Bangalore District Court
D Mahadevi vs Lokesh B R on 2 January, 2024
KABC030574102020
IN THE COURT OF XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
PRESENT: BHOLA PANDIT,
B.Com.,LL.M.,
XX ADDL. C.M.M.
Bengaluru.
Dated this the 2nd day of January 2024
C.C.No.15795/2020
Complainant : Smt.D.Mahadevi,
W/o D.Veerabhadra Gouda,
Age 62 years,
R/at.No.383, 2nd Main Road,
5th Cross, HMT Layout,
Nagasandra Post, Bengaluru North,
Bengaluru- 560 073.
{ By Sri.N.Shamanna - Advocate }
Vs.
Accused : Sri. Lokesh.B.R.
Age 39 years,
R/at.No.152,
'Sri Bhyraveshwara Nilaya',
The Proprietor of 'Sri Bhyraveshwara
Traders', 1st Main Road,
2nd Block,
HMT Layout,
2 C.C.15795/2020
Nagasandra Post,
Bengaluru- 560 073.
{ By Sri.N.Shiva Murthy - Advocate }
Offence complained : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of Order : 02-01-2024
JUDGMENT
The present complaint is filed under section 2(d) read with section 200 of code of criminal procedure against the accused seeking to punish him for the offence punishable under section 138 of the Negotiable Instruments Act ( in short referred as "N.I. Act"). 3 C.C.15795/2020
02. The factual matrix of the complaint is summarized as under;
It is alleged that, the complainant and accused are known to each other since for the past six years. The accused has been running the sole trading business in the name of 'Sri Bhyraveshwara Traders' and selling cement in the HMT Layout, Nagasandra Post, Bengaluru. In order to have working capital, the accused has approached the complainant for financial assistance of Rs.5,00,000/- in the month of January 2020 and on 06.02.2020, the complainant has lent a sum of Rs.5,00,000/- to the accused by way of cash. The accused had agreed to repay the said amount within three months. It is further alleged that, the accused has issued a cheque bearing No.277536 Dated 07.05.2020 for Rs.5,00,000/- drawn on State Bank Mysore, Peenya 2 nd Stage Branch, Bengaluru in favour of the complainant. The complainant has presented the above said cheque for encashment through her banker on the same date, it has returned with shara as "Funds 4 C.C.15795/2020 Insufficient" as per banker's memo dated on 08.05.2020. Thereafter, on the request of the accused, the cheque was presented on 16.05.2020, again the cheque returned due to "Funds Insufficient" as per return memo dated 18.05.2020. Thereafter, the complainant got issued demand notice on 27.05.2020, to the accused and the said notice was duly served to the accused on 02.06.2020 and the accused has also given untenable reply to his notice. Thus, the complainant has sought to punish the accused and award him suitable compensation.
03. On presentation of the complaint and after verification of the averments of the complaint as well as the annexed documents, this court took the cognizance for the offence punishable under section 138 of NI Act. As per the verdicts of the Hon'ble Apex court in the case of Indian Bank Association and others V/s Union of India and others, the sworn statement of the complainant has been recorded by way of examination-in-chief as PW.1 and got marked in all seven documents at Ex.P.01 to Ex.P.07. After 5 C.C.15795/2020 scrutinizing the oral and documentary evidence of the complainant prima-facie case is made out for the trial. Accordingly, by registering criminal case in Register No. III, summons has been issued against the accused.
04. In response to the summons, the accused put his appearance before the court through his counsel and filed bail application under section 436 of Code of Criminal Procedure, the accused has been enlarged on bail. The substance of accusation has been recorded and read over to the accused, he pleaded not guilty and stated the defense that, ' In the year 2016, the accused had availed hand loan of Rs.2,00,000/- from the son of complainant by name Chethan Kumar and had issued cheque for the security purpose. In the year 2017, even after repayment of the entire amount to the complainant's son, had misused the cheque issued for the security purpose'. On filing application by the complainant under section 145(1) of NI Act, sworn statement of the complainant has been treated as examination in chief. Similarly, on filing 6 C.C.15795/2020 application under section 145(2) of NI Act, the accused has been permitted to cross examine PW.1. On completion of the trial of the complainant's side, the statement of accused under section 313 of Code of Criminal Procedure has been recorded and read over to the accused, the incriminating material found in the trial of the case of the complainant. The accused has denied the same in toto and gave explanation stating that, ' In the year 2016, he had issued cheque to the complainant's son , has misused the same to file this case'. The accused also wants to lead his defense evidence. Similarly, the accused has filed his evidence in the form of affidavit. As per the judgment of the Hon'ble High Court of Karnataka in Cr.Pet.No.9331/2017 dated 02.07.2019 in the case of Vittal Sambrekar Vs. Manjunath, the accused is permitted to lead his defense evidence by way of affidavit and got exhibited four documents at Ex.D.01 to Ex.D.04. 7 C.C.15795/2020
05. Heard the oral argument of Learned counsels for both the parties. Perused the material evidence available on record.
In support of his oral argument, the Learned counsel for the complainant has relied the following verdicts;
1. KCCR 2019(1) Page 881
2. KCCR 2019(5) Page 1228
3. KCCR 2014(5) Page 1367
4. KCCR 2015(4) Page 2881
5. KCCR 2015(1) Page 235
6. KCCR 2022(1) Page 508
7. KCCR 2020(5) Page 86 In support of his oral argument, the Learned counsel for the complainant has relied the following verdicts;
01. (2019)5 Supreme Court Cases 418 Basalingappa Vs. Mudibasappa
02. 2023 Live Law (SC)46, Supreme Court Rajaram Vs. Maruthachalam
03. (2014)2 Supreme Court Cases 236 John K. Abraham Vs. Simon C.Abraham & Another 8 C.C.15795/2020
04. ILR 2020 KAR 227 Manjunath Vs. B.K.Subbarao
05. (2010)11 Supreme Court Cases 441 Rangappa Vs. Mohan I have carefully and meticulously gone through the above relied precedents.
06. The following points that arise for my consideration are as under;
POINTS
1. Does the complainant proves beyond reasonable doubts that, the accused has issued a cheque bearing No.277536 Dated 07.05.2020 for Rs.5,00,000/-
towards the discharge of his lawful liability of the complainant and when the said cheque was presented for encashment twice, it was returned both the times unpaid due to "Funds Insufficient" in the account of the drawer as per banker's memo and inspite of issuance of demand notice , the accused has failed to pay the cheque amount, thereby has committed the offence punishable under section 138 of NI Act?
2. What Order or sentence ?
9 C.C.15795/2020
07. My findings to the above points is as follows;
1. Point No.1: In the affirmative
2. Point No.2: As per final order for the following;
REASONS
08. POINT No.1: It is the specific case of the complainant that, the accused had borrowed hand loan of Rs.5,00,000/- in cash from the complainant to meet his business necessities and towards discharge of the said hand loan amount, the accused has issued the disputed cheque and when the said cheque was presented for encashment for twice, it returned both the time unpaid due to "Funds Insufficient" in the account of the drawer and inspite of receipt of demand notice, the accused has failed to make the payment of the cheque amount.
09. To substantiate and establish this fact before the court beyond reasonable doubts as per the verdict of the Hon'ble Apex court in the case of Indian Bank Association and others V/s Union of India and others , 10 C.C.15795/2020 the sworn statement of the complainant has been treated as affidavit evidence. In his affidavit evidence, PW.1 has replicated the averments of the complainant. To corroborate the evidence of PW.1, the complainant has placed on record in all seven documents as per Ex.P.1 to Ex.P.7. Ex.P.1 is the disputed cheque dated 07.05.2020, Ex.P.1 (a) is the signature of accused, Ex.P.2 is the banker's memos dated 08.05.2020 & 18.05.2020, which shows the reasons for the return of the cheque at Ex.P.1 for unpaid is as "Funds Insufficient" , Ex.P.4 is the legal notice dated 27.05.2020 demanding for payment of cheque amount by replicating the averments of complaint which was duly upon the accused on 02.06.2020 and the accused has issued untenable reply for the said demand notice issued by the complainant. Ex.P.5 is the the postal receipt about sending legal notice at Ex.P.4, Ex.P.6 is the postal acknowledgement about receipt of the demand notice, Ex.P.7 is the reply notice and Ex.P.7(a) is the postal cover of reply notice issued by the accused. PW.1 has been substantially cross examined by the counsel of accused. 11 C.C.15795/2020
10. To disprove the case of the complainant as well as to rebut the statutory presumption which could be drawn in favour of the complainant and also to prove the probable defense to the touch stone of preponderance of probabilities, the accused adduced his oral evidence before the court by way of filing his affidavit in the form of examination of chief as DW.1 and got marked documents as per Ex.D.1 to Ex.D.4. The Learned counsel for the complainant has substantially cross examined DW.1 at length.
11. The Learned Prosecuting Counsel vehemently argued that, only after compliance of section 138 of NI Act, the present complaint has been filed and the accused has admitted in his cross examination the issuance of cheque as well as his signature thereon. Thus, it is sought to draw the legal presumptions in favour of the complainant. It is further argued that, by the evidence of DW.1 coupled with his documents, the accused has failed to raise probable defense and thereby to prove the same on preponderance of 12 C.C.15795/2020 probabilities. Accordingly, the Learned Prosecuting Counsel has sought to convict the accused. In support of his argument, the Learned Prosecuting Counsel has relied the judgments as listed above.
12. Per contra, the Learned Defense Counsel categorically argued that, the cheque at Ex.P.1 was given to the son of complainant in the year 2016 as a security while availing hand loan of Rs.2,00,000/- and despite of repayment of the said amount, the said cheque was not returned, instead as misused and filed present false case against the accused. It is further argued that, when the financial capacity of the complainant is disputed, the complainant is required to prove the same beyond all reasonable doubts. The Learned Defense Counsel contents that, PW.1 has admitted in her cross examination about the financial capacity of the complainant. Further, the complainant has failed to adduce the evidence of Basavana Gowda, who was stated to be an eye witness for the alleged transaction as per the say of the complainant. It is further argued that, 13 C.C.15795/2020 though it is the invalid cheque, but the bank authorities have returned the same as "Funds Insufficient" . The evidence of DW.1 coupled with his documents, the accused has very much raised probable defense and has proved the same on preponderance of probabilities. Accordingly, the Learned Defense Counsel has sought to dismiss the complaint and thereby to acquit the accused. In support of his argument, the Learned Defense Counsel has relied the judgments as listed above.
13. Before to address the oral arguments advanced by both the Learned counsels and also to evaluate the oral and documentary evidences produced, it is necessary to find out whether the present complaint has been filed in consonance with the provisions of section 138 of NI Act or not?.
14. Looking to the disputed cheque, return memos and demand notice as well as the reply notice coupled with postal records, which are marked at Ex.P.1 to Ex.P.7, it 14 C.C.15795/2020 reveals that, the cheque in question has been presented before the bank within its validity period. The cheque can be presented to the bank at any number of times. Considering the 2nd time bank return memo, it reveals that, the demand notice has been issued within 30 days from the date of receipt of second bank return memo. Further, the postal acknowledgement at Ex.P.6 whispers that, the demand notice has been personally received by the addressee and the put his signature and only thereafter he has sent reply notice on 05.06.2020 under Ex.P.7. The present complaint was presented before the court on 01.07.2020. Thus, by considering these material documentary evidences, I have not hesitation to say conclusively that, the present complaint has been filed before the court within 30 days after the expiry of the cooling period of 15 days and thereby this complaint appears to have been filed only after complying the requirements of section 138 of NI Act.
15 C.C.15795/2020
15. Section 118(a) is one of the legal presumption which contemplates that, 'a cheque is drawn from an account and issued, it shall be presumed that, the said cheque has been issued for some consideration to the holder of the said cheque'.
16. Section 139 of NI Act provides another legal presumption and it contemplates that, ' Once the cheque is drawn from an account and has been issued by putting signature on the same, it shall be deemed that, the holder of the said cheque has received the same towards the discharge of his legal debt or liability unless and untill the contrary is proved by the drawer of the cheque.'
17. As per sections 118(a) & 139 of NI Act are two important provisions and they provides for raising mandatory presumptions in favour of the complainant until the contrary is proved by the accused. Even in the catena of decisions i.e., in the case of Rangappa Vs. Mohan reported in 2010(11) SCC 441, in the case of Bir 16 C.C.15795/2020 Singh Vs. Mukesh Kumar reported in 2019(4) SCC 197, in the case of APS Forex Services (P) Ltd., Vs.Shakthi International Fashion Linkers reported in 2020(12) SCC 724, in the case of Rajeshbai Muljibhai Patel Vs. State of Gujarat, reported in 2020(3) SCC 794, in the case of Triyambak S. Hegde Vs. Sripad reported in Live Law 2021 SC 492 and it is laid down that, " Once the issuance of cheque and the signature thereon is admitted by the accused, the court is required to raise presumption in favour of the complainant stating that, the accused has issued the cheque for some consideration towards discharge of his legal debt or liability of the complainant and that the complainant is the due holder of the said cheque. The burden shifts on the accused to rebut the statutory presumptions under sections 118(a) & 139 of NI Act." Now, it is well established law that, the presumption mandated by section 139 of NI Act, thus indeed includes the existence of legally enforceable debt or liability and it is open for the accused to raise a probable defense wherein the existence of legally enforceable debt or liability can be 17 C.C.15795/2020 contested and he shall prove before the court on preponderance of probabilities, only thereupon a statutory presumption raised in favour of the complainant stands rebutted.
18. In a recent verdict delivered on 09.10.2023 in the case of Rajesh Jain Vs. Ajay Singh in Special Leave Petition (Crl). No.12802/2022, the Hon'ble Apex Court categorically discussed the provisions of section 138, 118 and 139 of NI Act and held that;
" Once the issuance of cheque and signature thereon has been admitted, the burden shifts on the accused to rebut the statutory presumptions by raising a probable defense and also proving the same on preponderance of probabilities. If the accused fails to rebut the statutory presumptions by raising probable defense, the onus do not shifts on the complainant prove his case beyond all reasonable doubts.
It is further held that;
If the accused succeeds in establishing his defense and proved the same, then the legal presumptions raised in favour of the complainant will disappear and the 18 C.C.15795/2020 complainant shall independently prove his case beyond all reasonable doubts."
19. The Learned Defense Counsel has relied the verdicts of Hon'ble Apex Court in the case of Basalingappa Vs. Mudibasappa reported in 2019(5) SCC 418 and another judgment reported in 2023 Live Law (SC) 46 in the case of Rajaram Vs. Maruthachalam (Deceased) by his LR's.
Though, in these two verdicts of the Hon'ble Apex Court, the accused persons have been acquitted, but the law laid down in the aforesaid relied judgments are also same law as laid down the judgments relied by complainant. The Learned Defense Counsel has relied another judgment of the Hon'ble Apex Court in the case of John K Abraham Vs. Simon C. Abraham, wherein it is held that;
" In order to draw presumption under section 118 & 139 of NI Act, the complainant is required and it is pre-
requisites to prove his case about the
issuance of cheque for repayment of
advanced money."
19 C.C.15795/2020
However, while discussing the section 118 and 139 of NI Act in the case of Rangappa Vs. Mohana the larger bench of the Hon'ble Apex Court held that, the legal presumptions under section 118 & 139 of NI Act does indeed includes legally enforceable debt or liability and only to this extent, the ratio of the earlier judgment of the Hon'ble Apex Court in the case of Krishna Janardhan Bhat is held as not correct proposition of law. Even in the latest judgment of the Hon'ble Apex Court, in the case of Kalamani Tex and Another Vs. P.Balasubramaniyan, the larger bench of the Hon'ble Apex Court held that;
" The statute mandates that once the signature(s) of an accused on the cheque/ negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him."
(Pare 13) In a recent judgement and also in the case of Rohitbhai Jeevan Lal Patel Vs. State of Gujarath and 20 C.C.15795/2020 another reported in 2019(18) SCC 106 , it is held as under ;
" The presumption mandated by section 139 of NI Act does indeed include existence of legally enforceable debt or liability- it is open to accused to raise defense wherein existence of a legally enforceable debt or liability can be contested - however, there can be no doubt that, there is an initial presumption which favours complainant."
Thus, with due respect to the law laid down in the case of John K Abraham, the said ratio is not applicable to the case on hand. Thus, now it is well settled law that, once the issuance of cheque and signature thereon is admitted, the legal presumptions under section 118(a) and 139 of NI Act shall go in favour of the complainant and the burden shifts on the accused to raise probable defense and to prove the same on preponderance of probabilities. Once, the accused rebuts the legal presumptions, the onus shifts on the complainant to prove his case beyond all reasonable doubts. With these settled proposition of law, now I proceed to scrutinize the oral and documentary evidences placed before the court.
21 C.C.15795/2020
20. To rebut the statutory presumption under section 118(a) & 139 of NI Act, the accused adduced his evidence by way of filing his examination in chief in the form of affidavit as DW.1 and got marked four documents at Ex.D.1 to Ex.D.4. During his cross examination, DW.1 has clearly admitted that, the cheque at Ex.P.1 belongs to his account and it appears his signature. Hence, the legal presumptions under section 118 and 139 of NI Act, shall operates in favour of the complainant and goes against the accused. Now, the burden shifts on the accused to rebut the said statutory presumption under section 118(a) & 139 of NI Act shall operates in favour of the complainant and goes against the accused. Now, the burden shifts on the accused to rebut the statutory presumption under section 118(a) & 139 of NI Act, for which he was raised probable defense and prove the same on preponderance of probabilities. The accused has given reply to the demand notice issued by the complainant and in his reply notice at Ex.P.7, the accused has totally denied the case of the complainant. Interalia, in para No.(e) he put forth his 22 C.C.15795/2020 defense contending that, the cheque at Ex.P.1 belongs to SBM Peenya Branch, which was given as a security in the year 2016, but not given on 07.05.2020. It is further defense that, the son of complainant by name Sri.Chethan with malafide intention to harass the accused has filled-up the blank cheque and presented without the knowledge of accused. The cheque in question was not in existence as such, the SBM was got merged with SBI in the year 2017 itself and when the bank merged, the cheque became invalid. In order to prove this defense stated in the reply notice, in his affidavit evidence, the accused by name Lokesh.B.R. stated that, himself and the son of complainant by name Sri.Manjunath and Sri.Chethan are friends. In the month of August 2016, he availed a sum of Rs.2,00,000/- from Sri.Chethan, at that time, Chethan had insisted to issue blank signed cheque as a security for the said loan of Rs.2,00,000/-. Accordingly, he has issued blank signed cheque bearing No.277536 drawn on SBM, Peenya Branch, Bengaluru without filling the space and gave to the Chethan as a security. He further deposed 23 C.C.15795/2020 that, he has repaid the entire loan amount with interest to Sri.Chethan in the month of November 2016 itself and inspite of his request, Chethan had not returned his security cheque stating that, he had kept the said cheque in his factory and the moment when it is traced out, he will return the same, but has failed to do so and by misusing the said cheque, this complaint has filed. It is further stated that, in the month of February 2020, there was a verbal exchange of words between the Chethan and accused in- connection of parking of vehicle near the house of complainant, taking that grudge, the present false complaint is filed against him. He denied the issuance of cheque at Ex.P.1 on 17.05.2020 for the repayment of alleged hand loan. To corroborate his oral testimony, the accused has produced before the court in all four documents, which are marked at Ex.D.1 to Ex.D.4. Ex.D.1 is the copy of twitter message stated to have been issued by the SBI with regard to extension of the validity of erstwhile cheques of authority banks till 31.12.2017, Ex.D.2 is another official message of SBI requested to all its 24 C.C.15795/2020 customers of merged banks to apply for SBI cheque books by 31.03.2018 pertaining to erstwhile customers, Ex.D.3 is the news paper cutting of Economic Times, wherein the news item pertaining to cheque books of SBI account holders will become invalid from 31.12.2017. Ex.D.4 is the certificate under section 65B of Evidence Act in respect of documents at Ex.D.1 to Ex.D.3. Since, the documents at Ex.D.1 to Ex.D.3 appears to be the records taken from online or google search, therefore they can be relied upon in evidence as a secondary evidences. The Learned Prosecuting Counsel has cross examined DW.1. The Learned Defense Counsel has cross examined PW.1 at length and during her cross examination in para No.2 of page No.8, a suggestion has been made stating that, in the year 2016, the accused had borrowed Rs.2,00,000/- loan from her son Chethan and at that time, the accused has issued Ex.P.1 signed blank cheque to her son as a security in the month of November 2016. The accused has cleared the entire loan amount of her son, inspite of that, her son did not return the said cheque. This suggestion 25 C.C.15795/2020 has been categorically denied by PW.1. Except this, no such worth evidence has been elicited from the mouth of PW.1 to hold and believe the defense put forth by the accused as trust worthy and probable, rest of the cross examination of PW.1 was pertaining to about her accumulation of alleged amount of Rs.5,00,000/- and also about her occupation as well as about the occupation of her two sons.
21. It is argued by the Learned Defense Counsel that, the cheque at Ex.P.1 was pertaining to SBM and the same issued in the year 2016 as a security to the son of complainant, instead of returning the same, the complainant and her son colluding with each other have filed this false case against the accused .
22. On the other hand, admittedly as per the documents at Ex.D.3, the State Bank group have merged in the year 2017 and the State Bank of Mysore was one of the bank of State Bank Group. So it is also merged with State Bank of 26 C.C.15795/2020 India and this can be Judicially noticeable fact. However, neither the State Bank of India nor the State Bank of Mysore have issued any specific and definite notification to their customers strictly warning and giving dead line to get new cheque books by surrendering old cheque books, failing which, the old cheque leaves would be considered as invalid cheque leaves. Further, the documents at Ex.D.1 & Ex.D.2 do not said so accept Ex.D.3. Ex.D.3 is only a news article and it is not a notification issued by the State Bank of India. Therefore, only on the basis of the secondary documents at Ex.D.1 to Ex.D.3, it cannot be held that, after merger of SBM with the SBI, the cheque leaves of SBM became invalid. If the contention of the accused is believable as true, then if at all he had issued Ex.P.1 blank cheque as a security to the son of complainant in the year 2016 and after repayment of the said debt, when the son of complainant has failed to return the cheque, then he had many cources such as submitting letter to his banker for the stop payment order whenever the cheque at Ex.P.1 came for clearance or he ought to have issued any notice to 27 C.C.15795/2020 the son of complainant for the return of the said cheque or as a lost resort he could have lodged complaint before the jurisdictional police. Without coming any one of the said effort, the say of accused do not appears to be probable and believable. That apart, as per Ex.P.2, the bank return memo, it reveals that, the cheque at Ex.P.1 has been dishonored due to "Funds Insufficient" in the account of the drawer, which means, when the cheque was presented to the bank, at that time, the cheque at Ex.P.1 has not became invalid. If the accused has any doubt in the reasons recorded under Ex.P.2, he could have filed an application before this court to examine the Bank Manager of the said bank to find out whether the reason recorded in Ex.P.2 is true or not. No such effort has been made from the accused side. On the other hand, the reason shown in Ex.P.2 for the dishonor or cheque at Ex.P.1 has a presumptive value under section 146 of NI Act. The Learned Defense Counsel has produced another verdict of the Hon'ble Apex Court reported in ILR 2020 KAR 227 In the case of Manjunath.S. Vs. P.K.Subba Rao 28 C.C.15795/2020 wherein the fact of the case was pertaining to filing of Civil Suit for recovery of money based on Negotiable Instrument and his lordship is pleased to interpret the presumptive value under section 146 of NI Act. Therefore, with due respect to the said ratio, the same is not applicable to the case on hand, as such, it is a criminal case.
23. Except the self serving testimony of accused, he has not produced before the court any iota of documentary evidence to prove before the court on preponderance of probabilities stating that, in the month of August 2016, he had borrowed Rs.2,00,000/- from the son of complainant by name Chethan and had given the present cheque at Ex.P.1 a security. Therefore, by the oral testimony of the accused coupled his documents at Ex.D.1 to 3, I am of the considered opinion that, the accused has failed to rebut the statutory presumption under section 118(a) & 139 of NI Act on preponderance of probabilities. 29 C.C.15795/2020
24. Although, the onus do not shifts on the complainant to prove her case, her sworn statement has been considered as examination in chief in the form of affidavit as PW.1 and she has replicated the averments of complaint. During her cross examination, it is elicited that, she has been residing in her native place and doing agricultural work and out of the same, she used to earn Rs.60,000/-, Rs.1,00,000/- for per crop and her husband died in the year 2010. However, she has not produced any revenue records of her landed property. She further stated that, while at the time of his death, her husband had given to her Rs.3,00,000/- and the same was kept in the bank and by withdrawing the same, she gave the said amount to the accused. But, she has not produced any bank records in this regard. She further said in her cross examination that, she had kept net amount in her house itself and paid the same to the accused by way of giving Rs.500/- currency notes. She admitted that, her children and accused are residing in the same locality of HMT Layout at Bengaluru, which means that, they are known to 30 C.C.15795/2020 each other. It is elicited from her mouth that, she has not taken any document from the accused while advancing the disputed amount, that could be material evidence to raise doubt in the testimony of PW.1. Further, on page No.9 of her cross examination, she has denied a suggestion made to her stating that, she had no financial capacity to advance a sum of Rs.5,00,000/-. On the other hand, during cross examination of PW.1, it can be seen that, the two sons of complainant running hardware business, under such circumstances, it cannot be held that, the complainant has no financial capacity. Further, in his reply notice, there is no specific contention about financial capacity of the complainant, rest of the cross examination of PW.1 was pertaining to asking questions relating to defense of the accused. Looking from the entire chief examination of PW.1 and also the evidence elicited from her mouth during her cross examination, I am of the considered opinion that, no such worth evidence has been brought on record to disbelieve totally the oral testimony of PW.1. Hence, by the oral evidence of PW.1 31 C.C.15795/2020 coupled with the cheque at Ex.P.1, I am of the considered opinion that, the complainant has established her case beyond all reasonable doubts and in order to repay the hand loan of the complainant, the accused has issued cheque at Ex.P.1. The complainant has relied the citations of Hon'ble High Court of Karnataka as listed above. With due respect to the ratio laid down in the above relied judgments and considering the facts of the case on hand, I am of the considered opinion that, the ratio laid down in the above relied judgments of the Hon'ble High Court of Karnataka are aptly applicable to the case on hand.
On the other hand, the Learned Defense Counsel has relied the verdicts of Hon'ble Apex Court in the case of Basalingappa Vs. Mudibasappa , the fact of the case of the relied judgments and in the present case on hand are not similar. Hence, the ratio laid down in the said judgment only pertaining to acquittal of accused, is not applicable to the case on hand.
The second judgment relied by the Learned Defense Counsel in the case of Rajaram Vs. Maruthachalam , is 32 C.C.15795/2020 also not applicable to the case on hand. As such, the facts of the case in relied judgments is totally different from the facts of the case on hand.
The Learned Defense Counsel also relied the verdict of Hon'ble Apex Court in the case of Rangappa Vs. Mohan , as discussed in the beginning itself, this ratio is the base for all the latest judgments of the Hon'ble Apex Court in respect of drawing presumption under section 118(a) & 139 of NI Act in favour of the complainant and this ratio is applicable to all the Negotiable Instrument cases filed under section 138 of NI Act as to how the presumption under section 139 of NI Act shall be drawn. Thus, by considering the evidence of PW.1 coupled with her documents and when the accused has failed to rebut the statutory presumption under section 118(a) & 139 of NI Act which have gone in favour of the complainant. Hence, I answered point No.1 in the affirmative.
25. POINT NO.2: In view of the reasons stated and discussed above, the complainant has proved the guilt of 33 C.C.15795/2020 the accused punishable under section 138 of N.I. Act It is worth to note that, the offence is of the nature of civil wrong. Hence, it is proper to award sentence of fine, instead of awarding sentence of imprisonment. Accordingly, this court proceed to pass the following;
ORDER Acting under section 255 (2) of Criminal Procedure Code, accused is hereby convicted for the offence punishable under section 138 of Negotiable Instrument Act and sentenced to pay fine of Rs.5,60,000/- (Rupees Five Lakhs Sixty Thousand only). In default, the accused shall undergo simple imprisonment for 1 (One) Year.
Acting under section 357(1) of code of criminal procedure, it is 34 C.C.15795/2020 ordered that an amount of Rs.5,50,000/- ( Rupees Five Lakhs Fifty Thousand only), there from shall be paid to the complainant as a compensation, remaining fine amount of Rs.10,000/- (Rupees Ten Thousand only) is defrayed to the state for the expenses incurred in the prosecution.
The bail bond of accused stands canceled subject to appeal period.
Supply free copy of judgment to the accused.
{Dictated to the stenographer, transcribed and computerized by her, revised corrected and then pronounced in the open court on this 2nd day of January 2024}.
(BHOLA PANDIT) XX ACMM, Bengaluru.
35 C.C.15795/2020ANNEXURE List of witnesses examined on behalf of complainant:
P.W.1 Smt.D.Mahadevi List of documents produced on behalf of complainant:
Ex.P.1 Cheque Ex.P. 1(a) Signature of the accused Ex.P. 2 & 3 Bank endorsements Ex.P. 4 Copy of the legal notice Ex.P.5 Postal receipt Ex.P.6 Postal acknowledgement Ex.P.7 Reply notice Ex.P.7(a) Postal cover of reply notice
List of witnesses examined on behalf of accused:
D.W.1 Sri.Lokesh.B.R. 36 C.C.15795/2020 List of documents produced on behalf of accused:
Ex.D.1 Copy of twitter message stated
to have been issued by the SBI
with regard to extension of the
validity of erstwhile cheques of
authority banks till 31.12.2017.
Ex.D.2 Official message of SBI
requested to all its customers of
authority banks to apply for SBI
cheque books by 31.03.2018
pertaining to erstwhile
customers.
Ex.D.3 News paper cutting of Economic
Times, wherein the news item
pertaining to cheque books of
SBI account holders will
become invalid from
31.12.2017.
Ex.D.4 Certificate under section 65B of
Evidence Act in respect of
documents at Ex.D.1 to Ex.D.3.
Digitally signed
PANDIT by PANDIT S
BHOLA
S Date:
BHOLA 2024.01.02
17:21:54 +0530
XX A.C.M.M.,
Bengaluru.