Bangalore District Court
Sri. H.R. Raghavendra Bhat vs Sri. Umapathy. J on 31 December, 2020
1
C.C.No.4455/2018 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 31st day of December, 2020
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.4455/2018
Complainant : Sri. H.R. Raghavendra Bhat,
Aged about 32 years,
S/o. Sri.B.P. Raghupathy Bhat,
Resident of No.84/A,
1st Block, 1st Main,
Tyagarajanagara,
Bengaluru 560 028.
(By Sri. M.Chandrappa, Adv.,)
Vs
Accused : Sri. Umapathy. J,
Age : Major,
Resident of No.21,
"Sai Nilaya" 1st Cross,
Golden Greens Layout,
Subramanyapura Post,
Turahalli, Near Uttarahalli,
Bengaluru 560 061.
(By Sri.R.Keshava Reddy., Adv.,)
2
C.C.No.4455/2018 J
Case instituted : 01.02.2018
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 31.12.2020
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 and the wife of the accused Smt. Sunanda N is the registered, absolute owner of the residential house bearing No. 206/3, Balaji Road, II Block, Tyagarajanagara, Bengaluru and the accused negotiated with him for the purpose of letting out a portion of the said residential building particularly second floor portion consisting of two bed room, hall kitchen and other essential amenities, accordingly the complainant has agreed and the wife of the 3 C.C.No.4455/2018 J accused also entered into a lease deed with him on 10.9.2013 and has received total sum of Rs.6,50,000/= as refundable security deposit amount for a period of 3 years from the said date of lease deed and infact accused's wife has received major portion of the said security refundable amount by way of cheques and upon the efflux of time, the accused insisted him to vacate the leased premises as such, he also agreed to vacate and hand over the actual physical possession of the leased premises to the accused's wife and requested to the wife of the accused to refund the entire security deposit amount to him, for which the accused's wife insisted him that an amount of Rs.20,000/= would be deducted towards the painting charges, for that also he agreed and thereafter instead of making the full and entire payments, the wife of the accused has paid only a sum of Rs.4,30,000/= and requested few days time to pay the remaining amount to him, believing the said requests of the wife of the accused, he also agreed for the same and waited for few days, but the accused's wife has not paid the amount despite of 4 C.C.No.4455/2018 J repeated requests. The complainant further contends that, since the balance due under the lease deed towards the said refundable security deposit was not paid, he was constrained to file a complaint against the accused's wife before the Jurisdictional Thyagrajanagara police, who summoned accused's wife for enquiry and the wife of the accused has paid an amount of Rs.1 Lakh in cash towards the balance security deposit amount of Rs.2 Lakhs and also for the remaining amount of Rs.1 Lakh on behalf of accused's wife, the accused has issued a post dated cheque bearing No.849900 dated: 3.12.2017 drawn on State Bank of India, Jayanagara II Block Branch, Bengaluru to him before the concerned police and in the presence of his wife on 2.11.2017. The complainant further contends that on the very day and on the assurances of the accused and his wife, he handed over the vacant possession of the leased premises to them on their assurance that, the cheque issued by the accused towards the due discharge of his wife's liability and as per assurances of the accused, he has presented the said cheque for 5 C.C.No.4455/2018 J encashment dt: 4.12.2017 through his banker, the same came to be returned dishonoured as "Funds Insufficient" vide bank endorsement dated:
5.12.2017. Thereafter he approached the accused again for the amount and insisted him for the payment, but the accused did not repay the said amount and thereafter he got issued a legal notice dated: 19.12.2017 through RPAD calling upon the accused to pay the cheque amount within 15 days from the date of receipt of the said legal notice, and the said notice was duly served on the accused on 20.12.2017, inspite of that, the accused has neither chosen to reply to the notice nor complied the demand within 15 days as provided in the notice.
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, in which, he has reiterated the averments made in the complaint. In support of his 6 C.C.No.4455/2018 J evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.7 i.e, Original Cheque dt: 3.12.2017 is as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), Bank Memo as per Ex.P.2, the office copy of Legal Notice as per Ex.P.3, postal receipt as per Ex.P.4, Postal acknowledgement as per Ex.P.5, Police Acknowledgement as per Ex.P6, Original Lease Agreement dt:10.9.2013 as per Ex.P.7.
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 him, to which he 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 he intended to set out his defence, then the case 7 C.C.No.4455/2018 J was posted for crossexamination of the complainant.
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 not lead his rebuttal evidence and closed his side.
7. Heard by learned counsel for the complainant and the Accused and perused the written arguments submitted by the learned counsels for the complainant and the accused and also the decisions relied upon by the learned counsel for the accused i.e.,1) LAWS (MAD) 2018 11 11 High Court of Madras in case of E. Dhanuskodi Vs. D. Sreedhar; 2) LAWS (KER) 2003 1 5, High Court of Kerala in case of Capital Syndicate Vs. Jameela; 3) LAWS (GJH) 2017 1 159, High court of Gujarat; in case of Kadir Alambkhan Habibkhan Vs. Abdul Ajij @ Bannekhan Pathan;
4) LAWs (GJH) 1998 10 21, High court of Madras 8 C.C.No.4455/2018 J in case of M/s. Balaji Seafoods Exports (India) Ltd., Rep. By its Director, Chalapathy Vs. Mac Industries ltd., S. Pichalah, Managing Director 153, Mount Road, Madras 15, Rep. By its Authorised Person U. Vijayakumar.
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.849900 dated:
3.12.2017 for Rs.1,00,000/ drawn on State Bank of India, Near South End Circle, Bengaluru 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 5.12.2017 and the complainant issued legal notice to the accused on 19.12.2017 and inspite of it the accused has not paid the cheque 9 C.C.No.4455/2018 J 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 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 10 C.C.No.4455/2018 J 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 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 11 C.C.No.4455/2018 J 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 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.
12C.C.No.4455/2018 J
12. In the present case the complainant in his complaint and affidavit evidence has testified that, he and the accused are well known to each other and the wife of the accused Smt. Sunanda N is the registered, absolute owner of the residential house bearing No. 206/3, Balaji Road, II Block, Tyagarajanagara, Bengaluru and the accused negotiated with him for the purpose of letting out a portion of the said residential building particularly second floor portion consisting of two bed room, hall kitchen and other essential amenities, accordingly the complainant has agreed and the wife of the accused also entered into a lease deed with him on 10.9.2013 and has received total sum of Rs.6,50,000/= as refundable security deposit amount for a period of 3 years from the said date of lease deed and infact accused's wife has received major portion of the said security refundable amount by way of cheques. The complainant/PW.1 further testified that, upon the efflux of time, the accused insisted him to vacate the leased premises as such, he also agreed to vacate and hand over the actual 13 C.C.No.4455/2018 J physical possession of the leased premises to the accused's wife and requested to the wife of the accused to refund the entire security deposit amount to him, for which the accused's wife insisted him that an amount of Rs.20,000/= would be deducted towards the painting charges, for that also he agreed and thereafter instead of making the full and entire payments, the wife of the accused has paid only a sum of Rs.4,30,000/= and requested few days time to pay the remaining amount to him, believing the said requests of the wife of the accused, he also agreed for the same and waited for few days, but the accused's wife has not paid the amount despite of repeated requests. The complainant/PW.1 further testified that, since the balance due under the lease deed towards the said refundable security deposit was not paid, he was constrained to file a complaint against the accused's wife before the Jurisdictional Thyagrajanagara police, who summoned accused's wife for enquiry and the wife of the accused has paid an amount of Rs.1 Lakh in cash towards the balance security deposit amount of Rs.2 Lakhs and 14 C.C.No.4455/2018 J also for the remaining amount of Rs.1 Lakh on behalf of accused's wife, the accused has issued a post dated cheque bearing No.849900 dated: 3.12.2017 drawn on State Bank of India, Jayanagara II Block Branch, Bengaluru to him before the concerned police and in the presence of his wife on 2.11.2017. the complainant/PW.1 further testified that on the very day and on the assurances of the accused and his wife, he handed over the vacant possession of the leased premises to them on their assurance that, the cheque issued by the accused towards the due discharge of his wife's liability and as per assurances of the accused, he has presented the said cheque for encashment dt: 4.12.2017 through his banker, the same came to be returned dishonoured as "Funds Insufficient" vide bank endorsement dated:
5.12.2017. Thereafter he approached the accused again for the amount and insisted him for the payment, but the accused did not repay the said amount and thereafter he got issued a legal notice dated: 19.12.2017 through RPAD calling upon the accused to pay the cheque amount within 15 days 15 C.C.No.4455/2018 J from the date of receipt of the said legal notice, and the said notice was duly served on the accused on 20.12.2017, inspite of that, the accused has neither chosen to reply to the notice nor complied the demand wtihin15 days as provided in the notice.
13. In support of the oral evidence of the complainant, he produced and marked the documents as per Ex.P.1 to P.7 i.e, Original Cheque dt: 3.12.2017 is as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), Bank Memo as per Ex.P.2, the office copy of Legal Notice as per Ex.P.3, postal receipt as per Ex.P.4, Postal acknowledgement as per Ex.P.5, Police Acknowledgement as per Ex.P6, Original Lease Agreement dt:10.9.2013 as per Ex.P.7.
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 that, cheque in question i.e. Ex.P.1 to belongs to the account of the accused. It is also not in dispute by the accused that, the cheque in question presented 16 C.C.No.4455/2018 J for encashment and dishonoured for the reason of "Funds Insufficient" on 5.12.2017, since as matter on record, proved by return memo dated: 5.12.2017 i.e. Ex.P.2 issued by the concerned bank, therefore it is a matter on record and has been proved that, the cheque in question was presented within its validity period and dishonoured as per the bank endorsement issued by the banker of accused. It is also not in dispute that, after dishonour of the cheque in dispute and receipt of bank memo within 30 days from the date of receipt of bank memo, a legal notice was caused as per Ex.P.3 dt: 19.12.2017 to the Accused calling upon him to pay amount covered under the dishonoured cheque and inspite of service of notice upon the Accused but he did not return the loan in question and has not given any reply to the legal notice.
15. It is the specific defence of the Accused during the course of crossexamination of the complainant that, he has denied his signature found on the cheque i.e Ex.P.1(a) as not of his signature by contending that, the complainant has forcibly 17 C.C.No.4455/2018 J collected the cheque at Thyagarajanagar Police Station and has filled the contents in the cheque and has rendered the cheque in question and filed this false case. The complainant in order to prove the signature of the accused on the cheque in question, he has produced the Original cheque issued by the accused i.e Ex.P.1 and also identified the signature of the accused is at Ex.P.1(a). The accused during the course of his crossexamination has clearly admitted that, the cheque in question belongs to his account, hence the said categorical admissions goes to show that, the cheque in question i.e. Ex.P.1 pertains to the account of the accused, since the admitted fact need not be proved. It is also relevant here to mention that, the accused denied his signature found at Ex.P.1(a) as not of his signature but the accused has not disputed the fact of dishonour of the cheque in question ie., Ex.P.1 for the reason of "Funds Insufficient" as per Ex.P.2 endorsement issued by his banker, therefore the cheque in question has been presented within the prescribed time and same has been dishonoured for 18 C.C.No.4455/2018 J the reason of Funds Insufficient, therefore the complainant has proved that, the cheque in question belongs to the account of the accused and same has been dishonoured as Funds Insufficient.
16. The accused during the course of cross examination has strongly disputed his signature i.e. Ex.P.1(a) as is not of his signature and he has not signed on the cheque in question and has not issued the cheque to the complainant towards discharge of recoverable debt or liability in question. In order to prove the defence of the Accused that, the signature appearing on the Ex.P.1 cheque is not of his signature, except the oral denial of the accused , he has not produced any documentary proof therefore in the absence of documentary proof or materials placed by the Accused to show that, Ex.P.1(a) is not of his signature, only on the basis of self serving denial it cannot be held that, the signature found at Ex.P.1(a) is not the signature of the Accused. It is relevant here to refer the decisions of Hon'ble Apex Court of India reported in 1999(3) SCC 376 in the 19 C.C.No.4455/2018 J case of "L.C.Goyal Vs. Suresh Joshi(Mrs) and Ors"
wherein Hon'ble Apex Court held that, "drawer denied his signature on the cheque and pleaded that, he could not be held responsible unless opinion of hand writing expert was obtained, but when cheque bounced for want of funds, the plea of forged signature cannot be accepted". In another decision reported in ILR 2006 KAR 2958 in a case of "Rajendraprasad Vs. M.Shivaraj"
wherein the Hon'ble High Court held that "B. Negotiable Instrument Act, 1881 - Sections 138, 139 - signature of the accused on cheque denied
- No discrepancy of the signature with the specimen signature. In the banks intimation Whether mere denial of the signature of the accused on the cheque sufficient for acquittal competency of persons to speak about the signature of the accused HELD - The banker of the accused is more competent person to say whether it is the signature of the accused or not 20 C.C.No.4455/2018 J with reference to the specimen signature. In the banks intimation, the discrepancy of the signature with the specimen signature is not the ground for dishonour. In the instant case, the banker does not mention that, the signature is discrepancy of the signature with the specimen signature is not the ground for dishonour. In the instant case, the banker does not mention that, the signature is discrepant and does not tally with the specimen signature. Therefore, the self serving denial of signature in the cheque cannot be a good evidence to come to the conclusion that, the signature on the cheque is not that of the accused. The bankers no objection for the signature in the cheque is one of the strongest circumstances to corroborate that, the signature on the cheque is that of the accused. The possession of the lose cheque with the complainant suggests an inference of endorsement and delivery of inchoate instrument 21 C.C.No.4455/2018 J which impliedly admit the issuance of cheque in favour of the complainant. Hence on careful reading of principles of law laid down by the Hon'ble Apex Court and Hon'ble High court of Karnataka in the above referred decisions, it is clear that, when the accused disputed his/her signature on the cheque, then the court can consider the endorsement issued by the banker on the Memo and if in the bank's intimation, the discrepancy of the signature with the specimen signature is not the ground for dishonour, then the signature appearing on the cheque is one of the strongest circumstances to corroborate that, the signature on the cheque is that of accused and it is also held that, the possession of the cheque with complainant suggest an inference of endorsement and delivery of inchoate instrument which impliedly admits the issuance of cheque in favour of the complainant.
17. In the present case also though the accused has denied his signature and issuance of the cheque infavour of the complainant, but nothing has been 22 C.C.No.4455/2018 J produced by him to show how the cheque in question come in possession of the complainant and also bank's intimation which is at Ex.P.2 discloses the fact that, the cheque in question dishonoured for the reason of "Funds Insufficient" but the cheque in question was not dishonoured with an endorsement of "signature differs", therefore in view of the principles of law laid down by the Hon'ble Apex Court and High Court of Karnataka in the above referred decisions, it can be safely held that, the denial of signature by the accused is only self serving denial of his signature, that cannot be a good evidence to come to a conclusion that, the signature found at Ex.P1(a) is not that of the accused. In view of the principles of law laid down in the decisions, even it is not necessary for the complainant to examine the bank manager as a witness to prove the fact that, the signature appearing on the cheque is that of the accused, since the accused in his cross examination of complainant has not disputed the fact that, the cheque in question on its presentation to the bank returned as "Funds Insufficient" as per 23 C.C.No.4455/2018 J Ex.P.2. Therefore the complainant has discharged his initial burden by proving the fact that, the signature appearing at Ex.P.1(a) is that of the accused. It is also relevant here to mention that, the accused during the course of crossexamination of complainant/PW.1, except denial of his signature has not stated how the disputed cheque has entered into the hands of complainant. If the accused has failed to explain the circumstances, under which the Ex.P.1 i.e., disputed cheque came in possession of the complainant, in such circumstances failure to do so also entitles in drawing adverse inference against the accused. 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". In another 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".
Hence in the present case also the Accused has failed 24 C.C.No.4455/2018 J to explain the circumstanes how the cheque in question was entered into the hands of complainant. Therefore the defence taken by the accused that, the signature found at Ex.P.1(a) is not that of his signature cannot be acceptable one, on the contrary the complainant has successfully proved that, the signature found at Ex.P.1(a) is that of the accused.
18. It is relevant here to mention that, the learned counsel for the accused has cross examined the PW.1 i.e. the complainant in length but nothing has been elicited from PW.1 to believe the defence of the accused that, the complainant has forcibly collected the cheque in question in blank and later has filled contents in it and has presented to the bank and misused the cheque in question and filed this false case, but except some minor discrepancies nothing have been elicited to discard or disbelieve the evidence of the complainant. The complainant has produced original lease deed dt: 10.9.2013 entered into between him and the accused's wife by name Smt. Sunanda Umesh which is at Ex.P.7. It is true 25 C.C.No.4455/2018 J that, the learned counsel for the accused during the course of crossexamination though has elicited the facts that, at page No.1 and 2 of the Ex.P.7 there are no signatures of accused's wife i.e. Smt. Sunanda and at page No.3 there are no signatures of the witnesses in the place where the signatures of the witnesses is shown. It is also elicited that, there are no signatures of the persons who have leased out the property at page No.3 of Ex.P.7 and there is no reference of name of the accused at page No.3 of Ex.P.7. But the complainant/PW.1 has clearly stated that, the signatures of the accused and his wife I.e Smt. Sunanda were found in last page of Ex.P.7 and the said fact i.e the signatures of the accused and his wife found at last page of Ex.P.7 were not denied by the accused. The complainant/PW.1 has specifically denied the suggestions made to him that, he has created the Ex.P.7 lease deed and produced before the court and also denied the suggestion that, prior to the execution of Ex.P.7 one more lease deed was entered into between him and the wife of accused and the said lease deed was intentionally concealed 26 C.C.No.4455/2018 J by him and has not produced before the court. Hence the above suggestions of the accused goes to show that, though he has admitted the execution of Ex.P.7 lease deed between his wife and the complainant but only for sake of his defence denying the contents of the Ex.P.7. It is interesting to mention here that, during the course of crossexamination of the complainant/PW.1 the accused himself admitted that, the complainant was entered into the lease deed with his wife and as per the terms of the lease deed the accused has returned a sum of Rs.4,30,000/ and also admitted that, the complainant has collected a sum of Rs.4 Lakhs from him and his wife at Thyagarajanagar Police Station and also alleged that, the complainant has forcibly collected his blank signed cheque at Police Station, hence the very suggestions of the accused goes to show that, the accused has admitted the fact that, the complainant has entered into a lease deed with the wife of accused and has given the security deposit amount and out of the total deposit amount the accused has repaid a sum of Rs.4,30,000/ and also 27 C.C.No.4455/2018 J Rs.1 Lakh to the complainant as stated by the complainant in his complaint and also in his evidence. Once the accused has admitted the refund of part of security deposit amount to the complainant and later he cannot deny the contents of Ex.P.7 on the ground that, there are no signatures of the wife of the accused and accused at page No.1 and 2 of the Ex.P.7 and also cannot deny the contents of Ex.P.7, therefore the statements which are elicited in the cross examination of the complainant in respect of non appearing of signatures of the accused and his wife at page No.1 and 2 of Ex.P.7 cannot be taken into consideration to disbelieve the transaction in question or to discard the validity of the lease deed i.e Ex.P.7.
19. In addition to that, the accused during the course of recording of his statement U/s.313 of Cr.P.C, the court has specifically framed a question i.e. Sl.No.3 with regard to execution of lease deed and payment of refundable security deposit amount of Rs.6,50,000/ to the wife of accused, for that the accused has clearly admitted as true,therefore in 28 C.C.No.4455/2018 J view of admission of the accused makes it clear that, the accused himself admitted that, his wife entered into lease deed with the complainant on 10.9.2013 and also received a sum of Rs.6,50,000/ as refundable security deposit amount for a period of 3 years from the date of agreement. The accused further has also admitted that, upon the efflux of time he and his wife have insisted the complainant to vacate the lease premises and complainant has also agreed to vacate the leased premises and requested to refund entire security deposit amount to him. The accused has also not denied that, out of total security deposit amount his wife has paid only Rs.4,30,000/ to the complainant and a complaint was lodged by the complainant against him and his wife before the Thyagarajanagar police since he and his wife were not paid the balance lease amount and in the police station his wife has paid Rs.1 Lakh in cash, hence it goes to show that, the accused himself has admitted the claim made by the complainant i.e. he and his wife have repaid a total sum of Rs.5,30,000/ towards the security deposit amount 29 C.C.No.4455/2018 J of Rs. 6,50,000/.It is true that, whatever the admissions made by the accused during the course of recording of statement u/s.313 of Cr.P.C. cannot be taken against his defence i.e for the purpose of corroboration of the prosecution but in the present case the accused in order to substantiate his admissions given during the course of recording of his statement U/s. 313 of Cr.P.C. did not entered into the witness box to give his evidence or produced any documentary evidence, therefore the admissions which are given by the accused during the course of recording of statement U/s.313 of Cr.P.C. are relevant here to consider the defence of the accused and also the claim made by the complainant against the accused. Therefore from the admissions of the accused makes it clear that, the accused has admitted that, he and his wife were agreed to let out their premises to the complainant on lease and also entered into a lease deed between the complainant and wife of the accused and complainant has paid a sum of Rs.6,50,000/ as refundable security deposit amount for a period 3 years from the date of lease 30 C.C.No.4455/2018 J deed and thereafter the wife of the accused has given a sum of Rs.4,30,000/ and a sum of Rs.1 Lakh in total a sum of Rs.5,30,000/ to the complainant towards refund of Rs.6,50,000/ security deposit amount. It is also seen from the admissions of the accused that, the cheque in question i.e. Ex.P.1 for sum of Rs.1 Lakh was also entered into the hands of complainant at Thyagarajanagar Police station but the accused has denied that, the cheque in question was issued to the complainant towards balance of security deposit amount but he contends that, the said cheque has been forcibly collected by the complainant in the police station and it was unsigned blank cheque and same has been filled by the complainant and has presented to the bank, but the burden of proof is lying upon the accused to prove the said fact. Therefore on entire perusal of the cross examination of the complainant nothing has been elicited to discard or disbelive the evidence of complainant and to accept the defence of the accused that, the cheque in question has been misused by the complainant as alleged by the accused.
31C.C.No.4455/2018 J
20. As it is already stated in the above that, the complainant proved that the cheque in question i.e Ex.P.1 belongs to the Accused and signature found at Ex.P.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 the same was dishonoured for the reason of "Funds Insufficient"
as per Ex.P.2 and thereafter the legal notice caused by him through RPAD to the Accused was served on him, in such circumstances, it can be held that, the complainant has discharged her initial burden by complying the mandatory requirements as required U/s.138 of N.I. Act and initially the presumptions are available in favour of the complainant U/s.118a and 139 of the N.I. Act. Consequently it is for the Accused to rebut the said 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 32 C.C.No.4455/2018 J U/s.118 and 139 of N.I.Act are available to the complainant, even the said 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 the documents are not 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 adequate proof of 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 33 C.C.No.4455/2018 J 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 decision of Hon'ble Apex Court of India, reported in CRIMINAL APPEAL 34 C.C.No.4455/2018 J 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 presumption that the cheque was issued not 35 C.C.No.4455/2018 J 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.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 36 C.C.No.4455/2018 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 37 C.C.No.4455/2018 J 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 Accused ought to have rebutted the contention of the complainant by producing cogent evidence before the court and mere denial is not enough".
38C.C.No.4455/2018 J
21. 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, in such circumstances presumptions U/s.118a and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt and when such presumption are 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 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 39 C.C.No.4455/2018 J Accused has admitted the cheque belongs to him and signature appearing on the cheque is that of his signature and legal notice issued by complainant was served on the Accused, in such circumstances, presumptions have to be drawn towards existence of legally enforceable debt as per Sec.139 of N.I.Act. Therefore, for the above said reasons the arguments canvassed by the learned counsel for the defence at para No.6 to 12 in the written argument cannot be acceptable one. In this case also the learned defence counsel argued 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, same cannot be permissible in a proceedings initiated U/s.138 of N.I. Act, as held by the Hon'ble 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 him and signature found on the cheque in question is also that of his signature. The learned 40 C.C.No.4455/2018 J counsel for the accused in support of the argument, has relied upon the decisions reported in LAWS (KER) 2003 1 5, High Court of Kerala in case of Capital Syndicate Vs. Jameela; 3) LAWS (GJH) 2017 1 159, High court of Gujarat; in case of Kadir Alambkhan Habibkhan Vs. Abdul Ajij @ Bannekhan Pathan; 4) LAWs (GJH) 1998 10 21, High court of Madras in case of M/s. Balaji Seafoods Exports (India) Ltd., Rep. By its Director, Chalapathy Vs. Mac Industries ltd., S. Pichalah, Managing Director 153, Mount Road, Madras 15, Rep. By its Authorised Person U. Vijayakumar. With due respect to the principles of law laid down by the Hon'ble High Courts, the same are not applicable to the defence of the accused in this case since the accused has not rebutted the presumption available to the complainant u/s, 118a and 139 of NI Act and the facts and circumstances of this case and facts and circumstances of the cases relied upn by the learned counsel for the defence are not one and the same.
22. It is important to note here that, the 41 C.C.No.4455/2018 J learned counsel for the accused in the written argument at para No.7, to 9 and 12 has specifically argued that, the accused is not owner of the house leased to the complainant and has not participated to the lease transaction held between his wife and the complainant and the complainant in his cross examination has admitted that, the handwriting on the cheque is different style and in different inks and also voluntarily admitted that, the Ex.P.1 cheque has given by Sunanda at that time his name has not been mentioned and thereafter he himself has wrote his name, the said admission clearly established that, the accused has not participated in the transaction in question and has not issued the cheque to the complainant, therefore accused is not liable to pay the cheque amount to th complainant. The learned counsel has also relied upon the decision reported in LAWS (Mad) 2018 11 11 in Crl. Appeal No.814/2011 dated : 8.11.2018 between E. Dhanauskodi Vs. D. Sreedhar and argued that, in the said decision the Hon'ble Madras court held that " the figure denoting amount found to be written in 42 C.C.No.4455/2018 J different inks and the hand writing as much as the digits and words also differs and the different ink, pen and manipulation of amount would show that, the complainant had failed to demonstrate due execution of cheque, therefore in this case also the complainant in his crossexamination dt: 13.9.2019 admitted that, except signature other details were written by him and in different inks and handwriting style also different, therefore the complainant has misused the cheque in question.
23. On careful perusal of the cross examination of the complainant/PW.1 it is true that, the complainant has admitted that, the handwriting on the cheque is different style and in different inks and at the time of giving of cheque his name has not been mentioned and he wrote his name on the cheque, but the complainant further has clarified that, he wrote his name on the cheque since there is possibility of wrong mentioning his name on the cheque, therefore he wrote his name on the cheque and also stated that, the Ex.P.1 signed cheque was 43 C.C.No.4455/2018 J handed over by the wife of the accused to him in the police station and also specifically denied the suggestion made to him that, he got created the blank cheque issued by the accused. Hence the explanation given by the complainant in respect of writing of his name on the cheque and handing over of the cheque by the wife of the accused are appears to be acceptable one and mere mentioning or writing the name of the complainant on the cheque by the complainant himself does not invalidates the cheque in question. In addition to that, the Accused himself has admitted that, the cheque in question issued to the complainant and complainant proved that, the signature found at Ex.P.1 (a) is that of signature of the accused, therefore once signature on the Negotiable Instrument Act is proved, in that circumstances sec. 20 of N.I. Act comes into play i.e. as per Sec. 20 of N.I.Act if the blank or incomplete Negotiable Instrument is given to the holder in due course, it is to be presumed that, he/she had given authority to the holder in due course to fill up the remaining portion. In this regard, it is relevant here 44 C.C.No.4455/2018 J to refer the decision of Hon'ble High Court of Karnataka reported in ILR 2006 KAR 2054 in the case of H.S.Srinivasa Vs. Girijamma and another wherein the Hon'ble High Court held that " a reading of sec.20 of the act which is extracted above reveals that, the words used are ' either wholly blank or having written therein an incomplete negotiable instrument'. The instrument may be wholly blank or incomplete in a particular in either case, the holder has authority to make or complete the instrument as a negotiable one. The authority implied by a signature to a blank instrument is so vide that, the party so signing is bound to be a holder in due course. Promissory notes are often executed in the name of the payer and left unfilled to be afterwards filled by the actual holder, the object being to enable the owner to pass it off to another without incurring the responsibility as an endorser. Thus, it is seen that, person in 45 C.C.No.4455/2018 J possession of an incomplete instrument in maternal particulars has the authority prima facie to fill it and thus the executants becomes liable to pay the amount due'. In another decision of Hon'ble High Court of Madras reported in 2005 (1) DCR 85 in the case of P.A. Thamatharan Vs. Dalmia cements (B) Ltd., wherein it is held that "
Negotiable Instrument Act 1991 - Sec. 138 - dishonour of cheque - plea -body of cheque was not written by Accused - held it is not mandatory and no law prescribes that, the body of cheque should also be written by the signatory to the cheque, a cheque could be filled up anybody and if it is signed by the account holder of the cheque'. In another decision of Hon'ble Apex court to India reported in (2002) 7 SCC in the case of P.K. Manmadhan Karthra Vs.Sanjeeva Raj., wherein it is held that " As long as signature on the cheque is admitted, whether the ink with which the other particulars are filled up is 46 C.C.No.4455/2018 J different or that the hand writing is not that of drawer does not matter. Until rebutted, the presumption that, cheque was issued for consideration exists". In another 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 trial court has made much about the difference in ink. Admittedly, Accused cheque is issued bearing signature of 47 C.C.No.4455/2018 J 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 instrument illegal or inadmissible. Voluntarily, if a person were to 48 C.C.No.4455/2018 J 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. Therefore in view of the principles of law laid down by Hon'ble Apex court of India and also Hon'ble High Court of Karnataka referred above and in the present case also the the complainant has proved that, the signature found on the cheque is that of the signature of the Accused and he also admitted issuance of the cheque to the complainant, it is primafacie proof of authorizing the holder in due course i.e. the complainant to fill up the remaining contents of the Negotiable Instrument, therefore it cannot lie in the mouth of the Accused that, the complainant had misused or fabricated the 49 C.C.No.4455/2018 J cheque in question given by him 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.
24. In addition to that, the accused has miserably failed to prove that, the complainant has fabricated the cheque in question by writing the contents of the cheque as alleged by the accused. Even for sake of discussion if it is assumed that, Accused has given cheque in question without mentioning the name of the payee and date to the complainant in such circumstances also it attracts the penal liability as contemplated U/s.138 of N.I. Act. In this regard, it is relevant here to refer decision of Hon'ble Apex Court of India reported 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 50 C.C.No.4455/2018 J 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 except his signature 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 by complying the mandatory provisions. In the said decision the Hon'ble Apex court has also held that, "presumption as to legally enforceable 51 C.C.No.4455/2018 J 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 drawer - even a blank cheque leaf, voluntarily 52 C.C.No.4455/2018 J 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 view of the principles of law laid down as above, even though, the complainant has written his name on the cheque in question 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 arguments canvassed by the learned counsel for the defence at para No.7 to 9 and 12 cannot be acceptable one and with due respect to the principles of law laid down by the Hon'ble High Court of Madras relied upon by the learned counsel for the accused are not applicable to the defence of the accused in this case.
25. In order to rebut the presumptions raised in favour of the complainant, the Accused has not 53 C.C.No.4455/2018 J entered into witness box and examined before the court, except the suggestions made to the complainant during the course of crossexamination, the Accused has not produced any documentary proof to show that, after completion of the lease period the complainant has continued in possession of the leased property for a period of 14 months and has not paid the additional lease amount and has not paid the rents to his wife. It is also relevant here to mention that, according to the accused the complainant has filed a complaint before the Thyagarajanagar police on18.3.2017 and has already received a sum of Rs.4,30,000/ from his wife and also received Rs.1 Lakh by way of cash before the concerned police and has forcibly collected a blank cheque from him and filed this false case against him though he is not liable to pay any amount to the complainant. In order to prove the allegations made by the accused against the complainant has not produced any oral or documentary evidence, except bare denial nothing has been produced before the court, therefore the defence taken by the Accused 54 C.C.No.4455/2018 J remained as allegation against the complainant but has not proved by him by producing cogent and convincible evidence, in such circumstances it can be held that, the defence of the Accused appears to be denial in nature and the Accused has not rebutted the evidence produced by the complainant by leading his evidence and producing documents in support of his evidence. It is settled law that, the accused can rebut the presumption only on the basis of materials produced by the complainant even without entering into the witness box but in the present case the Accused has failed to substantiate his defence version in order to rebut the presumption available to the complainant and to prove the defense of the accused, under such circumstance, it is for the accused to disprove the case of the complainant or rebut the presumption then only the onus will be shifted on the complainant to prove his case. Admittedly the accused did not entered in to the witness box, therefore an adverse inference can be drawn against the accused that he has failed to rebut the presumption available to the complainant.
55C.C.No.4455/2018 J Therefore it is clear that, except having denial of the case of the Complainant in the cross examination of complainant, the Accused has not taken any interest so as to prove his defence. In this regard, it is relevant here to refer a decision of Hon'ble Apex Court of India reported in "AIR 2018 SC 3173 in a case of Kishan Rao Vs. Shankargouda" wherein the Hon'ble Apex Court held that " Negotiable Instruments Act (26 of 1881), Ss. 138, 139 Dishonour of cheque - Presumption as to - Accused issuing cheque of Rs.2 Lakhs towards repayment of loan to Complainant said cheque dishonoured on account of insufficiency of funds Complainant proving issuance of cheque having signatures of Accused - Accused failing to rebut presumption raised against him and no evidence led by him in his support - Acquittal of Accused by High Court in revisional jurisdiction on ground of doubt in mind of Court with regard to existence of loan, improper Accused, liable to be convicted. In another 56 C.C.No.4455/2018 J decision 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 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. 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.
57C.C.No.4455/2018 J 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 the holder of the cheques received the same in existing debt. Therefore the principles of law laid down in the above decision are aptly applicable to the case on hand, since in this case also the complainant proved the fact that the accused has issued cheque in question towards discharge of balance security deposit amount due by his wife as per the lease agreement i.e. Ex.P.7. The accused has also failed to enter into witness box to rebut statutory presumption in support of his defense in such circumstances the defense taken by the accused counsel during the course of cross examination and argument cannot be acceptable one.
58C.C.No.4455/2018 J
26. It is also important to note here that, the Accused in his defence alleged that, the complainant has forcibly collected his blank cheque and got filled the contents on it and has presented the said cheque for encashment and misused the said cheque by filing this case. If really the complainant misused the cheque in question as alleged by the accused, the Accused would have made an efforts or to initiate legal action against the complainant for misuse of the cheque which was collected by him as alleged by him, but no such efforts have been made by the Accused and no documents have been produced to show that, the complainant has forcibly collected the blank cheque of the accused in Thyagarajanagar Police Station, in such circumstances only on the basis of oral say of the Accused that too suggestions made during the course of crossexamination of the complainant it cannot be held that,the complainant had forcibly collected blank cheque in the police station and the said cheque has been misused by the complainant by filing this complaint. Therefore the defence of the Accused cannot be acceptable one, in 59 C.C.No.4455/2018 J 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 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, 60 C.C.No.4455/2018 J Proper. Hence by applying the above principles of law to the present facts of the case, in the present case also the accused has not made any efforts to get return of the cheque in question alleged to have been forcibly collected by the complainant, 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 towards discharge of the liability as presumption U/s.139 of N.I. Act would operate against him.
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, the accused has issued cheque in question towards discharge of the balance security deposit amount of Rs.1 Lakh as per the terms of the lease deed i.e Ex.P.7 due by his wife in favour of the complainant, thereafter the complainant has presented the said cheque through his banker 61 C.C.No.4455/2018 J and same was returned dishonoured with an endorsement of "Funds Insufficient" and thereafter he got issued legal notice to the accused and inspite of service of the said notice, the Accused did not repaid the due balance security deposit amount by his wife to the complainant, 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.P.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 62 C.C.No.4455/2018 J 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 : 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.1,15,000/= (Rupees One Lakh 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.1,10,000/= (Rupees One Lakh and Ten 63 C.C.No.4455/2018 J 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.
His Bail bond 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, 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant: P.W.1 : Sri.H.R. Raghavendra Bhat, 64 C.C.No.4455/2018 J
2. List of documents exhibited on behalf of the Complainant: Ex.P1 : Original Cheque;
Ex.P1(a) : Signature of the Accused;
Ex.P2 : Bank Memo Ex.P3 : Office copy of the Legal Notice; Ex.P4 : postal receipt; Ex.P5 : Postal acknowledgement; Ex.P6 : Police acknowledgement; Ex.P7 : Original lease Agreement dt; 10.9.2013;
3. List of witness/s examined on behalf of the Accused: Nil
4. List of documents exhibited on behalf of the Accused: Nil (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
65C.C.No.4455/2018 J 31.12.2020 Case called out, complainant and counsel for complainant absent. Accused absent and counsel for the accused present, E.P. Filed. Heard and allowed.
Judgment pronounced 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.1,15,000/= (Rupees One Lakh 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.1,10,000/= (Rupees One Lakh 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.
66C.C.No.4455/2018 J His Bail bond 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.
XVI ACMM, B'luru.