Bangalore District Court
However The Presumptions Are ... vs That The Presumption Mandated By ... on 13 December, 2022
1 CC.15899/2020( J)
KABC030576232020
Presented on : 23-11-2020
Registered on : 23-11-2020
Decided on : 13-12-2022
Duration : 2 years, 0 months, 20 days
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY.
Dated this the 13 th Day of December-2022
Present: Lokesh Dhanapal Havale. B.A.L.L.B.,
XV Addl.C.M.M., Bengaluru.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.15899/2020
2.Name of the Complainant: Mr. M. Gangadhar
S/o late Mr. Dodda Muniyellappa,
Aged about 40 years,
R/of Govindapura Village,
Arabic College Post,
Bangalore- 560 045.
3.Name of the accused: Mr. S. A Shekar
S/o late Mr. Armugam,
Aged about 62 years,
No.140/B, First floor,
6th Main road, 4th block,
Rajaji Nagar,
Bangalore- 560 010.
2 CC.15899/2020( J)
4.The offence complained of : U/s.138 of Negotiable Instruments
Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(2) Cr.P.C., accused
is Convicted.
7.Date of final Order 13.12.2022.
* * *
This complaint is filed U/Sec.200 of Cr.P.C. against the
accused for the offence punishable U/Sec.138 of the Negotiable
Instruments Act, 1881.
2. The facts of the complaint in brief are as under:
The accused is known to the complainant from past 15 years.
The accused approached him for financial assistance of
Rs.5,00,000/- on 10.02.2020 in order to meet the marriage
expenses of his daughter Y. Dhanalakshmi whose marriage was
fixed on 02.03.2020. The accused assured to repay the amount
within 3 months. He paid Rs.5,00,000/- by way of cash to the
accused on 20.02.2020. At the time of receiving the amount the
accused issued post dated cheque bearing No.387948 dated
20.05.2020 for Rs.5,00,000/- drawn on State Bank of India, S.C
Road, Gandhi Nagar, Bangalore-560 009. On presentation of
cheque for encashment, it was returned dishonoured with
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endorsement 'Insufficient Funds" on 27.05.2020. He issued legal
notice on 27.05.2020. It was served on the accused on 29.05.2020.
The accused did not pay the amount even after the expiry of 15
days. The accused thereby committed an offence punishable
U/s.138 of the N.I.Act.
3. After the institution of the complaint, the cognizance
was taken and it has been registered as PCR No.7704/2020. The
sworn statement of the complainant has been recorded and on the
basis of sworn statement and other materials on hand, the criminal
case has been registered against the accused and summons was
issued to accused. In response to the service of summons, the
accused appeared through his learned counsel and got enlarged
on bail. The prosecution papers were supplied to the accused and
the substance of the accusation was read over and explained to
the accused in Kannada. He pleaded not guilty and claimed to be
tried.
4. During trial the complainant examined himself as PW-1
and got marked Ex.P1 to P7. The statement of the accused U/s.
313 of Cr.P.C. was recorded. The accused examined himself as
DW1 and got marked Ex.D1 & 2 on his behalf.
5. Heard the arguments. On perusal of the entire
materials on record, the points that arise for my consideration are
as under;
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1. Whether the complainant proves that the
accused issued cheque bearing No.387948
dated 20/05/2020 for a sum of Rs.5,00,000/-,
drawn on State Bank of India, S.C road,
Gandhinagar branch, Bangalore towards the
discharge of legally enforceable debt/liability
and on its presentation for encashment, it was
dishonored with an endorsement "Funds
Insufficient" and even after the service of
legal notice, the accused has not paid the
amount within 15 days and thereby accused
committed an offence punishable U/Sec.138 of
N.I. Act, 1881?
2. Whether the accused rebuts the
presumption U/s.139 of the N.I.Act?
3. What order?
6. My answers on the above points for consideration are
as under:
Point No.1 : Affirmative
Point No.2 : Negative
Point No.3 : As per final order for the following;
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REASONS
7. Point No.1 and 2 :- The points are taken together for
the common discussion to avoid repetition of facts and evidence. It
is necessary to discus the provisions U/s. 118(a) and 139 of the
Act., 1881 at this stage.
"118. Presumptions as to negotiable
instruments. - Until the contrary is
proved, the following presumptions shall
be made:-
(a) of consideration - that every
negotiable instrument was made or drawn
for consideration, and that every such
instrument, when it has been accepted,
indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or
transferred for consideration;"
"139. Presumption in favour of
holder.- It shall be presumed, unless the
contrary is proved, that the holder of a
cheque received the cheque of the nature
referred to in section 138 for the
discharge, in whole or in part, of any
debt or other liability."
8. On plain perusal of the provision U/s. 118(a) and 139
of the N.I.Act., it can be seen that initially the presumptions
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constituted under these two provisions are in favour of the
complainant. However the presumptions are rebuttable and it is
open to an accused to raise a defence to rebut the statutory
presumptions. An accused can raise a defence, wherein the
existence of legally enforceable debt or liability can be contested.
9. It is also well established that an accused need not
examine himself for discharging the burden of proof placed upon
him under a statute. He may discharge his burden on the basis of
the materials already brought on record. An accused has
constitutional rights to remain silent. The standard of proof on
part of the accused and that of the prosecution in a Criminal Case
is different. The prosecution must prove the guilt of an accused
beyond all reasonable doubts, the standard of proof so as to prove
a defence on the part of an accused is preponderance of
probabilities.
10. Under the light of position of the law, I have perused
the complaint and the evidence placed on record. The complainant
in support of his claim made in the complaint has adduced
evidence by examining himself as PW-1 and he got marked Ex.P1
to 7. PW-1 filed his evidence affidavit on oath and reiterated the
complaint averments. Ex.P1 is the cheque bearing No.387948 dated
20/05/2020 for Rs.5,00,000/- drawn on State Bank of India, SC
road, Gandhinagar branch, Bengaluru issued in favour of the
complainant. Ex.P1(a) is the signature of the accused. Ex.P2 is the
Bank Slip. Ex.P3 is the Bank Memo with shara "Funds
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Insufficient" dated 27/05/2020. Ex.P4 is the office copy of Legal
Notice dated 27/05/2020 issued by the complainant to the accused
demanding repayment of the cheque amount to the addresses of
the accused. Ex.P5 is the postal receipt for having sent the legal
notice to the accused. Ex.P6 is the Track consignment. Ex.P7 is
the reply notice issued by the accused to the complainant.
11. On perusal of the documents, it is clear that the
cheque at Ex.P1 bearing bearing No.387948 dated 20/05/2020 for
Rs.5,00,000/- drawn on State Bank of India, SC Road branch,
Bangalore issued in favour of the complainant was presented
within its validity. Ex.P3 is the Bank Memo with shara "Funds
Insufficient" dated 27/05/2020. The complainant issued legal notice
to the accused on 27.05.2020 as per Ex.P4, which is well within
the time from the date of receipt of dishonor memo. The legal
notice was served on the accused as per Ex.P.5 on 29.05.2020.
The accused admitted the service of notice in his defence
evidence. The complaint was filed on 07.07.2020. Therefore the
complaint is within limitation. The accused also did not dispute
the cheque and signature in it. Therefore, the documents on
record clearly show that the complainant has complied the
ingredients of Section 138(a) to (c) of the N.I.Act. Therefore the
presumptions U/s.118 and 139 of the N.I.Act arise in favour of the
complainant. The presumptions are rebuttable and the burden is
on the accused to rebut the presumptions. The presumption is that
the cheque was issued for legally enforceable debt/ liability.
However actual existence debt or liability can be contested.
8 CC.15899/2020( J)
12. The counsel for the complainant relied on the following
citations.
a) The Hon'ble Supreme Court in Rangappa Vs. Mohan
reported in (2010)11 SCC 441 held as under:
26. In light of these extracts, we are in agreement with the
respondentclaimant that the presumption mandated by Section
139 of the Act does indeed include the existence of a legally
enforceable debt or liability. To that extent, the impugned
observations in Krishna Janardhan Bhat (supra) may not be
correct. However, this does not in any way cast doubt on the
correctness of the decision in that case since it was based on the
specific facts and circumstances therein. As noted in the citations,
this is of course in the nature of a rebuttable presumption and it is
open to the accused to raise a defence, wherein the existence of a
legally enforceable debt or liability can be contested. However, there
can be no doubt that there is an initial presumption, which favours
the complainant.
27. Section 139 of the Act is an example of a reverse onus
clause that has been included in furtherance of the legislative
objective of improving the credibility of negotiable instruments.
While Section 138 of the Act specifies a strong criminal remedy in
relation to the dishonour of cheques, the rebuttable presumption
under Section 139 is a device to prevent undue delay in the course
of litigation. However, it must be remembered that the offence
made punishable by Section 138 can be better described as a
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regulatory offence since the bouncing of a cheque is largely in the
nature of a civil wrong whose impact is usually confined to the
private parties involved in commercial transactions. In such a
scenario, the test of proportionality should guide the construction
and interpretation of reverse onus clauses and the
accused/defendant cannot be expected to discharge an unduly high
standard or proof.
28. In the absence of compelling justifications, reverse
onus clauses usually impose an evidentiary burden and not a
persuasive burden. Keeping this in view, it is a settled position that
when an accused has to rebut the presumption under Section 139,
the standard of proof for doing so is that of `preponderance of
probabilities'. Therefore, if the accused is able to raise a probable
defence which creates doubts about the existence of a legally
enforceable debt or liability, the prosecution can fail. As clarified in
the citations, the accused can rely on the materials submitted by the
complainant in order to raise such a defence and it is conceivable
that in some cases the accused may not need to adduce evidence of
his/her own.
b) The Hon'ble Supreme Court in John K. Abraham Vs. Simon
C. Abraham and Another reported in (2014) 2 SCC 236 held as
under:
"9. It has to be stated that in order to draw the presumption under
Section 118 read along with 139 of the Negotiable Instruments Act,
the burden was heavily upon the complainant to have shown that
he had required funds for having advanced the money to the
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accused; that the issuance of the cheque in support of the said
payment advanced was true and that the accused was bound to
make the payment as had been agreed while issuing the cheque in
favour of the complainant."
c) The Hon'ble Supreme Court in T. Vasantha Kumar V/s Vijaya
Kumari reported in (2015) 8 SCC 378 held as under:
Therefore ,in the present case since the cheque as well as the
signature has been accepted by the accused/respondent,the
presumption under sec.138 would operate. Thus the burden was on
the accused to disprove the cheque or the existence of any legally
recoverable debt or liability. To this effect, the accused has come up
with a story that the cheque was given to the complainant long
back in 1999 as a security to a loan; the loan was repaid but the
complainant did not, return the security cheque. According to the
accused, it was that very cheque used by the complainant to
implicate the accused. However, if may be noted that the cheque
was dishonoured because the payment was stopped and not for any
other reason. This implies that the accused had knowledge of the
cheque being presented to the bank, or else how would be accused
have instructed her banker to stop the payment. Thus, the story
brought out by the accused is unworthy of credit, apart from being
unsupported by any evidence.
d) The Hon'ble Supreme Court of India in its latest case of
M/s. Kalamani Tex v. P. Balasubramanian reported in (2021) 5 SCC
283 observed at para No.14 to 18 as under:
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14. Adverting to the case in hand, we find on a plain
reading of its Judgment that the trial Court completely overlooked
the provisions and failed to appreciate the statutory presumption
drawn under Section 118 and Section 139 of NIA. The Statute
mandates that once the signature(s) of an accused on the
cheque/negotiable instrument are established, then these 'reverse
onus' clauses become operative. In such a situation, the obligation
shifts upon the accused to discharge the presumption imposed upon
him. This point of law has been crystalized by this Court in
Rohitbhai Jivanlal Patel Vs. State of Gujarat, (2019) 18 SCC 106
in the following words:
"In the case at hand, even after purportedly drawing the
presumption under Section 139 of the NI Act, the trial Court
proceeded to question the want of evidence on the part of the
complainant as regards the source of funds for advancing loan to
the accused and want of examination of relevant witnesses who
allegedly extended him money for advancing it to the accused. This
approach of the Trial Court had been at variance with the
principles of presumption in law. After such presumption, the onus
shifted to the accused and unless the accused had discharged the
onus by bringing on record such facts and circumstances as to show
the preponderance of probabilities tilting in his favour, any doubt
on the complainant's case could not have been raised for want of
evidence regarding the source of funds for advancing loan to the
appellantaccused....."
12 CC.15899/2020( J)
15. Once the 2nd Appellant had admitted his signatures on
the cheque and the Deed, the trial Court ought to have presumed
that the cheque was issued as consideration for a legally
enforceable debt. The trial Court fell in error when it called upon
the ComplainantRespondent to explain the circumstances under
which the appellants were liable to pay. Such approach of the Trial
Court was directly in the teeth of the established legal position as
discussed above, and amounts to a patent error of law.
16. No doubt, and as correctly argued by senior Counsel
for the appellants, the presumptions raised under Section 118 and
Section 139 are rebuttable in nature. As held in M.S.Narayana
Menon Vs. State of Kerala, (2006) 6 SCC 39, which was relied
upon in Basalingappa (supra), a probable defence needs to be
raised, which must meet the standard of "preponderance of
probability", and not mere possibility. These principles were also
affirmed in the case of Kumar Exports (supra), wherein it was
further held that a bare denial of passing of consideration would
not aid the case of accused.
17. Even if we take the arguments raised by the appellants
at face value that only a blank cheque and signed blank stamp
papers were given to the respondent, yet the statutory presumption
cannot be obliterated. It is useful to cite Bir Singh v. Mukesh
Kumar, (2019) 4 SCC 197, 36 where this court held that:
13 CC.15899/2020( J)
"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."
18. Considering the fact that there has been an admitted business
relationship between the parties, we are of the opinion that the
defence raised by the appellants does not inspire confidence or meet
the standard of 'preponderance of probability'. In the absence of
any other relevant material, it appears to us that the High Court
did not err in discarding the appellants' defence and upholding the
onus imposed upon them in terms of Section 118 and Section 139
of the NIA.
e) The Hon'ble Supreme Court of India in its latest case of Jain
P Jose v/s Santhosh reported in SLP Crl.5241/2016 dated
10.11.2022 observed by referring to its earlier Judgments in Vasanth
Kumar v/s Vijaya Kumari, Rangappa v/s Mohan and Kalamani Tex and
Another v/s P. Balasubramanian that the complainant is entitled to the
benefit of presumption u/sec.139 of N.I Act that the cheque was issued for
discharge of legally enforceable debt or liability.
13. The counsel for the complainant relied on the following
citations.
a) The Hon'ble Supreme Court in G.Antohony Vs. K Raghavan
Nair reported in (2003) 1 SCC 1 held as under:
14 CC.15899/2020( J)
8. Then again, it is to be noticed that the trial court also took
into consideration the plea of the appellant that the cheque in
question was given in a blank state to Chandrappa Panicker and he
being a close friend of the respondent in collusion with each other
misused the said cheque to defraud the appellant. The trial Court
also o observed that nonexamination of Chandrappa Panicker has
also weakened the case of the respondent, especially in view of the
fact that the court had noticed that the said Chandrappa Panicker
was seen in the premises of the courthouse at the time of trial. This
is also a relevant factor on which the trial court relied upon but the
High Court did not consider the effect of the said default on the
part of the respondent. The third circumstance relied upon by the
trial court is in regard to the difference in the ink found in the body
of the cheque as well as in the signature of the appellant. It is the
case of the respondent that the appellant had filled up the cheque in
its entirely including its signature and had brought the cheque to
the office of Vijay Kumar to be handed over to the respondent but
the learned Magistrate on a perusal of the cheque, found that the
ink used in the body of the cheque was different from the ink used
in the forth by the respondent was doubtful, hence, could not be
accepted. Even in this regard the High Court has failed to apply it
mind. Having considered the findings delivered by the trial court jin
regard to the above three points, we are of the opinion that the
trial court was justified in coming to the said court, and that the
respondent's complaint ought to fail. In such a situation, we are of
the opinion that the High Court fell in error in re appreciating the
case of the respondent on a totally different perspective without
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coming to the conclusion that the findings given by teh trial court
on the above three points are either irrelevant or contrary to the
material on record. Therefore, following the law laid down by this
Court in the above said cases of Bhim Singh Rup Singh and
Dharamdeo Singh we are of the opinion that the High Court was
error in reversing the finding of acquittal recorded by the trial
Court.
b) The Hon'ble Supreme Court in Subramani v/s Dhamodar
Naidu reported in (2015) 1 SCC 99 held as under:
The legally enforceable debt not proved as the complainant
could not prove source of income from which the alleged loan was
made to the accused and therefore the presumption u/sec.139 of
N.I Act raised in favour of the complainant stood rebutted.
14. Therefore on perusal of the Judgments relied on by both
the sides, it is clear that if the cheque and signature are admitted, the
presumption arises that the cheque was issued for legally enforceable
debt/liability. The presumption is rebuttable. The accused has to raise a
probable defence and prove it by adducing evidence, which must meet
the standard of preponderance of probabilities. Unless the same has
been done, doubt can not be raised on the case of the complainant. An
accused need not examine himself for discharging the burden of proof
placed upon him under a statute. He may discharge his burden on the
basis of the materials already brought on record. An accused has
constitutional rights to remain silent. The standard of proof on part of
the accused and that of the prosecution in a Criminal Case is different.
16 CC.15899/2020( J)
The prosecution must prove the guilt of an accused beyond all
reasonable doubts and the standard of proof so as to prove a defence
on the part of an accused is preponderance of probabilities.
15. It is the defence of the accused in the reply notice
that one Sri. Mallesh, advocate residing at Malleshwaram
introduced the complainant to him in the year 2017. He was in
need of money to meet expenses related to the property owned by
him in State of Tamil Nadu. He had contacted Mallesh seeking
financial assistance. Sri. Mallesh requested the complainant to
advance money to him. The complainant agreed and lend a sum
of Rs.5,00,000/- in various installments through Sri. Mallesh to
him from 13.07.2017 onwards. The installments made were paid
by way of cash. The complainant insisted for issuance of signed
blank cheque for security with permission to return on repayment
of Rs.5,00,000/-. Therefore the cheque in question was issued for
security and it was signed blank cheque. He repaid the said loan
amount in installments from 20.08.2017 onwards through Sri.
Mallesh. He repaid Rs.6,50,000/- in 25 instastallments and the last
installment was paid on 18.02.2020. All the installments were paid
to the complainant through Sri. Mallesh. The loan amount was
repaid with interest and there is no legally enforceable debt. The
security cheque has been misused instead of return it to him. He
called upon the complainant to return the cheque within 7 days
and informed him that on failure to do so he would initiate
appropriate proceedings against the complainant.
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16. It is the defence of the accused in the defence
evidence that the complainant is known to him since 2020. He
was introduced to the complainant by Sri. Mallesh. He used to
borrow amount from Sri. Mallesh from time to time and the total
amount was Rs.5,00,000/-. He borrowed the said amount in
respect of the dispute pertaining to his ancestral property. He
repaid Rs.6,50,000/- to Sri. Mallesh. He had sufficient income as
he was railway employee. Sri. Mallesh is his friend and therefore
he gave financial assistance. There are no documents in respect of
the loan transaction between him and Sri. Mallesh. He gave signed
blank cheque at the time of borrowing loan from Sri. Mallesh. He
repaid the amount, but he did not take the cheque back. There is
no financial transaction between him and the complainant. He did
not borrow any amount from the complainant. He gave the cheque
in question to Sri. Mallesh. The said cheque was misused by Sri.
Mallesh and the complainant. He performed the marriage of his
daughter by taking pension loan. He did not borrow money from
the complainant for performing the marriage of his daughter. He
produced Ex.D1 and 2 in support of his defence evidence.
17. The counsel for the accused cross examined PW.1 in
respect of the defence of the accused. However nothing was
elicited in the cross examination of PW1. To support the defence
of the accused except the fact that Sri Mallesh was known to him.
However it is admitted fact that Sri. Mallesh is common friend to
the complainant and the accused. The counsel for the accused
made several suggestions in respect of the defence of the accused,
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but PW1 denied all the suggestions. Mere suggestions are not
sufficient to prove the defence. It is pertinent to note that the
accused took specific defnece in reply notice but no specific
questions were put to PW.1 in respect of the same.
18. On perusal of the defence of the accused in the reply
notice and the defence as stated by him in the defence evidence,
it is clear that they are contradictory to each other. The accused
stated in his reply notice that he knew the complainant from
2017. It is pertinent to note that earlier the year was mentioned as
2000 in reply notice and it was struck down and the year 2017
was mentioned. However the accused stated in his defence
evidence that he knew the complainant from the year 2000. He
stated in reply notice that he borrowed amount of Rs.5,00,000/- in
various installments and from the complainant through Sri.
Mallesh. However in the defence evidence he denied having any
transaction with the complainant in whatsoever manner. He
specifically stated that his transaction is only with Sri. Mallesh. He
stated in the reply notice that he issued signed blank cheque to
the complainant as security on his insistence. However he stated in
the defence evidence that he gave signed blank cheque to Sri.
Mallesh and Sri. Mallesh and complainant misused it. He stated in
the reply notice that he repaid Rs.6,50,000/- including interest in
25 installments commencing from 20.08.2017 till 18.02.2020.
However nothing has been stated as to the mode of repayment of
amount to either to the complainant or to Sri. Mallesh in his
defence evidence. He stated in the defence evidence that he took
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money from Sri. Mallesh and he repaid the money with interest to
Sri. Mallesh. Therefore the defence of the accused is inconsistent
and contradictory. The accused stated in his defence evidence that
there are no documents between him and Sri. Mallesh in respect
of loan transaction. The accused examined himself as DW.1. He
did not produce any documents to prove his defence as alleged
either in reply notice or in the defence evidence.
19. During his cross examination accused admitted the
cheque and the signature. He did not take any action against
either the complainant or Sri. Mallesh for misuse of the cheque. It
was elicited in the cross examination of DW.1 that he had no
transaction with the complainant and he took loan of
Rs.5,00,000/- from Sri. Mallesh and he repaid Rs.6,50,000/- to Sri.
Mallesh in 25 installments. He could not tell the date of first and
last installments. He can say only after verifying the documents.
He had maintained the account for having received the loan from
Sri. Mallesh and for having repaid it to him. He can produce the
said documents. He repaid the loan to Sri. Mallesh by way of cash
and there is document in writing in respect of the same. However
on perusal of the evidence, it is found that the accused did not
produce any such documents. Therefore adverse inference can be
drawn that either he had no such document or if he had such
document and it is produced, it would go against him. It was also
elicited that as there was cordial relationship between him and Sri.
Mallesh and as they were good friends, he did not get execute any
document from Sri. Mallesh for having repaid the amount. He did
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not issue notice to Sri. Mallesh to take back the cheque. He had
no hurdle to issue notice to either Sri. Mallesh or to the
complainant seeking to return of cheque. He did not take any
action against the complainant for misusing the cheque after
receipt of legal notice. He did not have any document to show
that he issued signed blank cheque to Sri. Mallesh. He did not
issue stop payment to the bank after repayment of loan to Sri.
Mallesh. It was also elicited that he did not have the
acknowledgment for having paid amount to Sri. Mallesh. He did
not have any hurdle to take acknowledgement from Mallesh for
repaid the amount. He did not have the document in respect of
the quantum of interest to show that the loan was repaid along
with interest. He did not file police complaint for misuse of
cheque. He did not take any legal action against Sri. Mallesh till
the day. The accused has not done anything that has to be done
by a prudent man under the circumstances as aforesaid. The
accused issued reply notice taking specific contentions but failed to
prove them by adducing evidence. There are no documents on
record to substantiate the defence of the accused. The accused has
not taken any action against either the complainant or against Sri.
Mallesh for misuse of cheque. He also did not issue stop payment
instructions to the bank. He did not give police complaint. He also
did not bother to issue notice seeking return of cheque. Therefore
the defence of the accused does not appear to be probable.
20. It was also defence of the accused that he performed
the marriage of his daughter on 02.03.2020 by taking pension loan
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and by taking amount from his friends and relatives. On perusal of
evidence, it is found that he did not specify the names of his
friends and relatives from whom he took the loan and the specific
amounts taken by him. The statement of the account as per ExD.1
itself shows that the accused had no amount during the time of
marriage of his daughter. He produced the loan account statement
as per Ex.D2. On perusal of Ex.D2, it is found that the loan
sanctioned on 29.02.2020. He admitted in his evidence that the
loan was sanctioned two days prior to the marriage of his
daughter. It was elicited during the cross examination of accused
that he spent more than Rs.10 lakhs for the marriage of his
daughter. He did not produce any documents for having arranged
the remaining amount of Rs.6 lakhs. Therefore the defence of the
accused is not at all probable.
21. As per the defence of the accused Sri. Mallesh is the
material witness and it is admitted fact that he is close friend of
the accused. If at all the transaction had been taken place as
alleged by the accused in his defence, he would have examined
Sri. Mallesh as the defence witness on his side. The accused failed
to examine Sri. Mallesh as witness on his side. Therefore non
examination of material witness goes against the accused.
Therefore looking from any angle the defence of the accused does
not appear to be probable. The accused failed to prove his defence
either by leading direct evidence or by relying on the evidence of
the complainant.
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22. On the other hand, the counsel for the complainant
cross examined the accused/DW.1 in length in respect of the case
of the complainant and it was elicited that the accused had several
loans from colleagues and bank and the suit in O.S. No.5045/2014
filed by Vijaya Bank was decreed against the accused on
26.03.2016 for Rs.2,91,560/-. He did not repay the said amount to
the bank. It was also elicited that he had no source of income
except the salary when he was working in Railway Department
and after his retirement he had no source of income except the
pension. He admitted that the retirement benefits of Rs.26,70,000/-
were adjusted to the loans taken by him and the said amount was
spent for repayment of his loans. It was also elicited that he was
trying to sell his ancestral property from long time. It was also
elicited that he did not remember the amount in his account at
the time of marriage of his daughter. He can produce the bank
statement pertaining to the period of marriage of his daughter.
However he did not produce the said bank statement. It shows
that he did not produce the bank statement as he had no amount
in his account at the time of marriage of his daughter. The
answers elicited in the cross examination of DW.1 show that he
was in need of money at relevant point of time and he had no
sources to mobilize the funds.
23. It is the defense of the accused that the complainant
misused the cheque given as security to Sri. Mallesh. The counsel
for the accused made several suggestions but the suggestions are
denied by the complainant. Mere suggestions are not sufficient. On
23 CC.15899/2020( J)
perusal of the entire cross examination of PW.1 nothing was
elicited in support of the defence of the accused. The issuance of
cheque and signature on the cheque at ExP.1 are admitted. The
drawer's signature on the cheque is proved by the complainant
and it attracts the ratio laid down by the Hon'ble Supreme Court
of India in its decisions reported in 2011 (11) SCC - 441 -
Rangappa V/s.Sri.Mohan, in SCC 2015 (8) Page No.378 -
T.Vasanthakumar V/s.Vijayakumari and in (2019) 18 SCC 106
Rohit Bhai Jeevanlal Patel V/s. State of Gujarath and
another. The ratio is that the cheque shall be presumed to be for
consideration unless and until the court forms a belief that the
consideration does not exist or considers the non-existence of
consideration was tenable that a prudent man would under no
circumstances act upon the plea that the consideration does not
exist.
24. It is the defence of the accused that he issued signed
blank cheque. The counsel for complainant cross examined DW.1
and it was elicited that he usually issue the cheques by filling up
the contents. He voluntarily stated that he issued the blank signed
cheque in favour of Mallesh as Sri. Mallesh was his close friend.
He admitted that as per the bank statement he issued the cheques
in favour of Lakshminarayana, Shanbaghvalli, Babulal, Raj Purohit.
He also admitted that he issued the cheques to them by filling up
the contents. On perusal of Ex.P1, it is found that the signature
and the contents are written with same ink. However even if the
blank signed cheque was given and it was filled up later, it
24 CC.15899/2020( J)
attracts the ingredients u/sec.138 of N.I Act. As per Section 20 of
the N.I.Act, if the person signs and delivers Negotiable Instrument
and it is left incomplete and thereby he authorizes the holder to
complete the Negotiable Instrument and thereby he is liable for
the amount mentioned in the Negotiable Instrument. In the
Judgment rendered by the Hon'ble Supreme Court of India in Bir
Singh V/s.Mukesh Kumar reported in AIR 2019 SC 2446, it
was held by the Hon'ble Apex Court that "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 be on the accused to prove that the cheque was not in
discharge of a debt or liability by adducing evidence. Even a
blank cheque leaf, voluntarily singed 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."
25. For the reasons mentioned herein above, it is
crystallized that the accused has utterly failed to prove that there
was no existence of legally enforceable debt/liability between him
and the complainant and he has not at all issued the instant
cheque towards the discharge of legally enforceable liability of
Rs.5,00,000/-. On the other hand, the complainant has proved that
the accused issued the cheque for the legally enforceable liability;
the cheque was dishonored due to the reason 'Funds Insufficient'
25 CC.15899/2020( J)
and the notice issued by him was served on the accused. The
complainant proved his case beyond reasonable doubts. The
accused failed to rebut the statutory presumptions U/s.118(a) & (b)
and 139 of the N.I.Act. Accordingly the accused is found guilty for
the offence punishable U/s.138 of the N.I.Act. Hence, I proceed to
answer the Point No.1 in Affirmative and Point No.2 in the
Negative.
26. Point No.3 : In view of the reasons assigned in Point
No.1 and 2 and considering the facts and circumstances of the
case, I proceed to pass the following:-
ORDER
As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby convicted for the offence punishable u/s.138 of NI Act, 1881 and sentenced to pay fine of Rs.5,50,000/- (Rupees Five Lakhs Fifty Thousand Only). On deposit of fine amount, the complainant is entitled for compensation of Rs.5,45,000/- (Rupees Five Lakhs Forty Five Thousand Only). The remaining balance amount of Rs.5,000/- is to be forfeited to the State.
In default of payment of the fine amount accused shall undergo simple imprisonment for three months.
26 CC.15899/2020( J) The personal bond executed by the accused is hereby stands cancelled and cash surety of Rs.5,000/- furnished by the accused shall be refunded to him after expiry of appeal period.
Furnish free copy of the judgment to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by her, is verified and then pronounced by me in Open Court on this the 13th day of December-2022.) (Lokesh Dhanapal Havale), XV Addl. CMM., Bangalore.
27 CC.15899/2020( J) ANNEXURE Witnesses examined for the Complainant:-
PW.1 : Sri. M. Gangadhar Documents marked for the Complainant:-
Ex.P1 : Cheque
Ex.P1(a) : Signature of the accused
Ex.P2 : Bank slip
Ex.P3 : Bank endorsement
Ex.P4 : Office copy of the legal notice
Ex.P5 : Postal receipt
Ex.P6 : Track Consignment
Ex.P7 : Reply Notice
Witnesses examined For Defence:-
DW.1 : Sri. S.A Shekar Documents marked for Defence:-
Ex.D.1 : Bank Statement
Ex.D.2 : Loan Account Statement
(Lokesh Dhanapal Havale),
XV Addl.CMM., Bengaluru.
28 CC.15899/2020( J)
13/12/2022 (Judgment Pronounced in the Open
Court Vide Separate Order sheet) ORDER As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby convicted for the offence punishable u/s.138 of NI Act, 1881 and sentenced to pay fine of Rs.5,50,000/- (Rupees Five Lakhs Fifty Thousand Only). On deposit of fine amount, the complainant is entitled for compensation of Rs.5,45,000/- (Rupees Five Lakhs Forty Five Thousand Only). The remaining balance amount of Rs.5,000/- is to be forfeited to the State.
In default of payment of the fine amount accused shall undergo simple imprisonment for three months.
The personal bond executed by the accused is hereby stands cancelled and cash surety of Rs.5,000/- furnished by the accused shall be refunded to him after expiry of appeal period.
Furnish free copy of the judgment to the accused.
XV Addl.CMM., Bengaluru.