Bangalore District Court
Procyon Infotech Private Ltd vs (1) Jaladhara Technologies Private ... on 27 September, 2022
C.C.NO.1822/2019
0
KABC030052852019
Presented on : 24-01-2019
Registered on : 24-01-2019
Decided on : 27-09-2022
Duration : 3 years, 8 months, 3 days
IN THE COURT OF THE XXVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE NRUPATHUNGA
ROAD, BENGALURU CITY
Present:
Soubhagya.B.Bhusher,
BA.,LLB.,LL.M
XXVIII A.C.M.M, Bengaluru City.
DATED: THIS THE 27 TH DAY OF SEPTEMBER-2022
C.C.NO.1822/2019
Complainant: Procyon Infotech Private Ltd.,
No.26, 2nd Cross, Next to coffee
Board Layout, S.G.R. Layout,
Bengaluru-560024.
Rep by its Director,
Ananth Jagadeesha,
Aged about 40 years,
(By Sri.Naga Manju.K.S.,Adv.,)
V/s
Accused: (1) Jaladhara Technologies Private Limited,
No.17 & 19, 11th Cross,
Opp. Sri. Jodi Muneshwara Temple,
Balaji Nagar, Karivobanahalli,
Peenya 2nd Stage, Bengaluru -560058.
Represented by its Director,
Sushela Parthasarathi
C.C.NO.1822/2019
1
(2) Smt.Sushela Parthasarathi
Director of Jaladhar Technologies Pvt. Ltd.,
No.17 & 19, 11th Cross,
Opp. Sri.Jodi Muneshwara Temple,
Balaji Nagar, Karivobanahalli,
Peenya, 2nd Stage, Bengaluru -560058,
(3) Sri.Dygere Marulappa Basavaraju,
Director of Jaladhar Technologies Pvt. Ltd.,
No.17 & 19, 11th Cross,
Opp. Sri. Jodi Muneshwara Temple,
Balaji Nagar, Karivobanahalli,
Peenya, 2nd Stage, Bengaluru-560058,
(By Sri.Anil Babu.C & Manjunath.D.L.,
Associates.,)
: JUDGMENT:
This case arises out of the complaint filed under section 200 of Cr.P.C., for the offence punishable under section 138 of N.I. Act.
2. The case of the complainant in brief is as under:
It is submitted by the complainant is that, the accused are placed an order on 11.01.2018 to supply material namely Water Dispensing Unit 250 LPH SS304 KIOSK and allied materials. Considering the accused supply order the complainant supplied material worth of Rs.13,31,040/- as per invoice dated:
C.C.NO.1822/2019 2 11.04.2018. The said materials delivered to the accused and the accused received the same from the complainant. Further submitted that, after receiving materials on 04.05.2018 the accused issued a cheque bearing No.881961 for a sum of Rs.7,69,168/- drawn on the State Bank of India, Rajajinagara, 1st Block Branch, Bengaluru as part payment in favour of the complainant. The complainant presented the said cheque on 19.05.2018 through its banker the Union Bank of India, Cantonment Branch, Bengaluru. The complainant's banker issued a memo for the reasons 'Funds Insufficient' and said informations is received by the complainant on 24.05.2018. Further submitted by the complainant is that, the accused issued the said cheque to the complainant to discharge their liability as the accused are jointly and severally liable to pay the said sum to the complainant. In the said circumstances the complainant issued a legal notice on 22.06.2018 by registered post to the accused intimating the fact of dishonor of the said cheque and also called upon them C.C.NO.1822/2019 3 to make payment of the cheque amount. The legal notice issued by the complainant is received by the accused on 23.06.2018 and they issued false reply on 04.07.2018. But the accused did not paid the cheque amount to the complainant nor deposited the cheque amount before the bank. The conduct of the accused reveals that they intentionally not made good the cheque amount and the accused have not made the payment to the complainant intentionally even after receiving legal notice.
3. Further submitted that, inspite of the receipt of the notice, the accused persons have failed to make any payment. The accused No.2 and 3 are the Director of the accused No.1 and they are looking after the day to day affairs of the accused No.1 and are in charge and responsible for the conduct of the business affairs and management of the accused No.1. As such, the accused persons have committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court on C.C.NO.1822/2019 4 07.08.2018.
4. After the complaint was filed, the cognizance of the offence cited therein was taken and it was registered as P.C.R.No.11461/2018. Sworn statement of the complainant was recorded. Since there were sufficient materials to proceed against the accused, an order was passed on 21.01.2019 to register the case in Reg.No.III.
5. Thereafter, summonses were issued to the accused and they have appeared before the court through counsel and secured bail. They were furnished it necessary papers as complied under section 208 of Cr.P.C,. Thereafter, the plea of the accused was recorded by the court. They have pleaded not guilty and claimed to be tried.
6. The complainant in support of its case, has examined its Director as PW.1 and got marked totally 28 documents at Ex.P.1 to 28 and closed its side.
7. After closer of the evidence of the complainant, the statement under section 313 of Cr.P.C., was C.C.NO.1822/2019 5 recorded. The accused persons have denied the incriminating evidence appearing against them. In their defense the accused No.3 has examined as DW.1 and 4 documents were marked at Ex.D.1 to 4 on their behalf.
8. Heard the arguments on both the sides and perused the material placed on record.
9. Upon hearing the arguments and on perusal of the material placed on record, the following points that would arise for my consideration:
1.Whether the complainant proves the existence of legally enforceable debt/ liability.?
2. Whether the complainant further proves that the accused had issued the Cheque-Ex.P.5, towards the discharge of the said legally enforceable debt/ liability.?
3.Whether the complainant further proves that, Ex.P.5 was dishonored for the reason "Funds Insufficient" of the account of the accused and thereafter the accused had failed to repay the same within the statutory period, inspite of receipt of legal notice.?
C.C.NO.1822/2019 6
4. Whether the accused have thus committed an offence punishable under section 138 of N.I.Act.?
5. What order or sentence?
10. My answers to the above points are as under:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: In the Affirmative Point No.4: In the Affirmative Point No.5: As per final order, for the following:
:REASONS:
11. POINT NO.1 AND 2: These points are inter- related to each other and finding given on any one point will bearing on the another. Hence, in order to avoid repetition of facts and evidence, I have taken these two points together for common discussion. The case of the complainant is that, he was acquainted with the accused persons. Further, the accused are placed an order on 11.01.2018 to supply material namely Water Dispensing Unit 250 LPH SS304 KIOSK and allied materials. Considering the accused supply order the complainant supplied material worth of C.C.NO.1822/2019 7 Rs.13,31,040/- as per invoice dated 11.04.2018. The said materials delivered to the accused and the accused were received the same. After receiving materials the accused persons issued a cheque bearing No.881961 dated: 04.05.2018 for a sum of Rs.7,69,168/- drawn on the State Bank of India, Rajajinagara, 1st Block Branch, Bengaluru as part payment in favour of the complainant. The complainant presented the said cheque on 19.05.2018 through its banker the Union Bank of India, Cantonment Branch, Bengaluru. The complainant's banker issued a memo stating the reasons 'Funds Insufficient' and said informations is received by the complainant on 24.05.2018. Further the accused issued the said cheque to the complainant to discharge their liability as the accused are jointly and severally liable to pay the said sum to the complainant. Thereafter the complainant got issued a legal notice on 22.06.2018 by registered post to the accused intimating the fact of dishonor of the cheque issued by them and also called C.C.NO.1822/2019 8 upon them to make payment of the cheque amount. But the accused have issued a false reply. However, inspite of the receipt of the notice, the accused persons have failed to make any payment. As such, the accused persons have committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court.
12. In support of the case, the complainant has examined its Director as P.W.1 and 28 documents were marked at Ex.P.1 to 28. In the chief examination P.W.1 has repeated the contents taken by the complainant in the complaint. Ex.P.1 is the Computerized Master Data in respect of the accused company. Ex.P.2 is the Work Order. Ex.P.2(a) is the Computer Downloaded copy of the e-mail. Ex.P.3 is the Invoice and Ex.P.3(a) is the computer downloaded copy of the e-mail. Ex.P.4 is the Certificate under section 65(b) of the Indian Evidence Act. Ex.P.5 is the Cheque issued by the accused in favour of the complainant dated 04.05.2018 for a sum of Rs.7,69,168/-. Ex.P.5(a) and (b) are the signatures of C.C.NO.1822/2019 9 the accused persons. Ex.P.6 is the bank memo informing of the dishonor of the cheque. Ex.P.6(a) is the Letter issued by the Union Bank of India for presentation of the cheque and dishonor of the cheque. Ex.P.7 is the office copy of legal notice. Ex.P.7(a) to Ex.P.7(c) are the postal receipts. Ex.P.8 to 10 are the postal acknowledgements. Ex.P.11 is the complaint. Ex.P.12 is the Certified copy of Minutes Extract of the complainant company. Ex.P.13 is the Computerized copies of the 5 e-mails. Ex.P.14 is the 3 Invoices regarding supply the goods to the accused company. Ex.P.15 is the 3 GST Bills. Ex.P.16 to 18 are the computerized copies of the e-mail conversations dated 13.07.2018, 19.05.2018 and 28.04.2018 respectively. Ex.P.19 is the 9 Traveling invoices. Ex.P.20 is the 63 tax invoices in respect of purchasing goods for repairing R.O. Plant to the accused company. Ex.P.21 and 22 are the Lorry receipts. Ex.P.23 and 24 are the 2 e-way bills. Ex.P.25 is the Computerized certified copy of the WhatsApp group conversation with the accused C.C.NO.1822/2019 10 company regarding day-to-day business. Ex.P.26 is the C.D related to Ex.P.25. Ex.P.27 is the e-mail conversation of C.D. Ex.P.28 is the Certificate under section 65(b) of the Indian Evidence Act.
13. In order to disprove the case of the complainant, the accused No.3 is examined as DW.1 and 4 documents were marked at Ex.D.1 to 4. In his evidence deposed regarding defence taken by them. Ex.D.1 is the office copy of reply. Ex.D.2 is the copy of the color xerox in respect of alleged cheque. Ex.D.2 is marked subject to objection. Ex.D.3 is the Goods and service tax print out in respect of the accused company. Ex.D.4 is the Certificate under section 65(B) Indian Evidence Act.
14. The accused persons have taken the contention that, they had issued a blank cheque for the purpose of security in favour of one Suresh. Further the complainant has collected the said cheque from the said Suresh and misused the said blank cheque and filed this complaint against the accused. The accused C.C.NO.1822/2019 11 in their defense have not disputed Ex.P.5-Cheque having been issued by them. They also does not dispute their signatures on the said Cheque. But, they have taken up the contention that, the complainant not supplied any R.O. Plant to the the accused company. Further, they have not issued any cheque in respect of repayment or part payment in respect of the material supplied by the complainant company. It is further defence of the accused stated that, Mr. Anantha Jagadeesh is not at all the director of the complainant company and he has no authorization or resolution from the company to represent as on the date of filing of this case. It is further defence that the accused company is situated in the above said address since many years. The accused company placed an order on 11.01.2018 to supply water dispensing units 250LPH SS304 KIOSK i.e., total Nos-50 units cost of Rs.3,32,76,000/- (Rupees Three Crores Thirty Two Lakhs Seventy Six Thousand only) to the complainant company. Thereafter the complainant company has C.C.NO.1822/2019 12 completely failed to deliver the said 50 number of water dispensing units to the accused company address as per the work order dated: 11.01.2018. The accused company has not placed any orders for providing 2 water units to the tune of Rs.13,31,040/- on 11.01.2018 as alleged by the complainant company and it is utter false and baseless to say that the complainant company has delivered 2-Nos of water dispensing units the tune of Rs.13,31,040/-. It is further submitted that at no point of time the accused company have received any kind of materials as alleged by the complainant on the said date. Hence, no question arises of issuing alleged cheque dated 04.05.2018 for a sum of Rs.7,69,168/- as part payment in favour of the complainant company.
15. It is further submitted that, the undated cheque bearing No.881961 was issued to one Sri.Suresh Collection Agent who is not at all related to the complainant company. Only in the 1 st week of January 2018 itself the undated cheque was issued for C.C.NO.1822/2019 13 the purpose of security in order to supply water dispensing units to the accused company. The complainant has collected the said undated cheque from the hands of the said collection agent Sri.Suresh and the same was manipulated by filling the date on the cheque as per their whims without bringing to the knowledge of the accused and thereby the said cheque was presented by unknown person belongs to the complainant company only with an dishonest intention to gain illegally from the accused company. The complainant company without doing any kind of business transaction with the accused company has fraudulently misused the said cheque by filling the date. The accused person have no knowledge regarding the presentation of the said alleged cheque to their banker and have no other correspondence as alleged by the complainant. At no point of time accused person have issued the said alleged cheque towards legal enforceable debt.
16. It is further defence of the accused is that, the C.C.NO.1822/2019 14 accused company has not at all related and do not have any financial transactions with the other state companies situated at Delhi, Mathura, Udaypur, Ayodhya etc., as alleged by the complainant. The complainant have produced fabricated, manipulated, self prepared documents, invoices, work orders, electronic messages, chats before this court which are not at all issued by the accused company. These documents are not at all related to the accused company and not at all related to the alleged financial transaction in respect of the accused company. Further the accused person have not informed to supply the water units/any kind of materials to any other companies. The invoices and GST Bills/E-way bills produced before this court are fabricated, manipulated, self prepared by the complainant himself and the same are nothing to do with the accused company business transaction. The complainant has also misused another unfilled cheque bearing No.881952 drawn on the State Bank of India, Rajajinagar Branch, Bengaluru which C.C.NO.1822/2019 15 was collected as security purpose and same is bounced and filed case pending before this court in C.C.No.24526/2021. The case is speculative in nature only filed to harass the accused. When there is no financial transaction between the two parties and in the absence of legal enforceable debt the complaint filed under the alleged false and fabricated cheque is not maintainable under law. Hence, no question arises of legal enforceable debt towards th complainant. This essential ingredient is conspicuously absent in the complaint case. Therefore the commission under section 138 of the N.I.Act made by them is not maintainable in law.
17. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of legally enforceable debt/liability, for which the cheque came to be issued. The learned counsel for the complainant has argued that, towards of discharge of said part payment, the accused had issued a Ex.P.5 in favour of the C.C.NO.1822/2019 16 complainant for part payment. Further argued that, after the repeated request made by the complainant, the accused person have not paid any amount to the complainant. He further argued that the accused person have not denied the cheque-Ex.P.5 being drawn on their account. When the signatures is not disputed, the presumption under section 139 N.I.Act is to be drawn in favour of the complainant. The accused person have failed to elicit anything in the cross examination of P.W.1 to disbelieve the said evidence of the complainant. The defence have failed to rebut the presumption under section 139 N.I.Act. The counsel for the complainant further argued that the accused have failed to produce any believable evidence that, the accused had issued the blank cheque in favour of the one Suresh for security purpose and also the defence how the cheque was got the complainant and why they have not returned back the same is not clear. He further argued that, under section 139 of N.I. Act, there is a presumption that, the Cheque has been issued for C.C.NO.1822/2019 17 discharge of legally enforceable debt/liability. In the present case, the accused person have not disputed the Ex.P.5 being their Cheque drawn on their account. The said presumption is available to the complainant. Further he has argued that, the accused have failed to prove the very fact that Ex.P.5 was given to the one Suresh for the purpose of security and it was blank when it was given to him. Moreover, under section 118 of N.I Act, there is a presumption that the Negotiable Instrument is drawn on the date, for the amount and in favour of the person as shown in it. It is for the accused to rebut the said presumption. But, in the case on hand no such evidence forthcoming. It was also argued by him that as per the defence by the accused that they had given a blank signed cheque to the one Suresh. As such, very defence of the accused is not believable.
18. The main defense of the accused is that there was no legally enforceable debt/balance due to the complainant company from the accused for which the cheque Ex.P.5 was issued. So also they have taken up C.C.NO.1822/2019 18 the defence that they had issued a blank signed cheque to the one Suresh for the purpose of security in order to supply water dispensing units to the accused company. But they have not issued cheque to the complainant company in respect of alleged transaction between the complainant company and the accused. The complainant has collected the said undated cheque from the hands said collection agent Sri. Suresh and the same was manipulated by filling the date on the cheque as per their whims without bringing to the knowledge of the accused. The said cheque was presented by unknown person belongs to the complainant company only with an intention to gain illegally from the accused. The complainant company without doing any kind of business, transaction with the accused company as fraudulently misused the said cheque by filling the date. In order to attract the offence punishable under section 138 of N.I. Act, the complainant is firstly required to prove the existence of a legally enforceable debt/liability, for which the Cheque C.C.NO.1822/2019 19 came to be issued. The complainant created all the documents and filed this false case against the accused. Therefore, from the evidence placed on record, the very existence of repayment not clearly made out whereas the accused are succeeded in rebutting the presumption available under section 139 of N,I. Act regarding existence of legally enforceable debt.
19. In the case on hand the complainant and the accused having some transaction has not been seriously disputed by the accused. Further, the accused persons have not seriously disputed they have issued a cheque-Ex.P.5. It is not disputed that, the complainant and the accused are businessman. While according to the complainant, they have supplied water dispensing units in favour of the accused and in order to towards discharge of said debt/amount, they had issued Ex.P.5. Whereas, the accused have contended that, they had given a blank signed chaque to the one Sri. Suresh collection agent for the purpose of security C.C.NO.1822/2019 20 in order to supply water dispensing units to the accused company. When they had given said signed Cheque, which was blank. The accused have specifically denied having debt/liability and issued the Cheque Ex.P.5 in the year 2018 in favour of the complainant company towards the discharge of any debt/liability. They contends that the blank Cheque given by them to the one Suresh and the complainant has collected said undated cheque from the hands of the said collection agent Sri.Suresh and same was manipulated by filling the date on the cheque as per their whims without the knowledge of the accused and a false complaint was filed by the complainant.
20. In order to attract the offence of the section 138 of N.I. Act, the main ingredients of the existence of the legally enforceable debt/liability, for which the Cheque drawn on the account of the accused was given for discharge of the same, are to be proved. The complainant in order to prove its case, has examined its Director as PW.1 and 28 documents are marked at C.C.NO.1822/2019 21 Ex.P.1 to 28. In chief examination, he has repeated the averments made by him in the complaint. In the present case, the accused persons have not disputed the Ex.P.5 being their cheque drawn on their account. The said presumption is available to the complainant.
21. In order to attract the offence punishable under section 138 of N.I. Act, the complainant is firstly required to prove the existence of a legally enforceable debt/liability, for which the Cheque came to be issued. The learned counsel for the complainant has submitted that, from the evidence of PW.1 it is established that, the accused persons towards the discharge of the said part payment Ex.P.5 came to be issued in favour of the complainant.
22. Under Section 139 of N.I. Act, there is a presumption regarding the existence of legally enforceable debt or liability. Such presumption is rebuttable presumption and it is opinion to the accused to raise defence discharging the existence of a legally C.C.NO.1822/2019 22 enforcible debt or liability. In the case on hand also the accused persons have disputed the existence of legally enforceable debt/liability, for which Ex.P.5 was issued. In order to prove their defense, the accused have not produced any documentary evidence except Ex.D.1 to
4. PW.1 during his cross-examination has specifically denied the suggestions made to him that, Ex.P.5 was issued in favour of the one Suresh collection agent for security purpose in order to supply water dispensing units to the accused company and same was blank at the time of issuing the same.
23. Since, the presumption under section 139 of N.I.Act is a rebuttable presumption the accused is firstly required to produce some probable evidence to rebut the same. Though in the criminal cases, the standard of the proof required for the accused is not so strict as required for the complainant to prove the case, further he has to produce some probable evidence, which creates doubt about the existence of legally enforceable debt/liability. In the present case, as per C.C.NO.1822/2019 23 the defence taken the accused had given a signed blank Cheque to the one Suresh collection agent. Except, said defence, they have not produced any materials to prove such defence. If they had given a blank signed cheque to the said Suresh, what prevented the accused to file the complaint immediately after the alleged illegal act made by the complainant and said Suresh. Further what prevented the accused to file the complaint against the complainant as well as said Suresh for misusing of said cheque. On which date the accused came to knew about the alleged illegal act of the complainant and said Suresh, they did not whisper about on what date they came to know the alleged cheque illegally mis-used by the complainant by collecting said undated cheque from the hands of the said collection agent Sri.Suresh. Admittedly the accused persons are the businessman having knowledge of the financial transaction, why they have given signed blank Cheque to the said Suresh without anticipating the consequence is not explained by them.
C.C.NO.1822/2019 24 So also, they have not stated anything as to what steps they took to receive back the blank signed Cheque. Moreover, immediately after the alleged blank cheque mis-used by the complainant colluding with the said Suresh they not lodge complaint before concerned police station. No steps have been taken to receive back the blank signed Cheque, after they came to know about the same.
24. Once issuance of cheque and signatures are admitted, the statutory presumptions would arise under sections 139 and 118 of the N.I. Act that cheque was issued by the drawer for legally payable debt/liability and for valid consideration. The Hon'ble Supreme Court has held in Rangappa V/S Mohan (2010 AIR SCW 296), the presumption that the cheque was drawn in discharge of legally recoverable debt is a presumption of law that ought to be raised in every case, though, it is a rebuttable presumption. Of course, the presumption under section 139 and 118 of the N.I. Act are rebuttal presumption. Further it is also held that C.C.NO.1822/2019 25 mere plausible explanation by the drawer is not sufficient and proof of that explanation is necessary. The principle of law laid-down in the above decision is applicable to the facts of this case. In the instant case, since the complainant is in possession of Cheque- Ex.P.5 the court has to draw the initial presumption that it is the payee of that cheque. Once the initial burden is discharged by the complainant, the onus shifts on the accused to rebut the complainant's case.
25. In the defence there is no ill-will between the complainant and the accused. Hence, mis-use of cheque and filing false case is not possible. The accused admittedly having knowledge of business. It is implies, they are conversant with financial transaction. If the complainant mis-used the said cheque by collecting the same from the hands of said collection agent Sri.Suresh and had not return the same, inspite of collecting cheque leaves from them, as a prudent man, the accused should have inquired with the complainant as well as said Suresh and demanded to C.C.NO.1822/2019 26 return that cheque. No ordinary prudent man would keep quite in such circumstances, without taking any steps. The conduct of the accused is very unusual, because they did not take any legal action against the complainant, even after filing of the complaint based on Ex.P.5-cheque. Further they could have issued notice to their banker to stop payment or legal notice to the complainant or they could have given complaint to the police station immediately. No such steps were taken by the accused. They simply makes a bald allegation of mis-use of a blank signed cheque against the complainant. It appears, just to escape from their legal liability, they have taken such contentions without any valid basis.
26. Moreover, the complainant has got issued a legal notice to the accused by registered through their counsel calling upon the accused to make repayment of said amount to the complainant. Before a person is held to be guilty of the offence punishable under 138 of N.I. Act, the complainant has to prove the compliance C.C.NO.1822/2019 27 of the requirement under section 138 of N.I. Act. It is not in dispute that the Ex.P.5 is the cheque drawn on account of the accused. In view of the above discussions it is also held to be proved that, it was drawn for discharge of legally enforceable debt/liability. From the evidence of P.W.1 and also cheque return memo Ex.P.6 it is established that the cheque was dishonored for the reason "Funds Insufficient'' in the account of the accused. A notice being issued as per Ex.P.7 within one month from the date of dishonour is also not in dispute. In the case on hand the accused have not disputed the receipt of the legal notice. The accused have given reply to the said notice. In the case on hand the notice is sent to the accused at their address. The same are shown to have been served on the accused as per Ex.P.8 to 10. When the accused have not disputed, the notice sent to the correct address is sufficient compliance of under section 138 of N.I.Act. Therefore, there is sufficient proof of due service of the legal notice.
C.C.NO.1822/2019 28
27. It is not the contention of the accused that thereafter they have repaid the cheque amount within stipulated time of 15 days on receiving the notice. Therefore in the case on hand on perusal of the evidence placed on record, all the essential ingredients of section 138 N.I.Act, have been complied with. As the accused have not repaid the cheque amount within stipulated period, the accused have committed an offence punishable under section 138 of Negotiable Instruments Act. The present complaint is filed within the period of one month after the accused failed to repay the cheque amount. The accused have given reply to the notice, but they have failed to repay the amount. Even they did not whisper anything about the defence while their plea was recorded under section 251 of Cr.P.C. In view of judgment of Hon'ble Supreme Court in Indian Bank Association V/s Union of India and others, (2010 (5) SCC 590), it is clear that while recording the plea under section 251 of Cr.P.C., it becomes the duty of the accused to state C.C.NO.1822/2019 29 whether he has any defence to make or he pleads guilty. Thus, unlike section 240 of Cr.P.C., the accused has no option under section 251 of Cr.P.C., just to deny the allegations made against him. If he is not willing to plead guilty, he must explain what are the defences he wants to take. As such it has to be considered, whatever defence raised by the accused during the trial are all after thought, just to get ride of statutory burden cast on him.
28. In addition to this in the case of T.P. Murugan (Dead) through legal representatives V/s Bojan (2018 (8) SCC 469), the Hon'ble Apex Court held that once the cheque has been signed and issued in favour of the holder of the cheque, there is statutory presumption that the cheque is issued in respect of legally enforceable debt or liability: rebuttal of such presumption must be by adducing credible evidence. Mere raising a doubt without cogent evidence with respect to the circumstances, presumption under section 139 of N.I. Act cannot be discharged. The C.C.NO.1822/2019 30 principle of law laiddown in the above decisions are applicable to the facts of this case. Except some bald contentions, the accused have not been able to make out a probable case on their behalf.
29. The accused have taken defence that except signatures other writings on Ex.P.5 cheque is not in their handwriting, which were filled up by the complainant collected the said cheque from the hand of the collection agent Sri.Suresh and the same was manipulated as per their whims and it amounts to material alterations, so, the complaint is liable to be dismissed. As narrated above, the complainant has specifically asserted that the accused after putting their signatures on Ex.P.5 to filled up other contents and then handed over it to them. When the accused admits their signatures, they cannot take up a defence that other contents of cheque were filled up by the complainant and it amounts to material alteration. In this respect, ruling reported in 2019 SCC On-line (SC) 138), between Bir Singh V/s Mukesh Kumar, C.C.NO.1822/2019 31 the Hon'ble Apex Court held as under:
"37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer, if cheque is otherwise valid, the penal provision of Section 138 would be attracted.
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still the on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
40. Even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment. Would C.C.NO.1822/2019 32 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."
30. The principles emerging from the above referred decision make it clear that, it is not mandatory and no law prescribes that the contents of cheque should be written by the signatory to the cheque. A cheque can be written by anybody and if the account holder of the cheque signs it, the presumption under section 139 of N.I Act arises. The principle of law laid- down in above decision is aptly applicable to the facts of this case. In view of section 20 of N.I Act, cheque being an inchoate instrument, if the drawer signs and delivers to the drawee, thereby he gives authority to the drawee thereof to make or complete the instrument.
31. The Hon'ble Apex Court in K.Bhaskaran V/s Sankaran Vaidhyan Balan and another (1999 Cri. L.J.4608) held that, if the accused denies issue of cheque although owned his signature therein, the C.C.NO.1822/2019 33 presumption arises that cheque was made or drawn for consideration on the date mentioned in cheque. The holder of cheque presumed to have received it for discharge of liability of the drawer.
32. As per the version of the accused is that they have nowhere denied transaction. The accused themselves have admitted that, they are the holder of alleged cheque. It is sufficient hold that the accused have issued a cheque-Ex.P.5 and even after the accused have not repaid the cheque amount the getting of receipt of notice. However, in any manner as the complainant has complied all the terms of ingredients of the provisions of 138 of N.I Act. The accused are liable for dishonor of cheque. As per the ruling reported in 2015 (2), Bankman 415, "Section 138 and 139 of N.I Act. 1881. In case of dishonor of cheque, once the execution of cheque is admitted by the accused, then it for him to first rebut presumption arising out of section 139 of N.I Act. Accordingly, PW.1 has established its case the accused have issued a C.C.NO.1822/2019 34 cheque-Ex.P.5 in order to pay the legally recoverable amount as part payment. Therefore, the accused have failed to probables the defence taken by them that the Cheque-Ex.P.5 was the blank signed Cheque and given to the one Suresh of collection agent for the purpose of security. Therefore, the accused have failed to rebut the presumption under section 139 of N.I. Act. In the said circumstances, the complainant is not at all required to produce any material as to the financial transaction between the complainant and the accused, since the initial presumption is still available, when there is no rebuttal evidence.
33. PW1 in his evidence has specifically stated that, the accused in order to repayment of receiving material from the complainant as part payment amount they had issued Ex.P.5, this fact has sufficient to prove that the complainant having sufficient means. So also it is not in disputed that the complainant and the accused are known to each other, some point of period, no documents could have been existence the C.C.NO.1822/2019 35 evidencing financial transaction. This factor will not affect case of the complainant to disbelieve the financial transaction. When the accused have failed to rebut the presumption under section 139 of N.I. Act, non furnishing of details of financial transaction no consequences to disbelieve the case of the complainant. The accused have failed to probables their defense. When the accused have failed to rebut the presumption under section 139 of N.I.Act, none furnishing of details of financial transaction no consequences to disbelieve the case of the complainant. The accused have failed to probables their defence. With these reasons, I answer point No.1 and 2 in the Affirmative.
34. POINT NO.3 AND 4: In order to avoid repetition of facts, these two points are taken together for common discussion. Before a person is held to have committed an offence punishable under section 138 of N.I. Act, he has to prove all the requirements of section 138 of N.I. Act. The Cheque-Ex.P.5 being C.C.NO.1822/2019 36 drawn on the account of the accused is not in dispute. The said Cheque having been dishonored, when it was presented by the complainant before the Bank for encashment is also not seriously disputed by the accused. The accused have not taken up any contention that, thereafter they had paid the Cheque amount within stipulated time of 15 days, after given of the notice. As such in the present case from perusal of documents, the essential requirements of section 138 of N.I. Act, have been complied with. In this case if they have issued a blank signed cheque in favour of the one Suresh of collection agent for the purpose of security why they have not produced any documents. After service of notice the accused have not paid the said amount. Hence, the present complaint came to be filed before the court on 07.08.2018 within the period of one month from the date of cause of action.
35. While discussing the point No.1 and 2, this court has already observed that, the complainant has proved that, the Cheque-Ex.P.5 was issued for C.C.NO.1822/2019 37 discharge of legally enforceable liability/debt and in view of the mandatory requirements of section 138 of N.I. Act, being complied with the accused are found to have committed an offence punishable under section 138 of N.I Act. Accordingly, I answer point No.3 and 4 in the Affirmative.
36. POINT NO.5: The accused are held to have committed an offence under section 138 of N.I.Act. The complainant has proved its case. The accused have failed to prove their rebuttal for the reasons mentioned above and in view of the mandatory requirements of section 138 of N.I.Act, being complied with the accused are found to have committed an offence punishable under section 138 of N.I.Act. Since, the said offence is an economic crime, the accused are not entitled for the beneficial provisions of probation of offenders act. In view of the above discussions and the findings on point No.1 to 4, I proceed to pass the following:-
C.C.NO.1822/2019 38 :ORDER:
Acting under section 255(2) of Cr.P.C. the accused are convicted for the offence punishable under section 138 of N.I. Act.
The bail bonds of the accused persons stands canceled.
The accused are sentence to pay Rs.7,75,000/- (Seven Lakhs Seventy Five Thousand) only to the complainant.
It is further ordered that, out of the said fine amount an amount of Rs.7,69,168/- (Seven Lakhs Sixty Nine Thousand One Hundred Sixty Eight) only shall be paid to the complainant as compensation as per Section 357(1)(b) of Cr.P.C. and remaining amount of Rs.5,832/- (Five Thousand Eight Hundred Thirty Two) only shall be remitted to the State.
In default of the payment of fine amount, the accused shall undergo simple imprisonment of one year.
(Dictated to the stenographer directly on computer typed by her, corrected by me and then judgment pronounced in the open court on 27 th day of September 2022) (Soubhagya.B.Bhusher) XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
C.C.NO.1822/2019 39 ANNEXURE List of witness examined on behalf of the complainant:
PW.1 : Mr.Ananth Jagadeesha List of documents marked on behalf of the complainant: Ex.P.1 : Computerized Master Data in respect of accused company.
Ex.P.2 : Work Order. Ex.P.2(a) : Computer Downloaded copy of the e-mail. Ex.P.3 : Invoices. Ex.P.3(a) : Computer downloaded copy of the e-mail. Ex.P.4 : Certificate U/s.65(B) of the I.E.Act. Ex.P.5 : Cheque.
EX.P.5(a) & (b) : Signatures of the accused.
Ex.P.6 : Bank endorsement. Ex.P.6(a) : Letter issued by the Union Bank of India for
presentation of the cheque & dishonor of the cheque.
EX.P.7 : Office copy of the legal notice. Ex.P.7(a) to 7(c) : Postal Receipts.
Ex.P.8 to 10 : Postal acknowledgements
Ex.P.11 : Complaint.
Ex.P.12 : Certified copy of Minutes Extract of the
Complainant company.
Ex.P.13 : Computerized copy of the 5 e-mails.
Ex.P.14 : Invoices regarding supply of goods to the
accused company.
Ex.P.15 : 3 GST Bills.
Ex.P.16 to 18 : Computerized copies of the e-mail
conversations dated: 13.07.2018, 19.05.2018 & 28.04.2018 respectively.
Ex.P.19 : Traveling Invoices. Ex.P.20 : 63 tax invoices in respect of purchasing goods
for repairing R.O.Plant to the accused company.
Ex.P.21 & 22 : Lorry Receipts. Ex.P.23 & 24 : E-way bills. Ex.P.25 : Computerized certified copy of the whats app
group conversation with the accused company regarding day-to-day business.
C.C.NO.1822/2019
40
Ex.P.26 : C.D related to Ex.P.25.
Ex.P.27 : E-mail conversation C.D.
Ex.P.28 : Certificate U/s.65(B) of the I.E.Act.
List of witnesses examined on behalf of the accused:
DW.1 : Mr.D.M.Basavaraju List of documents marked on behalf of the accused:
Ex.D.1 : Office copy of the reply.
Ex.D.2 : Copy of the color xerox in respect of alleged
Cheque. Ex.D.2 is marked subject to
objection.
Ex.D.3 : Goods and Services Tax print out in respect
of the accused company
Ex.D.4 : Certificate U/s.65(B) of the I.E.Act.
XXVIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
C.C.NO.1822/2019
41
27.09.2022 (Judgment pronounced in the Open
Court Vide Separate Sheet)
:ORDER:
Acting under section 255(2) of
Cr.P.C. the accused are convicted for the offence punishable under section 138 of N.I. Act.
The bail bonds of the accused persons stands canceled.
The accused are sentence to pay Rs.7,75,000/- (Seven Lakhs Seventy Five Thousand) only to the complainant.
It is further ordered that, out of the said fine amount an amount of Rs.7,69,168/- (Seven Lakhs Sixty Nine Thousand One Hundred Sixty Eight) only shall be paid to the complainant as compensation as per Section 357(1)(b) of Cr.P.C. and remaining amount of Rs.5,832/- (Five Thousand Eight Hundred Thirty Two) only shall be remitted to the State.
C.C.NO.1822/2019 42 In default of the payment of fine amount, the accused shall undergo simple imprisonment of one year.
XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.