Bangalore District Court
Through Rpad And It Was Returned With ... vs Is Not Tenable. Further The Hon'Ble ... on 31 October, 2022
1 C.C.No.3008/2018
KABC030077532018
Presented on : 30-01-2018
Registered on : 30-01-2018
Decided on : 31-10-2022
Duration : 4 years, 9 months, 1 days
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 31st day of October 2022
Present: Lokesh Dhanapal Havale, B.A.LL.B
XV Addl.C.M.M., Bengaluru.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case C.C.No.3008/2018
2.Name of the Complainant: Sri. Dheerendra .P
S/o Uma Maheshwara,
Aged about 49 years,
Residing at No.13,
9th Main, Vinayaka Layout,
Manorayanapalya,
R.T Nagar, Bangalore560 032.
3.Name of the accused: Sri. Ganesh. R
S/o Ramaiah. P
Aged about 33 years,
R/at No.2, 1st cross,
Harijana Colony,
Ganganagar, R.T Nagar,
Bangalore560 032.
4.The offence complained of : U/s.138 of Negotiable Instruments
Act.
2 C.C.No.3008/2018
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(1) Cr.P.C., accused is
Acquitted.
7.Date of final Order 31st day of October 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 complainant and the accused knew each other from past
several years. The accused approached the complainant during 1st
week of May 2017 and requested for a hand loan of Rs.2,00,000/ for
his urgent domestic and other family commitments. The complainant
has paid a sum of Rs.2,00,000/ to the accused by way of cash on
04.05.2017. He promised to repay the said amount within 6 months.
After expiry of stipulated period, when the complainant approached the
accused and demanded for repayment of the loan amount towards the
discharge of his liability, the accused had issued a cheque bearing
No.013010, dated 13.11.2017 for Rs.2,00,000/ drawn on Corporation
Bank, R.T. Nagar branch, Bangalore in favour of the complainant by
assuring him to honour the said cheque on the date of its presentation.
As per the instructions of the accused, he presented the said cheque for
encashment through his banker i.e., Dena Bank, Cholanagar branch,
R.T. Nagar, Bangalore and it was dishonored with an endorsement
"Funds Insufficient" vide endorsement dated 14.11.2017. He issued
legal notice dated 29.11.2017 to the accused calling upon him to repay
3 C.C.No.3008/2018
the cheque amount. The notice sent through RPAD to was returned as
'intimation delivered/address absent' dated 01.12.2017. The accused
failed to repay the amount within 15 days from the said date and
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.158/2018. 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 him. 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 PW1
and got marked Ex.P1 to P5. The statement of the accused U/s.313 of
Cr.P.C. is recorded. The accused did not lead any evidence. Ex.D1 is
marked during the cross examination of PW1.
5. Heard the counsel for the complainant and the arguments
on the side of the accused are taken as nil. On perusal of the entire
materials on record, the points that arise for my consideration are as
under;
1. Whether the complainant proves that the
accused issued cheque bearing No.013010 dated
13.11.2017 for Rs.2,00,000/ drawn on
Corporation Bank, R.T Nagar Branch, Bengaluru
4 C.C.No.3008/2018
towards the discharge of legally enforceable
debt/ liability and on its presentation for
encashment, it was dishonored with an
endorsement "Funds Insufficient" and the
accused has not paid the amount even after 15
days from the date of return of legal notice sent
through RPAD as unclaimed 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 : In the Negative
Point No.2 : In the Affirmative
Point No.3 : As per final order for the following;
REASONS
7. Point No.1and 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
5 C.C.No.3008/2018
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 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. 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.
6 C.C.No.3008/2018
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 PW1 and he got marked Ex.P1 to P5. PW1 filed
his evidence affidavit on oath and reiterated the complaint averments.
Ex.P1 is the cheque bearing No.013010 dated 13.11.2017 for
Rs.2,00,000/ drawn on Corporation Bank, R.T. Nagar branch,
Bengaluru issued in favour of the complainant. Ex.P2 is the Bank Memo
dated 14.11.2017 with shara "Funds Insufficient". Ex.P3 is the office
copy of Legal Notice dated 29.11.2017 issued by the complainant to the
accused demanding repayment of the cheque amount. Ex.P4 is the
postal receipt for having sent the legal notice to the accused. Ex.P 5 is
the postal envelope returned with shara 'intimation
delivered/addressee absent' on 08.12.2017.
11. On perusal of the documents, it is clear that the cheque at
Ex.P1 bearing No.013010 dated 13.11.2017 for Rs.2,00,000/ drawn
on Corporation Bank, R.T Nagar branch, Bengaluru issued in favour of
the complainant was presented for encashment within the validity. The
Bank Memo at Ex.P2 was issued with shara "Funds Insufficient" on
14.11.2017. The complainant issued statutory legal notice to the
accused on 29.11.2017 as per Ex.P3, which is well within the time from
the date of receipt of dishonor memo. The notice was issued by the
complainant through RPAD and it was returned with shara 'intimation
delivered/addressee absent' on 08.12.2017. As per Judgment of
Hon'ble Supreme Court of India in the case of N. Parameswaran Unni
v. G. Kannan, reported in (2017) 5 SCC 737, it was held that "It is
clear from Section 27 of the General Clauses Act, 1897 and Section 114 of
7 C.C.No.3008/2018
the Evidence Act, 1872 that once notice is sent by registered post by
correctly addressing to the drawer of the cheque, the service of notice is
deemed to have been effected. However, the drawer is at liberty to rebut
this presumption". The accused failed to rebut the presumption by
adducing evidence to show that the address mentioned in the notice
and complaint is not correct. Further as per Judgment of Hon'ble
Supreme Court of India in the case of C.C.Alavi Haji Vs. Palapetty
Muhammed and Another reported in (2007) 6 SCC 555, it was held
at para No.17 as under;
17. It is also to be borne in mind that the
requirement of giving of notice is a clear departure from
the rule of Criminal Law, where there is no stipulation
of giving of a notice before filing a complaint. Any
drawer who claims that he did not receive the notice
sent by post, can, within 15 days of receipt of
summons from the court in respect of the complaint
U/s.138 of the Act, make payment of the cheque
amount and submit to the Court that he had made
payment within 15 days of receipt of summons (by
receiving a copy of complaint with the summons) and,
therefore, the complaint is liable to be rejected. A person
who does not pay within 15 days of receipt of the
summons from the Court along with the copy of
the complaint u/s.138 of the Act, cannot obviously
contend that there was no proper service of notice as
required u/s.138, by ignoring statutory presumption to
the contrary u/s.27 of the G.C. Act and Section 114 of
the Evidence Act. In our view, any other interpretation
of the proviso would defeat the very object of the
legislation. As observed in Bhaskaran's case (supra), if
the 'giving of notice' in the context of Clause (b) of the
proviso was the same as the 'receipt of notice'
a trickster cheque drawer would get the premium to
8 C.C.No.3008/2018
avoid receiving the notice by adopting different
strategies and escape from legal consequences of Section
138 of the Act.
In a nutshell it can be said that the statutory notice is an
opportunity given to the accused to make payment and avoid the
consequences of 138 of N.I.Act. In the case on hand, the summons
issued by the court on the address mentioned in the notice and
complaint and it was deemed to have been served on accused as per
order sheet dated 28.03.2019 and the accused appeared through his
counsel and obtained the bail. Therefore he cannot take the shelter of
statutory requirement of service of notice to avoid the consequences of
Section 138 of N.I.Act. The complaint was filed on 02.01.2018, which
is within limitation. The issuance of the cheque and the signature on
the cheque at ExP.1 are not disputed. 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. The accused can rebut the presumptions by
raising probable defences and proving it relying on the evidence of the
complainant or by leading his direct evidence.
12. In the Judgment of Hon'ble Supreme Court of India in the
case of Rangappa Vs. Mohan reported in (2010) 11 SCC 441,
wherein it was held that the presumption mandated by Section 139 of
N.I.Act does indeed include the existence of legally enforceable debt or
liability. It is rebuttable presumption and it is open to the accused to raise
9 C.C.No.3008/2018
a defence wherein the existence of legally enforceable debt or liability can
be contested. However there can be no doubt that there is an initial
presumption which favours the complainant. Section 139 of the Act is an
example of reverse onus clause that has been included in furtherance of
the legislative objective of improving the credibility of negotiable
instruments. In view of the said decision, the burden is on the accused
to rebut the presumption by raising a probable defence and proving the
same by adducing direct evidence or by relying on the evidence of the
complainant.
13. The accused disputed the contents of the cheque. It is
defence of the accused that the complainant misused the blank signed
cheque as security in different transaction. On perusal of Ex.P.1, it is
clear that the writings on the cheque and signature appears to have
written with the different ink and at the different time. However such
aspects have no bearing on the case because as per the presumption
U/s.118(b) of N.I.Act every Negotiable Instrument bearing a date was
made or drawn on such date and 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. Therefore, the defence of the
accused is not tenable. Further the Hon'ble Supreme Court of lndia in
its Judgment in Criminal Appeal No.230231 of 2019 - Bir Singh
V/s.Mukesh Kumar held at the para No.38 and 40 as under:
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.
10 C.C.No.3008/2018
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.
40. 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.
As per the above decision, even a blank cheque issued voluntarily
by the accused towards some payment would attract presumption
under Section 139 of the Negotiable Instruments Act and the accused
has to prove that it was not issued in discharge of debt or liability by
adducing evidence.
14. The Hon'ble Supreme Court of India in the case of
Rangappa Vs. Mohan reported in (2010) 11 SCC 441 also held that
in the absence of compelling justifications, reverse onus clauses usually
imposed an evidentiary burden and not persuasive burden. Keeping this in
view, it is settled position that when an accused has to rebut the
presumption U/s.139, the standard of proof for doing so is that of
preponderance of probabilities. Therefore, if the accused is able to raise
probable defence which creates the doubt about existence of legally
enforceable debt or liability, the prosecution can fail. The accused can rely
on the material submitted by the complainant in order to raise such
defence and it is conceivable that in some cases the accused may not need
to adduce evidence of his/her own. Therefore the accused can still rely
11 C.C.No.3008/2018
on the evidence of the complainant to rebut the presumptions by
pointing out the infirmities in the case of the complainant, which
creates doubt on the case of the complainant.
15. Further the Hon'ble Supreme Court of India in the case of
Basalingappa Vs. Mudibasappa reported in AIR 2019 SC 1983 held
that whereas prosecution must prove the guilt of an accused beyond all
reasonable doubt, the standard of proof so as to prove a defence on the
part of an accused is "preponderance of probabilities". Inference of
preponderance of probabilities can be drawn not only from the materials
brought on record by the parties but also by reference to the circumstances
upon which he relies."
16. The accused did not lead the defence evidence but he need
not lead defence evidence, he could very well rely on the evidence and
cross examination of the complainant to prove his defence. It is the
defence of the accused as set up in the cross examination of PW.1 that
he obtained loan of Rs.20,000/ from the complainant in the year 2015
and he gave two cheques, one DP Note and blank signed stamp paper
at the time of obtaining the loan. The cheque numbers are 013009 and
013010. There is no transaction between him and the complainant as
alleged in the complaint.
17. The counsel for the accused suggested the defence of the
accused in the cross examination of PW.1 but he denied the
suggestions. However he admitted that he filed CC.No.16013/2015
against the accused. He admitted the certified copy of the complaint in
the said case and it was marked as Ex.D1. He stated that he received
the amount from the accused in the said case. On perusal of Ex.D1, it is
12 C.C.No.3008/2018
found that the complainant being the proprietor of Om Sri
Venkateshwara Finance filed complaint against the accused for the
offence punishable u/s 138 of N.I Act. It is alleged in the complaint that
it is the registered finance company. The accused applied for personal
loan and the same was issued to the accused bearing loan account
No.41/OSUF/1415. The loan application, cash voucher and pronote
are produced in the said case. It is alleged that the accused issued
cheque bearing No.013009 dated 15.4.2015 for Rs.72,800/ and it was
returned with shara 'funds insufficient' on 17.4.2015. The legal notice
was issued on 7.5.2015 and it was returned as 'unclaimed' on
13.5.2015. The complaint was filed on 4.6.2015 in the Court of Hon'ble
18th ACMM, Bengaluru and it was registered in CC.No.16013/2015. It
is pertinent to note that the complainant has not mentioned the
amount of loan taken by the accused in the said complaint but the due
amount is mentioned, which is the cheque amount i.e. Rs.72,800/.
When the accused is unable to pay the amount of Rs.72,800/ in the
year 2015 an the complainant filed the case against him for recovery of
the said amount, it is not believable that the complainant gave personal
loan of Rs. 2,00,000/ to the accused in the year 2017 without taking
any security and without getting executed any contemporary
documents. It was clearly elicited in the cross examination of PW.1 that
he did not take any documents as security for lending loan of
Rs.2,00,000/. Further the series of the cheque number is same.
Therefore the defence of the accused appears to be probable.
18. The counsel for the accused cross examined PW.1 in length
in respect of the relationship and knowledge, transaction and the
financial capacity of the complainant. It was elicited in the cross
examination of PW1 that he knew the accused from 2012. The accused
13 C.C.No.3008/2018
came in contact with him through common friend but he could not tell
his name. The accused has been doing the business of supply of
drinking water. He did not know about the family members of the
accused. He did not know the income of the accused. Therefore it is not
believable that the complainant knew the accused from 2012. It is also
not believable that he lend Rs.2,00,000/ hand loan to the accused
without knowing about his family back ground and income that too
without taking anything as security at the time of lending the amount.
19. It was also elicited in the crossexamination of PW1 that
he has been doing real estate and auto consultant business from past
20 years. He has been filing ITR from past 3 years. He had income of
Rs.5,00,000/. He had no other source of income other than the above
source. He had income of Rs.5,00,000/ in the year 20162017. He has
been residing in rented house and the rent is Rs.10,000/ per month.
He had expenses of Rs.10,000/ to Rs.15,000/ per month. The
complainant has not produced any documents to substantiate the
income as alleged by him in th evidence. He had expenses up to
Rs.2,50,000/ per year. He has not produced any documents to show
that he had an amount of Rs.2,00,000/ by way of cash at the time of
lending the amount.
20. It was also elicited that the accused met him in April 2017
and asked for financial help. He gave Rs.2,00,000/ on 04.05.2017 by
way of cash. The complainant stated in his evidence that the said
amount was not withdrawn from the bank but it was kept in his house.
He stated that his mother sold the property in the year 2010 and she
had Rs.2,00,000/ with her. The said amount was kept in the house
from 2010 to 2017 and the said amount was paid to the accused. It was
14 C.C.No.3008/2018
elicited that he did not know about the demonetization that took place
in the year 2016. He stated that the amount was given to the accused
in the denomination of notes of Rs.1,000/ and Rs.500/. It was elicited
that the notes of denomination of Rs.1,000/ and Rs.500/ might not
be acceptable in the market as on 04.05.2017. The judicial notice of the
fact can be taken by the Court that the Government of India vide
Notification dated 8.11.2016 banned the old currency of Rs.1,000/
and Rs.500/ and thereafter release new currency notes of
denomination of Rs.2000/ and Rs.500/. As the old currency notes of
Rs.1,000/ and Rs.500/ were banned after 8.11.2016, it is not
believable that the complainant paid Rs.2,00,000/ to the accused by
way of cash in old currency notes of Rs.1,000/ and Rs.500/ which
were kept in his house from 2010 to 2017. Further the complainant
did not produce any document to show that the property was standing
in the name of his mother and it was sold in the year 2010. Though the
complainant stated in his evidence that he can produce the document.
He did not produce the document. Therefore adverse inference can be
drawn that either he has no such document or if he has such document
and it is produced before the Court, it would go against him. When he
was asked whether he can examine his mother as witness, he stated
that he can not examine his mother as witness as she is suffering from
bone marrow problem. But he did not produce any documents in
respect of the ill health of his mother. All these aspect show that there
is no transaction between the complainant and accused as alleged in
the complaint. The answers elicited in the cross examination of PW.1
creates doubt on the case of the complainant. On the other hand, the
Ex.D1 produced by the accused shows that the defence taken by the
accused that the cheque in the said case and the cheque in question in
15 C.C.No.3008/2018
this case were given as security for the loan obtained by the accused
from the complainant as alleged in Ex.D1 is probable and acceptable.
21. On perusal of the complaint, evidence and documents
produced by the complainant, it is clear that there is no transaction as
alleged in the complaint. The complainant failed to prove his financial
capacity to lend the amount and issuance of cheque as alleged. The
accused took the probable defence and proved it by preponderance of
probabilities by relying on the evidence of the complainant. He proved
that there was no existence of legally enforceable debt between him
and the complainant and he has not at all issued the instant cheque
towards the discharge of legally enforceable debt of Rs.2,00,000/. The
transaction and the issuance of cheque as alleged in the complaint are
not proved. The accused created doubt on the case of the complainant.
Therefore the accused is able to rebut the statutory presumptions
U/s.118(a) & (b) and 139 of the N.I.Act. Accordingly the accused is not
found guilty for the offence punishable U/s.138 of the N.I.Act. Hence, I
proceed to answer the Point No.1 in Negative and Point No.2 in the
Affirmative.
22. Point No.3 : In view of the reasons assigned in Point No.1
and 2, I proceed to pass the following:
ORDER
As per the provisions of Sec.255(1) Cr.P.C. the accused is hereby acquitted of the offence punishable u/s.138 of NI Act, 1881.
16 C.C.No.3008/2018The Personal Bond executed by the accused is hereby stands cancelled and the cash surety of Rs.2,000/ deposited by the accused shall be refunded to her after appeal period is over.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by him, is verified and then pronounced by me in Open Court on this the 31st day of October2022.) (Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.
ANNEXURE Witnesses examined for the Complainant: PW.1 : Sri. Dheerendra Documents marked for the Complainant: Ex.P1 : Original cheque Ex.P1(a) : Signature of the accused Ex.P2 : Bank Memo Ex.P3 : Legal notice Ex.P4 : Postal receipt Ex.P5 : Postal envelope Witnesses examined For Defence: NIL Documents marked for Defence: NIL (Lokesh Dhanapal Havale), XV Addl.CMM., Bengaluru.
17 C.C.No.3008/201831.10.2022 (Judgment Pronounced in the Open Court Vide Separate Order sheet) ORDER As per the provisions of Sec.255(1) Cr.P.C. the accused is hereby acquitted of the offence punishable u/s.138 of NI Act, 1881.
The Personal Bond executed by the accused is hereby stands cancelled and the cash surety of Rs.2,000/ deposited by the accused shall be refunded to her after appeal period is over.
XV Addl.CMM., Bengaluru.