Bangalore District Court
Sri. Kiran Kumar vs Sri. H.G.Rajanna on 29 December, 2021
1
C.C.No.4371/19
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 29th day of December 2021
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.4371/2019
Complainant : Sri. Kiran Kumar,
S/o. Ningaiah,
Aged about 39 years,
Residing at 957,10th Cross,
25th Main, Srinagar,
Bengaluru 50.
(Rep.by Sri. Thimmegowda M and
others., Advs.,)
Vs
Accused : Sri. H.G.Rajanna,
S/o. Late Gullappa,
Aged about 47 years,
Rented in Nagaraj Master
House,
Employee in Thyagaraj
Cooperative Bank,
No.12, Saniswara Temple Road,
Opp to Embassy School,
Mhagadi Main Road,
Chikkagollarahatti,
Dasanapura Hobli,
Bengaluru North Taluk,
2
C.C.No.4371/19
Office Address:
H.G.Rajanna
S/o. Late Gullappa,
No.40, Sree Thyagaraja CoOpe
Bank Ltd.,
Kattriguppe Main Road,
Banasankari 3rd Stage,
Bengaluru 85.
(Rep. by Sri.H.M.Devagururaja .,
Adv.,)
Case instituted : 6.2.2019
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 29.12.2021
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, he and accused are well known to each other since few years and they are employees in cooperative bank since many years, as such for the purpose of financial problem and to clear hand 3 C.C.No.4371/19 loans which were borrowed at the time of constructing his house, the accused approached and forced him by requesting to arrange or help a hand loan of Rs.15 Lakhs by assuring to repay the said amount within 7 or 8 months without fail by selling his site situated at Madanayakanahalli and also agreed to pay the interest of 24% p.a. on every month. The complainant further contended that, accused being a close family friend and a co employee at his request only with an intention to help him, he has arranged an amount of Rs.10 Lakhs by borrowing the said amount from his friend namely Vijay and same was advanced to the accused on 8.4.2018 and at that time towards repayment and for the discharge of the said loan amount of Rs.10 Lakhs, accused has issued two cheques ie.1) cheque bearing Nos.587846 dt: 5.11.2018 and 2) cheque bearing No. 587847 dt: 14.11.2018 for sum of Rs.5 Lakhs each and both cheques were drawn on Mahila Cooperative Bank, peenya, Dasarahalli branch Bangalore in his favour by assuring that, the said cheques would be honoured on the dates mentioned thereon. The complainant further contended that, 4 C.C.No.4371/19 prior to the presentation of cheques he informed the accused but the accused had taken another month time to maintain the cash in his account, finally as per the assurance of the accused, he has presented the cheques through his banker ie. Sree. Thyagaraja Cooperative Bank, Ltd., N.R. Colony, Basavanagudi Branch, Bangalore , but the said cheques returned with an endorsement that "Funds Insufficient"
vide dt: 13.12.2018 and thereafter he has requested the accused for repayment and accused has taken 7 days time but he did not repaid the amount and not responded, hence he has filed a complaint before Madanayakanahalli Police Station , inspite of that, the accused did not repaid the amount on the other hand, created false story before the police with an intention to escape from his liability, therefore there is no other alternative he got issued legal notice to the accused to his office and residential address through RPAD on 11.1.2019 and also through courier service but the accused managed to return the notice sent through RPAD as "Door Locked" but has received notice sent to his office address on 14.1.2019 and after receipt of the notice, the 5 C.C.No.4371/19 accused contacted him and requested 15 days time to repay the amount but did not paid the said amount and has given false reply by suppressing true facts with an intention to cheat him. Hence the complainant has filed this present complaint against the accused for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed his affidavitinlieu of his sworn statement, in which, he has reiterated the averments of the complaint. In support of his sworn statement, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to Ex.P.28 i.e. Ex.P.1 and P.2 are the original cheques dated:5.1.2018 14.1.2018 in which, the signatures are identified by P.W.1 are those of the Accused as per Ex.P1(a) and P.2(a) the Bank memos as per Ex.P.3 and P.4, the office copy of the Legal Notice as per Ex.P.5, postal Receipts as per Ex.P.6 and P.7 the Postal acknowledgment as per Ex.P.8, returned legal notice as per Ex.P.9, postal envelop as per Ex.P.10, Postal receipt as per Ex.P.11, postal acknowledgement as per Ex.P.12, copy of complaint filed by the 6 C.C.No.4371/19 complainant as per Ex.P.13, NCR endorsement issued by the police as per Ex.P.14, acknowledgement as per Ex.P.15, statement of the accused as per Ex.P.16, four postal receipts as per Ex.P.17 to P.20, Reply notice as per Ex.P.21, copies of the complaints lodged before the Hanumanthanagar Police station, ACP of Thyagarajanagar and Commissioner of Police, Bangalore are as per Ex.P.22 to P.24, postal acknowledgements as per Ex.P.25 to P.27, complaint and signature of the complainant as per Ex.P.28 and P.28(a).
4. The complainant during the course of trial has produced statement of account pertaining to the PW.2 and marked as Ex.P.29 through PW.2 and true copies of circulars produced by PW.3 marked as Ex.P.30 and P.31. Thereafter the complainant during the course of cross examination of the accused has produced true copy of the statement of the accused given before the Hanumanthanagar PS as per Ex.P.32, true copy of the complaint filed by the accused before the Madanayakanahalli PS dt; 16.1.2019 as per Ex.P.33, certified copies of the 7 C.C.No.4371/19 cheque and memo as per Ex.P.34. The complainant has also produced certified copies of the complaint, cheques, application filed U/s.257 Cr.P.C. in C.C, No. 14827/17 are as per Ex.P.35 to P.38, certified copies of the order sheet, complaint, chief examination, chief examination of the accused, two cheques, legal notice, affidavit filed before the Kamakshipalya police, vakalath filed on behalf of the accused, in C.C.No.6947/18 are as per Ex.P.39 to P.47, certified copy of the complaint, cheque, bank memo, legal notice in PCR NO.5932/18 as per Ex.P.48 to 51.
5. Prima facie case has been made against the Accused and summons was issued against his in turn the Accused has appeared before the Court and he has been enlarged on bail and the substance of the accusation has been read over to him, to which he has pleaded not guilty and has claimed the trial.
6. As per the direction of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the Accused, 8 C.C.No.4371/19 as he intended to set out his defence, the case came to be posted for the crossexamination of complainant and the Accused cross examined the complainant, thereafter the complainant has examined two witnesses by name Sri.Vijaya S/o. Narayana Reddy, and Bank Manager Sri. Ashok Hegde, S/o. Late Seetharam Hegde as PW.2 and PW.3 and closed his side.
7. Thereafter the statement of the Accused as required U/s.313 of Cr.P.C. has been recorded, the Accused has denied the incriminating evidence appearing against him and chosen to lead his rebuttal evidence and himself examined as DW.1 and has not produced any documents on his behalf and closed his side.
8. Heard the arguments by both sides and perused the written arguments and decisions relied upon by the learned counsel for the complainant ie.,
1) 2014 (4) AKR 98 2) Crl.AppeL No.309/2011 Hon'ble High Court of Karnataka decided on 10.8.2021, 3) AIR 2018 SC 3173, 4) AIR 2018 SC 3067 5) AIR 2019 SC 1876 6) Crl Appeal 9 C.C.No.4371/19 No.123/2021 Hon'ble Supreme Court of India and the learned counsel for the accused has relied upon the decisions 1) (2014) 2 SCC 236 2) (2015) 1 SCC 99 3) ILR 2008 KAR 4629 and perused the materials on record.
9. On the basis of complaint, evidence of complainant and documents and having heard the arguments of both learned counsels for the complainant and the accused, the following points that are arise for consideration are:
1. Whether the complainant proves that the accused has issued two cheques ie.
1) cheque bearing Nos.587846 dt:
5.11.2018 and 2) cheque bearing No. 587847 dt: 14.11.2018 for sum of Rs.5 Lakhs each and both cheques were drawn on Mahila Cooperative Bank, peenya, Dasarahalli branch Bangalore to discharge legally recoverable debt to the complainant and when the complainant has presented a cheque for encashment through his banker but the said cheque has been dishonoured for the reasons "Funds Insufficient" on 13.12.2018 and the complainant issued legal notice to the accused on 11.1.2019 and inspite of it the accused 10 C.C.No.4371/19 has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
10. The above points are answered as under:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS
11. Point No.1: Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as 11 C.C.No.4371/19 unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act presupposes three conditions for prosecution of an offence which are as under:
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
12C.C.No.4371/19
12. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e., U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
13. In the present case the complainant got examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire averments of the complaint and in his evidence testified that, he and accused are well known to each other since few 13 C.C.No.4371/19 years and they are employees in cooperative bank since many years, as such for the purpose of financial problem and to clear hand loans which were borrowed at the time of constructing his house, the accused approached and forced him by requesting to arrange or help a hand loan of Rs.15 Lakhs by assuring to repay the said amount within 7 or 8 months without fail by selling his site situated at Madanayakanahalli and also agreed to pay the interest of 24% p.a. on every month. The complainant/PW.1 further testified that, accused being a close family friend and a coemployee at his request only with an intention to help him, he has arranged an amount of Rs.10 Lakhs by borrowing the said amount from his friend namely Vijay and same was advanced to the accused on 8.4.2018 and at that time towards repayment and for the discharge of the said loan amount of Rs.10 Lakhs, accused has issued two cheques ie.1) cheque bearing Nos.587846 dt: 5.11.2018 and 2) cheque bearing No. 587847 dt: 14.11.2018 for sum of Rs.5 Lakhs each and both cheques were drawn on Mahila Co operative Bank, Peenya, Dasarahalli branch 14 C.C.No.4371/19 Bangalore in his favour by assuring that, the said cheques would be honoured on the dates mentioned thereon. The complainant/PW.1 further testified that, prior to the presentation of cheques he informed the accused but the accused had taken another month time to maintain the cash in his account, finally as per the assurance of the accused, he has presented the cheques through his banker ie. Sree. Thyagaraja Cooperative Bank, Ltd., N.R.Colony, Basavanagudi Branch, Bangalore, but the said cheques returned with an endorsement that "Funds Insufficient" vide dt: 13.12.2018 and thereafter he has requested the accused for repayment and accused has taken 7 days time but he did not repaid the amount and not responded, hence he has filed a complaint before Madanayakanahalli Police Station , inspite of that, the accused did not repaid the amount on the other hand, created false story before the police with an intention to escape from his liability, therefore there is no other alternative he got issued legal notice to the accused to his office and residential address through RPAD on 11.1.2019 and also through 15 C.C.No.4371/19 courier service but the accused managed to return the notice sent through RPAD as "Door Locked" but has received notice sent to his office address on 14.1.2019 and after receipt of the notice, the accused contacted him and requested 15 days time to repay the amount but did not paid the said amount and has given false reply by suppressing true facts with an intention to cheat him.
14. In support of his evidence the complainant has produced documentary evidence ie., Ex.P.1 to P.28 i.e. Ex.P.1 and P.2 are the original cheques dated:5.1.2018 14.1.2018 in which, the signatures are identified by P.W.1 as those of the Accused as per Ex.P1(a) and P.2(a) the Bank memos as per Ex.P.3 and P.4, the office copy of the Legal Notice as per Ex.P.5, postal Receipts as per Ex.P.6 and P.7 the Postal acknowledgment as per Ex.P.8, returned legal notice as per Ex.P.9, postal envelop as per Ex.P.10, Postal receipt as per Ex.P.11, postal acknowledgement as per Ex.P.12, copy of complaint filed by the complainant as per Ex.P.13, NCR endorsement issued by the police as per Ex.P.14, acknowledgement as per Ex.P.15, statement of the 16 C.C.No.4371/19 accused as per Ex.P.16, four postal receipts as per Ex.P.17 to P.20, Reply notice as per Ex.P.21, copies of the complaints lodged before the Hanumantha nagar Police station, ACP of Thyagarajanagar and Commissioner of Police, Bangalore are as per Ex.P. 22 to P.24, postal acknowledgements as per Ex.P.25 to P.27, complaint and signature of the complainant as per Ex.P.28 and P.28(a). The complainant during the course of trial has produced statement of account pertaining to the PW.2 and marked as Ex.P.29 through PW.2 and true copies of circulars produced by PW.3 marked as Ex.P.30 and P.31. Thereafter the complainant during the course of cross examination of the accused has produced true copy of the statement of the accused given before the Hanumanthanagar PS as per Ex.P.32, true copy of the complaint filed by the accused before the Madanayakanahalli PS dt:16.1.2019 as per Ex.P.33, certified copies of the cheque and memo as per Ex.P.34,The complainant has also produced certified copies of the complaint, cheques, application filed U/s.257 Cr.P.C in C.C.No.14827/17 are as per Ex.P. 35 to 38, certified copies of the order sheet, 17 C.C.No.4371/19 complaint chief examination, chief examination of the accused, two cheques, legal notice, affidavit filed before the Kamakshipalya police, vakalath filed on behalf of the accused, in C.C.No.6947/18 are as per Ex.P.39 to P47, certified copy of the complaint, cheque , bank memo, legal notice in PCR No.5932/18 as per Ex.P.48 to 51.
15. In the present case, there is no dispute between the complainant and Accused with regard to their acquaintance. It is also not in dispute by the accused that, the cheques in question belongs to his account and signatures found at Ex.P.1(a) and P.2(a) are those of his signatures. The Accused has also not disputed that the cheques in dispute presented for encashment and dishonoured for the reason of "Funds Insufficient" vide bank endorsement and as a matter of record and has been proved by Ex.P.3 and P.4 issued by the concerned bank, therefore the complainant has also proved that, he has presented the cheques in question within their validity period. The Accused has also not disputed the receipt of legal notice i.e., Ex.P.5 issued by the complainant as the accused has issued reply to the legal notice as 18 C.C.No.4371/19 per Ex.P.21, hence the complainant has also proved that, after receipt of the bank memos i.e dishonour of the cheques issued by the Accused, has issued legal notice in writing as per Ex.P.5 within 30 days from the date of receipt of bank memos by demanding the amounts covered under the dishonoured cheques within 15 days from the date of receipt of notice. Hence the complainant has complied all mandatory requirements as required U/s.138(a) to (c) of Negotiable Instruments Act and initial presumptions can be drawn in favour of the complainant as required U/s.118(a) and 139 of N.I.Act.
16. It is the specific defence of the Accused that,the complainant had no source of income to lend alleged loan amount of Rs.10,00,000/= to the Accused has not borrowed loan amount in question from the complainant and has not issued the cheques in question i.e Ex.P.1 and P.2 to the complainant towards discharge of loan amount in question. It is also the defence of the Accused that, the complainant was conducting chit transaction and he is a one of the subscriber and used to pay 19 C.C.No.4371/19 sum of Rs.5,000/ every month towards subscription of chit and was the successful bidder in the chit during the month of May 2021 at that time the complainant had collected his blank signed cheques towards security of the chit amount, hence in this back ground now it is to be examine oral and documentary evidence adduced by the complainant and Accused.
17. The learned counsel for the Accused cross examined the complainant in length but nothing has been elicited to discredit or discard his evidence, instead of eliciting anything materials from the complainant the Accused rather concentrated his defence that, there was no documents produced by the complainant to prove his source of income and there were no financial transaction between him and the complainant, and has not collected the documents to show that, he has lend the loan amount in question to the Accused, but the suggestions made by the learned counsel for the Accused in respect of the above defence to the complainant /PW.1, have been categorically denied 20 C.C.No.4371/19 by him. The complainant/PW.1 in his cross examination has specifically stated that, the accused has requested an amount of Rs.15 Lakhs for clearing the loan amounts borrowed at the time of construction of his house and at the time of lending of loan amount of Rs.10 Lakhs to the accused, the accused was drawing salary of Rs.45,000 to 50,000/. It is true that, the complainant has admitted that, he has not collected any documents from the accused at the time of lending of the loan amount but the complainant has given explanation for non collection of the documents from the accused that, he had not collected the documents since the accused is his colleague. It is also true that, he got filed complaint before the Madanayakanahalli Police Station prior to issuance of legal notice and in the said complaint he has stated that, the accused borrowed a loan of Rs.10 Lakhs from him for the construction of his house and has not stated that, he has arranged Rs.10 Lakhs from his friend ie., Vijay but the complainant stated that, though he has not stated in the complaint but has orally intimated to the police. It is also true that, the complainant 21 C.C.No.4371/19 has admitted that on 2.2.2019 he has lodged the complaint before the Hanumanthanagar police station and in the said complaint he has stated that, out of Rs.10 Lakhs his friend ie Vijay has given Rs.7 Lakhs and personally he has paid Rs.3 Lakhs and in total Rs.10 Lakhs paid to the accused and he has stated to the suggestion that, he do not remember as to whether at the time of issuing legal notice he has stated that, he has received a sum of Rs.7 Lakhs from his friend Vijay and he has paid Rs.3 Lakhs ie., in total Rs.10 Lakhs paid to the accused and also stated to the suggestion that, he do not remember as to whether he has stated in the notice that, he has received entire amount of Rs.10 Lakhs from his friend by name Vijay. The complainant has denied the suggestion that, he has not paid any amount to the complainant on 4.8.2018 but had collected signed blank cheques from the accused in connection with the chit transaction and subsequently got bounced the said cheques and in order to recover the money forcefully from the accused has filed false complaint before the police station against the accused. The complainant/PW.1 22 C.C.No.4371/19 has also stated in his cross examination that, the contents of the reply notice ie., he had forcibly collected the cheques in question from the accused in connection with the chit transaction are all false and also denied the suggestion that, he got collected blank signed cheques from the accused and got filled the cheques by mentioning the chit amount and interest in the cheques and presented to the bank and filed this false case against the accused. Hence, on entire perusal of the cross examination of the complainant nothing has been elicited to discard or disbelieve the evidence of the complainant.
18. The complainant has also examined his friend ie Sri. Vijay,S/o. Narayana Reddy as PW.2 and who in his evidence stated that, he is doing car buying and selling business and real estate business and he had income of Rs.3 Lakhs p.m. from rents and he know the complainant and accused since many years and he had taken a loan of Rs.1,34,39,000 for construction of his house from Mahila Cooperative Bank, Banashankari 2nd stage, Bangalore. The PW.2 also stated that, the complainant approched him stating that, with an 23 C.C.No.4371/19 intention to help the accused, he required Rs.10 Lakhs and agreeing to pay the said amount within 7 to 8 months and also agreed to pay interest at 2% p.m. , hereafter he has paid an amount for Rs.7 Lakhs to the complainant on 8.4.2018 and also came to know that, on the same day the complainant was given Rs.10 Lakhs to the accused and towards discharge of the said amount the accused has given two cheques to the complainant. The PW.2 has also stated that, since the complainant facing lot of problems at the hands of accused and he also advised the accused to return the amount to the complainant for that, the accused was trying to cheat the complainant. In support of oral evidence the PW.2 has produced his bank account statement which is at Ex.P.29 and the perusal of Ex.P.29 it appears that, the PW.2 has withdrawn an amount of Rs.7 Lakhs on 17.4.2018 and reflected the loan borrowed by PW.2 from bank.
19. The learned counsel; for the accused has cross examined the PW.2 in length but nothing has been elicited to discard or disbelieve the evidence of PW.2 . The PW.2 in his cross examination has clearly 24 C.C.No.4371/19 stated that, he knows the accused since 10 years as he got his bank account at Thyagaraja Cooperative Bank since 20 years and during the year 2018 the accused was working at Thyagaraja Cooperative Bank, Mattikere Branch, and accused has not directly approached him seeking loan amount but the complainant stated that, the accused was approached him for financial help and requested him to pay the amount and thereafter the complainant personally received the amount from him and in turn has paid the said amount to the accused. The PW.2 has also stated that, on 8.4.2018 he has paid an amount of Rs.7 Lakhs at about 4.30 p.m. to the complainant near his house at that time except the complainant no one was present. The PW.2 has also stated that, he has requested the complainant for return of his money and complainant has paid Rs.5 Lakhs to him. Therefore on entire perusal of the cross examination of PW.2 the accused has not denied the lending of amount of Rs.7 Lakhs to the complainant by PW.2 and also not denied the Ex.P.29 ie., the Statement of Accounts produced by PW.2 nothing has been 25 C.C.No.4371/19 elicited to disbelieve the evidence of PW.2.
20. The learned counsel for the accused during the course of arguments much argued on the admissions of the complainant that, the complainant in the legal notice and complaint has stated that, the accused approached him seeking loan of Rs.15 Lakhs but he arranged a sum of Rs.10 Lakhs by borrowing the said amount from his friend namely Vijay and has paid to the accused on 8.4.2018 but during the cross examination of the complainant he has stated that, out of his Rs.10 Lakhs his friend has given Rs.7 Lakhs to him and remaining amount of Rs.3 Lakhs arranged by him and he has paid total amount of Rs.10 Lakhs to the accused and the complainant has not produced any documents to show that, he has withdrawn an amount of Rs.3 Lakhs from his account or has not produced any documents to show that, he was possessed an amount of Rs.3 Lakhs and the PW.2 though he has produced his bank account statement but in his evidence has not stated that, he had withdrawn the amount from his bank and same was paid to the complainant. The learned counsel for 26 C.C.No.4371/19 accused has also argued that, the complainant in his legal notice, complaint and evidence stated that, the accused has requested loan amount towards clearing of loan amount borrowed for construction of his house but in the complaint filed by the complainant before the Madanayakanahalli Police ie., Ex.P.13 and Ex.P.15 the complainant has stated that, the accused has borrowed a loan amount for construction of his house and has not stated about receipt of Rs.7 Lakhs from his friend and he has arranged Rs.3 Lakhs and in total Rs.10 Lakhs was given to the accused but in Ex.P.22 ie., the statement given before the Hanumanthanagar Police the complainant has stated that, he has received an amount of Rs.7 Lakhs from his friend ie., Vijay and he has arranged Rs.3 Lakhs and paid to the accused but no documents were produced by the complainant, in such circumstances it can be held that, the complainant has falsely claimed that, the accused was approached him for hand loan of Rs.15 Lakhs for the purpose of clearing his loan amount borrowed for construction of his house and he has paid Rs.10 Lakhs to the accused and the claim 27 C.C.No.4371/19 made by the complainant appears to be doubtful and the contents of the complaint, notice, and evidence of the complainant and documents produced by the complainant are inconsistent to each other and the complainant has not produced any documents to prove his financial capacity and the transaction in question.
21. On careful perusal of the contents of the legal notice, complaint, evidence and documents produced by the complainant it is true that, the complainant in his legal notice, complaint and evidence has stated that, the accused has approached him requesting a hand loan of Rs.15 Lakhs for the purpose of solving his financial problems and clear other hand loans which was borrowed at the time of constructing the house and with an intention to help him he has arranged Rs.10 Lakhs by borrowing the amount from his friend namely Vijay and same was given to the accused on 8.4.2018 and in the cross examination the complainant has admitted that, out of Rs.10 Lakhs paid to the accused he has received an amount of Rs.7 Lakhs from his friend and he has personally 28 C.C.No.4371/19 arranged an amount of rs.3 Lakhs and in total a sum of Rs.10 Lakhs was paid to the accused and it is also true that, the complainant has not stated this fact in his legal notice, complaint and evidence and also admitted that, he has not stated this fact in the complaint filed before the Madanayakanahalli police ie in Ex.P.13 and in the complaint ie., Ex.P.13 the complainant has stated that, the accused has borrowed a loan of Rs.10 Lakhs for the purpose of construction of his house.
22. But on combined reading of oral and documentary evidence though the complainant has not stated that, out of Rs.10 Lakhs paid to the accused he has received a sum of Rs.7 Lakhs from his friend and he has personally arranged Rs.3 lakhs and total amount of Rs.10 Lakhs was paid to the accused and the loan amount was paid to the accused towards clearing of loan amounts borrowed by the accused for construction of the house, but the complainant has examined his friend ie Sri.Vijay as PW.2 who in his evidence has clearly stated that, in order to help the accused financially, the complainant requested him to pay Rs.10 Lakhs but 29 C.C.No.4371/19 he has paid Rs.7 Lakhs to the complainant and the complainant in turn has paid Rs.10 Lakhs to the accused, hence it goes to show that, though the complainant has not stated the fact of receipt of Rs.7 Lakhs from his friend and he had Rs.3 Lakhs in his notice, complaint, and evidence but the complainant has examined his friend ie Vijay and proved the said fact. On meticulous reading of the contents of the complaint , evidence of the complainant it appears that, though the complainant has stated that, he has arranged Rs.10 Lakhs but he never stated that, he has borrowed entire amount of Rs.10 Lakhs from his friend ie., Sri. Vijay instead of it he has stated that, he has arranged Rs.10 Lakhs by borrowing the amount from his friend namely Vijay, therefore arguments canvassed by the learned senior counsel for the accused cannot be acceptable one. In addition to the above, no doubt the complainant during the cross examination has stated that, he had received an amount of Rs.7 Lakhs from his friend Vijay and personally has arranged Rs.3 Lakhs and in total Rs.10 Lakhs was paid to the accused and the said fact has not been 30 C.C.No.4371/19 stated in legal notice, complaint and evidence and mere non disclosure of the same in the legal notice, complaint and evidence, the entire evidence of the complainant cannot be discarded at the most it can be held that, non mentioning of the said facts is nothing but an omission on the part of the complainant and which might be a lapse, however it cannot be a ground to disbelieve the entire case of the complainant. If this court were to doubt the case of the complainant only because of he has not pleaded in the legal notice, complaint and evidence about the sources of he having arranged the funds ie Rs.7 Lakhs from his friend by name Vijay and Rs.3 Lakhs arranged by him and in turn Rs.10 Lakhs was lend to the accused then the very purpose of inserting the presumption U/s.118(a) and 139 of N.I.Act would become purposeless and futile. Therefore when the statute has provided the presumptive value in respect of a cheque which is admittedly issued by the accused to the complainant, the court cannot interpret the other facts in a way round so as to take away of very object of inserting such presumptions in the statute.
31C.C.No.4371/19 Therefore there are no reasons for this court to doubt the case of the complainant only by laying stress on the fact that, the complainant has not pleaded in the legal notice, complaint and evidence about source through which he claims to have arrange the funds. Therefore for the above said reasons the arguments canvassed by the learned counsel for the complainant are not sustainable in law and not acceptable one.
23. Even for sake of discussion if it is assumed that, the complainant has not produced document except the cheques in question i.e., Ex.P.1 and P.2 to show that, he has arranged Rs.3 Lakhs personally and received Rs.7 Lakhs from his friend and has paid Rs.10 Lakhs to the accused. But it is important to note here that, on careful perusal of the entire oral and documentary evidence produced by the complainant i.e Ex.P.1 to P.12 and P.21 and admitted facts by the Accused as it is already held in the above that, the complainant proved that the cheques in question belongs to the Accused i.e Ex.P.1 and P.2 and signatures found at Ex.P.1(a) and P.2(a) are those of the signatures of the 32 C.C.No.4371/19 Accused and also proved that, the cheques in question were presented within their validity period and it was dishonoured for the reason of "Funds Insufficient" as per Ex.P.3 and P.4, and thereafter the legal notice caused by him through RPAD to the Accused was served on him and Accused has given reply to the legal notice, in such circumstances, it can be held that, the complainant has discharged his initial burden by complying the mandatory requirements as required U/s.138 of N.I. Act and initial presumptions are available in favour of the complainant U/s.118a and 139 of the N.I. Act. Consequently it is for the Accused to rebut the said presumptions available in favour of the complainant to show that, the cheques in question were not issued either to the complainant or towards discharge of any legally recoverable debt by producing cogent and convincible evidence but not mere suggestions or even by plausible explanation. In such circumstances, when the presumptions U/s.118 and 139 of N.I.Act are available to the complainant, even a presumption can be drawn to the extent of existence of legally recoverable debt or 33 C.C.No.4371/19 liability against the Accused unless and until the said presumptions are rebutted by the Accused, even in the absence of documents produced by the complainant with regard to loan transaction in question. In this regard, it is relevant here to refer the decisions reported in 2001 AIR Karnataka HCR 2154 between 'M/s.Devi Tyres V/s.Navab Jan' and in 2011 ACD 1521 (KAR) between 'Smt. Usha Suresh V/s. Shashidharn', in 2010 SC 1898 between 'Rangappa Vs. Mohan' and 2011 ACD 1412 (KAR) between 'N.Hasainar Vs. M.Hasainar, S/o. Ibrahim'. The Hon'ble High Court of Karnataka in the above decision i.e., 2001 AIR Karnataka HCR 2154 at para No.6 was pleased to hold that issuance of cheque itself was adequate proof of existence of debt or liability. In another decision of Hon'ble Apex Court of India i.e. Hon'ble Three Judges Bench Decision reported in (2010) 11 SCC 441 in the case of Rangappa Vs. Sri. Mohan ., wherein the Hon'ble Apex Court held that "
A. Negotiable Instruments Act, 1881 - S.139 - Presumption under - scope of - Held, 34 C.C.No.4371/19 presumption mandated by S. 139 includes a presumption that there exists a legally enforceable debt or liability - However such presumption is rebuttable in nature - Criminal Trial - Proof - Presumptions - Generally. Further held that "Signature on the cheque was his, statutory presumption under S.139 comes into play and the same was not rebutted even with regard to the materials submitted by complainant Appellant not able to prove "lost cheque" theory - Apart from not raising a probable defence appellant was also not able to contest the existence of a legally enforceable debt or liability - hence, his conviction by High Court, held, proper. In another decision of Hon'ble Apex Court of India, reported in CRIMINAL APPEAL NO. 508 OF 2018 DT 15032018 between ROHITBHAI JIVANLAL PATEL Vs STATE OF GUJARAT AND ANR held that "Negotiable Instruments Act facts like source of funds are not relevant if the Accused has not been able to rebut the presumption. It is 35 C.C.No.4371/19 further held that " When such a presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the Accused has been able to rebut the presumption or not". In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, "
Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is 36 C.C.No.4371/19 towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. It is also held that, " the accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the Trial Court and High Court. Both courts not only erred in law but also committed perversity when the due amount is said to be disputed only on the account of discrepancy in the cartons, packing materials or the rate to determine the total liability as if the appellant was proving his debt before the civil court. Therefore it is presumed that, the cheque in question were drawn for consideration and the holder of the cheques received the same in existing debt". It is also held that, "the Trial court and the High Court proceeded as if, the appellant is to prove a debt before civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in 37 C.C.No.4371/19 support of his claim for the recovery of the amount due. A dishonour of cheque carries statutory presumption of consideration. The holder of cheque in due course is required to prove that, the cheque was issued by the Accused and that when the same presented , it was not honoured Since there is a statutory presumption of consideration, the burden is on the Accused to rebut the presumption that, the cheque was issued not for any debt or other liability ". It is also relevant here to refer the decision of Hon'ble High Court of Karnataka reported in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption mandated by Sec.139 of N.I Act includes the presumption that, there existed a legally enforceable debt or liability, however such presumption is rebuttable in nature". In another decision of Hon'ble High Court of Karnataka in the case of Shri.V.R.Shresti Vs. Shri. Bhaskara.P. in 38 C.C.No.4371/19 Crl. Appeal No. 2109/2017 dated: 15.10.2019 wherein the Hon'ble High Court of Karnataka held that "the Accused has not given any reply to the notice and also in the crossexamination, he categorically admits that, the cheque has bounced on account of no sufficient fund in the bank account of the Accused. Mere non producing of the document before the court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The Accused ought to have rebutted the contention of the complainant by producing cogent evidence before the court and mere denial is not enough".
24. Therefore on careful reading of the principles of law laid down by the Hon'ble Apex Court of India and High Court of Karnataka in the above referred decisions makes it very clear that, once the holder in due course i.e. the complainant proved that, the cheque in question belongs to the drawer and signature appearing on the cheque is that of the drawer i.e., Accused and complied the 39 C.C.No.4371/19 mandatory requirements as required U/s.138 of N.I.Act, presumptions U/s.118a and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt and when such presumption is drawn the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence regarding source of funds were not of relevant unless the Accused rebutted the presumption available to the complainant as held by the Hon'ble Apex Court and High Court of Karnataka in the above decisions. In the present case also the complainant has complied mandatory requirements and has proved that, the Accused has issued the cheques in question in his favour and the Accused has admitted the cheques belongs to his account and signatures appearing on the cheques are those of his signatures, in such circumstances, presumptions have to be drawn towards existence of legally enforceable debt as per Sec.139 of N.I.Act. Therefore, for the above said reasons the arguments canvassed by the learned counsel for the accused that, the complainant has not produced the documents to prove his source of fund and failed to 40 C.C.No.4371/19 prove that, he has paid loan amount of Rs.10 Lakhs to the accused and in turn the accused has issued the cheques in question towards repayment of the loan amount cannot be acceptable one. The defence taken by the Accused appears that, the complainant has to prove his claim by producing his evidence as if it is required for proving of his debt before the Civil Court, but same cannot be permissible in a proceedings initiated U/s.138 of N.I. Act, as held by the Hon'ble Apex court of India in the above referred decision, therefore in view of the principles of law laid down in the above referred decisions it is presumed that, cheques in question were drawn for consideration as the Accused has admitted the cheques in question belongs to his account and signatures found on the cheques in question are those of his signatures. On careful reading of the principles of law aid down by the Hon'ble Apex court of India and High Court of Karnataka in the decisions relied upon by the learned counsel for the accused and with due respect to the principles of law laid down are not applicable to the defence of the accused in the present case and the facts and 41 C.C.No.4371/19 circumstances of the decided case and facts and circumstances of the present case are not one and the same.
25. It is also the defence of the accused that, the Ex.P.1 and P.2 ie cheques in question are Non CTS cheques and the Reserve Bank of India has introduced CTS cheques during the year 2010 and after the year 2010 the banks are not issuing non CTS Cheques to the customers and the cheques in question were issued by the accused during the year 2018 are non CTS Cheques and they are not in force and invalid cheques, therefore the cheques in question which were procedure by the complainant are not issued by the accused during the year 2018 as stated by the complainant. In this regard, the complainant has examined Bank Manager of Sree Thyagaraja Cooperative Bank, N.R. Colony Branch, Bangalore by name Sri.Ashok Hegde, S/o. Late Seetharam Hegde as PW.3. The PW.3 in his evidence has stated that, since four years he is working as Manager in Sree Thyagaraja Cooperative Bank, N.R. Colony Branch, Bangalore and he has produced two circulars/Notifications issued by Reserve Bank of 42 C.C.No.4371/19 India which are at Ex.P.30 and P.31. The PW.3 also stated that, as per the said circulars ie Ex.P.30 and 31 the last date for presentation of the non CTS cheque was fixed on 31.12.2018 and the non CTS cheques which were presented on or before 31.12.2018 to his bank were received and the Non CTS cheques which were presented after 31.12.2018 were rejected without receiving the said cheques and as per the circulars a person can present Non CTS cheques on or before 31.12.2018. It is important here to mention that, though the learned counsel for he accused has cross examine the PW.3 but has not disputed the Ex.P.30 and P.31 and also the last date of presentation of the Non CTS cheques fixed by RBI ie 31.12.2018. It is also relevant here to mention that, it is an admitted fact that, the cheques in question ie., Ex.P1 and P.2 were presented to the bank for encashment on 13.12.2018 ie much prior to the 31.12.2018, therefore though if it is assumed that, the cheques in question are Non CTS cheques but as per the circulars issued by Reserve Bank of India in Ex.P.30 and P.31 RBI has permitted for presentation of the Non CTS cheques for clearance 43 C.C.No.4371/19 till December 31st 2018 and in view of the notifications ie Ex.P.30 and 31, the RBI held that all Non CTS cheques with customers would continue to be valid and accepted till 31.12.2018, thus it is clear from Ex.P.30 and P.31 notifications that, the Non CTS cheques had not become in valid till 31.12.2018 and the same view has been expressed by the Bank manager PW.3 in his evidence. Therefore the defence taken by the accused that, the cheques in question were Non CTS cheques and they were not in force and in valid as on the date of issuance of the cheques cannot be acceptable one. In addition to the above, the accused during the course of his cross examination has clearly admitted that, if there would be a sufficient balance of funds maintained in his account the cheques in question would have been honored, therefore in view of the admissions of the accused goes to show that, the cheques in question have been dishonured for want of sufficient funds in the account of the accused but they have not been returned as they are non CTS cheques and have been presented after expiry of the date fixed by the RBI, in such circumstances the 44 C.C.No.4371/19 defence of the accused that, as on the date of presentation of the cheques they were Non CTS cheques and had become invalid cannot be acceptable one.
26. The accused in order to rebut the presumptions available to the complainant himself examined as DW.1 and in his evidence he has stated that, he have not borrowed any money from the complainant thus the question of issuing cheques mentioned in the complaint does not arise and he has not issued the cheques in question. The accused/DW.1 further deposed that, the complainant during the year 2012 was conducting the chit in his house and he being one of subscriber used to pay Rs.5,000/ every month towards subscription of the chit and he was the successful bidder during the month of May 2012 and he demanded for payment of chit amount but the complainant insisted him to issue blank signed cheques towards the security for repayment of the balance of chit amount, hence he was constrained to issue the disputed blank cheques and after completion of the chit in the month of October 2012 45 C.C.No.4371/19 he requested the complainant to return the cheques but the complainant informed that, cheques were misplaced and assured him to return when the same were traced but the complainant instead of returning the cheuqes has misused the same with an intention to make unlawful gain and to harass him.
27. It is relevant here to mention that, in support of oral evidence of the Accused, has not produced any documentary proof to substantiate his defence that, in the month of May 2012, the complainant was running chit and he was a subscriber of chit and used to pay Rs.5,000/ every month towards subscription of the chit and was the successful bidder in the month of May 2012 and at that time receiving the chit amount, the complainant had collected his blank signed cheques and he has repaid the entire chit amount to the complainant but the complainant did not return his blank signed cheques and misused the same, in such circumstances the defence of the Accused cannot be acceptable one, on the other hand, it can be held that, cheques in question were issued towards discharge of debt in question. In this 46 C.C.No.4371/19 regard, it is relevant here to refer the decision of Hon'ble Madras High Court reported in AIR 2009 (NOC) 726 MAD in the case of P. Armugam Vs. P. Veluswamy, wherein the Hon'ble High Court held that "Negotiable Instruments Act (26 of 1881) S.138 - Dishonour of cheque - Accused admits to have signed cheque and handed it over to complainant - Defence raised by accused that said cheque was issued as a blank cheque intended to be a collateral security for an unregistered chit conducted by complainant - However, no evidence has been adduced by Accused to prove that complainant was running an unregistered chit in which Accused joined as a subscribing member - there is no evidence to prove amount of chit or that Accused was a priced subscriber and the blank cheque had been issued to ensure proper payment of future subscriptions - can be held that, cheque was issued for payment of loan obtained by accused from complainant - Accused guilty of offence. In 47 C.C.No.4371/19 another decision of Hon'ble High Court of Karnataka reported in 2012 (4) KCCR 2634 in the case of Sri. Prakash @ Jnana Prakash Vs. Ms. T.S. Susheela wherein the Hon'ble High Court held that "NEGOTIABLE INSTRUMENT ACT, 1881 - Section 138 - Complaint under - Cheque dishonoured for "insufficient funds" - Plea of accused as to non
-receipt of demand notice, absence of legal liability, misuse of documents given as security in an independent chit transaction - Convicted by Trial Court Confirmed by Appellate Court - Revision against The plea as to misuse of documents would not be believed due to in action of the accused. Hence in view of the principles of law laid down by the Hon'ble High Courts in the above decisions, in the present case also the Accused has not proved that, the cheques in question have been issued to the complainant in respect of chit transaction and the complainant has misused the cheques and filed false case against him as alleged in his defence.
48C.C.No.4371/19
28. It is relevant here to mention that, according to the defence of the Accused that, the complainant had collected his blank signed cheques from him towards security in respect of chit, according to him, he has handed over the blank signed cheques to the complainant at the time of receiving the chit amount and thereafter he has repaid the chit amount to the complainant and requested for return of the cheques but the complainant did not return the same. If really the complainant has collected blank signed cheques from the accused towards security of the chit amount, and even after repayment of the said chit amount, the complainant has misused his cheques, but even after notice of the fact of alleged misuse of the cheques by the complainant, the Accused would have made an efforts to get return of the said blank cheques from the complainant. Admittedly he has not produced any document to show that, the complainant was running chit business and has paid chit amount to him and the complainant had collected the signed blank cheques from him, in such circumstances, the defence of the Accused 49 C.C.No.4371/19 cannot be acceptable one as the Accused has not made any efforts to get return of his blank signed cheques either by issuing notice to the complainant or by filing complaint against the complainant before the police or competent authority for non returning of the alleged misuse of signed blank cheques, therefore the conduct of the accused in non taking of action against the complainant for alleged non return of cheques in question may leads to draw an adverse inference against the accused that, he has not taken any action against the complainant since he has issued the cheques in question towards discharge of the debt in question not for other reasons. In this regard, it is relevant here to refer the decision of Hon'ble Apex Court of India reported in AIR 2018 SC 3601 in a case of T.P.Murugan(dead) Thr. Lrs.V. Bhojan Vs. Posa Nandi, rep. Thr. Lrs. PA holder, T.P. Murugan V. Bhojan, wherein the Hon'ble apex Court held that "Negotiable Instruments Act (26 of 1881) Ss.118, 138, 139 - Dishonour of cheque - Presumption as to enforceable debt cheques allegedly issued by accused towards repayment of debt Defence 50 C.C.No.4371/19 of accused that 10 cheques issued towards repayment of loan back in 1995 - behavior of accused in allegedly issuing 10 blank cheques back in 1995 and never asking their return for 7 years, unnatural - Accused admitting his signature on cheques and pronote, presumption under S.139 would operate against him - Complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt Conviction, Proper." Hence by applying the above principles of law to the present facts of the case in the present case though the Accused has taken defence that, the complainant has misused the subject cheques which were alleged to have been given to the complainant towards security in respect of chit but the said defence has not been proved by the Accused, under such circumstances, it can be held that, the accused has not made any efforts to get return of the cheques in question, therefore, the said unnatural conduct of the accused in non taking of action leads to draw an adverse inference against 51 C.C.No.4371/19 the accused that, the cheques in question issued by the accused towards discharge of the liability in question and presumption U/s.139 of N.I. Act would operate against him, as he has admitted the signatures and cheques in question are belong to him.
29. It is the specific defence of the Accused that, the complainant was running chit business and he was one of the subscriber and used to pay Rs.5,000/ every month towards subscription of the chit and was the successful bidder during the month of May 2012 and he demanded for the payment of chit amount, at that time the complainant insisted him to issue blank signed cheques towards security for the repayment of the balance chit amount , hence he was issued the disputed blank cheques to the complainant but the complainant even after repayment of chit amount did not return his blank cheques to him but has misused the same by filing this false complaint against him. As it is already held in the above that, the Accused has failed to prove his defence by producing cogent and convincible evidence and also failed to rebut the presumptions 52 C.C.No.4371/19 drawn U/s.139 of N.I. Act. No doubt, Accused had given reply to the notice caused by the complainant but the contents of the reply notice have not been proved by the Accused either by leading his evidence or by producing the documentary proof, therefore the defence of the Accused appears to be denial in nature. It is also important to note here that, the Accused admitted issuance of cheques in question to the complainant and also his signatures on the cheques and has failed to prove his defence, in such circumstances, it is necessary here to refer decision of Hon'ble High Court of Karnataka reported in 2015 (1) KCCR 235 in the case of Lale Patel Vs. Sharanabasappa., wherein the Hon'ble High Court held that " NEGOTIABLE INSTRUMENTS ACT, 1881 section 138 - Dishonour of cheque for insufficiency of funds Plea of accused that he had given a blank cheque signed as security for a transaction and complainant filled up the contents and denied existence of any debt or loan - Conviction by Trial court Affirmed by Appellate Court - Revision against. In another 53 C.C.No.4371/19 decision reported in 2015 (4) KCCR 2881 (SC) in the case of T. Vasanthakumar Vs. Vijayakumari., wherein the Hon'ble Apex court held that " NEGOTIABLE INSTRUMENTS Act, 1881 Section s138 and 139 - acquittal - If justified Accused not disputing issuance of cheque and his signature on it Plea that it was issued long back as security and that loan amount was repaid Not supported by any evidence - Fact that date was printed, would not lend any evidence to case of accused Acquittal not proper. In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.271/2020 in the case of APS Forex Services Pvt. Ltd., Vs. Shakthi International Fashion Linkers and others., wherein the Hon'ble Apex Court held that "the defence of the Accused that, cheques were given by way of security is not believable in the absence of further evidence to rebut the presumption. It is also held that, once the issuance of the cheque has been admitted 54 C.C.No.4371/19 and even the signature on the cheque has been admitted, there is always presumption infavour of the complainant that there exists legally enforceable debt or liability and thereafter it is for the Accused to rebut such presumption by leading evidence". Hence in the present case also it is the main defence of the Accused that the cheques in dispute were given to the complainant as security at the time of alleged borrowing of chit amount but in this regard the accused has not produced documents or proof in such circumstances by applying the principles of law laid down in the above decision the defence of the Accused cannot be acceptable one in the absence of further proof of evidence to rebut the presumption.
30. The Accused has taken another defence that, he has given his signed blank cheques to the complainant at the time of receiving the alleged chit bid amount though he has repaid the entire chit amount to the complainant but he did not return his blank signed cheques and by misusing the said cheques has filed this false case. Even for sake of 55 C.C.No.4371/19 discussion, if it is assumed that, the Accused had given blank signed cheques to the complainant even in such circumstances also the offence U/s.138 of N.I.Act would attract against the Accused. In this regard, it is a relevant here to refer the decision of Hon'ble Apex Court of India reported in AIR 2019 SC 2446 in the case of Birsingh Vs. Mukesh Kumar., wherein the Hon'ble apex Court held that, "presumption U/s.139 is presumption of law, distinguished from presumption of facts and also held that, presumptions are rules of evidence and do not conflict with presumption of innocence which requires prosecution to prove case against the Accused and also held that obligation on the prosecution may discharged with the help of presumptions of law and presumption of fact unless the accused adduces evidence showing reasonable plausibility of non existence of presumed fact." In the present case though the Accused has denied the contents of the cheques in question except his signatures but he has failed to prove his defence or 56 C.C.No.4371/19 produced any documents or satisfactory evidence to rebut the presumptions as available U/s.139 of the N.I. Act, under such circumstances in view of the above principles of law, it can be presumed even on fact also that the complainant has proved his case by discharging his burden and complying the mandatory provisions. In the said decision the Hon'ble Apex court has also held that, "presumption as to legally enforceable debt is rebuttable, the signed blank cheque if voluntarily presented to payee towards payment payee may fill up amount and other particulars and it in itself would not invalidate cheque and onus would still be on the accused to prove that, cheque was not issued or discharge of debt or liability by adducing evidence." In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, " Dishonor of cheque - Statutory presumption 57 C.C.No.4371/19 under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act". Even if it is assumed that, the Accused is not aware who has filled the contents of the cheques, even in such circumstances also in view of the principles of law laid down in the above decision that itself would not invalidates the cheques in question and it can be presumed that, the cheques filled in by in the presence of the Accused at his consent and the said cheques have been issued towards discharge of legally recoverable debt.
31. It is also important to note here that, the Accused has not denied or disputed that the cheques 58 C.C.No.4371/19 in question as well as the signatures therein do belong to him and he has failed to explain as to how his cheques have came to the possession of the Complainant, this would also give rise to an adverse inference against him. This preposition of law finds support from the decisions of Hon'ble High Court of Karnataka reported in 2010(1) KCCR 176 in the case of "Siddappa Vs. Manjappa". In another decision of Hon'ble Apex court of India decided in Crl.A.No.664 of 2012 dated: 19.9.2019 in the case of "M.Abbas Haji Vs. T.M.Chennakeshava"
held that, " the Accused has to explain how the cheque entered into the hands of complainant".
Hence in the present case also the Accused has failed to explain and prove that, how the cheques in question were entered into the hands of complainant. Therefore for the above said reasons the defense taken by the accused cannot be acceptable one and accused has miserably failed to rebut the presumption available in favour of the complainant by adducing cogent and convincible evidence.
59C.C.No.4371/19
32. Therefore considering all these aspects of the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant, the complainant has successfully established beyond all reasonable doubt that, he has lent a sum of Rs.10,00,000/= to the accused as a hand loan and the accused in turn has issued cheques in question i.e. Ex.P.1 and P.2 to the complainant for sum of Rs. 5 Lakhs each towards repayment of the hand loan, thereafter the complainant has presented the said cheques through his banker and same were returned dishonoured with an endorsement of "Funds Insufficient " and thereafter he got issued legal notice to the accused and inspite of service of the said notice, the Accused did not repaid loan amount borrowed by him, hence the complainant filed the present complaint against the accused. On the other hand, the accused has failed to rebut the presumption available infavour of the complainant with regard to the existence of legally recoverable debt under Ex.P.1 and P.2 Cheques. Therefore accused has committed an offence punishable 60 C.C.No.4371/19 U/s.138 of N.I. Act, accordingly for the above said reasons this point is answered in the Affirmative.
33. Point No.2: Negotiable Instrument Act was enacted to bring credibility to the cheque and the very purpose of enactment is to promote the use of negotiable instrument, while to discourage the issuance of cheque without having sufficient funds in their accounts. Such being the case the intention of the legislature is that, complainant be suitable compensated while accused be punished for his act. Hence while awarding the compensation the said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly it will not cause injustice to the accused, accordingly the complainant is entitled for the compensation as ordered by the court and for the said reasons, it is just and proper to pass the following : ORDER Acting U/sec.255(2) of Cr.P.C.
the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.10,25,000/= (Rupees 61 C.C.No.4371/19 Ten Lakhs and Twenty Five Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.10,20,000/= (Rupees Ten Lakhs and Twenty Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
The Bail bond of the Accused stands cancelled.
Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 29th December 2021).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
62C.C.No.4371/19 ANNEXURE
1. List of witness/s examined on behalf of the Complainant: P.W.1 : Sri. Kiran Kumar PW.2 : Sri.Vijay PW.3 : Ashok Hegde
2. List of documents exhibited on behalf of the Complainant: Ex.P1 & 2 : Original Cheques;
Ex.P1(a) & : Signatures of the Accused;
2(a)
Ex.P.3 & 4 : Bank Memos;
Ex.P.5 : Office copy of the Legal Notice;
Ex.P.6 & 7 : Postal Receipts;
Ex.P.8 : Postal Acknowledgement;
Ex.P.9 : Returned legal notice
Ex.P.10 : postal envelop
Ex.P.11 : Postal receipt
Ex.P.12 : postal acknowledgement
Ex.P.13 : copy of complaint filed by the com
plainant
Ex.P.14 : NCR endorsement issued by the police
Ex.P.15 : Acknowledgement
Ex.P.16 : statement of the accused
Ex.P.17 to 20 : postal receipts
Ex.P.21 : Reply Notice
Ex.P.22 : copy of the complaint lodged before the
Hanumanthanagar Police station,
Bangalore
Ex.P.23 ; copy of the complaint lodged before the
ACP of Thyagarajanagar Commissioner 63 C.C.No.4371/19 of Police, Bangalore Ex.P.24 ; copy of the complaint lodged before the Commissioner of Police, Bangalore Ex.P.25 to 27 ; postal acknowledgements Ex.P.28 ; Complaint Ex.P.28(a) : signature of the complainant Ex.P.29 : Statement of accounts (Marked through PW.2) Ex.P.30 ; True copy of Circular dt: 21.6.2018 (Marked through PW.3) Ex.P.31 ; True copy of RBI Circular dt: 30.06.2020 (Marked through PW.3) Ex.P.32 : True copy of the statement of the accused given before the Hanuman thanagar PS, Bangalore (Marked through DW.1) Ex.P.33 : True copy of the complaint filed by the accused before the Madanayakanahalli PS dt; 16.1.2019 (Marked through DW.1) Ex.P.34 ; certified copies of the cheque and memo, Ex.P.35 : Certified copy of the complaint filed in C.C, No. 14827/17, Ex.P.36 & : Certified copies of cheques P.37 Ex.P.38 : Certified copy of the application filed U/s.257 Cr.P.C. in C.C, No. 14827/17, 64 C.C.No.4371/19 Ex.P.39 certified copy of the order sheet in C.C.No.6947/18, Ex.P.40 : certified copy of the complaint, in C.C.No.6947/18, Ex.P.41 : certified copy of the chief examination of PW.1 in C.C.No.6947/18, Ex.P.42 : certified copy of the chief examination of Accused in C.C.No.6947/18, Ex.P.43 & ; certified copy of the cheques in P.44 C.C.No.6947/18, Ex.P.45 ; certified copy of the Legal notice in C.C.No.6947/18, Ex.P.46 ; certified copy of the affidavit filed before the Kamakshipalya police, Ex.P.47 : Certified copy of the vakalath filed on be half of the accused in C.C.No.6947/18 Ex.P.48 : certified copy of the complaint in PCR No.5932/18 Ex.P.49 : Certified copy of the cheque in PCR No.5932/18 Ex.P.50 ; Certified copy of the bank memo in PCR No.5932/18 Ex.P.51 ; Certified copy of the legal notice in PCR No.5932/18
3. List of witness/s examined on behalf of the Accused: DW.1 : H.G.Rajanna 65 C.C.No.4371/19
4. List of documents exhibited on behalf of the Accused: Nil (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
66 C.C.No.4371/19