Bangalore District Court
Sri. C.Basavaraju vs Sri. B.Bayyareddy on 26 March, 2021
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C.C.No. 9002/2016 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 26th day of March, 2021
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.9002/2016
Complainant : Sri. C.Basavaraju,
S/o. Chudegowda,
Aged about 54 years,
R/at No.11, 2nd Main,
2nd Cross, Ganigarapalya,
Talaghattapura,
Bengaluru 560 062.
(By Sri. S.P. Junjegowda, Adv.,)
Vs
Accused : Sri. B.Bayyareddy,
R/at No.8/24,
Byraveshwara Krupa,
Shivalaya, 9th Cross,
3rd D Main Road, Sarakki,
J.P.Nagara I Phase,
Bengaluru 560 078.
(By Sri. M.S.Harinath and
Associates., Advs.)
Case instituted : 30.03.2016
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C.C.No. 9002/2016 J
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 26.3.2021
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, he and the accused are well known to each other since 10 years and accused is having the habit for borrowing the hand loan from him and also repaid the same and he had approached him during last week of May 2015 for a financial assistance a sum of Rs.4 Lakhs for the purpose of his domestic necessities, by considering his pathetic condition, he arranged funds and paid the said amount of Rs.4 Lakhs to the accused by way of cash during the first week of June 2015 and at the time of receiving the said amount, the accused assured him that, he will repay the said hand loan amount within a span of 6 3 C.C.No. 9002/2016 J months. The complainant further contends that, after lapse of stipulated period of 6 months, he approached the accused for repayment of the said hand loan amount for several time, finally the accused had issued a cheque bearing No.247018 dt:
27.01.2016 for a sum of Rs.4 Lakhs drawn on State Bank of Mysore, Sarakki branch, Bengaluru in his favour and as per the instructions of the accused, he presented the cheque for encashment on 28.01.2016 but the said cheque has been returned dishonoured with an endorsement of "Funds Insufficient" dated:
29.1.2016, immediately he approached the accused and informed him about the dishonour of the cheque but the accused had dragged the same on one pretext or the other, thereafter left with no other alternative on 16.02.2016 he got issued a legal notice through RPAD and the same was duly served to the accused on 17.02.2016 as per the settled reply sent by the postal authority but so far the accused neither paid the amount covered under the cheque nor replied to the notice. Hence he has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.4
C.C.No. 9002/2016 J
3. Before issuing process against the accused, the Complainant has filed his affidavitinlieu of his sworn statement, in which, he has reiterated the averments made in the complaint. In support of his evidence, P.W.1 has relied upon the documentary evidence as per C.1 to C.6., i.e, Original Cheque dated: 27.01.2016 is as per Ex.C.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.C.1(a), the Bank Memo as per Ex.C.2, the office copy of Legal Notice as per Ex.C.3, postal receipt as per Ex.C.4, copy of the complaint given to the postal department as per Ex.C.5 endorsement issued by the Postal authority ie., settled reply as per Ex.C.6 and subsequently the complainant has produced certified copies of the registered sale deeds dated: 4.3.2015, 28.10.2013, 24.11.2011 and 25.07.2012 which are marked as Ex.C.7 to C.10 respectively and closed his side.
4. Primafacie case has been made out against the accused and summons was issued against the accused in turn has appeared before the court and got enlarged on bail and the substance of the 5 C.C.No. 9002/2016 J accusation has been read over to him, to which he pleaded not guilty and claims to be tried.
5. Thereafter recording the plea of the Accused, as he intended to set out his defence, then the case was posted for the crossexamination of complainant and complainant was cross examined and evidence of the complainant was closed.
6. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence appearing against him and has chosen to lead his rebuttal evidence subsequently the Accused has examined as DW.1 and has produced Notarized copy of the Voter ID card as per Ex.D.1 by confronting the same during the course of cross examination of the complainant and closed his side.
7. Heard by learned counsel for the complainant and the Accused and perused the materials placed on record.
6C.C.No. 9002/2016 J
8. On the basis of complaint, evidence of complainant and accused and documents the following points that are arise for consideration are:
1. Whether the complainant proves that the accused has issued cheque bearing No.247018 dt: 27.01.2016 for Rs.4,00,000/ drawn on State Bank of Mysore, Sarakki Branch, Bangalore to discharge legally recoverable debt to the complainant and when the complainant has presented cheque for encashment through his banker but the said cheque has been dishonoured for the reasons "Funds Insufficient" on 29.1.2016 and the complainant issued legal notice to the accused on 16.2.2016 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
9. The above points are answered as under:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
.7
C.C.No. 9002/2016 J REASONS
10. Point No.1: Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act presupposes three conditions for prosecution of an offence which are as under:
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.8
C.C.No. 9002/2016 J
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
11. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec.118 and 139 of N.I.Act envisages certain presumptions i.e.,U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are 9 C.C.No. 9002/2016 J rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and are rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
12. In the present case the complainant has examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire contents of the complaint. The complainant/PW.1 testified that, he and the accused are well known to each other since 10 years and accused is having the habit for borrowing the hand loan from him and also repaid the same and had approached him during last week of May 2015 for a financial assistance a sum of Rs.4 Lakhs for the purpose of his domestic necessities, by considering his pathetic condition, he arranged funds and paid the said amount of Rs.4 Lakhs to the 10 C.C.No. 9002/2016 J accused by way of cash during the first week of June 2015 and at the time of receiving the said amount the accused had assured him that, he will repay the said hand loan amount within a span of 6 months. The complainant/PW.1 further testified that, after lapse of stipulated period of 6 months, he approached the accused for repayment of the said hand loan amount for several time, finally the accused had issued a cheque bearing No. 247018 dt:
27.01.2016 for a sum of Rs.4 Lakhs drawn on State Bank of Mysore, Sarakki branch, Bengaluru in his favour. The complainant/PW.1 further testified that, as per the instructions of the accused, he presented the cheque for encashment on 28.01.2016 but the said cheque has been returned dishonoured with an endorsement of "Funds Insufficient" dt;29.1.2016, immediately he approached the accused and informed him about the dishonour of the cheque but the accused had dragged the same on one pretext or the other, thereafter left with no other alternative on 16.02.2016 he got issued a legal notice through RPAD and the same was duly served to the accused on 17.02.2016 as per the settled reply sent by the 11 C.C.No. 9002/2016 J postal authority but so far the accused neither paid the amount covered under the cheque nor replied to the notice.
13. In support of his evidence, P.W.1 has relied upon the documentary evidence as per C.1 to C.10., i.e, Original Cheque dated:27.01.2016 is as per Ex.C.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.C.1(a), the Bank Memo as per Ex.C.2, the office copy of Legal Notice as per Ex.C.3, postal receipt as per Ex.C.4, copy of the complaint givne to the postal department as per Ex.C.5 endorsement issued by the Postal authority ie settled reply as per Ex.C.6, certified copies of the registered sale deeds dated: 4.3.2015, 28.10.2013, 24.11.2011 and 25.07.2012 which are marked as Ex.C.7 to C.10 respectively and closed his side.
14. In the present case, there is no dispute between the complainant and Accused with regard to their acquaintance. It is also not in dispute by the accused that, the cheque in question belong to his 12 C.C.No. 9002/2016 J account and signature found at Ex.C.1(a) is that of his signature. It is also not in dispute that, the cheque in question was presented to the encashment within its validity period and the said cheque has been returned as dishonoured for want of sufficient funds as per the returned memo issued by the concerned bank i.e Ex.C.2, hence as a matter on record it is proved by the complainant that, the cheque in question was dishonoured for want of sufficient fund.
15. In relation to the service of notice the Accused in his defence has denied service of notice upon him by contending that, he came to know about this case only after the court notice was issued to him and same was informed by the police over the phone. The complainant in order to prove service of notice upon the Accused, has produced the documents i.e copy of the legal notice Ex.C.3, postal receipt Ex.C.4 copy of the complaint given to the post masker, CMM court complex, Bengaluru dt:
17.03.2016 is at Ex.C.5, settled reply issued by the Sr. Superintendent of Post Office, Bangalore East is 13 C.C.No. 9002/2016 J at Ex.C.6. On perusal of the Ex.C.3 and C.4 it appears that, on 16.02.2016 the complainant got issued legal notice to the residential address of the accused through his advocate by RPAD. The Ex.C.5 i.e. copy of the complaint given to the concerned post master by the advocate for the complainant stating that, he had sent notice by RPAD but either the acknowledgement having served the said notice or unserved RPAD envelope is not returned to his address. The Ex.C.6 is the settled reply issued by the concerned postal authorities stating that, the article was delivered on 17.02.2016 and was settled on 21.03.2016, hence it goes to show that, as per Ex.C.6 it can be held that, the legal notice issued by the complainant as per Ex.C.3 and C.4 by RPAD to the accused was served on 17.02.2016 and the same was settled on 21.03.2016. In addition to that, the accused during the course of crossexamination of the complainant has suggested that, there is no mention in Ex.C.6 to the effect that, article has been personally served on the accused, hence it goes to show that, the accused has admitted the issuance of settled reply by the postal authority as per the Ex.C.6 14 C.C.No. 9002/2016 J but he disputed that, there is no mentioning of article has been personally served on the accused but in Ex.C.6 it is clearly mentioned that, article was delivered on 17.02.2016, in such circumstances the burden of proving the defence ie. the legal notice has not been personally served on the accused or the legal notice issued by the complainant was not to his correct address and same has not been received by him is upon the accused but the accused except the said suggestion nothing has been produced before the court to disprove the endorsement issued by the postal authorities as per Ex.C.6 or the accused has not examined the postal authorities to prove his defence that, the legal notice sent by the complainant was not personally served upon him as per the endrosement issued in Ex.C.6, in such circumstances the endorsement issued by the concerned postal authorities has to be accepted and it can be held that, the legal notice issued by the complainant was served on the accused. Apart from that, the accused during the course of his cross examination has clearly admitted that, the door number of his house is 8/24 and name of his house 15 C.C.No. 9002/2016 J is "Byraveshwara Krupa" and it is situated on the 3rd 'D' Main , Sarakki, J.P.Nagar 1 st phase, Bangalore and also admitted that, he was served with the summons that was issued to him by the court, hence the above admissions of the accused and the residential address of the accused shown in the legal notice ie Ex.C.3 by the complainant are read together makes it clear that, the accused has clearly admitted his residential address as shown by the complainant in Ex.C.3 notice, on this count also the defence taken by the accused that, he was not served with the legal notice cannot be acceptable one. It is also important to mention here that, the accused himself admitted that, he has received the summons that was issued by the court itself sufficient to hold that, the accused is residing in the address shown in the cause title of the complaint and the summons issued by the court was served on the address shown by the complainant in the cause title of the complaint, therefore on careful considering the oral and documentary evidence produced by the complainant and the admissions of the accused itself sufficient to hold that the complainant has issued 16 C.C.No. 9002/2016 J legal notice as per Ex.C.3 by RPAD as per Ex.C.4 and as per Ex.C.6 the said notice was served upon the accused. It is true that, the accused has produced Ex.D.1 ie. his voter I.D. card and in the said card also except the cross number the remaining all other address shown by the complainant in the legal notice are one and the same and as already held in the above that, when the accused has failed to prove that, the Ex.C.6 issued by the postal authority is not created by the complainant and when he admitted the contents of the Ex.C.6 and also admitted his residential address in his crossexamination, in such circumstances only on the basis of non or wrong mentioning of cross number it cannot be held that, the legal notice caused by the complainant was not served on the accused and it is fact that, the legal notice issued by the complainant was not returned to him on the contrary it was served upon the accused as per Ex.C.6, therefore, the contentions taken by the accused in his defence that, the notice issued by the complainant was not served on him cannot be acceptable one and not sustainable in law.17
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16. It is also the defence of the Accused that, the complainant had no source of income to lend alleged loan amount of Rs.4,00,000/= and he has not received the said amount from the complainant and has not issued the cheque in question towards the discharge of the said loan amount. The complainant in support of his case has produced the cheque in question which is at Ex.C.1 and certified copy of the registered sale deeds dt: 4.3.2015, 28.10.2013, 24.11.2011 and 25.07.2012 which are at Ex.C.7 to C.10 respectively to prove his financial capacity. On the other hand, the accused has not cross examined the complainant on Ex.C.7 to C.10 , hence it goes to show that, the sale deeds which are produced by the complainant remained unchallenged and on perusal of the Ex.C.7 to C.10 it appears that, as per Ex.C.7 the complainant has sold his property to one Sri. Raju and as per Ex.C.8 has sold his property to one Sri.Dasegowda and as per Ex.C.9 has sold his property to one Sri. Surendra and as per Ex.C.10 has sold his property to one Sri. D.Rajarao and has received the sale consideration amount as mentioned under Ex.C.7 to C.10, therefore on the 18 C.C.No. 9002/2016 J basis of said documents it can be held that, the complainant was having sufficient resources or funds with him. Apart from that, the accused during the course of crossexamination of the complainant has suggested that, the complainant is doing sand business and also working as agent by supplying the sand to the customers, in such circumstances it can be held that, the accused has admitted the financial capacity of the complainant by admitting that, the complainant is doing sand business.
17. It is also relevant here to mention that, the learned counsel for the Accused though he has cross examined the complainant in length but nothing has been elicited to discredit or discard his evidence, instead of eliciting anything materials from the complainant the Accused rather concentrated his defence that, there was no financial transaction between him and the complainant and also concentrated about the production of the documents to show that, as on the date of lending of the loan amount to the accused the complainant was having sufficient source of income. It is true that, the 19 C.C.No. 9002/2016 J complainant during his crossexamination has admitted that, he has not pleaded in the complaint either about his profession or about his income and also admitted that, he has not produced the documents before the court to show that, he has withdrawn the amount from the bank and lend the same to the accused, but the complainant has specifically stated that, he has lent an amount of Rs.4 Lakhs to the accused from out of his funds and mere non mentioning of profession of the complainant and his income in the complaint does not mean that, complainant was not having sufficient source of income to lend the amount to the accused. It is also true that, the complainant has admitted that, he had no impediment to declare about the source of Rs.4 Lakhs in the I.T.Returns and thereafter lend the same to the accused but mere non declaration of the source of income of Rs.4 Lakhs in the I.T. Returns that itself does not either vitiates the transaction in question or it cannot be infer that the complainant was not having sufficient source of funds as on the date of lending of the loan amount to the accused even if it is not declared by 20 C.C.No. 9002/2016 J the complainant in his I.T. returns it is the matter between the complainant and the concerned department to initiate suitable action against the complainant if permissible under the law, therefore the Statements which are elicited with regard to non declaration of Rs.4 Lakhs in the I.T. Returns is not a ground to discard the evidence of the complainant. Therefore for the above said reasons nothing has been elicited to disbelieve the evidence of complainant.
18. It is important to note here that, the accused in his defence has denied the existence of loan transaction in question and also issuance of cheque i.e Ex.C.1 towards discharge of the loan transaction in question. But the perusal of entire oral and documentary evidence produced by the complainant i.e Ex.C.1 to C.6 and admitted facts by the Accused, the complainant has proved that the cheque in question belongs to the account of the Accused i.e Ex.C.1 and signature found at Ex.C.1(a) is that of the signature of the Accused and also proved that, the cheque in question was presented 21 C.C.No. 9002/2016 J within its validity period and it was dishonoured for the reason of "Funds Insufficient" as per Ex.C.2 and thereafter a legal notice was caused by the complainant as per Ex.C.3 through RPAD to the Accused and it was served on him but the Accused has not given any reply to the legal notice, in such circumstances, it can be held that, the complainant has discharged his initial burden by complying the mandatory requirements as required U/s.138 of N.I. Act and initial presumptions are available in favour of the complainant U/s.118(a) and 139 of the N.I. Act. Consequently it is for the Accused to rebut the presumptions available in favour of the complainant to show that, the cheque in question was not issued either to the complainant or towards discharge of any legally recoverable debt by producing cogent and convincible evidence but not mere suggestions or even by plausible explanation. In such circumstances, when the presumptions U/s.118 and 139 of N.I.Act are available to the complainant, even a presumption can be drawn to the extent of existence of legally recoverable debt or liability against the Accused unless and until the said 22 C.C.No. 9002/2016 J presumptions are rebutted by the Accused, even in the absence of documents produced by the complainant with regard to loan transaction in question.
19. It is also contended by the learned counsel for the Accused in the argument that, the complainant has admitted in his crossexamination that he has not declared that he was having source of income of Rs.4 Lakhs with him in his I.T. Returns and if really the complainant lent the loan amount in question he could have disclosed the same in his I.T. Returns but he has not disclosed the same and has not produced the said documents. It is important to note that, the complainant though he has admitted in his crossexamination that, he has not declared the income of Rs.4 Lakhs in his I.T. Returns that itself does not invalidates the transaction in question. In this regard, it is necessary here to refer the decision of our Hon'ble High court of Karnataka reported in 2019(1) Kar. L.R.185 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat in the said case the Hon'ble High Court of 23 C.C.No. 9002/2016 J Karnataka held that " Negotiable Instruments Act, 1881 - Sections 138 and 139 -Endorsement 'payment stopped by drawer' - The trial court in the instant case, merely considered a suggestion made from the Accused side in the cross examination of PW1 that the complainant was an income tax assessee and that he has not declared the alleged loan transaction in his returns and disbelieved the case of the complainant that too, ignoring that legal presumption under section 139 of the N.I. Act, was operating in favour of the complainant For these reasons, it has to be held that the complainant has beyond reasonable doubt proved the guilt of the Accused punishable under Section 138 of the N.I. Act. As such, the impugned judgment of acquittal passed by the trial court deserves to be set aside and respondent/Accused is liable to be convicted for the offence punishable under Section 138 of the N.I. Act. Hence in view of the principles of law laid 24 C.C.No. 9002/2016 J down by the Hon'ble High court of Karnataka in the above referred decision, in the present case the complainant has admitted that, he has not declared the source of income in his I.T.Returns documents but as it is already held in the above that, the complainant has discharged his primary burden by complying the mandatory provisions of Sec.138 of N.I. Act, therefore it is for the accused to rebut the presumption existing infavour of the complainant U/s.139 of Negotiable Instruments Act. Apart from that, the admissions of the complainant with regard to non declaration of source of income in his I.T. Returns, could not by itself draw an adverse inference and to hold that, there was no existence of legally enforceable debt or the presumption as envisaged U/s.139 of N.I.Act is successfully rebutted by the accused. In another decision of Hon'ble Madhya Pradesh High Court decided in C.R.R No.5263/2018 dated: 7.3.2019 in the case of Smt. Ragini Gupta Vs. Piyush Dutt Sharma Gwalior., wherein the Hon'ble High Court held that, "mere non filing of income tax return would not automatically dislodge the source of income 25 C.C.No. 9002/2016 J of the complainant and non payment of income tax is a matter between the revenue and assessee and if the assessee has not disclosed his income in the income tax return, then the income tax department is well within its right to reopen the assessment of income of the assessee and to take action as per provisions of Income Tax Act, however non filing of income tax return by itself would not mean that, the complainant had no source of income and thus no adverse inference can be drawn in this regard only because of absence of income tax return". Hence in view of the principles of law laid down by Hon'ble High Court of Madya Pradesh in the above said decision in the present case also though the complainant has admitted that, he has not disclosed his income and transaction in question in his income tax return that itself would not automatically dislodge the source of income of the complainant. Therefore the admissions of the complainant which are elicited in his crossexamination are not helpful for the accused to prove his defence that, in view of 26 C.C.No. 9002/2016 J non disclosure of source of income of the complainant and transaction in question in his income tax returns that itself sufficient to hold that, the complainant has no source of income cannot be acceptable one.
20. In addition to the above, the complainant has produced the certified copies of the registered sale deeds i.e Ex.C.7 to C.10 to prove his financial capacity and accused has also not disputed the said sale deeds and the sale consideration amount received by the complainant as per Ex.C.7 to C.10. Apart from that, it is relevant here to refer the decisions reported in 2001 AIR Karnataka HCR 2154 between 'M/s.Devi Tyres V/s.Navab Jan' and in 2011 ACD 1521 (KAR) between 'Smt. Usha Suresh V/s. Shashidharn', in 2010 SC 1898 between 'Rangappa Vs. Mohan' and 2011 ACD 1412 (KAR) between 'N.Hasainar Vs. M.Hasainar, S/o. Ibrahim'. The Hon'ble High Court of Karnataka in the above decision i.e., 2001 AIR Karnataka HCR 2154 at para No.6 was pleased to hold that issuance of cheque itself was an adequate proof of 27 C.C.No. 9002/2016 J existence of debt or liability. In another decision of Hon'ble Apex Court of India i.e. Hon'ble Three Judges Bench Decision reported in (2010) 11 SCC 441 in the case of Rangappa Vs. Sri. Mohan ., wherein the Hon'ble Apex Court held that "
A. Negotiable Instruments Act, 1881 - S.139 - Presumption under- scope of - Held, presumption mandated by S. 139 includes a presumption that there exists a legally enforceable debt or liability-However such presumption is rebuttable in nature - Criminal Trial - Proof - Presumptions
- Generally. Further held that "Signature on the cheque was his, statutory presumption under S.139 comes into play and the same was not rebutted even with regard to the materials submitted by complainant Appellant not able to prove "lost cheque" theory - Apart from not raising a probable defence appellant was also not able to contest the existence of a legally enforceable debt or liability-hence, his conviction by High Court, held, proper. In another 28 C.C.No. 9002/2016 J decision of Hon'ble Apex Court of India, reported in CRIMINAL APPEAL NO. 508 OF 2018 DT 15032018 between ROHITBHAI JIVANLAL PATEL Vs. STATE OF GUJARAT AND ANR held that "Negotiable Instruments Act facts like source of funds are not relevant if the Accused has not been able to rebut the presumption. It is further held that "
When such a presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the Accused has been able to rebut the presumption or not". In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, " Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the 29 C.C.No. 9002/2016 J presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.138 of NI Act. It is also held that, " the accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the Trial Court and High Court. Both courts not only erred in law but also committed perversity when the due amount is said to be disputed only on the account of discrepancy in the cartons, packing materials or the rate to determine the total liability as if the appellant was proving his debt before the civil court. Therefore it is presumed that, the cheque in question were drawn for consideration and 30 C.C.No. 9002/2016 J the holder of the cheques received the same in existing debt". It is also held that, "the Trial court and the High Court proceeded as if, the appellant is to prove a debt before civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. A dishonour of cheque carries statutory presumption of consideration. The holder of cheque in due course is required to prove that, the cheque was issued by the Accused and that when the same presented , it was not honoured Since there is a statutory presumption of consideration, the burden is on the Accused to rebut the presumption that, the cheque was issued not for any debt or other liability". It is also relevant here to refer the decision of Hon'ble High Court of Karnataka reported in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption 31 C.C.No. 9002/2016 J mandated by Sec.139 of N.I Act includes the presumption that, there existed a legally enforceable debt or liability, however such presumption is rebuttable in nature". In another decision of Hon'ble High Court of Karnataka in the case of Shri.V.R.Shresti Vs. Shri. Bhaskara.P. in Crl. Appeal No. 2109/2017 dated: 15.10.2019 wherein the Hon'ble High Court of Karnataka held that "the Accused has not given any reply to the notice and also in the crossexamination, he categorically admits that, the cheque has bounced on account of no sufficient fund in the bank account of the Accused. Mere non producing of the document before the court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The Accused ought to have rebutted the contention of the complainant by producing cogent evidence before the court and mere denial is not enough". In another decision of Hon'ble Apex Court of India reported in ICL 2021(2) SC 529 in the case 32 C.C.No. 9002/2016 J of M/s. Kalamani Tex Vs. P.Balasubramanian , dt: 10.02.2021 wherein the Hon'ble Apex court held that " once the accused had admitted his signatures on the cheque and deed, the trial court ought to have presumed that, the cheque was issued as consideration for legally enforceable debt" Therefore on careful reading of the principles of law laid down by the Hon'ble Apex Court of India and High Court of Karnataka in the above referred decisions makes it very clear that, once the holder in due course i.e. the complainant proved that, the cheque in question belongs to the drawer and signature appearing on the cheque is that of the drawer i.e., Accused and complied the mandatory requirements as required U/s.138 of N.I.Act, presumptions U/s.118(a) and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt and when such presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence regarding source of funds were not of relevant unless the Accused rebutted the presumption available to the complainant as held by 33 C.C.No. 9002/2016 J the Hon'ble Apex Court and High Court of Karnataka in the above decisions. In the present case also the complainant has complied the mandatory requirements and has proved that, the Accused has issued the cheque in question in his favour and the Accused has admitted the cheque belongs to his account and his signature on the cheque and complainant has proved that the legal notice issued by him was served on the Accused in such circumstances, presumptions have to be drawn even to the extent of existence of legally enforceable debt as per Sec.118a and 139 of N.I.Act. Therefore, for the above said reasons the defence taken by the Accused that, the complainant has not produced the documents to show that, he was having source of income or funds to lend the loan amount to the Accused as on the date of lending of the loan amount cannot be acceptable one. The defence taken by the Accused appears that, the complainant has to prove his claim by producing his evidence as if it is required for proving his debt before the Civil Court, but same cannot be permissible in proceeding initiated U/s.138 of N.I. Act, as held by the Hon'ble 34 C.C.No. 9002/2016 J Apex court of India in the above referred decisions, therefore in view of the principles of law laid down in the above referred decisions. It is presumed that, cheque in question was drawn for consideration as the Accused has admitted the cheque in question belongs to his account and the signature found on the cheque in question is of his signature, therefore for the above said reasons the defence take by the accused cannot be acceptable one, as the accused has miserably failed to rebut the presumptions available to the complainant.
21. In order to rebut the presumption available to the complainant, the accused himself examined as DW.1 by stating that, he is residing in his own house address bearing No.8/24, Byraveshwara Nilaya, 10th Cross, 3rd D Main, Sarakki, J.P.Nagar 1st Phase, Bangalore and the said building is consisting of five floors and have let out the houses in the said building and he is residing in the first floor and he have sufficient rental income from the said building as well as agricultural income and his wife is also working and getting a monthly salary of Rs.83,000/ 35 C.C.No. 9002/2016 J as such he had no necessity to avail any loan from the complainant. The accused/DW.1 further stated that, during the year 2015 he had intended to make some alterations in his house and had entrusted to the complainant who was an agent to supply one tractor of Robo sand and on 15.12.2015 when he was alone in his house and his wife had gone to the office at that time the complainant had visited his house and demanded a cheque from him as the price of the robo sand varies from day to day and he handed over the signed blank cheque in respect of the joint account of himself and his wife to the complainant towards supply of sand and in turn he told him that, he would collect the signature of his wife on the said cheque in her office, however he did not obtain the signature of his wife on the said cheque and did not supply the sand to him. The accused/DW.1 further stated that, when he tried to contact the complainant over phone to demand for return of cheque he did not received his calls and when he met him near a hotel he informed that he was searching for the same at home and he would return it to him immediately after the same was 36 C.C.No. 9002/2016 J traced out.
22. The accused /DW.1 during the course of his crossexamination he has not produced any document in support of his claim that, he owned a five floors building from which he have claimed that, he have the rental income and also not produced any document in support of his claim that, his wife is an employee and drawing monthly salary of Rs.83,000/ and also not produced any documents in respect of his agricultural lands in support of his claim that, he have the agricultural income, therefore in view of the above admissions it can be held that, the oral evidence of the accused did not supported by the documentary evidence, therefore only on the basis of self serving statement it cannot be held that, the accused is having rental income from his building and from agricultural lands and his wife is also drawing a salary of Rs.83,000/ p.m, and the accused has failed to establish that, he was/is having sufficient source of income, so that, there was no necessity for him to borrow the loan amount from the complainant.
37C.C.No. 9002/2016 J
23. It is also admitted by the accused that, there is no document in support of his claim that there was a leakage in the bathroom of his house and he do not know the cost of one feet of robo sand at that time and do not remember as to what price he had purchased the robo sand then and there is no document in respect of he having made the payment to the labourers in this regard, hence the said admissions itself goes to show that, the accused is not aware of the cost of the robo sand and not aware at what price he has purchased the sand, in such circumstances a serious doubt arises with regard to entrustment of the work to the complainant in respect of the alteration of his house and also handing over of the cheque to the complainant towards supply of sand. If really the accused was intending to make some alternation in his house and entrusted the same to the complainant and when the complainant visited his house and demanded for cheque from him as the price of the robo sand varies from day to day and he handed over the signed blank cheque in respect of the joint account of himself and his wife to the complainant, he would 38 C.C.No. 9002/2016 J have knows the cost of the sand price and would have issued the cheque for the amount required for the sand, but there is no necessity for him to issue blank signed cheque to the complainant, on this count also a doubt creates with regard to issuance of signed blank cheque to the complainant.
24. It is also the defence of the accused that, the cheque in question handed over to the complainant as signed blank cheque towards supply of the robo sand and as per the demand made by the complainant and thereafter the complainant failed to supply the sand to him and did not returned the signed blank cheque inspite of his requests certainly the accused would have initiated legal action against the complainant for not returning of signed blank cheque or he would have issued notice to the complainant or lodge the police complaint against the complainant alleging that, the complainant has misused his signed blank cheque by presenting to his bank though the said cheque was not issued to the complainant towards discharge of the loan transaction in question even 39 C.C.No. 9002/2016 J after receipt of the legal notice from the complainant or even after his appearance in this case, but no such efforts have been made by the accused for getting return of his alleged signed blank cheque from the complainant, therefore only on the basis of oral denial in this case it is not sufficient to hold that, the complainant had handed over signed blank cheque to the complainant towards supply of robo sand as alleged by the accused in his defence and the defence taken by the accused is appears to be bare denial one. If really the Accused has given signed blank cheque to the complainant towards supply of robo sand and the complainant has failed to supply the said sand and did not return the his signed blank cheque and if it is misused by the complainant, in such circumstances the accused atleast would have issued stop payment instructions to his bank authorities before presentation of the cheque, and even has not made any efforts in this regard, therefore only on the basis of bare denial of the Accused is not sufficient to hold that, he has rebutted the presumptions available to the complainant U/s.118 and 139 of the N.I. Act. It is 40 C.C.No. 9002/2016 J also relevant here to mention that, the conduct of the Accused in not taking the action against the complainant for alleged misuse of the cheque in question by the complainant may leads to draw an adverse inference against him that, the Accused has not initiated any action against the complainant as cheque in question has been issued by the Accused to the complainant towards discharge of the liability in question but not for any other purpose. In this regard it is relevant here to refer the decision of Hon'ble Apex Court of India reported in AIR 2018 SC 3601 in a case of T.P.Murugan(dead) Thr. Lrs.V. Bhojan Vs. Posa Nandi, rep. Thr. Lrs. PA holder, T.P. Murugan V. Bhojan, wherein the Hon'ble apex Court held that "Negotiable Instruments Act (26 of 1881) Ss.118, 138, 139 - Dishonour of cheque - Presumption as to enforceable debt cheques allegedly issued by accused towards repayment of debt Defence of accused that 10 cheques issued towards repayment of loan back in 1995 - behavior of accused in allegedly issuing 10 blank cheques 41 C.C.No. 9002/2016 J back in 1995 and never asking their return for 7 years, unnatural - Accused admitting his signature on cheques and pronote, presumption under S.139 would operate against him - Complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt Conviction, Proper". Hence in view of the principles of law laid down by the Hon'ble Apex Court are aptly applicable to the case on hand since in the present case also the accused has not made any efforts to get return of cheque alleged to have been given to complainant towards supply of robo sand, under such circumstances, the said unnatural conduct of the accused in non taking of action, an adverse inference can be drawn against the accused that, the cheque in question issued by the accused persons towards discharge of the liability and presumption U/s.139 of N.I.Act would operate against him, as he has admitted the signature and cheque in question is belongs to Accused.
25. It is also the defence of the accused that, 42 C.C.No. 9002/2016 J as per the demand of the complainant, he had handed over signed blank cheque in respect of Joint account of himself and his wife towards supply of robo sand and the contents of the cheque in dispute is not in his hand writing and same has been misused without his consent and complainant has misused his signed blank cheque. The complainant during the course of his crossexamination has denied the suggestion made to him that, having collected signed blank cheque from the accused he have presented the same by filling up the rest of the contents in it and also denied the suggestion that, by misusing the cheque in dispute he has filed this false case against the accused and have filled up the contents of the cheque in dispute, hence it goes to show that, the complainant had categorically denied the defence of the accused that, the contents of the cheque is filled up by him and misused the cheque. It is true that, the complainant in his cross examination admitted that, the signature found on the subject cheque is in one ink and in one handwriting and when the same is compared with the rest of the contents in it. Even for sake of 43 C.C.No. 9002/2016 J discussion, if the admissions of the complainant are taken into consideration even in such circumstances also it cannot be held that, the contents of the subject cheque are not filled in by the Accused, unless and until the Accused proved his defence by producing cogent and convincible evidence and it cannot be held that, the contents of the cheque have been filled in by the complainant. In this regard, it is a relevant here to refer a decision of Hon'ble High Court of Karnataka at Bengaluru in a case of Crl. Appeal No.1664/2003 C/w. Crl.Appeal No.1663/ 2003 dated:18.6.2008 in the case of R.Mallikarjuna Vs. H.R.Sadashivaiah wherein the Hon'ble High Court at para No.19 held that " But, the question is, whether that renders instrument unenforceable. In this regard, it must be observed that, this court similar circumstances in the case of S.R. Muralidar Vs. Ashok G.Y. reported in 3001 (4) KAR. LJ K. 122 referring to the provisions of Sections 20, 138, 139, and 140 of the Act and after interpreting alteration and filling up of the cheque observed thus : "The 44 C.C.No. 9002/2016 J trial court has made much about the difference in ink. Admittedly, Accused cheque is issued bearing signature of the Accused. It is the contention of the defence that, blank cheques issued for the business transactions have been illegally converted as a subject matter to this case fastening false liability........ It is not objectionable or illegal in law to receive a inchoate negotiable instrument duly signed by the maker despite the material particulars are kept blank if done with an understanding and giving full authority to the payee to fill up the material contents as agreed upon. Such a course of action in law cannot vitiate the transaction nor can invalidate the negotiable instrument issued and such transaction fully begins the maker of the negotiable instrument to the extent it purports to declare........ The fact that, a document executed is inchoate with regard to some of the material particulars would not render such contract invalid nor make the 45 C.C.No. 9002/2016 J instrument illegal or inadmissible. Voluntarily, if a person were to deliver an inchoate instrument authorizing the receiver to fill up the material contents as agreed upon, the cheque does not get tainted as in admissible nor it amounts to tampering with the material particulars...... In the present case there is no categorical defence version, it is only by conjunctures and surmises, a case is made out from the difference in ink between the signature of the cheque and the other handwritten contents. Hence, in view of the principles of law laid down by the Hon'ble High Court of Karnataka, the same were aptly applicable to the case on hand and the defence of the Accused cannot be acceptable one as the instrument i.e., cheque in question cannot be rendered unenforceable merely because the contents have been filled by different ink, as it would not render such instrument illegal or inadmissible, the complainant certainly can base action on it. It is also relevant here to refer another decision of Hon'ble Apex Court of India reported 46 C.C.No. 9002/2016 J in AIR 2019 SC 2446 in the case of Birsingh Vs. Mukesh Kumar., wherein the Hon'ble apex Court held that, "presumption U/s.139 is presumption of law, distinguished from presumption of facts and also held that, presumptions are rules of evidence and do not conflict with presumption of innocence which requires prosecution to prove case against the Accused and also held that obligation on the prosecution may discharged with the help of presumptions of law and presumption of fact unless the accused adduces evidence showing reasonable plausibility of non existence of presumed fact." In the present case though the Accused has denied the contents of the cheque in question but he did not proved his defence or produced any documents or satisfactory evidence to rebut the presumptions as available U/s.139 of the N.I.Act, under such circumstances in view of the above principles of law, it can be presumed even on fact also that the complainant has proved his case by discharging his burden and complying the mandatory provisions. In the said decision the 47 C.C.No. 9002/2016 J Hon'ble Apex court has also held that, "presumption as to legally enforceable debt is rebuttable, the signed blank cheque if voluntarily presented to payee towards payment payee may fill up amount and other particulars and it in itself would not invalidate cheque and onus would still be on the accused to prove that, cheque was not issued or discharge of debt or liability by adducing evidence." In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, "Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the 48 C.C.No. 9002/2016 J drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. In such circumstances even if the complainant admitted that, the signature found on the subject cheque is in one ink and in one handwriting and when the same is compared with the rest of the contents in it, in such circumstances also in view of the principles of law laid down in the above decision that itself would not invalidates the cheque in question and it can be presumed that, the said cheque has been issued towards discharge of legally recoverable debt. Therefore the defence taken by the accused that, the contents of the cheque in dispute is not in his handwriting and same has been misused without his consent and the complainant has misused his signed blank cheque cannot be acceptable one. On the contrary it can be held that, the cheque in question ie., Ex.C.1 was issued by the accused for sum of Rs.4,00,000/= as claimed by the complainant.
49C.C.No. 9002/2016 J
26. It is also important to note here that, the Accused has not denied or disputed that the cheque in question as well as the signature therein do belong to him and he has failed to prove his defence by producing cogent and convincible evidence, in such circumstances it can be held that, the Accused has failed to prove how the cheque in question has come to the possession of the complainant, this would also give rise to an adverse inference against him, this proposition of law finds support from the decisions of Hon'ble High Court of Karnataka reported in 2010(1) KCCR 176 in the case of "Siddappa Vs. Manjappa" and in the decision of Hon'ble Apex court of India decided in Crl.A.No.664 of 2012 dated:
19.9.2019 in the case of "M.Abbas Haji Vs. T.M.Chennakeshava" held that, " the Accused has to explain how the cheque entered into the hands of complainant". Therefore for the above said reasons the defense taken by the accused cannot be acceptable one and accused has miserably failed to rebut the presumption available in favour of the complainant by producing cogent and convincible 50 C.C.No. 9002/2016 J evidence.
27. It is also the defence of the accused that, as per the demand of the complainant as the price of the robo sand varies from day to day he handed over the signed blank cheque in respect of the joint account of his wife and himself to the complainant and the complainant in formed him that, he would collect the signature of his wife on the said cheque in her office, however he did not obtain signature of his wife on the said cheque and did not supply the robo sand to him and also did not return the cheque in question to him, therefore the cheque in question belongs to the joint account of himself and his wife but the said cheque does not bears the signature of his wife, in such circumstances the complaint filed by the complainant itself is not maintainable on the said ground. The complainant in his cross examination has also admitted that, the cheque in dispute relates to the joint account of the accused and one Srilatha.M, and there is no signature of Srilatha.M. found on the subject cheque, but he has denied the suggestion made to him that, he have 51 C.C.No. 9002/2016 J neither obtained the signature of the wife of the accused on the cheque who is one of the joint account holders pertaining to the said cheque nor have he got filled up the said cheque from her and that instead he have presented the same by filling up the contents in the said cheque and also denied the suggestion that, accused instructed him to give his one cheque with his signature on it pertaining to the Joint account of his wife and him and further instructed him that, he would obtain the signature of his wife on the said cheque in her office and get the contents of the cheque filled up and having collected such signed blank cheque from the accused he have presented the same by filling up the rest of the contents on it, hence in view of the denial of the above suggestions makes it clear that, at the time of issue of cheque the complainant neither he was aware of the cheque in question belongs to the joint account of the accused and his wife nor the accused instructed him to obtain the signature of his wife on the cheque on the contrary it can be held that, the accused has issued the cheque infavour of the complainant only by affixing his signature though 52 C.C.No. 9002/2016 J the said cheque was pertains to the Joint account of himself and his wife, in such circumstances the accused has miserably failed to prove that, he has instructed the complainant to obtain the signature of his wife on the subject cheque and the complainant also agreed that, he would obtain the signature of wife of the accused but later after collecting the cheque he did not obtained the signature of the wife of the accused.
28. It is also important here to mention that, as it is already held in the above that, the accused admitted that, the cheque in question belongs to his account though it pertains to the joint account of himself and his wife and the said cheque was issued to the complainant and the complainant in turn has presented to the bank for encashment and the subject cheque was returned dishonoured for want of sufficient funds as per Ex.C.2 memo issued by the concerned bank, in such circumstances the complainant has proved that, the accused is the drawer of the subject cheque in question and the signature found on the cheque I.e Ex.C.1(a) is that of 53 C.C.No. 9002/2016 J the accused ie. the signature of the drawer and the said cheque was dishonoured for want of sufficient funds, in such circumstances the proceedings initiated against the drawer of the cheque ie accused U/s.138 of NI Act, though the cheque pertains to the joint account holders is maintainable as against the accused since the accused has issued the cheque in question and also signatory to the cheque in question, in such circumstances the liability can be fastened upon the accused for the dishonour of the cheque U/s.138 of N.I.Act. As indisputedly the accused has signed the cheque but the cheque has not been signed by his wife, therefore as the wife of the accused is not a signatory to the cheque no liability can be fastened upon the wife of the accused for the dishonour of the cheque but it is settled law that, the accused being signatory to the cheque in question, he is liable to be prosecuted U/s.138 of N.I.Act, hence the complaint filed by the complainant is maintainable against the accused.
29. In this regard, it is relevant here to refer the decision of Hon'ble Apex Court of India in 54 C.C.No. 9002/2016 J Aparna A.Shah Vs. Sheth Developers Private Ltd., and another., reported in (2013) 8 SCC 71 wherein it has been clearly held that "Only the Drawer of the cheque is liable for prosecution U/s.138 of N.I.Act and in case of joint accounts, each and every account holder cannot be prosecuted unless he had signed on the cheque and that no one can be fastened with criminal liability for acts of others., except as expressly provided by law and the element of common intention is not relevant in N.I.Act, unless the proceedings are initiated under the penal code". Hence, in view of the above principles of law laid down by Hon'ble Apex court of India even though the cheque in question pertains to the Joint account of the accused and his wife, the accused is liable to be prosecuted U/s.138 of N.I.Act as accused being the drawer of the cheque, accordingly the arguments canvassed by the learned counsel for the accused that, in view of non obtaining of the signature of the wife of the accused on the disputed cheque and the cheque pertains to the joint account cheque only on 55 C.C.No. 9002/2016 J the basis of signature of the accused is not maintainable cannot be acceptable one and not sustainable in law.
30. Therefore considering all these aspects of the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant and accused the complainant has successfully established beyond all reasonable doubt that, he has lent loan amount of Rs.4,00,000/ to the Accused and in order to discharge the said loan amount the accused has issued the Ex.C.1 cheque in question for sum of Rs.4,00,000/ in favour of the complainant and thereafter the complainant has presented the said cheque through his banker and same was returned dishonoured with an endorsement of "Funds Insufficient" and thereafter he got issued legal notice to the accused and the said notice was served on him, inspite of it, the Accused did not paid the cheque amount, hence the complainant filed the present complaint against the accused. On the other hand, the accused has failed to rebut the 56 C.C.No. 9002/2016 J presumption available infavour of the complainant with regard to the existence of legally recoverable debt under Ex.C.1 Cheque. Therefore accused has committed an offence punishable U/s.138 of N.I. Act, accordingly for the above said reasons this point is answered in the Affirmative.
31. Point No.2: Negotiable Instrument Act was enacted to bring credibility to the cheque and the very purpose of enactment is to promote the use of negotiable instrument, while to discourage the issuance of cheque without having sufficient funds in their accounts. Such being the case the intention of the legislature is that, complainant be suitable compensated while accused be punished for his act. Hence while awarding the compensation the said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly it will not cause injustice to the accused, accordingly the complainant is entitled for the compensation as ordered by the court and for the said reasons, it is just and proper to pass the following : .
57C.C.No. 9002/2016 J ORDER Acting U/sec.255(2) of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.4,15,000/= (Rupees Four Lakhs and Fifteen Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.4,10,000/= (Rupees Four Lakhs and Ten Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
The Bail bond and surety bond of the Accused stands cancelled.
58C.C.No. 9002/2016 J Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 26th day of March 2021).
.
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant: P.W.1 : Sri. C.Basavaraju
2. List of documents exhibited on behalf of the Complainant: Ex.C1 : Original Cheque;
Ex.C1(a) : Signature of the Accused;
Ex.C2 : Bank Memo Ex.C3 : Office copy of the Legal Notice; Ex.C4 : postal receipt; Ex.C5 : Complaint Letter to postal authority Ex.C6 : Complaint settled reply Ex.C7 to C.10 : Certified copies of Sale deeds dt:
04.03.2015, 28.10.2013, 24.11.2011 and 25.07.2012 59 C.C.No. 9002/2016 J
3. List of witness/s examined on behalf of the Accused: DW.1 : Sri.B. Bayya Reddy
4. List of documents exhibited on behalf of the Accused: Ex.D.1 : Notaried copy of the Voter I.D. card (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
60C.C.No. 9002/2016 J 26.3.2021 case called, Both complainant and counsel for the complainant absent, accused absent, counsel for the accused absent. Judgment pronounced in the open court, vide separate order.
ORDER
Acting U/sec.255(2) of
Cr.P.C. the accused is convicted
for the offence punishable
U/sec.138 of N.I.Act.
The accused is sentenced to
pay a fine of Rs.4,15,000/=
(Rupees Four Lakhs and
Fifteen Thousand only) within
one month from the date of
order, in default he shall under
go simple imprisonment for a
period of (3) three months for the
offence punishable U/sec.138 of
N.I.Act.
Further acting U/sec.357(1)
of Cr.P.C. out of the fine amount
on recovery, a sum of
Rs.4,10,000/= (Rupees Four
Lakhs and Ten Thousand
only) shall be paid as
compensation to the complainant.
Further acting U/sec.357(1)(a)
61
C.C.No. 9002/2016 J
of Cr.P.C. out of fine amount on
recovery a sum of Rs.5,000/=
(Rupees Five Thousand only)
shall be defrayed as
prosecution expenses to the
state.
The Bail bond and surety
bond of the Accused stands
cancelled.
Office is directed to furnish
free certified copy of this
judgment to the Accused
incompliance of Sec.363(1) of
Cr.P.C.
XVI ACMM, B'luru.