Bangalore District Court
M/S.Orient Blackswan Private Limited vs M/S.S.Square Enterprises on 29 October, 2022
CC.No.15009/2019
0
KABC030474582019
Presented on : 03-07-2019
Registered on : 03-07-2019
Decided on : 29-10-2022
Duration : 3 years, 3 months, 26 days
IN THE COURT OF THE XXVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE NRUPATHUNGA ROAD,
BENGALURU CITY
Present:
Soubhagya.B.Bhusher,
BA.,LLB.,LL.M
XXVIII A.C.M.M, Bengaluru City.
DATED; THIS THE 29 TH DAY OF OCTOBER-2022
C.C.NO.15009/2019
Complainant: M/s.Orient Blackswan Private Limited,
'Tapovan' No.46/47, Rama Rao Layout,
Kathriguppe, BSK 3rd Stage,
Bangalore-560 085.
Rep by its Authorized Signatory,
Accounts & Operations Manager
Mr.K.Sukesh Shetty
(By Sri.Manjunatha.K.T & G.N.Srinivasa
Reddy.,Advs.,)
V/s
Accused: M/s.S.Square Enterprises,
No.38, 3rd Stage, 3rd Block,
1st Main Road, Near Pavithra Paradise,
Opp: Sony Show Room,
Basaveshwaranagar,
Bangalore-560079.
CC.No.15009/2019
1
Rep by its Proprietor/Signatory
Sri.B.S.Praveen Kumar
Also at:
M/s.S.Square Enterprises,
No.8, 22nd Main, E Cross Pipeline
Road, J.C.Nagar, Kurubarahalli,
Bangalore-560086.
(By Sri.Kirankumar.M & Hanumanthappa.,Advs.,)
: JUDGMENT:
This case arises out of the complaint filed under section 200 of Cr.P.C., for the offence punishable under section 138 of N.I. Act.
2. The case of the complainant's in brief is as follows:
It is submitted by the complainant is that, the accused is one of their customer and the accused used to purchase the educational books from them on various dates on different invoices during the year 2017 and they have got the accused running account and statement of account. It is further submitted that, the complainant have sold and deliver the educational books to the accused for a total sum of Rs.36,49,711/-
(Rupees thirty six lakhs forty nine thousand seven hundred eleven) only on different invoices during the CC.No.15009/2019 2 year 2017 as per the accused purchase order in the year 2017. The complainant under the invoices on credit and educational books were delivered to the accused work site at M/s. Square Enterprises, No.8, 22nd Main, E Cross, Pipeline Road, J.C.Nagar, Kurubarahalli, Bengaluru-560086. The accused has received the educational books on credit, vide invoices in various dates and amounts as mentioned in the para No.4 of the complaint. It is further submitted that, the accused has received the educational books and acknowledged the receipt of the entire educational books at the accused work site. After receipt of the educational books the accused returned educational books to the complainant worth about of Rs.69,945/- on 24.08.2017 and also confirmed balance amount of Rs.35,79,756/- (Rupees thirty three lakhs seventy nine thousand seven hundred sixty six) as on 30.09.2017. It is further submitted that, after one month on request of the complainant the accused has paid part payment of Rs.2,00,000/- (Rupees two lakhs) only through NEFT CC.No.15009/2019 3 on 11.10.2017. It is further submitted that, the amount of Rs.33,79,766/- (Rupees thirty three lakhs seventy nine thousand seven hundred sixty six) only is outstanding and overdue as on 29.01.2019 to be paid to the complainant by the accused. It is further submitted that, the complainant have been contacting the accused over telephone, personally at the accused office and with respect to the payment of arrears supra for the last one year. Further, after one year, towards purchase of educational books from the complainant and to discharge liability for the amount mentioned the above the accused has issued a cheque bearing No.900083 on 17.01.2019 for a sum of Rs.33,79,766/-
(Rupees thirty three lakhs seventy nine thousand seven hundred sixty six) only drawn on Punjab National Bank, St.Peter's P.S.College, Malleswaram Branch, Bengaluru-560055.
3. It is further submitted that, on the accused assurance the complainant on 17.01.2019 presented the said cheque for encashment to their banker Kotak CC.No.15009/2019 4 Mahindra Bank Ltd., CMS Dept. V.V.Puram Branch, Bangalore-04. The said cheque has been returned unpaid by the accused banker with a reason "Funds Insufficient" on 19.01.2019, the same has been informed to the complainant by their banker with a banker's endorsement on same day and they have collected the above returned cheque from their banker on 24.01.2019 and informed the accused personally on the same day. Thereafter, within 30 from the date of dishonoring of the said cheque i.e., on 30.01.2019 the complainant got issued a notice of demand through their advocate, calling upon the accused to pay the full amount Rs.33,79,766/- (Rupees thirty three lakhs seventy nine thousand seven hundred sixty six) only covered by the dishonored cheque. The RPAD letters were sent to the both office addresses of the accused. The accused has received the RPAD notice on 31.01.2019 at his office at Basaveshwara Nagar. However the RPAD cover sent to his other office address has returned with postal shara 'No such CC.No.15009/2019 5 person in the address' on 31.01.2019. Inspite of receiving the notice the accused neither replied nor paid the amount, the accused has not paid any amount and not given any reply to the said notice. As such, the accused has committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court on 11.03.2019.
4. After the complaint was filed, the cognizance of the offence cited therein was taken and it was registered as P.C.R.No.3692/2019. Sworn statement of the complainant was recorded. Since there were sufficient materials to proceed against the accused, an order was passed on 29.06.2019 to register the case in Reg.No.III.
5. Thereafter, summons was issued to the accused and he has appeared before the court through counsel and secured bail. He was furnished it necessary papers as complied under section 208 of Cr.P.C,. Thereafter, the plea of the accused was recorded by the court. He has pleaded not guilty and CC.No.15009/2019 6 claimed to be tried.
6. The complainant in support of its case, has examined its Accounts Manager as PW.1 and got marked total 28 documents at Ex.P.1 to 28 and closed its side.
7. After closer of the evidence of the complainant, the statement under section 313 of Cr.P.C. was recorded. He has denied the incriminating evidence appearing against him. In his defense the accused is examined as DW.1 and no documents marked.
8. I have heard the arguments on both the sides and perused the written argument submitted by learned counsel for the accused and also perused the material placed on record.
9. Learned counsel for the complainant has relied upon the citations reported in ILR 2019 KAR 493 (Yogesh Poojary V/s K.Shankara Bhat and App.No.1497/2022 (Dashrathbhai Trikambhai Patel V/s. Hitesh Mahendrabhai Patel and Anr.,).
CC.No.15009/2019 7
10. Upon hearing the arguments and on perusal of the material placed on record, the following points arise for my consideration:
1.Whether the complainant proves the existence of legally enforceable debt/liability.?
2. Whether the complainant further proves that the accused had issued a Cheque-Ex.P.11, towards the discharge of the said legally enforceable debt/ liability.?
3.Whether the complainant further proves that, Ex.P.11 was dishonored for "Funds Insufficient"
in the account of the accused and thereafter the accused had failed to repay the same within the statutory period, inspite of receipt of legal notice.?
4. Whether the accused have thus committed an offence punishable under section 138 of N.I.Act.?
5. What order or sentence?
11. My answers to the above points are as under:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: In the Affirmative Point No.4: In the Affirmative Point No.5: As per final order, for the following:
CC.No.15009/2019 8 :REASONS:
12. POINT NO.1 AND 2: These two points are inter-related to each other and finding given on any one point will bearing on the another. Hence, in order to avoid repetition of facts, I have taken these two points together for common discussion. The case of the complainant is that, he was acquainted with the accused. Further the accused is one of their customer and the accused used to purchase the educational books from them on various dates on different invoices during the year 2017 and they have got the accused running account and statement of account. The complainant have sold and deliver the educational books to the accused for a total sum of Rs.36,49,711/- (Rupees thirty six lakhs forty nine thousand seven hundred eleven) only on different invoices during the year 2017 per the accused purchase order in the year 2017. The complainant under the invoices on credit and educational books were delivered to the accused work site at M/s. Square Enterprises, No.8, 22nd Main, E CC.No.15009/2019 9 Cross, Pipeline Road, J.C.Nagar, Kurubarahalli, Bengaluru-560086. The accused has received the educational books on credit, vide invoices in various dates and amounts as mentioned in the para No.4 of the complaint. Further the accused has received the educational books and acknowledged the receipt of the entire educational books at the accused work site. The accused returned educational books to the complainant worth about of Rs.69,945/- on 24.08.2017 and also confirmed balance amount of Rs.35,79,756/- (Rupees thirty three lakhs seventy nine thousand seven hundred sixty six) as on 30.09.2017. The accused has paid part payment of Rs.2,00,000/- (Rupees two lakhs) only through NEFT on 11.10.2017. Further the amount of Rs.33,79,766/- (Rupees thirty three lakhs seventy nine thousand seven hundred sixty six) only is outstanding and overdue as on 29.01.2019 to be paid to the complainant by the accused. The complainant have been contacting the accused over telephone, personally at the accused office and with respect to the CC.No.15009/2019 10 payment of arrears for the last one year. Further, after one year, towards purchase of educational books from the complainant and to discharge liability for the amount mentioned the above the accused has issued a cheque bearing No.900083 dated 17.01.2019 for a sum of Rs.33,79,766/- (Rupees thirty three lakhs seventy nine thousand seven hundred sixty six) only drawn on Punjab National Bank, St.Peter's P.S.College, Malleswaram Branch, Bengaluru-560055 in favour of the company of the complainant. On the assurance of the accused the complainant had presented the said cheque on 17.01.2019 for encashment to their banker Kotak Mahindra Bank Ltd., CMS Dept. V.V.Puram Branch, Bangalore-04. The said cheque has been returned on 19.01.2019 unpaid by the accused banker with a reason "Funds Insufficient" in the account of the accused, the same has been informed to the complainant by their banker with a banker's endorsement on same day and they have collected the returned cheque from their banker on 24.01.2019 and CC.No.15009/2019 11 informed the accused personally on the same day. Thereafter, within 30 days from the date of dishonoring of the said cheque i.e., on 30.01.2019 the complainant got issued a notice of demand through their advocate, calling upon the accused to pay the full amount Rs.33,79,766/- (Rupees thirty three lakhs seventy nine thousand seven hundred sixty six) only. The RPAD letters were sent to the both office addresses of the accused. The accused has received the RPAD notice on 31.01.2019 at his office at Basaveshwaranagar. However the RPAD cover sent to his other office address has returned with postal shara 'No such person in the address' on 31.01.2019. Inspite of receiving the notice the accused neither replied nor paid the amount, the accused has not paid any amount and not given any reply to the said notice. Hence, as the accused has committed an offence punishable under section 138 of N.I.Act, the present complaint came to be filed.
13. In support of the case, the complainant has CC.No.15009/2019 12 examined its Accounts Manager as P.W.1 and 28 documents were marked at Ex.P.1 to 28. In the chief examination P.W.1 has repeated the contents taken by the complainant in the complaint. Ex.P.1 is the Minutes of Meeting on 10.02.2017. Ex.P.2 is the GPA. Ex.P.3 are the Invoices. Ex.P.4 are the purchase orders. Ex.P.5 to 7 are the Ledger Accounts on different dates. Ex.P.8 is the Balance confirmation. Ex.P.9 is the Part payment adjustment details. Ex.P.10 is the Part payment receipt. Ex.P.11 is the Cheque issued by the accused in favour of the complainant on 17.01.2019 for a sum of Rs.33,79,766/-. Ex.P.11(a) is the signature of the accused. Ex.P.12 is the bank memo informing of the dishonor of the cheque. Ex.P.13 is the office copy of legal notice. Ex.P.13(a) and (b) are the postal receipts. Ex.P.14 is the Postal Acknowledgment. Ex.P.15 is the returned legal notice. Ex.P.15(a) is the RPAD returned cover. Ex.P.16 is the Complaint. Ex.P.17 and 18 are the Payment demand letters dated 29.01.2018 and 14.02.2018 respectively. Ex.P.19 and 20 are the Postal CC.No.15009/2019 13 receipts. Ex.P.21 and 22 are the Postal Acknowledgements. Ex.P.23 is the Xerox copy of the Customer Agreement. Ex.P.24 is the E-mail record on 21.03.2012. Ex.P.25 and 26 are the E-mail records on 20.04.2017. Ex.P.27 is the E-mail record on 26.10.2017. Ex.P.28 is the Certificate under section 65(B) of the Indian Evidence Act.
14. In his defense the accused has got examined himself as DW.1 and no documents were marked on his behalf. In his chief examination, D.W.1 has given the evidence regard to the defence taken by him. Further he has deposed that in the year 2019 the complainant company contact with him to continue the transaction and promised that they will send educational books to him. In this regard he had issued a blank signed cheque in favour of the complainant as security purpose. The said complainant company not made any transaction with him and he has no due to the complainant. The complainant in order to cause hardship to him and to claim wrongful gain produce this CC.No.15009/2019 14 security cheque and marked the created documents against him. He has not at all liable to pay cheque amount to the complainant and also he has not at all issued the cheque in dispute/documents for discharge of liability as claimed by the complainant. Further deposed that, the complainant has not produced book account to show the exact transaction made by the complainant with him so also as not produced any documents in respect of outstanding amount due to them and also has not caused notice to him in respect of calling upon him to pay outstanding amount to him after dishonor of the cheque in dispute. Further, contents of legal notice, complaint and evidence affidavit and documents exhibited are all false and those are all got up to suit the case. Further deposed that, the complainant has not produced authentic documents in respect of alleged transaction in dispute. He had made transaction with the complainant in the year 2017 to the tune of Rs.2,69,945/- only. That amount has been fully cleared. Further no more CC.No.15009/2019 15 transaction made with the complainant, such being the factual the complainant has filed false complaint against him. The complainant has not complied the required ingredients of the said act. Further deposed that, there is no existing liability to an extent as mentioned in the complaint. Hence, the complaint is liable to be dismissed.
15. But, the accused has taken the contention that, the complainant company received the cheque for the purpose of security in the year 2019 for the continue the transaction. Further the complainant has misused the said blank cheque and filed this false complaint against the accused. The accused in his defense has not disputed Ex.P.11-cheque has been issued by him. He also does not dispute his signature on the said cheque. But, he has taken up the contention that, he has issued a blank signed cheque in favour of the complainant, when the cheque was given to the complainant it was blank. But the complainant mis-used the said cheque. Further he contended that, CC.No.15009/2019 16 he has never admitted regarding repayment of the amount as contended by the complainant. But the complainant mis-used the said cheque and filed this false complaint. The accused has specifically denied having agree to repay the amount to the complainant as per contention taken by the complainant.
16. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of legally enforceable debt/liability, for which the cheque came to be issued. The learned counsel for the complainant has argued that, from the evidence placed on record, the fact that the accused in order to repayment of debt/liability had issued a cheque in favour of the complainant. Further argued that, towards of discharge of said payment, the accused had issued a cheque-Ex.P.11 in favour of the complainant. Further argued that, after the repeated request made by the complainant, the accused has not paid any amount to the complainant. He further argued that the accused has not denied the cheque-Ex.P.11 CC.No.15009/2019 17 being drawn on his account. When the signature is not disputed, the presumption under section 139 N.I.Act is to be drawn in favour of the complainant. The accused has failed to elicit anything in the cross examination of P.W.1 to disbelieve the said evidence of the complainant. The defence has failed to rebut the presumption under section 139 N.I.Act. The counsel for the complainant further argued that the accused has failed to produce any believable evidence that, the accused had issued a blank cheque in favour of the complainant and also the defence how the cheque was got the complainant and why he has not returned back the same is not clear. He further argued that, under section 139 of N.I.Act, there is a presumption that, the cheque has been issued for discharge of legally enforceable debt/liability. In the present case, the accused has not disputed the Ex.P.11 being his cheque drawn on his account. The said presumption is available to the complainant.
17. Further he has argued that, the accused has CC.No.15009/2019 18 failed to prove the very fact that Ex.P.11 was given to the complainant for the purpose of security in the year 2019 to continue the transaction and it was blank when it was given to the complainant. Moreover, under section 118 of N.I.Act, there is a presumption that the Negotiable Instrument is drawn on the date, for the amount and in favour of the person as shown in it. It is for the accused to rebut the said presumption. But, in the case on hand no such evidence forthcoming. It was also argued by him that as per the defence by the accused that, he had given a blank signed cheque to the complainant. As such, very defence of the accused is not believable.
18. The main defense of the accused is that there was no legally enforceable debt/liability to the complainant from the accused for which the cheque- Ex.P.11 was issued. So also he has taken up the defence that he had issued a blank signed cheque to the complainant for the purpose of security in the year 2019 to continue the transaction. In order to attract the CC.No.15009/2019 19 offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of a legally enforceable debt/liability, for which the cheque came to be issued. The complainant created all the documents and filed this false case against the accused. Therefore, from the evidence placed on record, the very repayment of amount to the complainant is not clearly made out whereas the accused is succeeded in rebutting the presumption available under section 139 of N.I.Act regarding existence of legally enforceable debt.
19. In the case on hand the complainant and the accused having some transaction has not been seriously disputed by the accused. Further, the accused has not seriously disputed he has issued a cheque in favour of the complainant. It is not disputed that, the complainant is the private limited company and the accused is a Businessman. He had issued Ex.P.11-cheque. Whereas, the accused has contended that, he had given a blank signed chaque to the CC.No.15009/2019 20 complainant in the year 2019 as per the advice of the complainant company to continue the transaction for the purpose of security. When he had given a signed cheque, which was blank. The accused has specifically denied having debt/liability and issued the cheque- Ex.P.11 in the year 2019 towards the discharge of any debt/liability. He contends that the blank cheque given by him to the complainant as was misused by the complainant and a false complaint was filed.
20. In order to attract the offence of the section 138 of N.I.Act, the main ingredients of the existence of the legally enforceable debt/liability, for which the cheque drawn on the account of the accused was given for discharge of the same, are to be proved. The complainant in order to prove its case, has examined its Accounts Manager as PW.1 and 28 documents are marked at Ex.P.1 to 28. In chief examination, he has repeated the averments made by him in the complaint. In the present case, the accused has not disputed the Ex.P.11 being his cheque drawn on his account. The CC.No.15009/2019 21 said presumption is available to the complainant. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of a legally enforceable debt/liability, for which the cheque came to be issued. The learned counsel for the complainant has submitted that, from the evidence of P.W.1 it is established that, the accused towards the discharge of the said amount Ex.P.11 came to be issued in favour of the complainant.
21. Under section 139 of N.I.Act, there is a presumption regarding the existence of legally enforceable debt or liability. Such presumption is rebuttable presumption and it is opinion to the accused to raise defence discharging the existence of a legally enforcible debt or liability. In the case on hand also the accused has disputed the existence of legally enforceable debt/liability, for which Ex.P.11 was issued. In order to prove his defense, the accused has examined as DW.1, but failed to produce any documents. P.W.1 during his cross-examination has CC.No.15009/2019 22 specifically denied the suggestions made to him that, Ex.P.11 was issued in favour of the complainant company for the purpose of security in the year 2019 to continue the transaction as per the advice of the complainant company and same was blank at the time of issuing the same.
22. Since, the presumption under section 139 of N.I.Act is a rebuttable presumption the accused is firstly required to produce some probable evidence to rebut the same. Though in the criminal cases, the standard of the proof required for the accused is not so strict as required for the complainant to prove the case, further he has to produce some probable evidence, which creates doubt about the existence of legally enforceable debt/liability. In the present case, as per the defence taken the accused had given a signed blank cheque to the complainant. Except, said defence, he has not produced any materials to prove such defence. If he had given a blank signed cheque to the complainant, what prevented the accused to file the CC.No.15009/2019 23 complaint immediately after the alleged illegal act made by the complainant. Further what prevented the accused to file the complaint against the complainant for misusing of said cheque. On which date the accused came to knew about the alleged illegal act of the complainant, he did not whisper about on what date he came to know the alleged cheque illegally mis-used by the complainant. Admittedly the accused is a businessman and having knowledge of the financial transaction, why he has given a signed blank cheque to the complainant without anticipating the consequence is not explained by him. So also, he has not stated anything as to what steps he took to receive back the blank signed cheque. Moreover, immediately after the alleged blank cheque misused by the complainant he has not lodge complaint before concerned police station. No steps have been taken to receive back the blank signed cheque, after he came to know about the same.
23. Once issuance of cheque and signature are CC.No.15009/2019 24 admitted, the statutory presumptions would arise under sections 139 and 118 of the N.I.Act that cheque was issued by the drawer for legally payable debt/liability and for valid consideration. The Hon'ble Supreme Court has held in Rangappa V/s Mohan reported in 2010 AIR SCW 296, the presumption that the cheque was drawn in discharge of legally recoverable debt is a presumption of law that ought to be raised in every case, though, it is a rebuttable presumption. Of course, the presumption under section 139 and 118 of the N.I.Act are rebuttal presumption. Further it is also held that mere plausible explanation by the drawer is not sufficient and proof of that explanation is necessary. The principle of law laid-down in the above decision is applicable to the facts of this case. In the instant case, since the complainant is in possession of cheque- Ex.P.11 the court has to draw the initial presumption that he is the payee of that cheque. Once the initial burden is discharged by the complainant, the onus shifts on the accused to rebut the complainant's case.
CC.No.15009/2019 25
24. In the defence there is no ill-will between the complainant and the accused. Hence, mis-use of cheque and filing false case is not possible. The accused admittedly having knowledge of business. It is implies, he is conversant with financial transaction. If the complainant mis-used the said cheque and had not return the same, inspite of collecting cheque leaves from him, as a prudent man, the accused should have inquired with the complainant and demanded to return that cheque. No ordinary prudent man would keep quite in such circumstances, without taking any steps. The conduct of the accused is very unusual, because he did not take any legal action against the complainant, even after filing of the complaint based on Ex.P.11-cheque. Further he could have issued notice to his banker to stop payment or legal notice to the complainant or he could have given complaint to the police station immediately. No such steps were taken by the accused. He simply makes a bald allegation of misuse of a blank signed cheque against the complainant. It appears, just CC.No.15009/2019 26 to escape from his legal liability, he has taken such contentions without any valid basis.
25. Moreover, the complainant has got issued a legal notice to the accused by registered through its counsel calling upon the accused to make repayment of said amount to the complainant. Before a person is held to be guilty of the offence punishable under 138 of N.I.Act, the complainant has to prove the compliance of the requirement under section 138 of N.I.Act. It is not in dispute that the Ex.P.11 is the cheque drawn on account of the accused. In view of the above discussions it is also held to be proved that, it was drawn for discharge of legally enforceable debt/liability. From the evidence of P.W.1 and also cheque return memo-Ex.P.12 it is established that the cheque was dishonored for the reason "Funds Insufficient'' in the account of the accused. A notice being issued as per Ex.P.13 within one month from the date of dishonour is also not in dispute. In the case on hand the accused has disputed regarding notice send by the complainant CC.No.15009/2019 27 on his address. But on perusal of Ex.P.14 it reveals that the accused has received the notice of the complainant and another one notice send to the accused was returned as no such person as per Ex.P.15 and 15(a). The accused failed to reply the notice, immediately after he received the demand notice. Thereby, he could has asserted his defence at an earliest available opportunity. In the case on hand the notice is sent to the accused at his address. When the accused has not disputed, the notice sent to the correct address is sufficient compliance of under section 138 of N.I.Act. Therefore, there is sufficient proof of due service of the legal notice.
26. It is not the contention of the accused that thereafter he has repaid the cheque amount within stipulated time of 15 days on receiving the notice. Therefore, in the case on hand on perusal of the evidence placed on record, all the essential ingredients of section 138 N.I.Act, have been complied with. As the accused has not repaid the cheque CC.No.15009/2019 28 amount within stipulated period, the accused has committed an offence punishable under section 138 of Negotiable Instruments Act. The present complaint is filed within the period of one month after the accused failed to repay the cheque amount. Further the accused has not given any reply to the notice and he has failed to repay the amount. Even he did not whisper anything about the defence while his plea was recorded under section 251 of Cr.P.C. In view of judgment of Hon'ble Supreme Court in Indian Bank Association V/s Union of India and others, reported in 2010 (5) SCC 590, it is clear that while recording the plea under section 251 of Cr.P.C, it becomes the duty of the accused to state whether he has any defence to make or he pleads guilty. Thus, unlike section 240 of Cr.P.C., the accused has no option under section 251 of Cr.P.C, just to deny the allegations made against him. If he is not willing to plead guilty, he must explain what are the defences he want to take. As such it has to be considered, whatever defence raised by the CC.No.15009/2019 29 accused during the trial are all after thought, just to get ride of statutory burden cast on him.
27. In addition to this in the case of T.P.Murugan (Dead) through legal representatives V/s Bojan reported in 2018 (8) SCC 469, the Hon'ble Apex Court held that, once the cheque has been signed and issued in favour of the holder of the cheque, there is statutory presumption that the cheque is issued in respect of legally enforceable debt or liability: rebuttal of such presumption must be by adducing credible evidence. Mere raising a doubt without cogent evidence with respect to the circumstances, presumption under section 139 of N.I.Act cannot be discharged. The principle of law laid down in the above decisions are applicable to the facts of this case. Except some bald contentions, the accused has not been able to make out a probable case on his behalf.
28. The accused has taken defence that except signature other writings on Ex.P.11-cheque is not in his handwriting, which were filled up by the complainant CC.No.15009/2019 30 and it amounts to material alterations, so, the complaint is liable to be dismissed. As narrated above, the complainant has specifically asserted that accused after putting his signature on Ex.P.11 to filled up other contents and then handed over it to them. When the accused admits his signature, he cannot take up a defence that other contents of cheque were filled up by the complainant and it amounts to material alteration. In this respect, ruling reported in 2019 SCC On-line (SC)
138), between Bir Singh V/s Mukesh Kumar, the Hon'ble Apex Court held as under:
"37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer, if cheque is otherwise valid, the CC.No.15009/2019 31 penal provision of Section 138 would be attracted.
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still the on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
40. Even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment. Would attract presumption Under section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."
29. The principles emerging from the above referred decision make it clear that, it is not mandatory and no law prescribes that the contents of cheque should be written by the signatory to the cheque. A cheque can be written by anybody and if the account holder of the cheque signs it, the presumption under CC.No.15009/2019 32 section 139 of N.I.Act arises. The principle of law laid- down in above decision is aptly applicable to the facts of this case. In view of section 20 of N.I Act, cheque being an inchoate instrument, if the drawer signs and delivers to the drawee, thereby he gives authority to the drawee thereof to make or complete the instrument.
30. The Hon'ble Apex Court in K.Bhaskaran V/s Sankaran Vaidhyan Balan and another reported in 1999 Cri.L.J 4608, held that, if the accused denies issue of cheque although owned his signature therein, the presumption arises that cheque was made or drawn for consideration on the date mentioned in cheque. The holder of cheque presumed to have received it for discharge of liability of the drawer.
31. As per the version of the accused is that he has nowhere denied transaction. The accused himself has admitted that, he is the holder of alleged cheque. It is sufficient hold that the accused has issued a cheque-Ex.P.11 and even after the accused has not repaid the cheque amount the getting of receipt of CC.No.15009/2019 33 notice. However, in any manner as the complainant has complied all the terms of ingredients of the provisions of 138 of N.I.Act. The accused is liable for dishonor of cheque. As per the ruling reported in 2015 (2), Bankman 415, "Section 138 and 139 of N.I.Act. 1881. In case of dishonor of cheque, once the execution of cheque is admitted by the accused, then it for him to first rebut presumption arising out of section 139 of N.I.Act. "As per section 27 of General Clause Act 1897, presumption is in favour of complainant that statutory notice is duly served on the accused". Hence, notice presumed to be served on the accused. Therefore, defence also holds no water. Accordingly, PW.1 has established their case the accused has issued a cheque-Ex.P.11 in order to pay the legally recoverable amount. Therefore, the accused has failed to probables the defence taken by him that the cheque-Ex.P.11 was the blank signed cheque and given to the complainant for the purpose of security in the year 2019 as per the advice of the CC.No.15009/2019 34 complainant company to continue the transaction. Therefore, the accused has failed to rebut the presumption under section 139 of N.I.Act. In the said circumstances, the complainant is not at all required to produce any material as to the financial transaction between the complainant and the accused, since the initial presumption is still available, when there is no rebuttal evidence.
32. PW.1 in his evidence has specifically stated that, the accused in order to repayment of balance amount he had issued Ex.P.11. So also it is not in disputed that the complainant and the accused are known to each other, some point of period, no documents could have been existence the evidencing financial transaction. This factor will not affect case of the complainant to disbelieve the financial transaction. When the accused has failed to rebut the presumption under section 139 of N.I.Act, non furnishing of details of financial transaction no consequences to disbelieve the case of the complainant. The accused has failed to CC.No.15009/2019 35 probables his defense. When the accused has failed to rebut the presumption under section 139 of N.I.Act, non furnishing of details of financial transaction no consequences to disbelieve the case of the complainant. The accused has failed to probables his defence. With these reasons, I answer point No.1 and 2 in the Affirmative.
33.POINT NO.3 AND 4: These two points are inter-related to each other and finding given on any one point will bearing on the another. Hence, in order to avoid repetition of facts, I have taken these two points together for common discussion. Before a person is held to have committed an offence punishable under section 138 of N.I.Act, he has to prove all the requirements of section 138 of N.I.Act. The cheque-Ex.P.11 being drawn on the account of the accused is not in dispute. The said cheque having been dishonored, when it was presented by the complainant before the Bank for encashment is also not seriously disputed by the accused. The accused CC.No.15009/2019 36 has not taken up any contention that, thereafter he had paid the cheque amount within stipulated time of 15 days, after given of the notice. As such in the present case from perusal of documents, the essential requirements of section 138 of N.I.Act, have been complied with. In this case if he has issued a blank signed cheque in favour of the complainant company for the purpose of security in the year 2019 to continue the transaction, why he has not produced any documents. After service of notice the accused has not paid the said amount. Hence, the present complaint came to be filed before the court on 11.03.2019 within the period of one month from the date of cause of action. While discussing the point No.1 and 2, this court has already observed that, the complainant has proved that, the cheque-Ex.P.11 was issued for discharge of legally enforceable liability/debt in favour of the complainant company and in view of the mandatory requirements of section 138 of N.I.Act, being complied with. The accused is found to have CC.No.15009/2019 37 committed an offence punishable under section 138 of N.I.Act. Accordingly, I answer point No.3 and 4 in the Affirmative.
34. POINT NO.5: The accused is held to have committed an offence punishable under section 138 of N.I.Act. The complainant has proved its case. The accused has failed to prove his rebuttal for the reasons mentioned above and in view of the mandatory requirements of section 138 of N.I.Act, being complied with. The accused is found to have committed an offence punishable under section 138 of N.I.Act. Since, the said offence is an economic crime, the accused is not entitled for the beneficial provisions of probation of offenders Act. In view of the above discussions and the findings on point No.1 to 4, I proceed to pass the following;
:ORDER:
Acting under section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under section 138 of N.I.Act.
The bail bond and surety bond stands CC.No.15009/2019 38 canceled.
The accused is sentence to pay total for a sum of Rs.33,84,766/- (Rupees thirty three lakhs eighty four thousand seven hundred sixty six) only to the complainants.
It is further ordered that, out of the said fine amount an amount of Rs.33,79,766/- (Rupees thirty three lakhs seventy nine thousand seven hundred sixty six) only shall be paid to the complainant's as compensation as per Section 357(1)(b) of Cr.P.C., and remaining amount of Rs.5,000/- (Rupees five thousand) only shall be remitted to the State.
In default of the payment of fine amount, the accused shall undergo simple imprisonment of one year.
(Dictated to the stenographer directly on computer typed by her, corrected by me and then judgment pronounced in the open court on 29 th day of October 2022) (Soubhagya.B.Bhusher) XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of witness examined on behalf of the complainant:
PW.1 : Mr.K.Sukesh Shetty List of documents marked on behalf of the complainant:
CC.No.15009/2019 39 Ex.P.1 : Minutes of Meeting on 10.02.2017.
Ex.P.2 : GPA.
Ex.P.3 : Invoices
Ex.P.4 : Purchase orders.
Ex.P.5 to 7 : Ledger Account on different dates.
Ex.P.8 : Balance confirmation.
Ex.P.9 : Part payment adjustment details.
Ex.P.11 : Part payment receipt.
Ex.P.3 : Cheque.
Ex.P11(a) : Signature of the accused.
Ex.P.12 : Bank endorsements.
Ex.P.13 : Office copy of legal notice.
Ex.P.13(a) & (b) : Postal receipts.
Ex.P.14 : Postal Acknowledgment.
Ex.P.15 : Returned legal notice.
Ex.P.15(a) : RPAD returned cover.
Ex.P.16 : Complaint.
Ex.P.17 & 18 : Payment demand letters dated:29.01.2018
and 14.02.218 respectively.
Ex.P.19 & 20 : Postal receipts.
Ex.P.21 & 22 : Postal acknowledgement.
Ex.P.23 : Xerox copy of the Customer Agreement.
Ex.P.24 : E-mail record on 21.03.2012.
Ex.P.25 & 26 : Email records on 20.04.2017.
Ex.P.27 : E-mail record on 26.10.2017.
Ex.P.28 : Certificate U/s.65(B) of the I.E.Act.
List of witnesses examined on behalf of the accused:
DW.1 : Mr.B.S.Praveen Kumar List of documents marked on behalf of the accused:
Nil.
XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
CC.No.15009/2019 40 29.10.2022 (Judgment pronounced in the Open Court Vide Separate Sheet) :ORDER:
Acting under section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under section 138 of N.I.Act.
The bail bond and surety bond stands canceled.
The accused is sentence to pay total for a sum of Rs.33,84,766/- (Rupees thirty three lakhs eighty four thousand seven hundred sixty six) only to the complainants.
It is further ordered that, out of the said fine amount an amount of Rs.33,79,766/- (Rupees thirty three lakhs seventy nine thousand seven hundred sixty CC.No.15009/2019 41 six) only shall be paid to the complainant's as compensation as per Section 357(1)(b) of Cr.P.C., and remaining amount of Rs.5,000/- (Rupees five thousand) only shall be remitted to the State.
In default of the payment of fine amount, the accused shall undergo simple imprisonment of one year.
XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.