Bangalore District Court
Sri. A. Sadananda vs Sri. C. Ramesh on 22 April, 2015
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 22nd day of April, 2015
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No.12777/2009
Complainant: Sri. A. Sadananda,
S/o. Late Lakkappa,
Aged about 51 years,
R/at No.21, 4th main Road,
Malleswaram,
Bangalore - 560 003.
Accused: Sri. C. Ramesh
S/o. Late N. Chinnappa Naidu,
Shop No.7/1, "Srinidhi Novelties",
8th Cross, West Park Road,
Malleswaram,
Bangalore- 560 003.
R/at No.9/1-2, 4th Main,
Between 16th and 17th Cross,
Malleswaram,
Bangalore -560 003.
Offence complained of: U/s.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found guilty
Date of order: 22nd April 2015
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act. 2 C.C. 12777/2009
2. The brief facts of the complaint that;
The Complainant stated that the Accused had received a sum of Rs.25,50,000/- from this Complainant towards security deposit under an agreement of lease dtd. 5/11/2008 by agreeing to deliver the vacant possession of ground floor of the property bearing No.7/1, 8th Cross, West Park Road, Malleswaram, Bangalore in favour of this Complainant on rent on 1.2.2009. However, due to best reasons, best known to this Accused, he has failed to perform of his part of contract as per the lease agreement and deliver the vacant possession of the said premises on rent. The Accused in order to return the security deposit amount, had issued a cheque in favour of this Complainant bearing No.978560, dtd. 1/2/2009 for Rs.25,50,000/- drawn on Bank of Maharashtra, Malleswaram, Bangalore with a request to present the said cheque for encashment.
3. It is further submitted by the Complainant that he presented the said cheque before his banker Indian Bank, Malleswaram branch, Bangalore for encashment but the said cheque returned dishonoured with an endorsement "funds insufficient" on 12/2/2009 and the same was informed to this Accused. As the Accused has failed to make payment of the cheque amount, the 3 C.C. 12777/2009 Complainant got issued the Legal Notice on 25/2/2009 through his Advocate by RPAD, calling upon the Accused to make payment of the cheque amount within 15 days from the date of receipt of notice. The notice said notice was duly served upon this Accused on 27.2.2009. The Accused even inspite of receipt of Legal Notice, neither chosen to make payment of the cheque amount nor he has replied the notice by denying the transaction. The Accused knowing fully well that he has no sufficient funds in his bank account, had issued a bogus cheque in his favour only with an intention to cheat this Complainant and thereby, the Accused has committed an offence punishable u/Sec.138 of N.I. Act.
4. After recording of sworn statement of the complainant the private complaint lodged by the complainant was registered as a criminal case, summons was issued as against the accused. The accused appeared through his counsel and he was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claimed to be tried.
5. The complainant himself got examined as PW1 and he got produced 7 documents marked as Ex.P1 to Ex.P7 and closed his side of evidence.
4 C.C. 12777/2009
6. After closure of the complainant side evidence, accused Statement u/Sec.313 Cr.P.C. recorded and read over to the Accused. The accused denied the incriminating evidence in toto and he intended to lead his evidence. The Accused got himself examined as DW1 and no documents were marked from his side.
7. I Have heard the arguments on the both sides and perused the entire records. The Learned Counsel for the Accused has also filed his written arguments .
8. The only point arises for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
9. My findings to the above point are as under:
Point No.1 : In the Affirmative
Point No.2 : As per final order
for the following:
REASONS:
10. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, the Complainant stepped into the witness box, got 5 C.C. 12777/2009 examined as PW1. PW1 filed his affidavit in lieu of oral evidence by reiterating his complaint averments.
11. The PW1 deposed that he had advanced a sum of Rs.25,50,000/- to this Accused towards security of the deposit under an agreement of lease dtd. 5.11.2008, wherein the Accused by agreeing to deliver the vacant possession of the ground floor bearing No.7/1, 8th Cross, West Park Road, Malleswaram, Bangalore in his favour on lease. He deposed that the Accused has failed to perform his part of the contract and he failed to deliver the vacant possession of the premises as per terms of the lease agreement. He further deposed that the Accused in order to return his security deposit amount, had issued a cheque in favour of this Complainant bearing No. 978560, dtd. 1/2/2009 for Rs.25,50,000/- drawn on Bank of Maharashtra, Malleswaram, Bangalore with a request to present the said cheque for encashment.
12. He further deposed that he presented the said cheque before his banker for encashment but the said cheque returned dishonoured with an endorsement "funds insufficient" on 12/2/2009 and the same was informed to this Accused. He further deposed that as the Accused has failed to make payment of the 6 C.C. 12777/2009 cheque amount, he got issued the Legal Notice on 25/2/2009 through RPAD, calling upon the Accused to make payment of the cheque amount within 15 days from the date of receipt of notice and the said notice was duly served upon this Accused on 27.2.2009. He deposed that the Accused even inspite of receipt of Legal Notice, neither chosen to make payment of the cheque amount nor he has replied the notice by denying the transaction. He deposed that the Accused knowing fully well that he has no sufficient funds in his bank account, had issued a bogus cheque in his favour, only with an intention to cheat him and thereby, the Accused has committed an offence.
13. PW1 in order to prove his case got produced the original cheque issued by this Accused marked as Ex.P1. He deposed that the signature found on Ex.P1 is that of this Accused and he got identified the signature found on the cheque marked as Ex.P1(a). He got produced the bank endorsement marked as Ex.P2. He got produced copy of the legal notice marked as Ex.P.3. He got produced two Postal Acknowledgement Due Cards for having served the notice to this Accused to both his addresses marked as Ex.P4 and Ex.P.5 respectively. He got produced the lease agreement executed by this Accused after receipt of Rs.25,50,000/- marked as Ex.P.6. He got 7 C.C. 12777/2009 identified the complaint marked as Ex.P.7 and his signature on the complaint is marked as Ex.P.7(a).
14. The Accused has denied the entire case of the Complainant and denied the very fact that he by agreeing to lease out his property bearing No.7/1, 8th Cross, West Park Road, Malleswaram, had executed an lease agreement in favour of this Complainant and under the lease agreement, towards security deposit of the leased out property, he had received a sum of Rs.25,50,000/- from this Complainant and he in order to return the said security deposit amount, had issued his Ex.P.1 cheque and the same was bounced. The Learned Counsel for the Accused subjected PW1 for cross- examination and he extensively cross-examined the PW1.
15. PW1 in his cross-examination stated that before he entered into the lease agreement with this Accused, he was carrying out grocery business at 7th Cross, Malleswaram, in shop No.151. He further stated that he with an intention to establish his own grocery shop, contacted this Accused to lease out his property for rent, after verifying that the Accused is the owner of the said property situated at 8th Cross, Malleswaram. Though the PW1 has stated that he has no documents with him to prove that this Accused was the owner of 8 C.C. 12777/2009 the said property however, he has categorically denied the suggestion that the Accused is not the owner of the said property and even he was not carrying out any business in the said property disclosed in Ex.P.6. PW1 categorically stated that at the time of execution of Ex.P.6 document by this Accused, one Sri. Ramdas was present on the spot and he was the witness to the said agreement.
16. PW1 further stated that he is having document with him to prove that he had advanced the security deposit amount disclosed in Ex.P.6 document. He further stated that he is an income tax assessee but he has not disclosed the payment of the advance security amount in his income tax returns. He further stated that he advanced the entire deposit amount of Rs.25,50,000/- in cash but he is not remembered the denomination of the currency notes paid by him under Ex.P.6 document. Though PW1 has stated that there was no impediment for him to pay the entire security deposit amount disclosed in Ex.P.6 through cheque. However, he has categorically stated that he advanced the entire security deposit amount in cash to this Accused and it is only after the receipt of the amount, the Accused had executed Ex.P.6 document in his favour. 9 C.C. 12777/2009
17. He denied the suggestion that there was no such agreement in his favour executed by this Accused and he created and concocted Ex.P.6 document only for the purpose of this case. He further denied the suggestion that the signature found on Ex.P.6 is not that of this Accused and he has created and concocted the Ex.P2 to Ex.P.6 documents for his convenience only for the purpose of this case and filed this false complaint before this court. Though he admitted the suggestion that there was a loan transaction in between him with this Accused in the year 2005 and during the years 2005, this Accused had borrowed a sum of Rs.5,00,000/- from him. However, he has categorically denied the suggestion that the Accused towards security of the loan amount, had given his duly signed blank cheque along with duly signed blank stamp paper. He further denied the suggestion that he by misusing the duly signed blank cheque and duly signed blank stamp paper, created the same as Ex.P.1 and Ex.P.6 documents only for the purpose of this case and filed this false complaint, only with an intention to make an unlawful gain for himself and to cause monetary loss to this Accused.
18. PW1 has stated that he is earning more than 1,00,000/- per month from his grocery shop business and he was also having his bank account at Srirama Co-op. Bank and also at Indian Bank. He 10 C.C. 12777/2009 further stated that the Accused himself had prepared Ex.P.6 on his instructions and at the time of execution of Ex.P.6 document by this Accused he was not present on the spot. He has stated that only after receipt of the advance security deposit amount of Rs.25,50,000/-, the Accused put his signature to Ex.P.6 document in the presence of witness. The PW1 denied the suggestion that this Accused is not liable to pay the cheque amount disclosed in Ex.P.1.
19. He further denied the suggestion that he has filed this complaint against this Accused and making false claim from this Accused. Though the Accused has denied the execution of Ex.P.6 document in favour of this PW1 after receipt of Rs.25,50,000/- towards security deposit amount in favour of PW1. However, he has categorically admitted the fact that the Ex.P.1 cheque is belong to his bank account. The Accused even admitted the fact that the signature found on Ex.P.1 cheque as well as the signature of Ex.P.6 lease agreement is that of him. Though he denied the suggestion that he in order to return the security deposit amount of Rs.25,50,000/- to this PW1, had issued his Ex.P.1 cheque and the same was bounced. However, the Accused has categorically admitted that he himself had issued his Ex.P.1 cheque in favour of PW1.
11 C.C. 12777/2009
20. Admittedly, the PW1 got produced the Ex.P.1 cheque belong to this Accused before this court and he deposed that that the Accused in order to return the security deposit amount received by him under Ex.P.6 document, had issued his Ex.P.1 cheque for Rs.25,50,000/- and the same was bounced. The Accused has not chosen to deny a fact that his Ex.P.1 cheque was bounced as there was no sufficient funds in his bank account. No doubt the Accused has taken up the defence that he has not issued Ex.P.1 cheque towards repayment of the security deposit amount to PW1. On the contrary, admittedly, the Accused after receipt of Ex.P.3 notice has neither chosen to send his reply by denying the transaction nor he has given any explanation before this court what is the impediment on him to issue his reply notice immediately after receipt of Ex.P.3 notice.
21. The Accused during the cross-examination of PW1, except putting some suggestions to him that he has not issued Ex.P.1 cheque towards repayment of the security deposit amount, which has been categorically denied by the PW1, nothing has been elicited from his mouth to disbelieve his testimony or to discard his case. The Accused except denying the execution of Ex.P.6 document in favour 12 C.C. 12777/2009 of PW1 after receipt of security deposit amount of Rs.25,50,000/,- has not denied the contents of Ex.P.6 document.
22. Moreover, as I have discussed supra, the Accused has categorically admitted his signature on Ex.P.6 document. On perusal of Ex.P.6 document it does not prove that this Accused put his signature first and subsequently, contents of Ex.P.6 were inserted in the document. The Accused even did not chosen to deny the documentary evidence marked as Ex.P.1 to Ex.P.5. No doubt he has denied the execution of Ex.P.6 document. However, this court has no jurisdiction to decide or to give any finding on execution of Ex.P.6 document.
23. Admittedly, it is not the defence of the Accused that he has challenged the execution of Ex.P.6 document before the Civil Court. Admittedly, till this day, none of the parties approached the Civil Court with respect to execution of Ex.P.6 document. In such situation, the defence taken by the Accused that the Ex.P.6 document is created and concocted document and he has not executed Ex.P.6 document in favour of PW1, cannot be acceptable and it holds no merit. The Accused even did not chosen to deny a fact that he has personally received the notice issued as per Ex.P.3 and even after 13 C.C. 12777/2009 receipt of Ex.P.3 notice, he has neither chosen to send his reply by denying the transaction nor he has complied the notice by paying the cheque amount.
24. On the contrary, PW1 has categorically deposed before this court that immediacy after receipt of Ex.P.2 bank endorsement, he got issued statutory notice as per Ex.P.3, calling upon the Accused to make payment of the cheque amount, and the same was duly served upon this Accused on 27/2/2009. He further deposed that the Accused even after receipt of Legal Notice, has neither chosen to make payment of the cheque amount, nor he has send his reply by denying the transaction. He further deposed that the Accused knowing fully well that he has no sufficient funds in his bank account, had issued a bogus cheque and the same was bounced. Even these facts were not denied by this Accused. No suggestion was put to PW1 by denying the issuance of notice as per Ex.P.3 nor he has denied the receipt of notice sent through RPAD as per Ex.P.4 and Ex.P.5 documents.
25. The Ex.P.3 to Ex.P.5 documents clearly prove that the notice issued u/Sec.138(b)of N.I. Act. was duly served upon this Accused and this Accused even after receipt of Legal Notice, has neither 14 C.C. 12777/2009 chosen to make payment of the cheque amount, nor he has replied the notice by denying the transaction. In such situation, an adverse inference has to be drawn against this Accused that he after receipt of Legal Notice, after admitting the contents of the notice and also by admitting that he has issued his cheque towards repayment of the security deposit amount of Rs.25,50,000/-, had issued his cheque and therefore he did not resist the claim of the Complainant disclosed in Ex.P.3. The oral and documentary evidence adduced before this court by the PW1 is fully corroborating with each other and convincing the court about the service of the notice.
26. Admittedly, the entire burden is on this Accused to rebut the case of the Complainant and also to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. The burden is on this Accused to prove that he had a loan transaction with this Complainant and towards security of the loan transaction, he had given his duly signed blank cheque and a duly signed blank stamp paper in favour of this PW1 and the same was misused by this Complainant for his convenience and created the same as Ex.P.1 and Ex.P.6 and filed this false complaint.
15 C.C. 12777/2009
27. The Accused in order to prove his defence, got himself examined himself as DW1. DW1 categorically deposed that this Complainant is well acquainted to him as both of them are residing in a same area for more than 20 years. He deposed that whenever he was in need of money, he used to approach this Complainant for loan amount and after receipt of loan amount from this Complainant, he used to repay the loan amount to this Complainant. He deposed that during the year 2005, he had borrowed a sum of Rs.3,00,000/- from this Complainant as a loan and towards security of the loan amount, he had given his duly signed blank cheque along with a duly signed blank stamp paper in favour of this Complainant. He deposed that subsequently, he has repaid a sum of Rs.2,00,000/- to this Complainant and he was due to sum of Rs.1,00,000/- to this Complainant.
28. He further deposed that the Complainant towards security of the said loan amount, had taken his duly signed blank cheque and also a duly signed blank stamp paper in the year 2008 and subsequently after some time, he got issued a Legal Notice from his Counsel. He deposed that after receipt of Legal Notice, he personally approached this Complainant, for which the Complainant assured him that after receipt of the entire loan amount, he will not initiate 16 C.C. 12777/2009 any prosecution against him. He deposed that he is not the owner of the property disclosed in Ex.P.6 and the said property is belong to his mother measuring to an extent of 400 sq.ft.
29. He further deposed that in the year 2008 the market value of the said property was worth of Rs.8,00,000/- to Rs.10,00,000/-. He deposed that that the Complainant by missing his duly signed blank cheque and a duly signed blank stamp paper, received towards security of the loan amount, misused the same and created the same as Ex.P.1 and Ex.P.6 and filed this false complaint, even though he is not liable to pay the cheque amount. DW1 prays to dismiss the complaint.
30. The Complainant has denied the testimony of DW1 and denied the fact that he had collected a duly signed blank cheque and a duly singed blank stamp paper from this DW1 towards security of the loan amount of Rs.3,00,000/- and subsequently he has created and concocted the same as Ex.P.1 and Ex.P.6 for his convenience. The learned Counsel for the Complainant subjected DW1 for cross- examination.
17 C.C. 12777/2009
31. DW1 in his cross-examination stated that he is not remembered exactly for how many times he had borrowed loan from this Complainant . He further stated that he has no document with him to prove that he used to borrow loan from this Complainant whenever he was in need of money and he used to repay the loan amount to this PW1. He further stated he has no documents with him to prove that he used given duly signed blank cheque and duly signed blank promissory note towards security of the loan amount, in favour of this PW1.
32. DW1 has categorically stated in his cross-examination that the property disclosed in Ex.P.6 situated at 8th Cross, Malleswaram was transferred to his name from the name of his mother in the year May 2010 and in the said property he is running novelty store under the name "Srinidhi Novelties". Though he denied the suggestion that he by agreeing to lease out the said property in favour of this Complainant, had entered into a lease agreement with this Complainant as per Ex.P.6 and under the said document, he had taken an advance security deposit amount of Rs.25,50,000/- from this PW1.
18 C.C. 12777/2009
33. However, the DW1 has categorically admitted that the signature on Ex.P.6 document is that of him and he himself has put his signature to Ex.P.6. Likewise, the DW1 admitted the suggestion that the Ex.P.1 cheque is belong to his bank account and even admitted the signature found on Ex.P.1 marked as Ex.P.1(a). Though he denied the suggestion that he in order to return his security deposit amount of Rs.25,50,000/-, had issued his Ex.P1 cheque and the same was bounced.
34. Admittedly, the DW1 except adducing the oral evidence that his duly signed blank cheque and a duly signed blank stamp paper was misused by this Complainant and created the same as Ex.P.1 and Ex.P.6, has not chosen to initiate any legal action against this Complainant for misusing his duly signed blank cheque and a duly signed blank stamp paper. Admittedly, the DW1 except adducing the oral evidence that he has given his duly signed blank cheque along with a duly singed blank stamp paper towards security of the loan amount of Rs.3,00,000/-, has not chosen to prove the same to the satisfaction of the court by adducing documentary evidence before this court. The DW1 has not even issued any notice to this Complainant by clearly instructing him not to misuse his duly 19 C.C. 12777/2009 signed blank cheque and duly signed blank stamp paper issued towards security of the loan amount of Rs.3,00,000/-.
35. Likewise, the DW1 has not even issued the notice to this Complainant calling upon him to return his duly signed blank cheque and duly singed blank stamp paper. The Complainant has not even given an application before his bank not to honour the cheque, if incase, the same is presented by this Complainant by clearly stating that he has issued a cheque in favour of this Complainant towards security of the loan amount of Rs.3,00,000/-. Admittedly, the Accused has not taken any coercive steps and even he has not initiated any legal action against this Complainant even after this Complainant filed this complaint before this court.
36. This clearly proves that the Accused only with an intention to ran away from his liability to make payment of the cheque amount disclosed in Ex.P.1 has taken up the false defence before this court that he has given his duly signed blank cheque along with a duly signed blank stamp paper in favour of PW1 towards security for the loan amount of Rs.3,00,000/- . Admittedly, the Accused has not produced any piece of documents before this court to believe his testimony and to believe his defence. The oral evidence adduced by 20 C.C. 12777/2009 the DW1 is not sufficient and convincing to believable his defence and to discard the case of the Complainant.
37. As I have discussed supra, the DW1 except adducing the oral evidence that he has given his duly signed blank cheque and a duly signed blank stamp paper in favour of this Complainant towards security of the loan amount of Rs.3,00,000/-, has not chosen to prove the same to the satisfaction of the court.
38. As I have discussed supra, the Ex.P.1 and Ex.P.6 documents does not prove that these documents were given by this Accused as a security towards loan amount of Rs.3,00,000/-. The burden is on this Accused to prove the contents written on Ex.P.1 were subsequently inserted by this Complainant for his convenience. Admittedly, the Accused has not taken any steps to prove that the contents written on Ex.P.1 were created and inserted by this Complainant for his convenience, subsequently after issuance of Ex.P.1 in his favour. The entire burden is on this Accused to prove that he had issued a duly signed blank cheque and a duly signed blank stamp paper in favour of this Complainant towards security of the loan amount of Rs.3,00,000/-. The Accused has utterly failed to 21 C.C. 12777/2009 prove his defence to the satisfaction of the court by adducing cogent and convincing evidence before this court.
39. The oral evidence adduced before this court by this Accused will not take away the case of the Complainant and it will not rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. The Accused has utterly failed to prove that there was a loan transaction in between him with this Complainant and towards security of the loan amount of Rs.3,00,000/-, he had given his duly signed blank cheque and a duly signed blank stamp paper in favour of this Complainant. The defence taken by the Accused during the course of trial, cannot be believable and acceptable.
40. Even when this Accused was questioned u/Sec. 313 Cr.P.C. by this court, the Accused except denying the incriminating evidence deposed against him by the PW1, has not put forth any defence from his side to believe his testimony. The Accused has utterly failed to rebut the presumption available to this Complainant u/s.118 of N.I. Act which reads as:
a. Of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been 22 C.C. 12777/2009 accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
b. As to date - that every negotiable instrument bearing a date was made or drawn on such date; c. As to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; d. As to time of transfer - that every transfer of a negotiable instrument was made before its maturity;
e. As to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
f. As to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped; g. That holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course;
41. Likewise, the accused also failed to rebut the presumption available to this Complainant u/s. 139 of NI Act which reads:
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.23 C.C. 12777/2009
42. There is nothing on record to believe the defence of the Accused and to discard the case of the Complainant. The written arguments filed by the learned Counsel for the Accused that the Complainant has not proved the execution of Ex.P.6 document to the satisfaction of the court and even he has failed to prove that under the Ex.P.6 document this Accused had received a sum of Rs.25,50,000/- from this Complainant as a security deposit and he agreed to deliver the vacant possession of the ground floor of the property bearing No.7/1, 8th cross, West Park Road, Malleswaram and as per the terms of the lease agreement, the Accused has failed to deliver the vacant possession of the property in favour of this Complainant on 5.11.2008. He has argued that the Complainant has utterly failed to prove that the Accused in order to return the security deposit amount of Rs.25,50,000/-, had issued his Ex.P.1 cheque and the same was bounced and therefore, the Accused is liable to pay the cheque amount.
43. He has further stated that the Complainant has not produced any document before this court to prove that he had paid an huge amount of Rs.25,50,000/- to this Accused as security deposit under Ex.P.6 document and even he has not produced any documents before this court to show that he advanced the 24 C.C. 12777/2009 said amount to this Accused under Ex.P.6 document. He has argued that the Ex.P.6 document is a forged document, created with an intention to blackmail this Accused for wrongful gain and therefore, by considering the all these facts and by holding that the Ex.P.6 document is not proved to the satisfaction of the court, by giving benefit of doubt in favour of this Accused, the Accused has to be acquitted. The written arguments filed by the Learned Counsel for the Accused, is not convinced this court and it cannot be acceptable.
44. Likewise, the arguments canvassed by the Learned Counsel for the Accused that the Complainant has misused the duly signed blank cheque and a duly signed blank stamp paper for his convenience and created the same as Ex.P.1 and Ex.P.6 for a sum of Rs.25,50,000/- and filed this false complaint and therefore, the complaint has to be dismissed, is also not convinced this court and it cannot be acceptable.
45. As I have discussed supra, the Accused except adducing the oral evidence that he had borrowed a hand loan of Rs.3,00,000/- from this Complainant in the year 2005 and towards security of the said loan amount, he had given his duly signed blank cheque and a 25 C.C. 12777/2009 duly signed blank stamp paper towards security of the loan amount and subsequently even though he had cleared a sum of Rs.2,00,000/- to this Complainant, the Complainant for remaining amount of Rs.1,00,000/-, misused his blank cheque and blank stamp paper and created the same as Ex.P.1 and Ex.P.6, has not chosen to prove the same.
46. As I have discussed supra, the burden is on this Accused to rebut the case of the Complainant and also to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. The Accused has utterly failed to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. In such situation, the written arguments filed by the Learned Counsel for the Accused holds not merit and it cannot be acceptable.
47. The next arguments filed by the Learned Counsel for the Accused that there is no burden on this Accused to prove his defence beyond all reasonable doubts and the Accused can very well discharge his burden by preponderance of probabilities and even by cross-examining PW1 and the Accused by cross-examining PW1, has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act and by looking into these facts and also by giving benefit of doubt in favour of the Accused, the 26 C.C. 12777/2009 Accused to be acquitted, is also not convinced this court and it holds no merit.
48. Per contra, the learned Counsel for the Complainant has vehemently argued that the Complainant before filing of this complaint, has followed all the procedures prescribed u/Sec.138 of N.I. Act and this Accused even after receipt of Legal Notice neither chosen to make payment of the cheque amount well within the period of limitation nor he has replied the notice by denying the transaction and therefore, an adverse inference has to be drawn against this Accused that he has issued the cheque towards repayment of the security deposit amount of Rs.25,50,000/-, the Accused has to be convicted in accordance with law, is fully convinced this court. Admittedly, this Accused after receipt of the Ex.P.3 Legal Notice, neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. In such situation, the arguments canvassed by the Learned Counsel for the Complainant, is fully convinced this court and as such it is accepted.
49. The complainant by adducing oral and documentary evidence before this court has proved the guilt of the accused beyond all reasonable doubt. There is no whatsoever doubt in the mind of 27 C.C. 12777/2009 court about the case of the complainant. The oral and documentary evidence adduced before this court by the complainant, is fully corroborating with each other and convinced this court about this case. The complainant by adducing oral and documentary evidence before this court bring home the guilt of the accused beyond all reasonable doubt. Therefore, by taking into consideration the facts and circumstances and evidence available on record, I answer this Point No.1 in affirmative.
50. Point No.2. In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec. 255 (2) of Cr.P.C. the accused is hereby convicted for the offence punishable u/Sec. 138 of N.I. Act.
The accused is sentenced to pay a fine of Rs.25,65,000/- (Rupees twenty-five lakhs and sixty-five thousand only). In any default to pay fine amount shall under go simple imprisonment for 6 months.
Out of fine amount recovered under Section 357 of Cr.P.C. a sum of Rs.25,60,000/- (Rupees twenty-five lakhs and sixty thousand only) shall be paid to the complainant which 28 C.C. 12777/2009 includes the cheque amount and also cost of the proceedings. Remaining fine amount of Rs.5,000/- shall be forfeited to State.
The bail bond and surety bonds of the accused stands cancelled.
Office to furnish free copy of the judgement to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 22nd day of April, 2015) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M. Bangalore.
ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. A. Sadananda, Witnesses examined on behalf of the Accused: D.W.1 Mr. C. Ramesh
Documents marked on behalf of the Complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of the Accused
Ex.P.2 Bank endorsement
Ex.P.3 Copy of the legal notice
Ex.P.4 & Ex.P.5 Two Postal Acknowledgement Due Cards
Ex.P.6 Lease agreement executed by the Accused
Ex.P.7 Complaint
Ex.P.7(a) Signature of the Complainant
Documents marked on behalf of the Accused:
Nil
XIX ACMM, B'lore.
29 C.C. 12777/2009