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[Cites 33, Cited by 0]

Bangalore District Court

Sri. R.G. Prasad vs Smt.Shruthy.R.M on 31 December, 2021

                        1
                                      C.C.No.15516 /16 J



  IN THE COURT OF THE XVI ADDITIONAL CHIEF
 METROPOLITAN MAGISTRATE, BENGALURU CITY

   Dated:­ This the 31st day of December 2021

Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
           XVI Addl.C.M.M., Bengaluru City.

           JUDGMENT U/S 355 OF Cr.P.C.,

Case No.          :   C.C.No.15516/2016
Complainant       :   Sri. R.G. Prasad,
                      Aged about 50 years,
                      S/o.Late H.R.Ramachandra Rao,
                      Residing at No.671, 6th cross,
                      6th Main Road,
                      Hanumanthanagar,
                      Bangalore ­560 019.
                      (By Sri. T.S.Gurunath and
                      Associates., Advs.,)

                       ­ Vs ­
Accused           :   Smt.Shruthy.R.M,
                      W/o. Sri.Jayaprakash,
                      Major in Age,
                      No.4 & 5, Siri Lotus Apartments,
                      Flat No.20/1, 15th Main Road,
                      Near Karnataka Bank,
                      Uttarahalli Main Road,
                      Bangalore ­ 560 061.

                      (By Sri. Amshith Hegde.H.S. .Adv.,)
                              2
                                            C.C.No.15516 /16 J



Case instituted        :    03.06.2016
Offence                :    U/s 138 of N.I Act
complained of
Plea of Accused        :    Pleaded not guilty
Final Order            :    Accused is convicted
Date of order          :    31.12.2021


                     JUDGMENT

The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.

2. Briefly stated the case of the Complainant is that, accused is known to him since more than 15 years as he is the friend of father of the accused and the accused is working in a private company and approached him for hand loan of Rs.2 Lakhs in the month of November 2011 for her legal family necessity and had promised to return the said amount at the earliest and also agreed to pay nominal bank interest while returning the amount, considering the request and need of the accused he has lent a sum of Rs.2 Lakhs on 1 st December 2011 3 C.C.No.15516 /16 J and the accused has also executed On Demand Promissory Note and Consideration Receipt dt; 2.12.2011 for sum of Rs.2 Lakhs in presence of her father and assured to pay a nominal rate of interest and to repay the entire amount at the earliest. The complainant further contends that, accused never bothered to repay the borrowed amount and when he was in need of amount visited the accused several times and requested her to return the borrowed amount but the accused dodge the time with one or other reason and finally to discharge her liability has issued a cheque bearing No.087582 dt:23.3.2016 for sum of Rs.2 Lakhs drawn on the National Co­ operative Bank, Gandhi Bazar Branch, Bangalore ­560004 in his favour and assured to pay the interest part after getting the said cheque encashed. The complainant further contends that, he has presented the said cheque through his banker for encashment ie., The National Co­operative Bank Ltd, Gandhibazar Branch, Bangalore but the said cheque was returned dishonoured on 29.3.2016 and the bank authorities have issued a returned memo 4 C.C.No.15516 /16 J stating the reason "Funds Insufficient" and thereafter he informed the accused about the same personally, for several times , the accused never bothered to repay the amount , hence he got issued a notice to the accuse dt; 23.4.2016 through RPAD and said notice has been returned unserved On 28.4.2016 as the accused has deliberately avoided the notice with malafide intention to dodge the time. Hence he has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.

3. Before issuing process against the accused, the Complainant has filed his affidavit­in­lieu of his sworn statement along with original documents in which, he has reiterated the averments made in the complaint. in support of his oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.C.1 to C.9 i.e, Original Cheque dated: 23.3.2016 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 5 C.C.No.15516 /16 J copy of Legal Notice as per Ex.C.3, postal receipt as per Ex.C.4, returned legal notice as per Ex.C.5, RPAD returned cover as per Ex.C.6 postal receipt as per Ex.C.7, postal acknowledgement as per Ex.C.8, Pronote and Consideration receipt dt: 2.11.2011 as per Ex.C.9, signatures of the accused are as per Ex.C.9(a) and 9(b).

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 accusation has been read over to her, to which she pleaded not guilty and claims to be tried.

5. As per the direction of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the Accused, as she intended to set out her defence, then the case was posted for the cross­examination of complainant, after his cross examination, the complainant was 6 C.C.No.15516 /16 J closed his side.

6. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. She has denied the incriminating evidence appearing against her and has chosen to lead her rebuttal evidence subsequently the Accused has examined as DW.1 and has produced certified copy of the charge sheet filed by Hanumanthanagar Police in crime no.31/2017 as per Ex.D.1. The accused has also examined Manager of National Co­operative Bank, Banashankari 2nd stage, Bangalore by name Sri.Kiran Kumar M.N as DW.2 and relevant portion in Ex.D.1 marked as Ex.D.1(a) and closed her side.

7. Heard by learned counsel for the complainant and the learned counsel for the Accused filed written argument and perused the materials on record.

8. On the basis of complaint, evidence of complainant and documents the following points that are arise for consideration are:­ 7 C.C.No.15516 /16 J

1. Whether the complainant proves that the accused has issued a cheuqe bearing No.087582 dt:23.3.2016 for sum of Rs.2 Lakhs drawn on the National Co­operative Bank, Gandhi Bazar Branch, Bangalore ­560004 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 29.3.2016 and the complainant issued legal notice to the accused on 23.04.2016 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:
REASONS

10. Point No.1: Before appreciation of the facts and oral and documentary evidence of the present case, it 8 C.C.No.15516 /16 J 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 conditions for prosecution of an offence which are as under:

1. Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
2. Cheque shall be presented for payment within specified time i.e., from the date 9 C.C.No.15516 /16 J of issue before expiry of its validity.
3. 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
4. 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 conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer in respect of 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 ingredient 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 presumption shall 10 C.C.No.15516 /16 J be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and 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/PW.1 in his complaint and affidavit evidence has testified that, accused is known to him since more than 15 years as he is the friend of father of the accused and the accused is working in a private company and approached him for hand loan of Rs.2 Lakhs in the month of November 2011 for her legal family necessity and had promised to return the said 11 C.C.No.15516 /16 J amount at the earliest and also agreed to pay nominal bank interest while returning the amount , considering the request and need of the accused he has lent a sum of Rs.2 Lakhs on 1 st December 2011 and the accused has also executed On Demand Promissory Note and Consideration Receipt dt; 2.12.2011 for sum of Rs.2 Lakhs in presence of her father an assured to pay a nominal rate of interest and to repay the entire amount at the earliest. The complainant/PW.1 further testified that, accused never bothered to repay the borrowed amount and when he was in need of amount visited the accused several times and requested her to return the borrowed amount but the accused dodge the time with one or other reason and finally to discharge her liability has issued a cheque bearing No.085782 dt:23.3.2016 for sum of Rs.2 Lakhs drawn on the National Co­operative Bank, Gandhi Bazar Branch, Bangalore ­560004 in his favour and assured to pay the interest part after getting the said cheque encashed. The complainant/PW.1 further testified that, he has presented the said cheque through his 12 C.C.No.15516 /16 J banker for encashment ie., The National Co­operative Bank Ltd, Gandhi Bazar Branch, Bangalore but the said cheque was returned dishonoured on 29.3.2016 and the bank authorities have issued a returned memo stating the reason "Funds Insufficient" and thereafter he informed the accused about the same personally, for several times , the accused never bothered to repay the amount , hence he got issued a notice to the accused dt; 23.4.2016 through RPAD and said notice has been returned unserved On 28.4.2016 as the accused has deliberated avoided the notice with malafide intention to dodge the time.

13. In support of his oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.C.1 to C.9 i.e, Original Cheque dated: 23.3.2016 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, returned legal notice as per Ex.C.5, RPAD returned cover as per Ex.C.6 postal receipt as 13 C.C.No.15516 /16 J per Ex.C.7, postal acknowledgement as per Ex.C.8, Pronote and Consideration receipt dt: 2.11.2011 as per Ex.C.9, signatures of the accused are as per Ex.C.9(a) and 9(b).

14. In the present case, there is no dispute between the complainant and Accused with regard to their acquaintance. It is also not disputed by the accused that, the cheque in question ie., Ex. C.1 belongs to her account and signature found at Ex.C.1(a) is that of signature of accused. The accused has also not disputed that, the cheque in question was presented to the encashment within its validity period and the said cheque has been returned as dishonoured for the reason of "Funds Insufficient" as per the returned memos 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 the reason of Funds Insufficient. It is also not in dispute by the accused that, the legal notice caused by the complainant was within 30 days from the date of receipt of bank 14 C.C.No.15516 /16 J memo.

15. In relation to the service of notice, the accused in her defence denied the service of notice upon her. On the other hand the complainant the documents i.e copy of the legal notice, postal receipt, returned legal notice, RPAD Cover and postal receipt, postal acknowledgement which are at Ex.C.3 to C.8 respectively. On perusal of the Ex.C.3 to C.8 it appears that, the complainant has issued legal notice within 30 days from the date of receipt of endorsement of the bank and the said notice was sent through RPAD and the said RPAD was returned with an endorsement of "Door Locked, Intimation delivered, Left", hence, it goes to show that, the legal notice caused by the complainant through RPAD to the address of the Accused shown in the notice returned with postal endorsement of "Door Locked, Intimation delivered, Left". It is also relevant here to mention that. On careful perusal of the cross examination of the complainant 15 C.C.No.15516 /16 J though the accused has taken contention that, the legal notice issued was unserved on the accused but has not disputed the address mentioned by the complainant in legal notice, RPAD cover , postal acknowledgement is not correct address of the accused and even it is not the defence of the accused that, the legal notice issued by the complainant was to the wrong address of the accused. In addition to that, the accused during her cross examination has categorically admitted that, she is residing at No.4 & 5, Siri Lotus Apartments and the address mentioned in the legal notice ie., Ex.C.5 is her residential address and the said address is her correct address. Hence, the unequivocal admission of the accused makes it clear that, the legal notice caused by the complainant was sent through RPAD to the correct address of the accused and same has been returned with an endorsement of Door Locked, Intimation delivered, Left". Apart from that, it is not the defence of the accused that, the complainant by colluding with the postal authorities got created the 16 C.C.No.15516 /16 J postal endorsement and produced before the court, therefore in view of non denial of the postal endorsement issued by the concerned department it cannot be held that, the endorsement found on Ex.C.6 ie "Door Locked, Intimation delivered, Left, got created by the complainant, therefore in view of the oral and documentary evidence produced by the complainant and admitted facts by the accused it can be held that, the legal notice caused by the complainant as per Ex.C.3 sent through RPAD to the correct address of the accused and same has been returned as "Door Locked, Intimation delivered, Left". in such circumstances, it can be held that, the notice sent by the complainant to the correct address of the Accused is presumed to have been served on him U/s. 27 of General Clauses Act. In this regard, it is relevant here to refer the decision of Hon'ble High Court of Karnataka reported in 2011 ACD 1572 (KAR) in the case of Jayamma Vs. Lingamma, wherein the Hon'ble High Court held that, "Notice sent at correct address returned 17 C.C.No.15516 /16 J unclaimed - is deemed to be served. In another decision reported in 1998 KAR 1841 in the case of Shridhar M.A. Vs. Metalloy Steel Corporation and 1999 Cri.L.J. 4606 "K. Bhaskaran Vs. Vaidhanbalan wherein the Hon'ble Apex Court was concerned with the question as to when the service of notice could be inferred and it was held that if there is an endorsement like 'not available in the house' 'house locked' 'shop closed' 'unclaimed' the service should be deemed to have been effected. It is also relevant here to refer the decision reported in 2008(4) Civil code cases 027 (SC) "M/s. Indo Automobiles Vs., M/s. Jai Durga Enterprises and others." wherein the Hon'ble Apex Court held that, "notice sent by registered post with acknowledgement to a correct address­service of notice has to be presumed". Therefore in view of the principles of law in the above decisions, it can be safely held that, the service of notice on accused in this case is 18 C.C.No.15516 /16 J presumed to have been served on her since in this case also the complainant has issued notice to the accused to her correct address through registered post and the said notice was returned with an endorsement of "Door Locked, Intimation delivered, Left", hence the notice issued by the complainant through registered post is held to be proper. In addition to that, it is relevant here to refer the decision reported in 2007 AIR SCW 3578 in the case of C.C.Alavi Haji Vs. Palapetty Muhammed and another., wherein the Hon'ble Apex court held that " the drawer of the cheque is permitted to deposit the cheque amount within 15 days from the date of his appearance before the court in pursuance of the service of summons on him and in such situation, his defence of non service of the legal notice cannot be available to him'. Hence, in view of the said principles of law, even for sake of discussion, though there is no cogent and reliable documentary proof to 19 C.C.No.15516 /16 J substantiate the claim of the complainant with regard to address of the Accused to show there is due service of the legal notice on the Accused, in view of settled position of law by virtue of the above said decision of Hon'ble Apex Court of India, the Accused is not entitled to the technical defence of the alleged non service of the legal notice. Therefore, the argument convassed by the learned counsel for the accused that, the notice issued by the complainant was not served on the accused and the complainant has not complied the mandatory requirements of Sec.138(b) of N.I.Act and complaint is not maintainable cannot be acceptable. Hence, the complainant has complied all the mandatory requirements as required U/s.138(a) to (c) of N.I.Act and initial presumptions can be drawn in favour of the complainant as required U/s.118(a) and 139 of N.I.Act.

16. It is also the defence of the Accused that, the complainant had no source of income to lend alleged loan amount of Rs.2 Lakhs and she has not 20 C.C.No.15516 /16 J 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 order to prove that he has lent a loan amount of Rs.2 Lakhs to the accused has produced original cheque issued by the accused and on demand promissory note and consideration receipt executed by the accused dt: 2.12.2011 which are at Ex.C.1 and C.9 respectively. On careful perusal of the contents of Ex.C.9 it appears that, the accused has executed on demand promissory note and consideration receipt on 2.12.2011 for having receipt of Rs.2 Lakhs from the complainant and also agreed to repay the said loan amount and the signatures of the accused found at Ex.C.9(a) and (b). It is relevant here to mention that, the accused during the course of her cross examination at page No.2 & 3 has categorically admitted that, the hand writings found in Ex.C.9 On Demand Promissory Note are those of her handwritings and also admitted that, the contents of cheque in question are also written by her and she has also endorsed on the hind side of 21 C.C.No.15516 /16 J Ex.C.1 cheque. Hence, the said categorical and unequivocal admissions of the accused makes it clear that, the accused has admitted that, she had written the contents of the cheque in question ie Ex.C.1 and endorsement made on the hind side of the chque in question which is marked as Ex.C.1(b) are in the hand writings of the accused. The accused has also admitted that, she has executed the On Demand Promissory Note and Consideration Receipt and the handwritings found in Ex.C.9 are those of her hand writings and the accused has also admitted her signatures found on the cheque in question ie Ex.C.1(a) and found on On Demand Promissory Note and Consideration Receipt ie., Ex.C.9(a). It is true that, the accused has stated that, the complainant hand taken the cheque in question and On Demand Promissory Note and Consideration Receipt towards security and forcibly taken from her but the accused neither during the course of cross examination of complainant nor in her defence evidence stated that, the complainant had forcibly collected the Ex.C.1 cheque and Ex.C.9 On Demand Promissory Note and 22 C.C.No.15516 /16 J Consideration Receipt, on the contrary she has stated that, her father had collected blank signed cheque and On demand promissory note ie., Ex.C.9 from her to give them towards security, therefore the inconsistent defence of the accused and in view of categorical admission by the accused with regard to contents of Ex.C.1 and C.9 and signatures found on them it can be held that, the accused herself had voluntarily written the contents of the cheque in question and On Demand Promissory Note and Consideration Receipt by admitting the receipt of loan amount of Rs.2 Lakhs from the complainant and handed over the same to the complainant. In addition to that, admittedly the accused is a graduate in B.E. computer science and working in Software and also aware of reading and writing of Kannada and English and admittedly she has not filed any complaint against the complainant stating that, the complainant has forcibly collected Ex.C.1 cheque and Ex.C.9­On Demand Promissory Note and consideration receipt and by giving threat to her and got written the contents in the cheque and On 23 C.C.No.15516 /16 J demand promissory note, in such circumstances the defence of the accused that, she had written the contents in the cheque and On Demand Promissory Note and Consideration Receipt by the threat of the complainant and complainant had collected them by giving threat and forcibly cannot be acceptable one. The perusal of the Ex.C.1 and C.9 and coupled with the categorical admissions of the accused makes it clear that, the complainant proved that, he has lend Rs.2 Lakhs to the accused and after receipt of loan amount of Rs.2 Lakhs the accused has executed On demand promissory note and consideration receipt in his favour by admitting the receipt of loan amount of Rs.2 Lakhs by her and has issued cheque in question towards discharge of liability in question.

17. In addition to the above, the accused has examined bank manager of National Co­operative Bank, Banashankari 2nd stage, Bangalore by name Sri. Kiran Kumar N.M. as DW.2. The DW.2 in his evidence has clearly stated that, as per the entry in Ex.D.1(a) a transaction took place in his bank on 24 C.C.No.15516 /16 J 1.12.2011 through cheque bearing No. 782478 and on the hind side of the cheque a signature has been taken with regard to issue of cheque amount. The DW.2 in his cross examination has clearly admitted that, Ex.D.1(a) pertains to the transaction of the complainant's account and as per the entry in Ex.D.1(a) one Shruthi had withdrawn an amount on 1.12.2011 through cheque bearing no.782478 by affixing her signature on the hind side of the said cheque. The DW.2 has also stated that, as per the account statement ie., in first page of Ex.D.1 it appears that, the said transactions started from 20.7.2007 and as per Ex.D.1(a) one Shruthi had collected the amount in respect of the said transaction. Hence, on careful perusal of the Ex.D.1

(a) it appears that, on 1.12.2011 an amount of Rs.2 Lakhs was drawn by the accused from the account of the complainant through cheque bearing No.782478and this fact has not been denied by the accused during the cross examination of DW.2 ie the Manager of National Co­operative Bank , therefore the complainant has also proved that, he has paid 25 C.C.No.15516 /16 J an amount of Rs.2 Laksh to the accused on 1.12.2011 through cheque bearing No.782878 and the said amount has been withdrawn by the accused

18. It is also seen from the admissions of the accused that, she had issued the cheque in question ie Ex.C.1 in favour of the complainant , though she has stated that, the cheque in question and promissory note are handed over to her father as blank signed cheque and On demand promissory note and consideration receipt but the accused herself admitted in her cross examination that, she had filled the contents of the cheque in question and On demand promissory note by her own handwriting and same were handed over to the complainant in such circumstances it can be held that, the accused has voluntarily issued the cheque in question in favour of the complainant. The learned counsel for the accused has cross examined the complainant in length but nothing has been elicited either to disbelieve or discard the evidence of complainant. The complainant/PW.1 has denied all the 26 C.C.No.15516 /16 J suggestions made to him and in the cross examination complainant has clearly stated that, he has paid an amount of Rs.2 Lakhs to the accused by way of cheque and same has been proved by producing documentary evidence and the accused herself admitted the said fact. It is also relevant here to mention that, on meticulous reading of the cross examination of the complainant , the accused has more concentrated her cross examiantions in respect of declaration of the loan transaction in question in I.T. return of the complainant and the complainant has denied the suggestion that, he is a money lender and lending the amount to various persons on basis of exorbitant interest. The complainant has also clearly stated that, the accused has handed over on demand promissory note on the next day of having availed the loan from, him and the father of the accused is also a witness to the said On demand promissory note. The complainant has also stated that, he had lent Rs.2 Lakhs to the accused in November 2011 and has not charged any interests on the said loan amount and denied the suggestion that, 27 C.C.No.15516 /16 J there is no relationship between the pronote and the cheque in dispute. The complainant /PW.1 has also stated that, the amount which was lent by him through cheque was withdrawn by the accused from his account in the same branch and the accused issued the cheque in question and On demand promissory note by filling the contents in the cheque and pronote by her own handwritings and denied the suggestion that, he himself has filled up the contents of cheque in question and On demand promissory note and the cheque in question was handed over by the father of the accused towards security and accused has not put her signature to the Ex.C.1 cheque and Ex.C.9 On demand promissory note in his presence and the cheque in question was obtained by forcibly from the father of the accused. Hence, on entire perusal of th cross examination of the complainant nothing has been elicited to discard or disbelieve the evidence of the complainant or accept the defence of the accused.

19. It is also relevant here to mention that, the 28 C.C.No.15516 /16 J learned counsel for the accused in the written argument much argued on the income tax returns of the accused by contending that, the complainant is doing money lending business has lend the loans to the various persons without having valid money lending license and supported by I.T.R or Books of accounts, amount of black money for which no courts on the earth can come to rescue for black money so under these circumstances the complainant without declaring the loan amounts lend to various persons in his I.T. returns has lend the money and in the present case also has admitted that, he has not declared the loan transaction in question in his I.T.R records, therefore the claim made by the complainant is not legally enforceable debt and complaint itself has to be dismissed on the sole ground. It is also argued that, the complainant in his cross examination admitted that, he is engaged in Real Estate and sale trading business and filed his I.T.R pertains to the year of 2010­11 and 2011­12 but as per the letter dt: 1.5.2017 issued by Income Tax Department, Bangalore the complainant filed 29 C.C.No.15516 /16 J income tax returns only for the year 2015­16 and 2016­17.

20. It is true that, the complainant has not produced his I.T. returns in this case to show that, he has declared the loan transaction in qeustion in his I.T. returns and though the learned counsel for the accused has vehemently argued with regard to filing of I.T. R by the complainant in respect of the loan amount lent to the accused and other persons and non declaration of the said loan truncation in his I.T. return, but only on the ground of non declaration of the loan amount in question 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 Karnataka held that "

Negotiable Instruments Act, 1881 - Sections 138 and 139 ­Endorsement 'payment stopped by drawer' - The trial court in the instant case, 30 C.C.No.15516 /16 J merely considered a suggestion made from the Accused side in the cross­examination 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 down by the Hon'ble High court of Karnataka in the above referred decision, in the present case also the complainant has not produced his I.T. returns 31 C.C.No.15516 /16 J and declared in his I.T. Returns about lending of loan amount in question,, but as it is already held 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 in 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 of the complainant and non payment of income tax is a matter between the revenue and assessee and if the 32 C.C.No.15516 /16 J 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 declared in his I.T. Returns about loan transaction in question 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 non declaration of loan transaction in his I.T. Returns that itself sufficient to hold that, the complainant has no source of income cannot be acceptable one.
33
C.C.No.15516 /16 J

21. The learned counsel for the accused in the written argument has also refereed about 269 SS of the Income Tax Act by contending that, the complainant without valid money lending license supported by ITR or books of accounts, or amount to black money for which no courts can come to rescue of black money, in such circumstances the complaint is liable to be dismissed. But the law does not mandates to pay the loan amount to the accused only through cheque even if the loan amount paid is more than Rs.20,000/­ in cash in such circumstances also the transactions are not invalid. In this regard it is relevant here to refer the decision of Hon'ble High Court of Karnataka reported in 2008 (5) KCCR 3371 in a case of Kempanarasimhaiah Vs. P. Rangaraju and others., wherein it is held that, "on careful reading of the above observations and also all other observations in the said juddment I could not find the Hon'ble Supreme Court having laid down that, the transactions in contravention of 34 C.C.No.15516 /16 J the said provision of Income Tax Act could be termed as the transactions opposed to the public policy so as to bring within the ambit of non­enforceable transactions. The Hon'ble Supreme Court has not laid down in the said decision that, the transactions of this nature could be termed as opposed to pubic policy and as such the same would be became legally not enforceable." Hence in the light of principal of law laid down by the Hon'ble High Court of Karnataka in the above said decision it is for the income tax authority to take the action against the person who had transacted in contravention to Sec.269 SS of Income Tax Act, but the transaction cannot be termed as opposed to public policy and legally not enforceable. In another decision of Hon'ble Bomby High Court in Crl. Appeal No.322 of 2017 decided on 25.11.2020 in a case of Pushpa Sanchala Kothari Vs. Aarti Uttam Chavan wherein it is held that, Negotiable Instrument Act 35 C.C.No.15516 /16 J 1881, Sec.138 - Income Tax Act 1961, Sec.269 SS - Criminal Procedure Code 1973, Sec.378 (4) - Cheque dishonored - Appeal against acquittal - the complainant has not shown the transaction in her income tax returns - no provision in Income Tax Act which makes an amount not shown in the Income Tax Returns unrecovarable

- Sec.269 SS of Act 1961, does not declare all transactions of loan, by cash in excess of Rs.20,000/­ as invalid, illegal or null and void - the accused cannot take benefit of such infraction by complainant to show the transaction in income tax returns - The judgment of acquittal rendered by the learned Trial Court is perverse - The impugned judgment needs to set aside - Appeal deserves to be allowed." Hence in the light of principal of law laid down by the Hon'ble High Court of Bomby, the defence of the accused in the present case cannot be acceptable one as under Sec.269 SS of the Income 36 C.C.No.15516 /16 J Tax Act does not declare all the transactions of the loan by cash in excess of Rs.20,000/­ as invalid, illegal or null and void and the accused cannot take benefit of the same to escape from the liability in question. Therefore for the above said reasons though the complainant has pleaded his ignorance about the law that itself cannot be termed as the transaction in question is not enforceable, hence in view of the above said reasons the arguments canvassed by the learned counsel for the accused in the written argument in respect of non filing of I.T.R and non disclosure of loan transaction in question in I.T. returns of the complainant is not sustainable one and cannot be accepted.

22. It is important to note here that, the accused in her 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.8 and admitted facts by 37 C.C.No.15516 /16 J 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 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 returned as "Door locked, Intimation Delivered, Left", 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 38 C.C.No.15516 /16 J 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 presumptions are rebutted by the Accused, even in the absence of documents produced by the complainant with regard to loan transaction in question. In this regard, it is relevant here to refer the decisions reported in 2001 AIR Karnataka HCR 2154 between 'M/s.Devi Tyres V/s.Navab Jan' and in 2011 ACD 1521 (KAR) between 'Smt. Usha Suresh V/s. Shashidharn', in 2010 SC 1898 between 'Rangappa Vs. Mohan' and 2011 ACD 1412 (KAR) between 'N.Hasainar Vs. M.Hasainar, S/o. Ibrahim'. The Hon'ble High Court of Karnataka in the above decision i.e., 2001 AIR Karnataka HCR 2154 at para No.6 was pleased to hold that issuance of cheque itself was an adequate proof of 39 C.C.No.15516 /16 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 40 C.C.No.15516 /16 J conviction by High Court, held, proper. In another decision of Hon'ble Apex Court of India, reported in CRIMINAL APPEAL NO. 508 OF 2018 DT 15­03­2018 between ROHITBHAI JIVANLAL PATEL Vs. STATE OF GUJARAT AND ANR held that "Negotiable Instruments Act facts like source of funds are not relevant if the Accused has not been able to rebut the presumption. It is 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 41 C.C.No.15516 /16 J presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is 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 42 C.C.No.15516 /16 J appellant was proving his debt before the civil court. Therefore it is presumed that, the cheque in question were drawn for consideration and the holder of the cheques received the same in existing debt". It is also held that, "the Trial court and the High Court proceeded as if, the appellant is to prove a debt before civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in 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 43 C.C.No.15516 /16 J decision of Hon'ble High Court of Karnataka reported in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption mandated by Sec.139 of N.I Act includes the presumption that, there existed a legally enforceable debt or liability, however such presumption is rebuttable in nature". In another decision of Hon'ble High Court of Karnataka in the case of Shri.V.R.Shresti Vs. Shri. Bhaskara.P. in 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 44 C.C.No.15516 /16 J 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 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". In another decision of Hon'ble Apex Court of Indian in Crl. Appeal No.132/2020 in the case of D. K. Chandel Vs. M/s Wockhardt (L) wherein it is held that, "Production of account books / cash book may be relevant in the civil court, may not be so in the criminal case filed under Sec.138 of N.I. Act while restoring the trial court judgments, the High Court observed that "the reason given by the lower Appellate 45 C.C.No.15516 /16 J Court that, he did not bring the cash book or order book etc., could well be understood, if civil suit is tried." But may not be so in the criminal case filed under Sec.138 of N.I. Act. This is because of presumption raised in favour of holder of cheque. 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 46 C.C.No.15516 /16 J presumption available to the complainant as held by the Hon'ble Apex Court and High Court of Karnataka in the above decisions. In the present case also the complainant has complied 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 her account and her 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.118(a) and 139 of N.I.Act. Therefore, for the above said reasons the arguments canvassed by the learned counsel for the accused at para No. 5 to 14 and 20 and 21 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 Apex court of India in the above referred 47 C.C.No.15516 /16 J 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 her account and the signature found on the cheque in question is that of her 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 and with due respect to the principles of law laid down in the decisions relied upon by the counsel for the accused in the written argument are not applicable to the defence of the accused in this case since the facts and circumstances of this case and facts and circumstances of the cases relied upon by the learned counsel for the accused are not one and the same.

23. The accused in order to rebut the presumptions available infavour of the complainant, herself examined as DW.1. The accused in her 48 C.C.No.15516 /16 J evidence stated that, she never borrowed any amount from the complainant and issued the cheque in dispute towards discharge of the loan amount and during the year 2010­11 her father had requested her to give one of her cheque since the same is required to give as security, accordingly she had given her blank signed cheque and On Demand Pronote and Consideration Receipt to her father and thereafter during the year 2016 she came to know trough her father about filing of this case against her. The accused/DW.1 further deposed that, no notice was served on her in this case and summons was also not served on her and after appearing in this case she came to know that, the complainant has filed several cases against different persons and all together have lodged a complaint against the complainant before th CCB Police and on the basis of their complaint the concerned CCB police have conducted raid on the house of the complainant and collected their cheques and also other documents and the complainant is attending in the said case and also he was in custody for a period of three days 49 C.C.No.15516 /16 J and the said case is pending for trial. The accused further deposed that, she is working and married and no necessity of financial assistance and if required she used to request her husband for money, therefore there was no need for her to borrow the loan amount from the complainant and is not liable to pay any amount to the complainant. In support of oral evidence she has produced the copy of the charge sheet filed against the complainant by Hanumanthanagar Police in Crime No.31/2017 for the offence punishable u/s.5, 38,39, 41 of Karnataka State Money Lenders Act 1961 and U/s.3 and 4 of Prevention of Exorbitant Interest Act and U/s.420, 506 of I.P.C. at Ex.D.1.

24. The accused in order to substantiate her defence that, she had given blank signed cheque and blank signed On Demand Pronote and Consideration Receipt ie Ex.C.1 and C.9 were handed over to her father as her father has requested to give the said cheque an On demand promissory note for giving security to other person, except the oral and self 50 C.C.No.15516 /16 J serving stating nothing has been produced before the court. If really the accused had handed over Ex.C.1 and C.9 as blank signed cheque and On demand pronote to her father and in turn her father had given the same to the complainant, definitely the accused could have examined her father in this case to prove the said defence but though her father is available but the accused for her unrevealed reasons has not chosen to examine him , therefore in view of non examination of her father ie material witness may leads to draw an adverse inference against the accused that, the accused has not examined her father only for the reason that, the cheque in question was issued to the complainant towards the discharge of the liability in question not for any other reason. Even it is not the defence of the accused that, her father had given her blank signed cheque and On Demand Pronote and Consideration Receipt to the complainant and in turn the complainant has filled up the same and filed this complaint against her, on the contrary the accused in her cross examination has admitted that, she herself had filled the contents 51 C.C.No.15516 /16 J of the cheque and On Demand Pronote and Consideration Receipt ie Ex.C.1 and C.9 and handed over to the complainant but though she has stated that, the complainant by giving threat to her and forcibly taken Ex.C.1 and C.9 but same has not been stated in her evidence and no complaint or action was taken against the complainant for alleged act of the complainant, therefore the conduct of the accused in non taking of the action against the complainant, an adverse inference can be drawn against her that, the accused only in order to evade payment of cheque amount has taken such defence which cannot be acceptable one. The accused in her cross examination admitted that, she is a BE graduate and working and having knowledge about filing of the complaint against the persons who cheated her, therefore when the accused is having knowledge about filing of complaint if she was cheated by some body but in the present case she has not filed any complaint against the complainant even after coming to know about the cheque issued by her was dishonoured and this complaint is filed 52 C.C.No.15516 /16 J against her, therefore the defence of the accused that, she came to know about filing of this complaint during the year 2016 through her father cannot be acceptable one, and complainant has filed this false case by misusing her blank cheque and On demand promissory note cannot be acceptable .

25. The learned counsel for the accused in the written argument much argued about the registering the case against the complainant by the Hanumanthanagar police against complainant U/s.5, 38, 39, 41 of Karnataka Money Lenders Act and Sec. 3 & 4 of Prevention of Exorbitant Interest Act 2004 and U/s.420 and 506 of IPC on the basis of the complaint filed by the aggrieved persons and same is pending for trial against the complainant before the 1st ACMM Court at Bengaluru. The accused has also produced certified copy of the charge sheet field by the accused ie Ex.D.1. It is also argued that, the accused along with others who had been cheated by the complainant have approached police by complaining that, the complainant has misused the 53 C.C.No.15516 /16 J security cheques and filed false complaint, therefore the police after investigation have filed charge sheet against the complainant which reveals that, the entire case U/s.138 of N.I.Act is breach of trust and fraud , therefore the complaint is liable to be dismissed. On careful considering the defence of the accused and also arguments canvassed by the learned counsel for the accused at para No. 4 and 5 of the written argument same are not acceptable for the simple reason that, the accused in her cross examination has categorically admitted that, though she had given statement before the CCB police in the above stated crime number but she has not stated about filing of this complaint against her by the complainant and she has been cheated by the complainant and she has not stated about the cheque in question and also admitted that, the complaint lodged before the Hanumanthanagar Police against the complainant was subsequently filing of this complaint, therefore if really the accused was cheated by the complainant on the basis of security cheque given by her further, definitely she would 54 C.C.No.15516 /16 J have given the statement in respect of the cheque in question before the concerned police but she admitted that, she has not filed any complaint against the complainant and also not given her statement with regard to cheque in question and filing of this complaint before the concerned police, in such circumstances the defence of the accused that, the complainant has misused the cheque in question which was given as blank signed cheque towards security and has filed this false case against the accused cannot be acceptable one. The entire perusal of Ex.D.1 ie the charge sheet filed against the complainant , there is no mentioning about the cheque in question and there are no allegations against the complainant alleging that, the cheque in question was misused by him, therefore though the accused has produced Ex.D. 1 which does not helps the accused to prove her defence, more over the charge sheet filed by the police against the complainant is pending for trial and before the conclusion of the trial it cannot be held that, the allegations made against the complainant in the 55 C.C.No.15516 /16 J charge sheet are true and same have been proved against the complainant herein, on this count also the defence of the accused cannot be acceptable one. Therefore for the above said reasons the arguments canvassed by the learned counsel for the accused in the written argument in respect of the charge sheet filed by the CCB police against the complainant ie as per Ex.D.1 cannot be acceptable one.

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 her and she has failed to prove her defence by producing cogent and convincible evidence, in such circumstances it can be held that, the Accused has failed to explain and prove how the cheque in question has come to the possession of the complainant, this would also give rise to an adverse inference against her, 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 56 C.C.No.15516 /16 J 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 evidence.

27. 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.2,00,000/­to the Accused and in order to discharge the said loan amount the accused has issued the Ex.C.1 cheque in question in favour of the complainant and thereafter the complainant has presented the said cheque through his banker and 57 C.C.No.15516 /16 J 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 her, 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 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.

28. 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 her act.

58

C.C.No.15516 /16 J Hence while awarding the compensation the said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly it will not cause injustice to the accused, accordingly the complainant is entitled for the compensation as ordered by the court and for the said reasons, it is just and proper to pass the following :­ ORDER Acting U/sec.255(2) of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of N.I.Act.

The accused is sentenced to pay a fine of Rs.2,25,000/= (Rupees Two Lakhs and Twenty Five Thousand only) within one month from the date of order, in default she 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.2,20,000/= (Rupees Two Lakhs and Twenty Thousand only) shall be paid as compensation to the complainant.

59

C.C.No.15516 /16 J Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.

The Bail bond of the accused stands cancelled after appeal period is over.

. 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 31st day of December 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. R.G.Prasad

2. List of documents exhibited on behalf of the Complainant:­ Ex.P­1 : Original Cheque;

Ex.P­1(a) : Signature of the Accused;

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                                        C.C.No.15516 /16 J



Ex.P­2          : Bank Memo
Ex.P­3          : Office copy of the Legal Notice;
Ex.P­4          : postal receipt;

Ex.P.5          : Returned legal notice

Ex.P.6          : RPAD returned cover
Ex.P.7          : Postal receipt
Ex.P.8            Postal acknowledgement
Ex.P.9          : Pronote and Consideration receipt dt:
                  2.11.2011

Ex.P.9(a) and : Signatures of accused

(b)

3. List of witness/s examined on behalf of the Accused:­ DW.1 : Smt.Shruthy R.M DW.2 : Sri.Kiran Kumar M.N

4. List of documents exhibited on behalf of the Accused:­ Ex.D.1 : certified copy of the charge sheet filed by Hanumanthanagar Police in crime no.31/2017 Ex.D.1(a) : relevant portion in Ex.D.1 (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.

61 C.C.No.15516 /16 J