy of the Judgment to the accused forthwith at free of cost.
(Dictated to the stenographer, transcribed by her, print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 11th May 2023).
(N.M.RAMESHA) XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-48
C.C.No.10944/2017 P.W.1 : Mohammed Mansur Pasha
2. List of documents exhibited on behalf of the Complainant:-
Ex.P.1 : Original Cheque. Ex.P.1(a) : Signature of the Accused. Ex.P.2 & 3 : Bank Memos. Ex.P.4 : Copy of Legal Notice. Ex.P.5 : Postal Receipt. Ex.P.6 : Postal Acknowledgment Ex.P.7 : Notice Ex.P.8 : Bank Statement
3. List of witness/s examined on behalf of the Accused:-
DW.1 ; Seenappa.B
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 : C/c Acknowledgment of Registration of Firms.
Ex.D.2 : C/c Deed of Partnership.
Ex.D.3 : Agreement for Supply of Building
Stone Boulders dated 21.07.2016.
Ex.D.4 : FIR in Cr.No.93/2018.
Ex.D.5 : Complaint before HSR Layout PS.
Ex.D.6 : Decree in M.C.No.103/2014.
(N.M.RAMESHA)
XVI ACMM, Bengaluru City.
49
C.C.No.10944/2017
11.05.2023
Judgment pronounced in open court,
(vide separate order)
ORDER
50
C.C.No.10944/2017
The accused is found guilty for the
offence punishable U/s.138 of
Negotiable Instruments Act.
Hence, acting U/sec.255(2) of
Cr.P.C, the accused is convicted and
sentenced to pay fine of
Rs.36,00,000/-(Rupees Thirty Six
Lakhs Only), in default of fine
amount, he shall undergo simple
imprisonment for One Year for the
offence punishable under section 138 of N.I.Act.
The fine amount of Rs.36 lakhs collected from the accused, shall be paid to the complainant as compensation U/s.357 of Cr.P.C.
The bail bond and surety bonds of the accused shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.
Office to supply the copy of the Judgment to the accused forthwith at free of cost.
[ XVI ACMM, Bengaluru City