Bangalore District Court
Diana Education Trust vs Udaykumar A on 28 August, 2025
SCCH-17 1 C.C. No. 7381/2021
KABC020211992021
IN THE COURT OF THE XIX ADDL. JUDGE COURT OF SMALL
CAUSES AND A.C.M.M AT BENGALURU
Dated this the 28th day of August- 2025
Present: Sri. KANCHI MAYANNA GOUTAM B.A.L, LL.M.,
Member, MACT
XIX ADDL. JUDGE,
Court of Small Causes,
CC No.7381/2021
Complainant: M/s Diana Education
Trust, No.27, 2nd cross,
Adarsha Nagar, R.T. Nagar,
Bengaluru - 560 032.
Represented by its
Managing Trustee,
Mr. Mallinath Golla,
Aged about 60 years,
S/o Mr. Gurulingappa
Golla.
(By Sri. K. Ajay Kumar ,
Advocate)
-V/s-
Accused: 1.Mr. Uday Kumar A.,
Aged about 42 years,
Residing at No.28, 2nd floor,
3rd main road, Hoysala Nagar,
SCCH-17 2 C.C. No. 7381/2021
Ramamurthy Nagar,
Bangalore - 560 016.
2. Mr. Umashankar D.,
Aged about 46 years,
Residing at No.90, Balaji Layout
Babusapalya, Kalyannagar post,
Bangalore - 560 043.
(By Sri. N.V. Vasanth , Advocate)
1. The offence Under Sec. 138 of NI Act
2. Plea of accused Pleaded guilty
3. Final order Convicted
4. Date of judgment 28.08.2025
JUDGMENT
The complainant filed this private complaint under section 200 of Cr.P.C. against the accused No.1 and 2 for the offence punishable under section 138 of Negotiable Instruments Act.
2. The brief facts of the complainant's case is as follows:
The complainant is an education trust and running Nursing College. It is alleged by the complainant that for SCCH-17 3 C.C. No. 7381/2021 the need of complainant trust the complainant was searching some financial assistance to the extent of five crores. The accused persons who are in the field of arranging bank loan approached the complainant in the year 2014 and promised to arrange a loan of Rs.5 crores through their financiers and banking institutions.
The complainant alleged that after providing the details the accused persons insisted the complainant to pay Rs.30,00,000/- to both the accused for the release of loan amount of Rs.5 crores. It is further alleged by the complainant that by believing the words of the accused persons the complainant transferred Rs.30,00,000/-
between 15.10.2014 to 21.10.2014 to the accounts of the accused No.1 and 2.
The complainant alleges that after the receipt of said amount the accused persons does not disbursed the loan amount by giving vague reasons. In the meantime the Managing Trustee of the complainant trust Sri Mallinath Golla was hospitalized due to paralyzes and was bed SCCH-17 4 C.C. No. 7381/2021 ridden and taken treatment nearly 3 years. Soon after the complainant become conscious and become able to communicate approached the accused persons for loan amount or refund of the advance amount. The accused persons delayed the same for one or the other reason. On 30.05.2019 the accused persons entered into memorandum of understanding by promising to repay the advance amount and issued five post dated cheques towards the return of Rs.30,00,000/- received by them.
The details of the cheques given by the accused No.1 and 2 are as under:
Cheque number Bank Name Date Amount
291957 Syndicate Bank 18-06-2019 5,00,000
Kasturinagar
branch
291953 Syndicate Bank 26-08-2019 6,00,000
Kasturinagar
branch
291954 Syndicate Bank 05-09-2019 6,00,000
Kasturinagar
branch
291955 Syndicate Bank 12-09-2019 6,00,000
Kasturinagar
branch
291956 Syndicate Bank 25-09-2019 7,00,000
Kasturinagar
branch
SCCH-17 5 C.C. No. 7381/2021
In the above cheques, three cheques bearing
No.291954, 291955 and 291956 were presented and they were returned unpaid. On the said cheques the separate case is filed which is pending before this court for trial in CC No.7380/2021.
The remaining two cheques bearing No.291953, 291957 were presented by the complainant for encashment on 12.09.2019 through its State Bank of India account, Dr. Shivaram Karanth branch, Bengaluru and the same were returned unpaid with a reason of "Other Reasons Connectivity Failure" on 17.09.2019 and the complainant received the memo on 18.09.2019.
Thereafter, the complainant issued legal notice, dated 11.10.2019 to the accused persons, calling upon them to pay the amount mentioned in the cheques. The accused persons intentionally avoided the notice, as such the complainant delivered the notice to the accused persons personally on 16.10.2019 for which the accused persons gave evasive reply. Hence the present complaint. SCCH-17 6 C.C. No. 7381/2021
3. Upon taking cognizance and after recording the sworn statement of the complainant, the summons was issued against the accused No.1 and 2. The accused No.1 and 2 appeared and they have released on bail. The plea of the accused No.1 & 2 recorded by this court. The accused No.1 and 2 pleaded not guilty and claimed that they have defence to make.
4. In order to discharge the burden cast upon the complainant trust, the Managing Trustee of the complainant examined as PW.1 by filing his evidence affidavit in lieu of chief examination and Ex.P1 to P9 are marked and closed its side evidence. The accused No.1 & 2 were explained about all the incriminating circumstances available against them by framing the statement under section 313 of Cr.P.C. The accused No.1 and 2 denied all the incriminatory materials found against them and also submitted that they have evidence to lead. The accused No.1 examined himself as DW.1 for himself SCCH-17 7 C.C. No. 7381/2021 and also on behalf of accused No.2 and no documents were produced by them.
5. Heard the arguments.
6. On the basis of above contentions and documents, the points that arise for my consideration are:
1) Whether the complainant proves beyond all reasonable doubts that the accused No.1 & 2 issued cheque bearing No. 291953 dated 26.08.2019, drawn on Syndicate Bank, Kasthurinagar Branch for a sum of Rs.6,00,000/-, and cheque bearing No. 291957, dated 18.06.2019 drawn on Syndicate Bank, Kasthurinagar Branch for a sum of Rs.5,00,000/- towards the discharge of legally recoverable debt, which came to be dishonoured as "Other Reasons Connectivity Failure" and further they failed to clear the cheque amount within the statutory period in spite of issuance of legal notice by the complainant and thereby the accused No.1 and 2 committed an offence punishable under section 138 of Negotiable Instruments Act?
2) What order?
7. My findings to the above points are as under:
Point No. 1 : In the Affirmative.
Point No. 2 : As per final order for the following reasons.SCCH-17 8 C.C. No. 7381/2021
REASONS
8. Point No.1 :- The present case is filed on the basis of cheques allegedly issued by the accused No.1 and 2 towards the discharge of liability in respect of return of advance amount taken from the complainant for the disbursement of the loan.
9. Before proceeding on the facts of this case it is much relevant to discuss about the ingredients of section 138 of N.I. Act to constitute the offence under this Act. In this regard, the complainant has to show:
That the cheque and signature in it belongs to the accused Such cheque was issued towards legally recoverable debt;
The said cheque came to be dishonoured; The accused not paid the amount covered under the cheque even after receipt of notice within stipulated time;SCCH-17 9 C.C. No. 7381/2021
10. To substantiate their case, the Managing Trustee of the complainant examined as PW.1 and Ex.P1 to 9 are marked. On the other hand, accused No.1 examined as DW.1 and no documents are produced by the accused persons.
11. First, for the purpose of establishing the prima facie case, if we perused the documentary evidence filed by the complainant which were marked as Ex.P1 to 9, in respect of Ex.P1 which is a cheque, dated 26-08-2019 and Ex.P.2 is a cheque dated 18.06.2019 were presented for encashment and returned unpaid as per Ex.P3 and 4 return memo dated 18-09-2019, which is within the stipulated period. The presentation of Ex.P1 and 2 cheques as per Ex.P3 and 4 is within its validity period.
As such, The requirement under section 138(a) of N.I. Act is fulfilled. Further, upon presentation of the said cheque Ex.P1 and 2 , the bank has given endorsement that the said cheques Ex.P1 and 2 were returned unpaid for the reason of "Other Reasons Connectivity Failure". The said SCCH-17 10 C.C. No. 7381/2021 endorsement of the bank is marked as Ex.P3 and 4. The Ex.P3 and 4 is dated 18-09-2019. Thereafter, the complainant has issued legal notice which is marked as Ex.P5. The Ex.P5 is written legal notice, dated 11.10.2019. The Ex.P.5 legal notice was posted on 12.10.2019 as per Ex.P.6 The Ex.P5 is issued within the 30 days of the cheque being unpaid as per Ex.P3 and 4. Hence, the requirement under section 138(b) of N.I. Act is fulfilled. The said legal notice was posted as per Ex.P6 postal receipts dated 12.10.2019. The said legal notice was returned unserved as per postal covers marked at Ex.P.7 and 8. It is alleged that the complainant personally served the legal notice to the accused persons when the legal notice was returned unserved. But no documents were produced to show that the legal notice was personally served to the accused persons. The complainant also produced Ex.P9 reply notice given by the accused persons. The Ex.P9 establishes the service of SCCH-17 11 C.C. No. 7381/2021 notice to the accused persons. Thereafter the present complaint was filed on 30.11.2019.
12. The legal notice was issued on 12.10.2019 and the complaint was filed on 30.11.2021. In between the accused persons gave reply on 06.11.2019. As per the say of the complainant he has delivered the legal notice personally on 16.10.2019 as such the complaint which is filed on 30.11.2019 is well within time. Hence, the requirement under section 138(c) R/w. Sec. 142 (b) of N.I. Act is also fulfilled. Accordingly, the prima- facie the procedure as envisaged under Sec. 138 & 142 of NI Act is complied by the complainant in respect of Ex.P1 and 2 cheques.
13. In this case the Ex.P1 and P.2 cheques were returned as per Ex.P.3 and 4 return memo with the shara of "84 - Other Reasons Connectivity Failure". By relying on this the learned counsel for the accused No.1 and 2 argued that as the Ex.P1 and P.2 does not returned unpaid for the reason of "insufficient fund" the same is SCCH-17 12 C.C. No. 7381/2021 not covers under Sec.138 of NI Act. In this regard if we perused Sec.138 of NI Act it states as follows:
138. Dishonour of cheque for insufficiency, etc., of funds in the account.--
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 in part, 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 provision 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:
Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six 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 SCCH-17 13 C.C. No. 7381/2021
(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.
Explanation.--For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability.
In this case Ex.P1 cheque is of dated 26.08.2019 and the Ex.P.2 cheque is of dated 18.06.2019 both were presented and returned unpaid as per Ex.P.3 and P.4 dated 18.09.2019. In the Ex.P.3 and P.4 the reason mentioned for return of cheque is "84- Other Reasons Connectivity Failure". Once the said Ex.P.3 and P.4 memo is received by the complainant he issued legal notice as per Ex.P.5. The receipt of legal notice as per Ex.P.5 is not disputed by the accused persons and the accused persons gave reply as per Ex.P.9. It is a settled position of law that the entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Section 138. That Clause (c) of proviso to Section 138 is meant to protect honest drawers whose SCCH-17 14 C.C. No. 7381/2021 cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. That the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected.
14. In the present case though the accused persons denies the liability but admitted the issuance of the cheque. The accused persons are not ready to pay the cheque amount before court, they completely denies the SCCH-17 15 C.C. No. 7381/2021 entire transaction. If the account of the accused No.1 and 2 maintains sufficient balance they could have replied in the Ex.P.9 reply notice to represent the cheque instead of denying the liability. It is not the case of the accused persons that even though there was sufficient balance was there in the accounts of the accused No.1 and 2 the cheque was returned for connectivity issue, as such they are not liable to penal action under Sec.138 of NI Act. Further on the same transactions the another three cheques which are allegedly issued by the accused persons are also returned unpaid but the shara for returning of those cheques are "Funds Insufficient". On the said three cheques the CC No.7380/2021 is also pending for trial before this court. The transaction of that case and this case are one and the same.
15. At this stage, the defence of the accused persons at first instance is available as per Ex.P.9 reply given by them. In the Ex.P9 reply given by the accused persons SCCH-17 16 C.C. No. 7381/2021 they have admitted the receipt of Rs.30,00,000/- from the complainant and also issuance of cheques. The contents of Ex.P9 reply notice in which the accused persons admitted the transaction of Rs.30,00,000/- to their account and issuance of cheque to the complainant is hereby quoted for better appreciation:
"The true fact is that your client has taken five cheques towards guarantee while transferring the amount of Rs.15,00,000/- (Fifteen Lakhs) each in favor of my clients with an understanding that same will be handed over to the said Gopan Kumar as instructed by our client. The reason behind the same is that, to overcome the income tax queries. Thereafter neither your client nor the said Gopan Kumar's whereabouts was not known to my clients for several years so also my client doesn't know what transpires between your client and said Gopan Kumar. After lapse of several years your client appeared and made false claim under threat and obtained some signature on the bank papers. Even after repayment of the said amount your client failed to return the said Five cheques, by misusing the same your client through you have caused this false notice with cooked up stories by suppressing the material fact. Out of the said five cheques your client now presented two cheques amounting of Rs.11,00,000/- (Eleven lakhs) on greedy of money to have the illegal benefit.SCCH-17 17 C.C. No. 7381/2021
16. The accused No.1 and 2 have not denied their relationship with the complainant. The accused No. 1 & 2 also admitted the Ex.P1 and 2 cheques and also the signature on the Ex.P1 and 2 cheques are belongs to them. The issuance of Ex.P1 and 2 cheques to the complainant is also admitted by the accused persons.
17. The major defence of the accused persons is that the Ex.P1 and 2 cheques were issued by them to the complainant as a security for Rs.30,00,000/- transferred to them and also even after the returning of Rs.30,00,000/- to the complainant, the complainant instead of returning the cheques collected for the security purpose misused the same by filing the present case. In this regard the accused No.1 examined as DW1 and deposed as follows:
ನಾನು ಈ ಸಾಕ್ಷ್ಯವನ್ನು ನನ್ನ ಪರವಾಗಿಯೂ ಹಾಗೂ ಎರಡನೇ ಆರೋಪಿಯಾದ ಉಮಾಶಂಕರ್ ರವರ ಪರವಾಗಿಯೂ ನೀಡುತ್ತಿರುತ್ತೇನೆ.
ವೇಲಾಂಕಿ ರವಿರವರು ಸದರಿ ಸಾಲವನ್ನು ಫಿರ್ಯಾದುದಾರರ ಸಂಸ್ಥೆಯ ದಾಖಲೆಗಳು ಮತ್ತು ಅಗ್ರಿಮೆಂಟ್ ಅನ್ನು ರಜಿಸ್ಟ್ರರ್ ಮಾಡಿಕೊಟ್ಟರೆ ಮಾತ್ರ ಸಾಲ ಕೊಡುವುದಾಗಿ ಹೇಳಿರುತ್ತಾ ರೆ. ಅದರಂತೆ ಫಿರ್ಯಾದುದಾರರು ಸೇಲ್ ಅಗ್ರಿಮೆಂಟ್ ಅನ್ನು ರಿಜಿಸ್ಟ್ರರ್ ಮಾಡಿ ವೇಲಾಂಕಿ SCCH-17 18 C.C. No. 7381/2021 ರವಿಯವರಿಗೆ ಕೊಟ್ಟಿದ್ದು ಅವರು 60 ಲಕ್ಷ ಸಾಲ ನೀಡಿರುತ್ತಾ ರೆ. ಸದರಿ 60 ಲಕ್ಷ ಸಾಲದ ಹಣವನ್ನು ಒಟ್ಟು 6 ಚೆಕಕ್ಕು ಗಳಲ್ಲಿ ವೆಲಾಂಕಿ ರವಿಯವರು ಫಿರ್ಯಾದುದಾರರಿಗೆ ನೀಡಿದ್ದು ಅದರಲ್ಲಿ 30 ಲಕ್ಷದ ಹಣವನ್ನು ಮಲ್ಲಿನಾಥ್ ಗೊಲ್ಲರವರು ಅವರ ಸ್ವಂತ ಅಕೌಂಟಿಗೆ ಹಾಕಿಕೊಂಡಿರುತ್ತಾ ರೆ. ಉಳಿದ 30 ಲಕ್ಷ ಹಣವನ್ನ ಮಲ್ಲಿನಾಥ್ ಗೊಲ್ಲರಮರ ಐಡಿಬಿಐ ಬ್ಯಾಂಕ್ ಬಾಣಸವಾಡಿ ಶಾಖೆಯಲ್ಲಿ ಅವರ ಹೆಸರಿನಲ್ಲಿ ಒಂದು ಖಾತೆ ಯನ್ನು ತೆರೆದು ಆ ಖಾತೆಗೆ ಮೊದಲಿಗೆ ಹಾಕಿಕೊಂಡು ನಂತರ 30 ಲಕ್ಷ ಹಣವನ್ನು ತಲಾ 15 ಲಕ್ಷದಂತೆ ನನಗೆ ಮತ್ತು ಎರಡನೇ ಆರೋಪಿಯಾದ ಉಮಾಶಂಕರ್ ನ ಖಾತೆಗೆ ವರ್ಗಾಯಿಸಿ ನಂತರ ನಗದಾಗಿ ಅವರಿಗೆ ವಾಪಾಸ್ಸು ನೀಡಲು ಹೇಳಿದ್ದರಿಂದ ಅದರಂತೆ ನಾವು ನಮ್ಮ ಖಾತೆಗೆ ಬಂದಿದ್ದ ತಲಾ 15 ಲಕ್ಷ ರೂಪಾಯಿ ಹಣವನ್ನು ನಗದು ಮಾಡಿ ಒಟ್ಟು 30 ಲಕ್ಷ ಹಣವನ್ನು ನಾನು ಮತ್ತು ಎರಡನೇ ಆರೋಪಿ ಮಲ್ಲಿನಾಥ್ ಗೊಲ್ಲರವರಿಗೆ ನೀಡಿರುತ್ತೇವೆ.
ಸದರಿ 30 ಲಕ್ಷ ನಗದು ಅವರಿಗೆ ನೀಡುವ ವ್ಯವಹಾರಕ್ಕೆ ಕುರಿತಂತೆ ನಮ್ಮಿಂದ 5 ಸಹಿ ಮಾಡಿದ ಖಾಲಿ ಚೆಕ್ಕು ಗಳನ್ನು ಸೆಕ್ಯೂ ರಿಟಿಗಾಗಿ ನೀಡುವಂತೆ ಕೇಳಿದ್ದು ಅದರಂತೆ ನಾವು 5 ಸಹಿ ಮಾಡಿದ ಖಾಲಿ ಚೆಕ್ಕು ಗಳನ್ನು ಮತ್ತ ಒಂದು ಸಹಿ ಮಾಡಿದ ಖಾಲಿ ಸ್ಟ್ಯಾಂಪ್ ಪೇಪರ್ ಅನ್ನು ಮಲ್ಲಿನಾಥ ಗೊಲ್ಲರವರಿಗೆ ನೀಡಿರುತ್ತೇವೆ. ನಾವು ಅವರಿಗೆ ಪೂರ್ತಿ ಹಣವನ್ನು ವಾಪಾಸ್ ನೀಡಿದ ನಂತರವೂ ಸಹಾ ನಮ್ಮ ಸದರಿ 5 ಚೆಕ್ ಮತ್ತು ಸ್ಟ್ಯಾಂಪ್ ಪೇಪರ್ ಅನ್ನು ವಾಪಾಸ್ಸು ನೀಡುವಂತೆ ಕೇಳಿಕೊಂಡಿರುತ್ತೇವೆ. ಅದಕ್ಕೆ ಮಲ್ಲಿನಾಥ್ ಗೊಲ್ಲರವರು ಕೊಡುತ್ತೇನೆ ಎಂದು ಹೇಳಿ ಸುಮಾರು 3-4 ತಿಂಗಳು ಸಮಯ ತಳ್ಳಿರುತ್ತಾ ರೆ. ಅದಾದ ನಂತರ ಮಲ್ಲಿನಾಥ್ ಗೊಲ್ಲರವರಿಗೆ ಆರೋಗ್ಯದ ಸಮಸ್ಯೆ ಉಂಟಾಗಿ ಪಾರ್ಶ್ವವಾಯು ಆಗಿ ಹಾಸಿಗೆ ಹಿಡಿದಿರುತ್ತಾ ರೆ. ನಾವು ಅನೇಕ ಬಾರಿ ಸದರಿ ಮಲ್ಲಿನಾಥ್ ಗೊಲ್ಲರವರ ಮನೆಯಬಳಿ ಹೋಗಿರುತ್ತೇವೆ ಆದರೆ ನಮಗೆ ಅವರು ಸಂಪರ್ಕಕ್ಕೆ ಸುಮಾರು 5 ವರ್ಷಗಳ ಕಾಲ ಸಿಕ್ಕಿರುವುದಿಲ್ಲ.
2019 ನೇ ಇಸವಿಯಲ್ಲಿ ಸದರಿ ಮಲ್ಲಿನಾಥ್ ಗೊಲ್ಲರವರೇ ನಮಗೆ ಪೋನ್ ಮಾಡಿ ಅವರಿಗೂ ಮತ್ತು ವೇಲಾಂಕಿ ರವಿಯವರಿಗೂ ಏನೊ ಸಮಸ್ಯೆ ಆಗಿದೆ ಮಲ್ಲಿನಾಥ್ ಗೊಲ್ಲರವರು ಡೀ ಪಾಲ್ಟ ಆಗಿದ್ದರಿಂದ ಆಸ್ತಿ ಹರಾಜು ಆಗಿ ಹೆಚ್ಚಿನ ಹಣ ವೇಲಾಂಕಿ ರವಿಯವರಿಗೆ ಹೋಗಿದೆ ಅವರಿಗೆ ಏನೂ ಬಂದಿಲ್ಲ. ಸದರಿ ನಷ್ಟವನ್ನು ನಾನು ಮತ್ತು ಎರಡನೇ ಆರೋಪಿ ಭರಿಸಬೇಕು ಎಂದು ಹೇಳಿರುತ್ತಾ ರೆ. ಅದಕ್ಕೆ ನನಗೆ ಮತ್ತು ಆ ವ್ಯವಹಾರಕ್ಕ್ಜೆ ಸಂಬಂದ ಇಲ್ಲ ಕೇವಲ ದುಡ್ಡು ಕೊಡಿಸಿರುತ್ತೇವೆ ಎಂದು ಹೇಳಿರುತ್ತೇವೆ. ಎಷ್ಟು ಹೇಳಿದರೂ ಕೇಳದೆ ಸದರಿ ನಮ್ಮ ಚೆಕ್ಕು ಗಳನ್ನು ಬ್ಯಾಂಕಿನಲ್ಲಿ ನಮಗೆ ತಿಳಿಸದಂತೆ ಹಾಜರುಪಡಿಸಿ ಸದರಿ ಸ್ಯ್ಟಾಂಪ್ ಪೇಪರ್ ಅನ್ನು ಸಹಾ ಬರವಣಿಗೆ ಮಾಡಿಸಿರುತ್ತಾ ರೆ. ನಾವು ಫಿರ್ಯಾದುದಾರರಿಗೆ ಯಾವೂದೇ ಹಣ ಕೊಡಬೇಕಾಗಿಲ್ಲ ಹಾಗೂ ನಾವು ಯಾವುದೇ ತಪ್ಪು ಮಾಡಿಲ್ಲ ಸುಳ್ಳು ಪ್ರಕರಣವನ್ನು ಸೃಷ್ಟಿಸಿ ಹಾಕಿರುತ್ತಾ ರೆ. ನಾವು ನೀಡಿದ 6 ಚೆಕ್ಕು ಗಳಲ್ಲಿ ಮೂರು ಚೆಕ್ ಅನ್ನು ದುರುಪಯೆಾೕಗಪಡಿಸಿಕೊಂಡು ಈ ಪ್ರಕರಣವನ್ನು SCCH-17 19 C.C. No. 7381/2021 ದಾಖಲಿಸಿದ್ದು ಉಳಿದ ಎರಡು ಚೆಕ್ಕು ಗಳನ್ನು ದುರುಪಯೆಾೕಗಪಡಿಸಿಕೊಂಡು ಸಿಸಿ ನಂಬರ್ 7381/2021 ಅನ್ನು ನಮ್ಮ ಮೇಲೆ ಫಿರ್ಯಾದುದಾರರು ದಾಖಲಿಸಿರುತ್ತಾ ರೆ.
ಈ ಪ್ರಕರಣದಲ್ಲಿ ನಮಗೆ ನೆೋಟಿಸ್ ಬಂದ ನಂತರ ನಮ್ಮ ವಕೀಲರು ಮುಖಾಂತೆ ಅವರಿಗೆ ಮರು ಉತ್ತರ ನೋಟಿಸ್ ಅನ್ನು ನೀಡಿರುತ್ತೇವೆ. ನಿ.ಪಿ 9 ನಾವು ನೀಡಿದ ಮರು ಉತ್ತರ ನೋಟಿಸ್ ಅಗಿರುತ್ತದೆ. ಹಾಗಾಗಿ ಸದರಿ ಸುಳ್ಳು ಪ್ರಕರಣವನ್ನು ವಜಾ ಮಾಡಬೇಕೆಂದು ಕೇಳಿಕೊಳ್ಳು ತ್ತೇನೆ.
18. At the time of cross-examination also the accused/DW1 admitted that the complainant transferred Rs.30,00,000/- to the accounts of accused No.1 and 2. The answers given by the DW1 in this regard is hereby quoted for better appreciation of the point under consideration:
"It is true to suggest that Rs.30 lakhs is transferred by the complainant to my account. Further witness voluntarily stated that the said Rs.30 lakhs was not a commission and it is the part of the loan of the complainant."
The above answers clearly establishes that total Rs.30,00,000/- transferred to accused No.1 and 2. To discharge his burden and to show the existence of legally recoverable debt from the accused persons the Managing SCCH-17 20 C.C. No. 7381/2021 Trustee of the complainant trust examined himself as PW1 and deposed about transfer of Rs.30,00,000/- in total to the accused persons. In this regard the PW1 cross- examined and also in the evidence of DW1 the accused persons admitted the transfer of Rs.30,00,000/- to them. Thereby, in lieu of the admission along with the evidence of DW1, the transfer of the amount of Rs.30,00,000/- to the accused No.1 and 2 stands established. The answers given by the PW1 and suggestions made to the PW1 at the time of cross-examination is hereby quoted for better appreciation:
"ರವಿಕುಮಾರ್ ವೆಲ್ಲಂಕಣಿ ಅವರು ಕೊಟ್ಟಂತಹ ರೂ.60 ಲಕ್ಷಗಳಲ್ಲಿ ಉಳಿದ ರೂ.30 ಲಕ್ಷವನ್ನು ಆರೋಪಿಗಳಿಗೆ ಕೊಟ್ಟು ಅವರ ಖಾತೆಯಿಂದ ನನ್ನ ಖಾತೆಗೆ ಬರುವಂತೆ ಪಡೆದುಕೊಂಡಿದ್ದೇನೆ ಎಂದರೆ ಸುಳ್ಳು . ಸದರಿ ಚೆಕ್ಕು ಗಳನ್ನು ತಮ್ಮ ಖಾತೆಗಳಿಂದ ನನ್ನ ಖಾತೆಗೆ ಹಾಕುವ ಗ್ಯಾ ರೆಂಟಿಗೋಸ್ಕರ ನಾವು ಆರೋಪಿಯಿಂದ ಈ ಕೇಸಿನ ಖಾಲಿ ಚೆಕ್ಕು ಗಳನ್ನು ಪಡೆದಿದವು ಎಂದು ಸೂಚಿಸಿದರೆ ಸರಿಯಲ್ಲ. ಹಾಗೆ ಗ್ಯಾ ರೆಂಟಿಗಾಗಿ ಪಡೆದುಕೊಂಡ ಚೆಕ್ಕನ್ನು ಹಾಜರು ಪಡಿಸಿ ಈಗ ಸುಳ್ಳು ಕೇಸು ಹಾಕಿದ್ದೇನೆ ಎಂದರೆ ಸುಳ್ಳು . ರವಿಕುಮಾರ್ ವೆಲ್ಲಂಕಣಿರವರು ನನಗೆ ಕೊಟ್ಟ ಚೆಕ್ಕನ್ನು ನಾನು ಆರೋಪಿಗಳಿಗೆ ಕೊಟ್ಟು ಅವರು ಅದನ್ನು ಅವರ ಅಕೌಂಟ್ ಮೂಲಕ ನನಗೆ ಕೊಟ್ಟಿದ್ದರು ಅವರು ಗ್ಯಾ ರೆಂಟಿಗಾಗಿ ಕೊಟ್ಟ ಚೆಕ್ಕನ್ನು ದುರುಪಯೋಗ ಪಡೆಸಿ ಪುನಃ ಸುಳ್ಳು ಕೇಸು ಹಾಕಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ".
Thereby the accused persons admitted the receipt of Rs.30,00,000/- to them. Further it is the defence of the SCCH-17 21 C.C. No. 7381/2021 accused persons that they have returned the said Rs.30,00,000/- to the complainant. But no probable evidence is placed by the accused No.1 and 2 about the returning of Rs.30,00,000/- to the complainant.
19. In the evidence adduced by the DW1, the DW1 deposed that they have withdrawn the said Rs.30,00,000/- and returned the same to the complainant in cash. But the accused persons have not produced any probable evidence or account statement by showing that immediately after the receipt of Rs.30,00,000/- amount they have withdrawn the same and returned to the complainant.
20. The above answers given by the PW1 at the time of cross-examination and also DW1 in his chief- examination and cross-examination of DW1 it establishes the transfer of Rs.30,00,000/- to the accused persons and also the issuance of the Ex.P1 and 2 cheques to the complainant. Once the transfer of Rs.30,00,000/- established by the complainant it is the onus on the SCCH-17 22 C.C. No. 7381/2021 accused persons to show that the said amount was given back to the complainant. But no probable evidence is placed by the accused persons by showing the return of Rs.30,00,000/- to the complainant.
21. It is very important to note that, PW.1 was cross examined and suggestions were put by stating that the entire amount transferred to the account of the accused No.1 and 2 were withdrawn and paid back to the complainant. Except this suggestion and oral evidence of DW1, no probable evidence placed by the accused persons.
22. It is very important to note that in the cross- examination it is suggested to the PW1 that the amount transferred to the accused persons was also re-transferred to the Bank account of complainant ( ರವಿಕುಮಾರ್ ವೆಲ್ಲಂಕಣಿ ಅವರು ಕೊಟ್ಟಂತಹ ರೂ.60 ಲಕ್ಷಗಳಲ್ಲಿ ಉಳಿದ ರೂ.30 ಲಕ್ಷವನ್ನು ಆರೋಪಿಗಳಿಗೆ ಕೊಟ್ಟು ಅವರ ಖಾತೆಯಿಂದ ನನ್ನ ಖಾತೆಗೆ ಬರುವಂತೆ ಪಡೆದುಕೊಂಡಿದ್ದೇನೆ ಎಂದರೆ ಸುಳ್ಳು .). The said suggestion is denied by the complainant. It is important to note that if the accused persons transferred the said SCCH-17 23 C.C. No. 7381/2021 Rs.30,00,000/- to the account of the complainant, why the accused persons not producing their account statement to show that they have re-transferred the said Rs.30,00,000/- to the complainant account. Non- production of the account statement of the accused persons is fatal in accepting the defence of the accused persons. Mere suggesting the defence or denying the case of the complainant is not sufficient to disprove the presumption available in favour of the Ex.P1 and 2 cheques.
23. Further it is stated by the accused persons that even after the payment of Rs.30,00,000/- to the complainant, the complainant has not returned the cheques and the same were misused. The said defence also cannot be accepted without probable evidence. If the complainant misused the cheque, why the accused persons did not took any legal action against the complainant for misusing the cheques. Further it is argued by the learned counsel for the complainant that SCCH-17 24 C.C. No. 7381/2021 the name, signature and dates on the Ex.P1 and 2 cheques are of the same inks and there is no grounds to consider the misuse of cheques. On this basis if we compared the details mentioned in the Ex.P1 and 2 cheque it is found that all the details looks written in a same pen in a same time. Hence, the said defence of misuse of the cheques by the complainant cannot be accepted.
24. The accused persons denies their liability on the ground that they have already paid the amount to the complainant. But the said defence is not supported with probable evidence. The mere denial of existence of legally recoverable debt is not sufficient to disbelieve the case of the complainant. No evidence or account statement of the accused persons is produced by showing that the accused No.1 and 2 withdrawn the amount and given the said amount of Rs.30,00,000/- in cash to the complainant. What prevented the accused persons in producing their account statement is not explained by the accused SCCH-17 25 C.C. No. 7381/2021 persons. In this regard if he rely on Section 114 of Evidence Act which states as follows;
Section 114. Court may presume existence of certain facts.
The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume -
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
When a party has evidence with him to prove the existence of few facts and if such party has not produced those documents and offers no explanation of non production of such evidence the adverse inference has to be drawn. By applying the said principle of law in this case, the accused persons received amount of Rs.30,00,000/- to their bank accounts. As per the say of SCCH-17 26 C.C. No. 7381/2021 accused No.1 and 2 they have withdrawn the said amount and given the same to the complainant in cash. If the account statement of the accused persons were produced it is going to establish before this court that whether the said amount is withdrawn or transferred or utilized by the accused persons. Non-production of the account statement is creating the doubt to accept the defence of the accused No.1 and 2.
25. By considering this and also on the evidence available on the record it is admitted that the Ex.P1 and 2 cheques belongs to the accused No.1 and 2 and signed by the accused No.1 and 2. In respect of existence of legally recoverable debt the learned counsel for the accused has cross-examined the PW 1. But, nothing been elicited from the mouth of the PW 1 to disprove the case of the complainant or to disbelieve the existence of legally recoverable debt. The PW.1 has properly answered in the cross-examination. Further in the reply notice given by the accused persons which is marked as Ex.P9 and also in SCCH-17 27 C.C. No. 7381/2021 the evidence of DW1 the accused persons admitted that they have received Rs.30,00,000/- in total. But the accused persons not placed any evidence by showing the return of Rs.30,00,000/- to the complainant.
26. Yet another defence is taken by the accused persons by saying that the Ex.P1 and 2 cheques were given to the complainant for the purpose of security at the time of transfer of Rs.30,00,000/- to the accused No.1 and 2 in the year 2014. To substantiate or to probablize that the cheques were issued in the year 2014 as a security cheques, the accused No.1 and 2 have not produced any evidence by leading the bank evidence to show that the Ex.P1 and 2 cheques belongs to the year 2014 and not of 2019.
27. At the time of evidence of DW1 it is stated that Rs.30,00,000/- was withdrawn and given to the complainant in cash. At the time of cross-examination of PW1 it is stated that the amount of Rs.30,00,000/- was re-transferred to the complainant account. In the reply SCCH-17 28 C.C. No. 7381/2021 notice given by the accused persons as per Ex.P11 it is mentioned as it was an understanding that the said Rs.30,00,000/- was withdrawn and given to Gopan Kumar as per the instructions of complainant. These contradictions in respect of alleged repayment of Rs.30,00,000/- by the accused persons to the complainant is also creating the doubt in accepting the defence of the accused No.1 and 2.
28. Further, the DW.1 deposed that the Ex.P1 and 2 cheques was issued by them to the complainant for the purpose of security of the transaction of Rs.30,00,000/-. Thereby, the issuance of the cheque for some transaction is admitted by the accused persons. Such being the case, when the issuance of cheque for the purpose of security to the transaction is admitted by the accused persons, it is the burden of the accused persons to prove that the legal liability which was there at the time of issuance of cheque is cleared and it is also the burden of the accused persons that the amount mentioned in the Ex.P1 and 2 cheques SCCH-17 29 C.C. No. 7381/2021 are not liable to pay by them. As per section 114(c) of Indian Evidence Act it speaks about the court may presume that the bill of exchange is accepted or endorsed, was accepted or endorsed for good consideration. Further, section 114 (i) also speaks about the court may presume that when the document creating an obligation is in the hands of the obliger, the obligation has been discharged. In the present case, the accused persons admitted that the Ex.P1 and 2 cheques was issued for the purpose of security of the transaction. The accused persons have not produced any documents or evidence to prove that they have cleared all the amount due by them for which they have issued the Ex.P1 and 2 cheques as security cheques. The accused persons have not produced any documents or evidence to probablize their defence. Such being the case, no grounds are made out to presume under section 114(i) of Indian Evidence Act or no grounds are made out to rebut the presumption under section 114(c) of Indian Evidence Act. If the accused SCCH-17 30 C.C. No. 7381/2021 persons cleared all the bill amount, why the accused persons have not taken back their cheque from the complainant after clearing the entire amount is also not explained by the accused persons. Thereby the accused persons failed to probablize their defence.
29. Once the issuance and signature is proved, it is the burden of the accused to rebut the presumptions under section 138 and 139 of the N.I. Act, which is available in favour of the complainant. The same was observed in the following judgement of the Hon'ble High Court of Karnataka.
K.L.J. 2000(3) Page 481 Dr.K.G. Ramachandra Gupta & Another V/S Dr. G. Adinarayana.
"NEGOTIABLE INSTRUMENTS ACT,
1881, Sections 138 and 139 - Cheque -
Presumption about drawing of -
Signature on cheque, admitted to be that of accused - Held, presumption envisaged in Section 139 that cheque was issued for discharging antecedent liability existing on date which cheque bears, can be legally drawn."
SCCH-17 31 C.C. No. 7381/2021
30. The accused persons have not led any probable evidence to prove their defence and to rebut the statutory presumption available under section 138 and 139 of N.I. Act. Further the accused persons have not given any complaint or taken any legal action against the complainant for misuse of the cheque even after clearing of the amount.
31. The learned counsel for complainant has made stress on the defence taken by the accused persons and argued that if the Ex.P1 and 2 cheque was misused by the complainant even after the payment of Rs.30,00,000/- by the accused persons why the accused No.1 and 2 have not taken any legal action against the complainant for misusing the cheques. In the absence of such details the contentions taken by the accused persons is not admissible and not acceptable. In the absence of these details, how the accused persons are trying to put up the defence before the court by stating that the amount of Rs.30,00,000/- was paid by the accused persons to the SCCH-17 32 C.C. No. 7381/2021 complainant is not explained. This question raised by the learned counsel for complainant is not answered by the accused No.1 and 2. The accused No.1 and 2 would have been produced any documents or evidence by showing the repayment of Rs.30,00,000/- the defence of the accused No.1 and 2 going to be a probable defence.
32. The learned counsel for the accused persons vehemently argues that the alleged transaction is of the year 2014 and the cheques allegedly to be issued in the year 2019, hence as it is time barred debt and it is not legally recoverable debt as such Sec.138 of NI Act is not applicable to this case.
33. In this regard in the judgment of Hon'ble High Court of Karnataka reported in ILR 2006 KAR 4242 between H. Narasimha Rao vs R. Venkataram decided on 11.10.2006 it is held as follows:
12. Admittedly, the loan transaction took place in the month of May, 1994. The accused issued two cheques one cheque dated 15.5.1999 for a sum of Rs. 50,000/- and another cheque dated 25.5.1999 for a sum of Rs. 10,000/-(both drawn on Bangalore SCCH-17 33 C.C. No. 7381/2021 City Co-operative Bank Limited, Bangalore,) in favour of the complainant towards discharge of the loan amount. As on 12.6.1997, the entire debt of Rs. 60,000/- had become time barred, but there is no legal bar for the debtor agreeing to pay the time barred debt. No fresh consideration is required for debtor's promise to pay the time barred debt. There is moral obligation on the accused, who is none other than the friend of the complainant, to refund the loan amount. It would be useful to refer to the observation made by Lord Mansfield, in Hawkers v.
Saunders (1782) 98 ER 1091 which reads as under:
Where a man is under a legal or equitable obligation to pay, the law implies a promise, though none was ever actually made. A fortiori, a legal or equitable duty is a sufficient consideration for an actual promise. Where a man is under a moral obligation, which no Court of Law or Equity can enforce, and promises, the honesty and rectitude of the thing is a consideration. As if a man promises, to pay a just debt, the recovery of which is barred by the Statute of Limitations; or, if a man, after he comes of age, promises to pay a meritorious debt contracted during his minority, but not for necessaries; or if a bankrupt, in affluent circumstances after his certificate, promises to pay the whole of his debts; or if a man promises to perform a secret trust, or a trust void for want of writing, by the Statute of Frauds. In such and many other instances, though the promise gives a compulsory remedy, where there was none before either in law or equity; yet as the promise is only to do what an honest man ought to do, the ties of conscience upon an upright mind are a sufficient consideration.SCCH-17 34 C.C. No. 7381/2021
11. The Hon'ble Apex Court in A.V. Murthy v. B.S. Nagabasavanna, supra, has made an observation in para-5 of the judgment as under:
...Under Section 118 of the Act, there is a presumption (hat until the contrary is proved, every negotiable instruments was drawn for consideration. Even under Section 139 of the Act, it is specifically stated that it shall be presumed, unless the contrary is proved that, the holder of a cheque received the cheque of the nature referred to in Section 138 of discharge, in whole or in part, of any debt or other liability. It is also pertinent to note that under Sub-section (3) of Section 25 of the Indian Contract, 1872, a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits, is a valid contract....
12. The Division Bench of the Kerala High Court in Ramakrishnan case, supra, following the ratio laid down in the A. V. Murthy's case, supra, held that when a person writes, signs and delivers a cheque to another it is an acknowledgement of a legally enforceable liability and therefore, if the cheque is dishonoured such a person shall not be entitled to plead that at the time of his writing the cheque the claim had become barred by limitation and thus, he is not liable to be punished under Section 138 of the Act.
13. The complainant has not disputed his signature on the dishonoured cheques in question.
Therefore, they constitute an agreement or promise by the debtor to pay the time barred debt, Since the accused has not paid the cheque amounts inspite of demand made by the complainant the SCCH-17 35 C.C. No. 7381/2021 accused has committed an offence under Section 138 of the Act. The learned Magistrate has committed an error in dismissing the complaint and recording and order of acquittal in favour of the accused.
In this case also the accused No.1 and 2 not disputed their signature on Ex.P1 and 2 cheques. Thereby, by issuing the cheques the accused persons admitted the liability. Thereby, the defence of time-barred debt is also cannot be accepted.
34. If the cheque was not returned by complainant and misused by the complainant, the accused No.1 and 2 would have given police complaint or stop payment instructions to the bank. Further, the accused No.1 and 2 have not given any instruction to their bank to stop the payment in case of present of the Ex.P1 and 2 cheques. Why the accused persons have not given any instruction to the bank when the cheque is not returned by complainant as alleged by the accused persons? In this regard, it is very important to quote the following SCCH-17 36 C.C. No. 7381/2021 judgment, which has the persuasive value to the present case.
Hemanth Pavel Gracias V/S Socorro Santhan Fernandes 2008 (1) Civil Court Cases 0743 (Bombay) "Dishonour of cheque - Blank cheque
- Misuser of blank cheque - Reply to statutory notice is not given - 'Stop Instructions' not issued to the bank -
Unusual conduct of accused -
Failure of accused to rebut the presumption - Accused held guilty under section 138 of N.I. Act.
Further, the following judgment of the Hon'ble High Court of Kerala is also has the persuasive value in deciding the facts of this case. The same is quoted below:
K.P. Rathikumar V/S N.K. Santhamma & Another.
2007 (4) Civil Court Cases 0546 (Kerala) "Dishonour of cheque -
Discharging of liability - Blank signed cheque given as security not taken back - No explanation as to why acknowledgement/voucher not taken when liability was discharged -
Plea of discharge is so fragile and SCCH-17 37 C.C. No. 7381/2021 brittle i.e. must fall to the ground as a probable and unacceptable."
35. The trial of cases under N.I. Act is supported with the presumption available under section 118 and 139 of N.I. Act. For the proper adjudication of the matter the accused has to rebut the above said presumption provided under the N.I. Act in favour of complainant through other evidence. In support of the defence, no probable evidence placed by the accused No.1 and 2.
36. The accused persons have not made any efforts to examine Velankani Ravi and Gopan Kumar to show that they have returned Rs.30,00,000/- to the complainant or to the Gopan Kumar. The non- examination of these witnesses also creates the doubt in considering the defence of the accused persons as probable defence.
37. Further, in this case, no probable defence is made out by the accused persons to hold that they have already paid Rs.30,00,000/- to the complainant. Mere SCCH-17 38 C.C. No. 7381/2021 denial is not enough to rebut the presumption as the accused persons admitted the signature in the Ex.P1 and 2 cheque. Hence, without any hesitation it can be held that the presumption available under section 138 of N.I. Act in favour of the complainant stands unrebutted.
38. Thereby, further, the transaction and issuance of cheque is proved before this court. Section 139 and 118 of N.I. Act has favourable presumptions in favour of the complainant. These presumptions are supported by the admissions made by the accused in respect of cheques and the signatures. When the presumptions are not rebutted and the defence not proved by the evidence placed by the complainant, the burden shifts upon the accused No.1 and 2 to rebut the presumption. The accused persons have not placed any probable defence to disprove the case of the complainant. Hence, the defence of the accused persons is not acceptable in the absence of proper evidence. Thereby, it can be concluded that the Ex.P1 and 2 cheques was issued in the nature provided SCCH-17 39 C.C. No. 7381/2021 under section 138 of N.I. Act. Mere denial is not sufficient to rebut the presumption in favour of the complainant. Bare denial is not sufficient to disprove the case of complainant. In this regard, it is very incumbent to quote the following judgments of the Apex Court. Kumar Exports V/S Sharma Carpets, (2009) 2 SCC 513, In paragraph No. 20 it is held that:
".............The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the SCCH-17 40 C.C. No. 7381/2021 circumstances of the case, act upon the plea that they did not exist..............."
A.I.R. 2010 SC 1898 Rangappa V/S Mohan:
"The presumption mandate by Sec. 139 of the Act does indeed including the existence of the legally enforceable debt or liability."
Further, it is also held that:
"The burden of the drawer of the instrument is not just to create a doubt or offer explanation, but such explanations has to be proved satisfactorily".
A.I.R. 2001 SC 2895 K.N. Beena V/S Muniyappan and Another:
"The burden to prove the consideration for the cheque lies on the accused if not rebutted, the presumption is that the cheque was issued for consideration. It is for the accused to prove that the cheque was not issued towards a debt or liability. He has to lead credible evidence for the rebuttal of this presumption. Mere denial of averments will not be suffice to shift this burden on to the complainant."
These citations are squarely applicable to this case as there is admission regarding the relationship, signature on Ex.P1 and 2 cheques and issuance of Ex.P1 and 2 SCCH-17 41 C.C. No. 7381/2021 cheques. The accused No.1 and 2 have not made out any sufficient grounds to disprove the complainant's case. There is no satisfactory evidence to accept the defence of the accused persons. On the other hand, the complainant successfully proved its case beyond all reasonable doubt. As such, the point No. 1 is answered in the affirmative.
39. Point No. 2: The total amount of Ex.P1 and 2 is of Rs.11,00,000/-. While passing the sentence the said total amount is considered instead of passing separate sentences on each cheques. The present case is filed on 30-11-2019. Nearly the 5 years of time is lapsed in the trial of this case. Thereafter both the parties have taken sufficient adjournments and time for the trial of the case. Hence, this court is of the opinion that while awarding the quantum of fine and compensation the period spent by both the parties has to be considered. In view of the above findings on point No.1, I proceed to pass the following order.
SCCH-17 42 C.C. No. 7381/2021
ORDER The accused No.1 and 2 are found guilty of an offence punishable under section 138 of Negotiable Instrument Act.
In exercise of powers vested under section 255(2) of Cr.P.C. 1973, the accused No.1 and 2 are convicted for the offence punishable under section 138 of Negotiable Instruments Act.
Further, the accused No.1 and 2 are sentenced to pay fine of Rs.13,00,000/- (Rupees Thirteen lakhs only) . In default, the accused No.1 and 2 shall undergo Simple Imprisonment for the period of six months. It is clarified that the serving on default sentence will not absolve the accused No.1 and 2 on payment of the fine amount.
The liability of the accused No.1 and 2 to pay the fine amount is joint and several.
Further it is held that after realizing the fine amount from the accused No.1 and 2, a sum of Rs.12,90,000/- (Rupees Twelve lakhs and ninety thousand only) shall be paid to the complainant as compensation under SCCH-17 43 C.C. No. 7381/2021 section 357(1)(b) of Cr.P.C. and the remaining Rs.10,000/- (Rupees Ten thousand only) shall be adjusted towards the expense of the State.
The bail bond and surety bond of the accused No.1 and 2 stands canceled.
(Dictated to the Stenographer directly on the computer, corrected by me and then pronounced in the open court on this the 28th day of August, 2025) (KANCHI MAYANNA GOUTAM) XIX ADDL.JUDGE, Court of Small Causes & ACJM, BENGALURU.
ANNEXURE List of witnesses examined for the complainant:
PW 1 : Mr. Mallinath Golla List of witnesses examined for the accused :
DW1 : Uday Kumar List of documents marked for the complainant:
Ex.P1 & 2 : Cheques Ex.P1(a) & 2(a) : Signature of the accused Ex.P3 &4 : Bank Memos Ex.P5 : Office copy of Legal Notice SCCH-17 44 C.C. No. 7381/2021 Ex.P6 : Postal Receipts Ex.P7 & 8 : Unopened Postal Envelopes Ex.P9 : Reply notice List of documents marked for the accused:
NIL XIX ADDL.JUDGE, Court of Small Causes & ACJM, BENGALURU.
Digitally
signed by
KANCHI
KANCHI MAYANNA
MAYANNA GOUTAM
GOUTAM Date:
2025.09.02
15:52:59
+0530