Bangalore District Court
Mr.Ashwin R.Shenoy vs Mr.Sai Gangadhar Polineni on 18 November, 2022
C.C.No.15036/2018
KABC030410942018
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated : This the 18th day of November 2022.
Present: Sri.N.M. RAMESHA, B'Com.,L.L.M.
XVI Addl.C.M.M., Bengaluru City.
Case No. C.C.No
: C.C.No.15036/2018
Complainant : Mr.Ashwin R.Shenoy,
S/o.late.R.D.Shenoy,
Aged about 30 years,
Residing at No.11/A,
1st Main Road, 2nd Block,
Tyagaraja Nagar, (T.R.Nagar),
Bangalore-560 028.
(By Sri.Parameshwarappa,
Adv,)
V/s
Accused : Mr.Sai Gangadhar Polineni,
No.5-277, Dharmapuram,
Chitvel Road, Rly Kodur,
Kadapa-516 101,
State of Andhra Pradesh.
Also at:
No.956/42, AMZ Layout,
2nd Floor, Chandapura,
Beside Green Govt. School,
C.C.No.15036/2018
Anekal Road, Anekal Taluk,
Bangalore-560 081.
And also at:
COMCAST India Engineering
Centre I LLP,
Chennai One SEZ, 5th Floor,
North Block in Phase II,
Module 7 & 8, "Chennai One",
Pallavaram, Thoraipakkam,
200 feet Road, Thoraipakkam,
Chennai - 600 097.
State of Tamil Nadu.
(By Sri.Girisha N., Adv.,)
Case instituted : 24.02.2018
Offence complained of : U/s 138 of N.I Act
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 18-11-2022
JUDGMENT
The Complainant has filed this complaint against the accused under the provisions of Sec.200 of the Code of Criminal Procedure, for the offence punishable U/Sec.138 of the Negotiable Instruments Act.
C.C.No.15036/2018
2. The case of the Complainant is as under:-
The accused was well acquainted with complainant since several years. The accused has approached the complainant in the last week of January 2015 for financial assistance. The accused has obtained a loan of Rs.15 lakhs from the complainant on 02.02.2015 and executed an on demand promissory note on 02.02.2015 agreeing to repay the loan with interest. The accused has issued a cheque bearing No.987322 dated 13.12.2017 for Rs.15 lakhs drawn on Axis Bank Ltd., Koramangala branch, Bengaluru. The complainant has presented the cheque for encashment before the Syndicate Bank, N.R.Colony branch, Bengaluru. But the said cheque was came to be dishonoured for want of sufficient funds in the account of the accsued vide bank endorsement dated 14.12.2017. The complainant got issued a legal notice on 12.01.2018 calling upon the accused to pay the cheque amount within 15 days from the date of receipt legal notice. The accused has received legal notice. But in spite of service of legal notice, the accused has failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of N.I.Act. Hence, this complaint.
C.C.No.15036/2018
3. After presentation of complaint, it was ordered to be registered as PCR No.4045/2018 vide order dated 26.02.2018.
4. The sworn statement of the complainant has been recorded and the documents were got marked as per Ex.C.1 to C.12.
5. My Learned Predecessor in office having heard the arguments of learned counsel for complainant and on considering the complaint averments, sworn statement of complainant and documents at Ex.C.1 to C.12 and having satisfied with the prima facie materials placed on record has taken the cognizance for the offence punishable U/s.138 of N.I.Act and the case was ordered to be registered as CC.No.15036/2018 and the process were ordered to be issued agianst the accused vide order dated 04.06.2018.
6. On service of summons, the accused has appeared before the court through his learned counsel and obtained the bail by depositing a cash surety of Rs.10,000/- vide Q.No.7359/2018 dated 31.07.2018. The copies of all the prosecution papers were supplied to the accused.
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7. Plea of accused for the offence punishable U/s.138 of N.I.Act has been recorded and the substance of accusation has been read over and explained to the accused in the language known to him. The accused has pleaded not guilty, but claims to be tried.
8. In order to establish the guilt against the accused, the complainant got himself examined as PW-1 and got the documents marked as Ex.P.1 to P.17. PW-1 was subjected for cross-examination by the learned counsel for the accused.
9. The statement of accused as contemplated under the provisions of Section 313 of Cr.P.C has been recorded and the incriminating evidence as such forthcoming against the accused in the evidence of complainant and documents has been read over and explained to the accused in the language known to him. But the accused has denied the evidence of complainant and documents. The accused did choose to enter the defence evidence.
10. In order to substantiate his defence, the accused got himself examined as DW-1 and got the documents marked as Ex.D.1 to D.4. DW-1 was subjected for cross-examination by the learned counsel for the complainant.
C.C.No.15036/2018
11. I have heard the arguments of learned counsels for both sides. The learned counsel for the complainant and accused have also filed notes of arguments. In the light of the arguments canvassed by the learned counsel for both the side, I have perused the oral and documentary evidence placed on record.
12. Now, the points that would arise for my consideration are as under:-
1. Whether the complainant proves that the accused has issued a cheque bearing No.987322 dated 13.12.2017 for Rs.15 lakhs drawn on Axis Bank Ltd, Koramangala branch, Bengaluru in his favour towards the legally recoverable debt and on presentation of cheque for encashment before the Syndicate Bank, N.R.Colony Branch, Bengaluru, it was came to be dishonoured for want of sufficient funds in the account of the accused vide bank memo dated 14.12.2017 and in spite of issuance of legal notice dated 12.01.2018 and in spite of service of legal notice, the accused has failed to pay the cheque amount and thereby committed offence punishable U/s.138 of N.I.Act?
2. What Order?
13. On considering and assessing the oral and documentatry evidence placed on record, now my answers to the above points are as under :
C.C.No.15036/2018 Point No.1: In the Affirmative.
Point No.2: As per final order for the following :-
REASONS
14. Point No.1 : The provisions of Sec.20 of Negotiable Instrument Act deals about Inchoate Stamped Instruments. As per this provisions of law, where one person signs and delivers to another a paper stamped in accorance with the law relating to negotiable instrements then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima-facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, or any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instruemnt, in the capacity in which he signed the same, to any holder in due course for such amount.
15. The provisions of Sec.118 of Negotiable Instrument Act deals about presumptions as to neogtiable instruments. As per this provisions of law, unit the contrary is proved, the following presumptions shall be made:-(a) of consideration: that every negotiable instrument was made or drawn for consideration and C.C.No.15036/2018 that every such instrument, when it has been accepted, indorsed, negotiated or transfered, was accepted, indorsed, negotiated or transferred for considertaion: (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 accpted 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 the maturity; (e) as to order of indorsement; that the indorsements appearing upon a negotiable instrument were made in the order in which they apear thereon; (f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped and (g) that holder is a holder indue course- that the holder of a negotiable instrument is a holder in due course.
16. The provisions of Sec.138 of Negotiable Instrument Act deals about dishonour of cheque for insufficiency etc., of funds in the accounts. As per this provisions of law, where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or inpart, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money C.C.No.15036/2018 standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other proviosn of this Act, be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both.
17. As per the proviso attached to the above said provisions of law, nothing contained in this section shall apply unless-(a) the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing , to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
C.C.No.15036/2018 [ 18. The provisions of Sec.139 of Negotiable Instrument Act deals about presumption in favour of holder. As per this provisions of law, it shall be presumed, unles 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, or any debt or other liability.
19. Now keeping the above said provisions of Section 20, 118, 138 and 139 of N.I.Act, in mind, let us consider as to whether the complainant could able to comply the provisions of Section 138 of N.I.Act, so as to raise or to draw the presumption in his favour as per Section 118 and 139 of N.I.Act.
20. It is averred in the complaint and stated by PW-1 in his oral evidence that the accused has obtained a hand loan of Rs.15 lakhs on 02.02.2015 and executed an On Demand Promissory note and consideration receipt dated 02.02.2015 agreeing to repay the loan with interest and he has issued a cheque bearing No.987322, dated 13.12.2017 for Rs.15 lakhs drawn on Axis Bank Ltd, Koramangala branch, Bengaluru towards legally recoverable debt and therefore, he has presented the cheque for encashment before the Syndicate Bank, N.R.Colony branch, Bengaluru which was came to be C.C.No.15036/2018 dishonoured for want of sufficient funds in the account of the accused vide bank memo dated 14.12.2017 and therefore, he has issued a legal notice dated 12.01.2018 which was served on the accused, but in spite of serice of legal notice, the accused has faield to pay the cheque amont and therefore, he has presented the complaint before the Court on 24.02.2018.
21. The complainant has produced the cheque dated 13.12.2017, bank endorsement dated 14.12.2017, legal notice dated 12.01.2018, postal receipts dated 12.01.2018, postal cover, postal acknowledgement, e-mail messages, on demand promissory note and consideration receipt dated 02.02.2015, letter and they are marked at Ex.P.1 to P.17.
22. The accused neither disputed the acquaintance with complainant nor the loan transaction or issuance of cheque or presentation of cheque or dishonour of cheque for want of sufficient funds in his account or issuance of legal notice or address mentioned in the notice. In fact, there is no specific matreial suggestions to PW-1 either to deny the loan transaction or issuance of cheque or his signature on the cheque or presenttion of cheque for encashment or dishonour of C.C.No.15036/2018 cheque for want of sufficient funds in his account or for issuance of legal notice.
23. On the other hand, it is suggested to PW-1 that he has avaield a loan of Rs.50,000/- only and issued two signed blank cheques. Be that as it may, the accused in his entire evidence has not specifically disputed the loan transaction with complainant or issuance of cheque or presentation of cheque for encashment or dishonor of cheque for want of sufficient funds in his account or for issuance of legal notice. On the other hand, DW-1 in his cross-examination has stated that he came in contact with complainant through his friend Shasikanth in the year 2010 and he has received the notice issued by the complainant. DW-1 has also admitted about the message correspondence between him and complainant after service of legal notice. DW-1 has also admitted that both the address mentioned in the notice are correct and he was residing in the said address. DW-1 has also admitted his signature on the Pronote at Ex.P.16 and after service of legal notice, he has send the messages to the complainant. It is also admitted by DW-1 that the cheque in question is belongs to him and his signature finds a place on the cheque.
C.C.No.15036/2018
24. From these materials placed on record, it is crystal clear that the accused by necessary implication has admitted about the acquaintance with complainant and loan transaction with complainant and issuance of cheque and his signature on the cheque and also promissory note and consideration receipt including presentation of cheque for encashment, dishonour of cheque for want of sufficient funds in his account and service of legal notice.
25. However, on careful perusal of oral evidence of PW-1 and documentary evidence at Ex. P.1 to P.17, it clearly establishes that the accused has availed a loan of Rs.15 lakhs from the complainant on 02.02.2015 and executed an on Demand Promissory note and consideration receipt vide Ex.P.16 dated 02.02.2015 agreeing to repay the loan with interest and he has also issued cheque vide Ex.P.1 to the complainant on 13.12.2017. The materials on record would clearly establishes that the complainant has presented the cheque for encashment before Syndicate Bank, N.R. Colony branch, Bengaluru, which was came to be dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 14.12.2017 as per Ex.P.2 and the complainant has issued a legal notice vide Ex.P.3 vide dated 12.01.2018, it was served C.C.No.15036/2018 on the accused, but in spite of service of legal notice, the accused has failed to pay the cheque amount and therefore, the complainant has presented the complaint before the Court on 24.02.2018.
26. It is pertinent to note here that the cheque is dated 13.12.2017 and it was presented before the Court for encashment well within its validity and it was dishonoured for want of sufficient funds in the account of the accused. It is also pertinent to note here that the complainant got issued a legal notice on 12.01.2018 giving 15 days time to the accused to comply the demands made in the notice, but the accused has refused to received the notice. It is well settled position of law that when the notice has been issued to the proper address of the accused and if is is returned as not claimed, then it amounts deemed service as per the proovisions of Section 27 of General Clausses Act. The accused has not disputed the address mentioned in the notice. But in spite of service of legal notice, the accused neither replied the notice nor made necessary arrangements for payment of cheque amount. The accused has issued the legal notice within stipulated period of time from the date of receipt of bank endorsement. Since the accused has failed to pay the cheque amount, the complainant has presented the C.C.No.15036/2018 complaint before the Court on 24.02.2018 which was well within its time.
27. So, it is crystal clear that the complainant has fulfilled all the mandates of Section 138 of N.I.Act by adducing oral evidence of PW-1 and by producing documentary evidence at Ex.P.1 to P.17. Under these circumstances, when the complainant has fulfilled all the mandates of Section 138 of N.I.Act, then this Court has no option but to raise a presumption in favour of the complainant under the provisions of Section 118 and 139 of N.I.Act.
28. Admittedly, the presumptions available in favour of the complainatn under the provisions of Section 118 and 139 of N.I. Act are not conclusive proof, but they are rebuttable in nature. Therefore, when once the complainant has fulfilled all the mandates of Section 138 N.I.Act and when once the Court has drawn the presumption in favour of the complainant under the provisions of Section 118 and 139 of N.I.Act, then the onus shifts on the accused to rebut the statutory presumption available in favour of the complainatn under the provisions of Section 118 and 139 of N.I.Act.
C.C.No.15036/2018
29. The learned counsel for the complainant has argued with force that the complainant has fulfilled all the mandates of Section 138 of N.I.Act by adducing oral evidence of PW-1 and by producing documentary evidence at Ex.P.1 to P.17 which clearly establishes the loan transaction of Rs.15 lakhs between complainant and accused and execution of pronote and consideration receipt and issuance of cheque for legally recoverable debt including presenttion for cheque for encashment and dishonor of cheque for want of sufficient funds in the account of the accused and service of legal notice and therefore, the presumption is in favour of the complainant under the provisions of Section 118 and 139 of N.I.Act.
30. It is further contended that the accused neither disputed the issuance of cheque nor his signature on the cheque and promissory note or service of legal notice. But, on the other hand, the accused has admitted the fact that the cheque in question is belongs to him and his signature on the pronote and also cheque and he has also admitted the address mentioned in the notice and the materials placed on record also clearly establishes these facts. However, the accused has taken a contention that he has availed a loan of Rs.25,000/- and issued two cheques for security purpose and he has C.C.No.15036/2018 already repaid loan of Rs.25,000/- and the complainant has failed to return the cheque and misused the cheque by filing false complaint. But though the accused has taken this contention, same has not been proved before the Court. The oral evidence of DW-1 and documentary evidence at Ex.D-1 to D-4 do not establish the defence taken by the accused. The accused neither lodged a complaint nor replied the notice for misuse of cheque and pronote and therefore, the defence taken by the accused is not tenable under law and therefore, the accused is liable for conviction U/s.138 of N.I.Act.
31. In support of his submission, the learned counsel for the complainant has relied upon a decision reported in 2014 (5) KCCR 721 in between Smt.Shakuntala Devappa Vs.B.R.Ravishankar, wherein while dealing with the provisions of Section 118 and 138 of N.I.Act, the Hon'ble High Court of Karnataka has pleased to held that when the accused pleaded that cheques in question were stolen and complainant was stranger to him and that there was no necessity for him to borrow money from complainant, but under law, there is a presumption in favour of holder of the cheque that he holds it for consideration.
C.C.No.15036/2018
32. The learned counsel for the complainant has also relied upon a decision reported in (1997) 7 SCC 510 in between K.Bhaskaran Vs.Shankar Vidyan Balan and another, wherein while dealing with the provisions of Section 118 and 138 of N.I.Act, the Hon'ble Supreme Court of India has pleased to held that the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of the 5 acts, components of the offence took place, drawing of the cheque, presentation of cheque to the Bank, returning of the cheque unpaid by the drawee bank, giving notice in writing to the drawer of the cheque, demanding payment of the cheque amout and failure of the drawer to make payment within 15 days of the receipt of the notice.
33. The learned counsel for the complainant has also relied upon a decision reported in AIR 2019 SC 4617 in between M.Abbas Haji Vs.T.N.Channakeshava, wherein while dealing with the provisions of Section 138 of N.I.Act, the Hon'ble Supreme Court has pleased to held that when the accused has failed to explain as to how leaves of cheques entered into the hands of the complainant, then the accused is liable for conviction.
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34. The learned counsel for the complainant has also relied upon a decision reported in AIR 2019 SC 2446 in between Beersingh Vs.Mukesh Kumar, wherein while dealing with the provisions of Section 138 of N.I.Act, the Hon'ble Supreme Court has pleased to held that the presumption U/s.139 of N.I.Act is presumption of law distniguished from presumption of fact. The presumptions are rules of evidence and do not conflict the presumption of innocence which requires prosecution to prove the case against the accused.
35. Per contra, the learned counsel for the accused has vehemently contended that the oral evidence of PW-1 and the documents at Ex.P.1 to P.17 do not establish the compliance of Section 138 of N.I.Act and therefore, the presumption is not in favour of complainant U/s.118 and 139 of N.I.Act. The complainant has faield to prove the loan transaction of Rs.15 lakhs and execution of documents and issuance of cheque and service of legal notice and therefore, the presumption is not in favour of the complainant.
36. It is further contended that on the other hand, the oral evidence of DW-1 and documents at EX.D.1 to D.4 clearly establishes that the accused had availed only Rs.50,000/- in the year 2010 and he has already paid C.C.No.15036/2018 entire amount along with interest and he had issued two blank signed cheques to the complainant and after repayment of loan, when the accused requested the complainant to return the cheques, the complainant has faield to return the cheques and misused the cheque by filing false complaint. The complainant had no capacity to lend that much of amount who was having meagre income of Rs.50,000/-. The complainant has also failed to serve the legal notice to the accused and thereby failed to establish the case against the accused and therefore, the accused is entitled an order of aquittal. The accused has raised a probable defence and proved before the Court by adducing oral evidence of DW-1 and by producing the documentary evidence at Ex.D.1 to D.4 and eliciting the materials facts in the evidence of PW-1 and therefore, the complaint is liable to be dismissed.
37. Now keeping the arguments canvassed by learned counsels for both sides and principles laid down in the above cited decisions in mind, let us consider as to whether the accused could able to rebut the statutory presumption available in favour of the complainant under the provisions of Section 118 and 139 of N.I.Act.
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38. It is the evidence of DW-1 that he knows the complainant who is doing money lending business and Manikandan who was doing work as Recovery Agent with complainant and he has not done any money transaction with Manikandan. It is the further evidence of DW-1 that he has availed a loan of Rs.25,000/- from the complainant in the year 2010 for which the complainant has deducted an amount of Rs.2,500/-with interest @ 10% and paid Rs.22,500/- and the complainant has obtained two blank signed cheques and Laptop for security purpose and he has repaid full amount of Rs.25,000/- and received the Laptop from the complainant, but the complainant has not returned two blank signed cheques and even subsequently, he has lend loan of Rs.10,000/- and Rs.20,000/- respectively and repaid the same to the complainant.
39. It is the further evidence of DW-1 that he has requested the complainant to return the cheques who told to come to his office and he visited his office wherein Manikandan was also present and he was waited till 4.00 to 10.00 p.m and they have obtained office laptop, valet and motorcycle key and demanded more money and also obtained Axis Bank, ICICI Bank 10 cheque leaves and obtained his signature. It is the further evidence of DW-1 that Manikandan has assaulted him C.C.No.15036/2018 on the ground that he is an outsider and in spite of request, the complainant and Manikandan have not returned the cheques and other things and also threatened through phone and thereafter, they have presented the cheque which were came to be dishonoured.
40. It is the further evidence of DW-1 that the complainant and Manikandan have got issued a legal notice which was served on him and when he approached the complainant, he has demanded Rs.20 lakhs to withdraw the present case and CC.No.15036/2018, but he has not availed loan of Rs.15 lakhs from the complainant and also not executed any pronote and not issued cheque towards the repayment of loan. The accused has produced the bank statement of ICICI Bank, cheque status and certificate U/s 65-B of I.E.A. and they are marked at Ex.D.1 to D.4.
41. From the perusal of oral evidence of DW-1 and Ex.D.1 to D.4, it is clear that the accused has taken a defence that he has availed a loan of Rs.25,000/- only and issued two blank cheques and pronote for security purpose, but he has not availed a loan of Rs.15 lakhs from the complainant and he has already repaid the loan of Rs.25,000/- with interest and in spite of request, the C.C.No.15036/2018 complainant has failed to return the cheque and misused the cheque by filing the complaint.
42. But, though the accused has taken this bald defence, same has not been amplified before the Court in any manner. No doubt, it is suggested to PW-1 that he is doing money lending business by charging exhorbitant rate of interest with the support of local police; that with meagre income of Rs.50,000/-, it is highly impossible to lend Rs.15 lakhs; that he has forcibly collected two blank signed cheques and pronote; that he has filed false two cases; that he has created false story; that the accused is the software Engineer and hence, he has filed false case to extract money from the accused; that the accused has availed a loan of Rs.50,000/- for which he has deducted interest of Rs.4000/- and paid remaining amount of Rs.46,000/- to the accused; that he and Manikandan have filed two separate cases by misusing those two cheques; that he has not lend Rs.15 lakhs to the accused; that he had no financial capacity to lend that much amount of Rs.15 lakhs to the accused; that the contents of the cheque are as that of his writings and that the document at Ex.P.17 is crecated document.
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43. But, all these material suggestions have been specifically denied by PW-1. Therefore, it is said that the denied suggestions are always remained as suggestions only and not come in the way of accsued either to substantiate his probable defence or to falsify the case made out by the complainant or to falsify the oral evidence of PW-1 or to falsify the documentary evidence at Ex.P.1 to P.17 or to rebut the statutory presumptions available in favour of the complainant under the provisions of Section 118 and 139 of N.I.Act.
44. But, on the other hand, it is forthcoming in the evidence of PW-1 that he is doing sales and services of refrigeratiors and other electronic items and he is an Income Tax Assessee and he was having monthly income of Rs.50,000/- to Rs.60,000/- and he is having bank account at Syndicate Bank, ICICI Bank and current account in HDFC Bank and the accused is well acquainted with him since 8 to 9 years and there was also savings from his mother, sister and borther and accused is none other than his trusted friend and therefore, he has lend a loan of Rs.15 lakhs by way of cash. It is also forthcoming in the evidence of PW-1 that the accused has been transacting with him since 2010 and the accused has availed loan on somany occasions C.C.No.15036/2018 and issued the cheque in question in respect of present transaction of Rs.15 lakhs.
45. No doubt, the accused has produced bank statement pertaining to ICICI Bank, cheque status and certificate 65-B of I.E.A. and they are marked at Ex.D.1 to D.4. But these documents at Ex.D.1 to D.4 do not substantiate the probable defence taken by the accused. No doubt, these documents would indicate that there was a transaction of Rs.25,000/-, Rs.10,000/- and Rs.10,000/- between complainant and accused. But it is forthcoming in the evidence of PW-1 that apart from this present transaction of Rs.15 lakhs, the accused had also availed loan in the earlier occasions and repaid the same. Under these circumstances, only on the basis of documents at Ex.D.1 to D.4, it cannot be said the accused has paid full loan amount to the complainant. Therefore, the documents at Ex.D.1 to D.4 not come in the way of accused either to substantiate his probable defence or to rebut the statutory presumption available in favour of the complainant under the provisions of Section 118 and 139 of N.I.Act.
46. The accused all the while in his oral evidence before the Court has stated that he has availed Rs.25,000/- only and issued two blank signed cheques C.C.No.15036/2018 and pronote to the complainant for security purpose and he has already repaid loan of Rs.25,000/- with interest and when he requested the complainant to return the cheque, the complainant has failed to return the cheque and filed the false complaint by misusing the cheque.
47. But, it is pertinent to note here that if really the accused had availed loan of Rs.25,000/- only and not Rs.15 lakhs from the complainant and if really the accused has issued two blank cheques and pronote for security purpose and if really the accused has repaid entire loan with interest and if really the complainant has misused the cheque by filing present complaint, then the accused could have definitely take action against the complainant either by filing the complaint before the Jurisdctional Police station or before any police station or before Higher Authorities of the Police Department or at-least before the Court. But he has not done so. No explanation as such forthcoming in this regard in the evidence of DW-1. In the absence of such an explanation, an adverse inference has to be drawn against probable defence taken by the accused.
48. But, on the other hand, DW-1 himself has admitted in his evidence that he came in contact with complainant through his friend Shasikanth who has not C.C.No.15036/2018 been examined before the Court. Even according to DW- 1 that he has received the notice sent by the complainant and he has also sent messages to the complainant as per Ex.P.13 to P.15 after receipt of legal notice which substantiate the case made out by the complainant. Even according to DW-1 that he has not taken any steps against the accused or lodged any complaint for having forcibly obtained the cheque and pronote by the complainant and he is aware about the Commissioner of Police, Deputy Commissioner of Police, Assistant Commissioner of Police and other police officers and he has also not replied the notice. This leads to creates a doubt about the probable defence taken by the accused.
49. It is pertinent to note here that when Ex.P.7 was confronted to DW-1, he has admitted the correctness of both addresses mentioned in the document at Ex.P.7 and he has also admitted the signature on Ex.P.1 and P.16 which substantiate the case made out by the complainant and even after receipt of legal notice, he has sent several messages and also Whatsapp messages to the complainant with respect to loan. Even according to DW-1 that he has not sent e- mail to the complainant to the effect that he was not liable for any amount towards the complainant and after C.C.No.15036/2018 receipt of legal notice, he has visited the office of the Advocate for complainant and he has not taken any action against the complainant for forgery of documents and also not lodged any complaint for having wrongful recovery of Rs.15 lakhs and he has come over to Bengaluru to contact complainant, but he has not lodged any complaint before the police and also not lodged any on-line complaint. Under these circumstances, the defence of the accused that he has availed only Rs.25,000/- and not Rs.15 lakhs and the complainant has obtained two cheques and pronote for security purpose and he has already paid loan amount, but the complainant has failed to return the cheque and pronote and misused same by filing complaint is not sustainable under law and therefore, cannot be accepted.
50. On appreciation of entire oral and documentary evidence placed on record, it is found that the accused has availed a loan of Rs.15 lakhs from the complainant on 02.02.2015 and executed an on demand promissory note and consideration receipt vide Ex.P.16 agreeing to repay the loan with interest and he also issued cheque vide Ex.P.1 to the complainant for legally recoverable debt of Rs.15 lakhs and on presentation of cheque for encashment, it was came to be dishonoured C.C.No.15036/2018 for want of sufficient funds in the account of the accused vide bank endorsement at Ex.P.2 and the complainant has issued a legal notice vide Ex.P.3 within stipulated time from the date of receipt of bank endorsement which has been served on the accused, but in spite of service of legal notice, the accused has failed to pay the cheque amount and therefore, the complainant has presented complaint before the Court on 24.02.2018 which is well within time.
51. The complainant has established the guilt agianst the accused by adducing oral evidence of PW-1 and by producing documentary evidence at Ex.P.1 to P.17. The accused neither disputed the issuance of cheques nor his signature on the cheque or service of legal notice and thereby the complainant complied all the mandates of Section 138 of N.I.Act and hence, the presumptions are in favour of the complainant U/s.118 and 139 of N.I.Act.
52. The accused has not placed any materials that he has availed loan of Rs.25,000/- only and he has issued cheque in question towards the security purpose and he has already paid loan of Rs.25,000/- with interest and the complainant has misused cheque in question. The accused has failed to substantiate his C.C.No.15036/2018 probable defence with legal evidence before the Court and thereby failed to rebut the statutory presumptions available in favour of the complainant U/s.118 and 139 of N.I.Act.
53. Under these circumsances, the arguments of the learned counsel for the accused that accused has availed loan of Rs.25,000/- only in the year 2010 and issued the cheques to the complainant towards the security purpose and the accused has already repaid loan of Rs.25,000/- with interest to the complainant, but he failed to returnt the cheques to the accused and misused the cheques by filing the present complaint and the accused has raised a probable defence and also proved the same before the Court, but the complainant has failed to prove the guilt against the accused and therefore, the accused is not liable to pay cheque amount to the complainant U/s.138 of N.I.Act is not sustainable under law and therefore cannot be accepted.
54. But, on the other hand, there is some legal and considerable force in the submission of the learned counsel for the complainant that the complainant has fulfilled all the mandates of Section 138 of N.I.Act by adducing oral evidence of PW-1 and by producing documentary evidence at Ex.P.1 to P.17 which clearly C.C.No.15036/2018 establishes the loan transaction of Rs.15 lakhs between complainant and accused and execution of pronote and issuance of cheque in question towards the legally recoverable debt and also service of legal notice on the accused and thereby the complainant has proved the guilt against the accused with legal evidence before the Court and hence, the presumptions are in favour of the complainatn U/s.118 and 139 of N.I.Act, but the accused has failed to substantiate his probable defence before the court and on the other hand he has admitted the issuance of cheque and signasture on the cheque including service of legal notice and hence, the accused is liable for payment of cheque amount as per Section 138 of N.I.Act and decisions cited in this regard are also applicable to the present facts and circumstances of the case.
55. Therefore, for the reasons discussed above, this Court is of the considered view that the materials placed on record clearly establishes the guilt against the accused for the offence punishable U/s.138 of N.I.Act. Hence, I hold that the complainant has proved the guilt against the accused for the offence punishable U/s.138 of N.I.Act. Hence, I answer point No.1 in the Affirmative.
C.C.No.15036/2018
56. POINT. No.2:- The provisions of Section 138 of N.I.Act provides punishment for imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of cheque or with both. In the present case, the complainant and accused are known to each other since several years and the accused has availed loan and issued the cheques in favour of the complainant. The records would also indicate that there was also other transaction between complainant and accused and the accused has repaid earlier loans to the complainant. Therefore, considering the nature of loan between complainant and accused and regard being had to the facts and circumstances of the case including time taken for disposal of the case, this Court is of the considered view that if the following sentence is awarded, then it would meet the ends of justice. Hence, in view of my findings on point No.1, I proceed to pass the following:-
O RDE R The accused is found guilty for the offence punishable U/s.138 of Negotiable Instruments Act.
Hence, acting U/sec.255(2) of Cr.P.C, the accused is convicted and sentenced to pay fine of Rs.18,00,000/-(Rupees Eighteen Lakhs Only), in default of fine amount, he shall undergo simple C.C.No.15036/2018 imprisonment for six months for the offence punishable under section 138 of N.I.Act.
Out of the fine amount collected from the accused, an amount of Rs.17,75,000/- shall be paid to the complainant as compensation U/s.357 of Cr.P.C. and the remaining fine of Rs.25,000/- shall be adjusted towards the cost of state expenses.
The bail bond of the accused shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.
The cash surety of Rs.10,000/-
deposited by the accused vide Q.No.7359/2018 dated 31.07.2018 shall be refunded to the accused after appeal period is over with due identification.
Office to supply the copy of the Judgement to the accused forthwith at free of cost.
(Dictated to the stenographer, transcribed by him, print out taken by him, verified, corrected and then pronounced by me in the open Court on this the 18th November 2022).
(N.M.RAMESHA) XVI ACMM, Bengaluru City.
C.C.No.15036/2018 ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Ashwin R.Shenoy
2. List of documents exhibited on behalf of the Complainant:-
Ex.P.1 : Original Cheque. Ex.P.1(a) : Signature of the Accused. Ex.P.2 : Bank Memo. Ex.P.3 : Copy of Legal Notice. Ex.P.4 to P.6 : Postal Receipts. Ex.P.7 : Copy of Legal Notice. Ex.P.8 : Postal Cover. Ex.P.9 : Receipt. Ex.P.10 to 12 : Acknowledgements Ex.P.13 to 15 : e-mail messages DW-1 Ex.P.16 : On Demand Pronote/Consideration Rect. Ex.P.16(a) : Signatures of accused &(b) Ex.P.17 : Letter. Ex.P.17(a) : Signature of accused.
3. List of witness/s examined on behalf of the Accused:-
DW-1 : Sai Gangadhar Polineni.
C.C.No.15036/2018
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 : ICICI Bank Statement.
Ex.D.2 : Cheque Status.
Ex.D.3 : Cheque Status
Ex.D.4 : 65-B Certificate.
(N.M.RAMESHA)
*mbh* XVI ACMM, Bengaluru City.
C.C.No.15036/2018