Bangalore District Court
Sri. Rajanna vs Smt. M. Lalithamma on 29 January, 2020
1 C.C.No.28208/2014 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
i. Dated:- This the 29th day of January, 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.28208/2014
Complainant : Sri. Rajanna,
S/o. Late Kumbaiah,
Aged about 42 years,
Residing at No.116/7,
5th Main, Kempegowda Layout,
Kaverinagar,
Bengaluru - 560 085.
Rep. by Sri B.K.Karigowda., Adv.,)
- Vs -
Accused : 1. Smt. M. Lalithamma,
W/o. B.Ramesh,
Aged about 46 years,
2. Sri.B.Ramesh,
S/o. Late Gowdaiah,
Aged about 50 years,
Both are resident at
New No.226, Old No. 132,
Sri.Ankanatheshwara Nilaya,
Madakari Nayaka Road,
Lakshmipura ,
2 C.C.No.28208/2014 J
Gavipura Guttahalli,
Bengaluru -560 019.
(Rep. by Sri. N.M.Parameswara.,
Adv.,)
Case instituted : 10.3.2014
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused No.1 & 2 are convicted
Date of order : 29.1.2020
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, Accused persons are of the good acquaintance of him and in order to meet some of legal and domestic necessities and to clear loans approached him during the month of September 2013 and requested financial assistance of Rs.2,50,000/= agreeing to repay the said amount within three months and considering the acquaintance he has paid a sum of Rs.2,50,000/= on 15.9.2013 by way of 3 C.C.No.28208/2014 J cash at that time the Accused have agreed to repay the same within three months, after expiry of the three months he approached the Accused and requested to discharge liability for which the Accused have issued a cheque bearing No. 297003 dated: 26.12.2013 for Rs.2,50,000/= drawn on Union Bank of India, Contonment Bengaluru assuring him that, the said cheque would be honoured on its presentation. It is further contended that, as per the assurance of the Accused he has presented the said cheque through his banker i.e. Karnataka Bank Ltd., Netkalappa Circle, Basavanagudi, Bengaluru but the said cheque was returned dishonoured with a shara of "Funds Insufficient' dated; 6.2.2014, hence he got issued legal notice dated: 13.2.2014 through his advocate by way of RPAD calling upon the Accused No.1 and 2 to discharge liability covered under the cheque and the said notice has been returned as unserved on the Accused but the Accused did not pay the cheque amount or complied the notice. Hence the complainant has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
4 C.C.No.28208/2014 J3. Before issuing process against the accused, the Complainant has filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the averments of the complaint and he has produced original documents.
4. Prima-facie case has been made out against the accused persons and summons were issued against them in turn they have appeared before the court and got enlarged on bail and the substance of the accusation has been read over to the Accused No.1 and 2 to which they pleaded not guilty and claims to be tried.
5. Thereafter the complainant examined himself as PW.1 by filing his affidavit in lieu of examination-in-chief. In support of his sworn statement, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.13 i.e, Original Cheque dated:-26.12.2013 as per Ex.P.1, the signatures on the said cheque identified by P.W.1 as that of the accused No.1 and 2 are as per Ex.P.1(a) and P.1(b) respectively, the Bank Memo as per Ex.P.2, the office copy of the Legal Notice as per Ex.P.3, the Postal 5 C.C.No.28208/2014 J Receipts as per Ex.P.4 and P.5 copies of the returned legal notices as per Ex.P.6 and P.7 respectively, RPAD covers as per Ex.P.8 and P.9, postal receipts as per Ex.P.10 and P.11, and postal acknowledgements as per Ex.P.12 and 13.
6. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. The Accused No.1 and 2 have denied the incriminating evidence appearing against them and have chosen to lead their rebuttal evidence.
7. Accused No.2 himself examined as DW.1 and no documents have been marked on their behalf and closed their side.
8. Heard the arguments of both sides and perused the written argument submitted by the learned counsel for the complainant and materials on record.
9. On the basis of complaint, evidence of complainant and documents and having heard the arguments of both learned counsels for the 6 C.C.No.28208/2014 J complainant and the accused, the following points that are arise for consideration are:-
1. Whether the complainant proves that the accused No.1 & 2 have issued a cheque bearing No.297003 dated:
26.12.2013 for Rs.2,50,000/= drawn on Union Bank of India, Contonment Bengaluru to discharge legally recoverable debt to the complainant and when the complainant has presented a cheque for encashment through his banker but the said cheque has been dishonoured for the reasons "Funds Insufficient" on 6.2.2014 and the complainant issued legal notice to the accused No.1 & 2 on 13.2.2014 and inspite of it the accused No.1 & 2 have not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
10. The above points are answered as under:
Point No.1: In the Affirmative Point No.2:As per final order for the following:
REASONS
11. Point No.1: Before appreciation of the facts and oral and documentary evidence of the present 7 C.C.No.28208/2014 J case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act pre-supposes three conditions for prosecution of an offence which are as under:
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and 8 C.C.No.28208/2014 J
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
12. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e., U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are 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 9 C.C.No.28208/2014 J conclusive and 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.
13. In the present case the complainant got examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire averments of the complaint and in his evidence testified regarding advancing of loan amount of Rs.2,50,000/= to the Accused persons as a hand loan in the month of September 2013 and at the time of borrowing the said amount, the Accused have agreed to repay the said amount within three months but the Accused persons have not paid the said amount with the time and after expiry of the said period he approached the Accused requested to discharge their liability at that time, the Accused have issued the cheque i.e. Ex.P.1 for sum of Rs.2,50,000/= towards discharge of the said liability by assuring that, the said cheque would be honoured on its presentation The complainant/ PW.1 further testified that, he has presented the said cheque through his banker but the but the said cheque was returned dishonoured with shara that 10 C.C.No.28208/2014 J "Funds Insufficient" dated:- 6.2.2014. Thereafter on 13.2.2014 he caused legal notice to the accused persons calling upon them to pay the amount covered under the dishonoured cheque through RPAD and the notice have been returned to him but the Accused neither paid the amount nor replied the notice.
14. In support of her oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.13 i.e. Original Cheque dated:-26.12.2013 as per Ex.P.1, the signatures on the said cheque identified by P.W.1 as that of the accused No1. and 2 are as per Ex.P.1(a) and P.1(b) respectively, the Bank Memo as per Ex.P.2, the office copy of the Legal Notice as per Ex.P.3, the Postal Receipts as per Ex.P.4 and P.5, copies of the returned legal notices as per Ex.P.6 and P.7 respectively, RPAD covers as per Ex.P.8 and P.9, postal receipts as per Ex.P.10 and P.11 and postal acknowledgements as per Ex.P.12 and P.13 respectively.
15. In the present case, there is no dispute between the complainant and Accused No.1 and 2 11 C.C.No.28208/2014 J with regard to their acquaintance. It is also not in dispute by the accused No,.1 and 2 that, the cheque in question belongs to their account and signatures found at Ex.P.1(a) and P.1(b) are also those of the Accused No.1 and 2.
16. Though the learned counsel for the Accused has taken the contention that, the there is a delay in receiving the bank memo i.e Ex.P.2 it creates a doubt that, the complainant has not explained the receipt of bank memo on 6.2.2014 though he has allegedly presented the cheque in question i.e Ex.P.1 on 26.12.2013. The complainant during his cross-examination has stated that, he has presented the cheque on 26.12.2013 and on 6.2.2014 he received back the cheque from the bank, during the said period of two months he was not in station, for which he did not approached the bank and enquire about the cheque and at the time of presentation of the cheque the concerned bank has not issued the endorsement to him but when he was approached the bank on 6.2.2014 the concerned bank has issued endorsement to him, therefore the explanation offered by the complainant in respect of 12 C.C.No.28208/2014 J delay in receipt of endorsement from the bank i.e Ex.P.2 is acceptable one. It is settled law that, there is no time limit is fixed for receipt of bank endorsement from the date of presentation of the cheque under sec.138 of N.I.Act, but U/s.138(b) the time is fixed for the holder in due course to issue notice in writing within one month from the date of receipt of endorsement from the bank with regard to dishonour of the cheque presented by the holder in due course. In the present case it is not in dispute that, the cheque bearing dated:- 26.12.2013 was presented on the same day i.e within six months from the date of issuance of the cheque, therefore the cheque in question is presented within its validity period. It is also seen from the record that, the concerned bank has issued memo as per Ex.P.2 on 6.2.2014 and thereafter the complainant got issued legal notice to the Accused on 13.2.2014 i.e. within 30 days from the date of receipt of bank memo i.e Ex.P.2, hence the legal notice caused by the complainant is within the time fixed U/s.138(b) of N.I. Act. Though the Accused have taken the defence that, the complainant has created the Ex.P.2 but nothing has been produced before the court to 13 C.C.No.28208/2014 J accept their defence that, the complainant got created Ex.P.2, if really the Accused have got such doubt about Ex.P.2, definitely they would have examine the concerned bank manager to prove their defence but no such efforts have been made by the Accused, in such circumstances as an matter on record i.e documentary proof Ex.P.2 which is produced by the complainant has not been denied by the Accused but only they have disputed the delay in receipt of the Ex.P.2 but they did not disputed the issuance of Ex.P.2 from the bank, therefore the defence taken by the Accused with regard to delay in receipt of Ex.P.2 cannot be acceptable one as the complainant offered the explanations with regard to delay is acceptable one. Hence, on careful perusal of Ex.P.1 to P.3 it can be held that, the Accused have admitted the cheque in question belongs to their account and signatures found on the cheque are those of their signatures and the complainant has also proved that, the subject cheque has been presented to the bank within its validity period and as per the bank memo i.e. Ex.P.2 the cheque presented by the complainant was dishonoured for want of sufficient funds in the account of the 14 C.C.No.28208/2014 J Accused and thereafter within 30 days from the date of receipt of legal notice the complainant caused legal notice to the Accused as per Ex.P.3.
17. In relation to the service of notice the Accused have denied in the cross-examination of complainant and in the evidence of Accused No.2. The complainant in order to prove service of notice upon the Accused has produced the documents i.e copy of the legal notice, postal receipts, returned legal notices RPAD covers, with postal receipts and postal acknowledgements which are at Ex.P.3 to P.13 respectively. On perusal of the Ex.P.8 and P.9 i.e., RPAD covers returned to the complainant wherein it is mentioned that, the said covers returned to the complainant as "Absent, returned to sender" hence, it goes to show that, the legal notice caused by the complainant were returned with an endorsement of "Absent". The learned counsel for the Accused during the course of cross-examination of the complainant has denied the service of notice upon the Accused by contending that, he has not produced document to show that, house number of the Accused is 226 and old number is 132 but the 15 C.C.No.28208/2014 J complainant admitted that, he has not produced the documents to show that, house number of the Accused is 226 and he do not know the old number of the house of the Accused persons is 132. It is also admitted that, if the house number is 116/7 and the notice is issued by mentioning the house number as 7/116 the notice cannot be served on the said address. It is relevant here to mention that, though the Accused have denied the service of notice by contending that, complainant has mentioned wrong house number of the Accused persons and admitted that, notice would not have been served if house number is wrongly mentioned. But the Accused have not disputed their name and address mentioned in the legal notice and on the postal RPAD covers, receipts and acknowledgements except the house number, in such circumstances it can be held that, the Accused persons have admitted their address as correct address except the house number. But the Accused No.2/DW.1 in his cross-examination has clearly admitted that " £ÁªÀÅ 2014 gÀ°è ªÁ¸ÀªÁVzÀÝ ªÀÄ£É £À£Àß ºÉAqÀwAiÀiÁzÀ 1 £Éà DgÉÆæAiÀÄ ºÉ¸Àj£À°èvÀÄÛ. 2014 gÀ°è £ÁªÀÅ D ªÀÄ£ÉAiÀÄ°è ªÁ¸ÀªÁVzÉݪÀÅ JAzÀgÉ ¤d.
16 C.C.No.28208/2014 J¸ÀzÀj ªÀÄ£ÉAiÀÄ «¼Á¸À £ÀA.132, 4 £Éà PÁæ¸ï, ªÀÄzÀPÀj£ÁAiÀÄPÀ£À gÀ¸ÉÛ ®QëÃ¥ÀÅgÀ PÉ.f.£ÀUÀgÀ, ¨ÉAUÀ¼ÀÆgÀÄ-19 EgÀÄvÀÛzÉ. 2014 gÀ°è ¸ÀzÀj «¼Á¸ÀzÀ ªÀÄ£ÉAiÀÄ°è ªÁ¸ÀªÁVzÉݪÀÅ.
Hence, the admissions of the DW.1 makes it clear that, he has admitted the address mentioned by the complainant in the legal notice and on the postal covers and receipts and acknowledgements is that of their residential address and also admitted that, during the year 2014 they were residing in the said residential address. It is true that, the complainant has not produced any document to prove the address of the Accused persons but when they admitted their address, in such circumstances, there is no need for the complainant to produce the address proof of the Accused, on the contrary it is for the Accused to disprove the address mentioned by the complainant is not of their address or their correct address or as on the date of issuance of legal notice they were/are not residing in the said address, but the Accused have not produced any document to disprove the address mentioned by the complainant is not of their residential address or correct address or they were not residing at the time 17 C.C.No.28208/2014 J of issuance of the legal notice by the complainant. In addition to that, the Accused No.1 and 2 though the court has directed them to produce their Aadhar card or Voter id or any of documents showing their correct address at the time of granting bail to them i.e., on 16.12.2019 but the Accused did not produced any of such documents to show their correct address in such circumstances also an adverse inference can be drawn against the Accused that, for the purpose of this case the Accused have intentionally not produced the documents to show their correct address. Apart from that, the DW.1 in his evidence has stated his address, on perusal of the said address and address mentioned by the complainant in the legal notice are one and the same, even the complainant has given more sufficient address then the DW.1 given at the time of his evidence, on this count also the defence of the Accused cannot be acceptable one.
18. Therefore from careful perusal of the oral and documentary evidence produced by the complainant and admissions of the Accused makes it clear that, the legal notice caused by the 18 C.C.No.28208/2014 J complainant as per Ex.P.3 and sent through RPAD is to the correct address of the Accused No.1 and 2 and the said notice was returned to the complainant as absent. Hence, it goes to show that the accused have admitted that the complainant has issued a legal notice through RPAD to their correct address, in such circumstances it can be held that, the legal notice issued by the complainant was to the correct address of the Accused persons and same have been served or otherwise it can be presumed U/s.27 of the General Clauses Act that, where notice is sent to the correct address, the same shall be presumed to have been duly served. In this regard, it is relevant here to refer the decision reported in 2011 ACD 1572 (KAR) "Jayamma v/s. Lingamma", in which the Hon'ble High Court held that, notice sent at correct address returned unclaimed is deemed to be served and in another decision reported in 2008(4) Civil code cases 027 (SC) "M/s. Indo Automobiles Vs., M/s. Jai Durga Enterprises and others." wherein the Hon'ble Apex Court held that, notice sent by registered post with acknowledgement to a correct address-service of notice has to be presumed. Therefore in view of the principles of law in the 19 C.C.No.28208/2014 J above decision, it can safely be held that, the service of notice on accused persons is presumed to be served on them since in this case also the complainant has issued notice to the accused persons to their correct address through registered post and the said notice was returned as "absent returned to sender", hence, the notice issued by the complainant through registered post is held to be proper service. In addition to that, it is relevant here to refer the decision of Hon'ble High Court of Karnataka decided in Crl. Revision Petition No. 219/2019 dated: 12.11.2019 in the case of Smt. Prabhavathi K.R and another Vs. Sri. Lokesh wherein the Hon'ble High Court held that "the Accused specifically contended that, the house number is 2317 but in the notice house number has been mentioned as 2371. But the other contents have not been denied by the Accused. I am conscious of the fact that, in Bengaluru if a single digit is changed, under such circumstances, there will be long gap and it is very difficult for any postman to identify the house and deliver the said registered document to the addressee but when the complainant made out a case that, as per Ex.P.6 the 20 C.C.No.28208/2014 J notice has been duly served then under such circumstances the duty cast upon the Accused to rebut the presumption by establishing either by calling the postman or the other competent personalities who were in the post office as to whom and what place the said article has been delivered." Hence in the present case also the legal notice issued by the complainant to the Accused were returned with a postal endorsement of "Absent returned to sender", and the said endorsement has been denied by the Accused persons. In such circumstances it is for the Accused to rebut the same either by examining the postal authorities or by competent persons but in the present case no such efforts have been made by the Accused, therefore the defence of the Accused cannot be acceptable one.
19. In addition to the above, it is relevant here to refer the decision reported in 2007 AIR SCW 3578 in the case of C.C.Alavi Haji Vs. Palapetty Muhammed and another., wherein the Hon'ble Apex court held that " the drawer of the cheque is permitted to deposit the cheque amount 21 C.C.No.28208/2014 J within 15 days from the date of his appearance before the court in pursuance of the service of summons on him and in such situation, his defence of non service of the legal notice cannot be available to him'. Hence, in view of the said principles of law, even for sake of discussion, though there is no cogent and reliable documentary proof to substantiate the claim of the complainant with regard to address of the Accused to show there is due service of the legal notice on the Accused, in view of settled position of law by virtue of the above said decision of Hon'ble Apex Court of India, the Accused is not entitled to the technical defence of the alleged non service of the legal notice. Therefore, the contentions taken by the learned counsel for the accused that, the notice issued by the complainant was not served on the accused and the complainant has not complied the mandatory requirements of Sec.138(b) of N.I.Act and complaint is not maintainable cannot be acceptable one.
20. The Accused have also taken defence that, the complainant is not having sufficient source of income to lend the loan amount to the Accused 22 C.C.No.28208/2014 J persons and has not collected any documents at the time of alleged lending of loan amount and the Accused have not borrowed any amount from the complainant and have not issued subject cheque i.e. Ex.P.1 to the complainant towards discharge of alleged loan transaction in question. In this regard, the learned counsel for the Accused has cross examined the complainant in length but nothing has been elicited to discredit or discard his evidence, instead of eliciting anything materials from the complainant the Accused rather concentrated their defence that, there was no financial transaction as alleged by the complainant between them and the complainant, but the complainant has specifically stated that, earlier he was proprietor of Sri.Balaji Agencies and now doing Gas Agency i.e. he was holding an agency of manufacturing of Agarbhathi since the year 2008 to 2013 i.e., about 7 to 8 years and at that time he was getting income of Rs.40,000 to Rs.50,000/= p.m. and by excluding his family, educational expenditure of his children and other expenditures he used to save Rs.25,000/= p.m. and same has been shown in his I.T. returns. The complainant/PW.1 has also stated that, the Accused 23 C.C.No.28208/2014 J approached him in the month of September 2013 and requested the financial assistance when he was working in Gas Agency at Netkalappa Circle, Basavanagudi, but at that time he has not paid the amount and requested five days time to pay the amount, thereafter he has paid the amount of Rs.2,50,000/= to the Accused. The complainant/ PW.1 has also stated that, he has paid an amount of Rs.2,50,000/= to the Accused by way of cash, out of the amount saved from the Gas agency and also Agarbathi agency and has denied the suggestions made to him that, he is not having financial capacity to pay an amount of Rs.2,50,000/= to the Accused and has not produced the documents since he is not having source of income. It is true that, the complainant in his cross-examination admitted that, he has not taken any documents from the Accused persons at the time of lending the loan amount but the complainant stated that, on their belief he has lent the loan amount to the Accused and since nine years they known to each other. It is also true that, the complainant admitted that, he had documents to show that, he is having an amount of Rs.2,50,000/= and he will produce the said documents before the 24 C.C.No.28208/2014 J court. The complainant's counsel has produced the documents i.e., I.T. returns documents for the year 2010-11, 2011-12, 2012-13, 2014-15 and 2015-16 but the said documents are not marked, however the Accused during the course of cross-
examination had asked the complainant for production of the document to show that, the complainant was having an amount of Rs.2,50,000/=, in such circumstances the I.T.
returns documents which are produced by the complainant can be looked into though they are not marked on behalf of the complainant and the perusal of the I.T. Returns documents produced by the complainant makes it clear that, as on the date of lending of the loan amount to the Accused persons, the complainant was having sufficient source of funds. It is true that, the complainant admitted that, he used to do his financial transaction through cheques since he is an income tax and commercial tax payee but the complainant voluntarily stated that, whenever he used to lend petty amount he used to lend the same by way of cash. The complainant has denied the suggestions made to him that, whenever the Accused received an 25 C.C.No.28208/2014 J amount of Rs.5,000/= and Rs.10,000/= as a loan at that time for security of the said loan amount, he had collected their signed blank cheque i.e., Ex.P.1 and though the Accused have repaid the said amount and requested to return of their signed blank cheque given to him as a security but the complainant postponed the same stating that, the said cheque will be given to them since it was kept in his friend's house but he did not return the said cheque. The complainant has also denied the suggestion that, inorder to gain wrongful amount has filled the cheque in question and presented this complaint against the Accused by misusing the subject cheque given by them towards security of loan amount of Rs.5,000/= borrowed by them. Therefore, nothing has been elicited from the complainant to disbelieve the claim made by him and accept the defence of the Accused. No doubt, the complainant admitted that has not collected the documents from the Accused at the time of lending the loan amount and has not produced the documents to show that, he has lent the loan amount in cash to the Accused, but only on the basis of said admissions it cannot be held that, there 26 C.C.No.28208/2014 J was no transaction took place between the complainant and Accused as admittedly the Accused have admitted issuance of cheque i.e Ex.P.1 to the complainant and their signatures on the Ex.p.1 cheque, therefore unless and until the Accused has rebutted the presumption available to the complainant U/s.118 and 139 of N.I.Act., the discrepancies of the complainant in his cross- examination as elicited by the Accused cannot be taken into consideration to disbelieve his claim.
21. It is important to note here that, on careful perusal of the entire oral and documentary evidence produced by the complainant i.e Ex.P.1 to P.13 and admitted facts by the Accused as it is already held in the above that, the complainant proved that the cheque in question belongs to the Accused No.1 and 2 i.e Ex.P.1 and signatures found at Ex.P.1(a) and P.1(b) are those of the signatures of the Accused No1. and 2 and also proved that, the cheque in question was presented within its validity period and it was dishonoured for the reason of "Funds Insufficient" as per Ex.P.2 and thereafter the legal notice caused by him through RPAD to the 27 C.C.No.28208/2014 J Accused it was returned with a shara of "Absent returned to sender" but inspite of it, the Accused have not given any reply to the legal notice, in such circumstances, it can be held that, the complainant has discharged his initial burden by complying the mandatory requirements as required U/s.138 of N.I. Act and initial presumptions are available in favour of the complainant U/s.118a and 139 of the N.I. Act. Consequently it is for the Accused No.1 and 2 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 U/s.118 and 139 of N.I.Act are available to the complainant, even a presumption can be drawn to the extent of existence of legally recoverable debt or liability against the Accused unless and until the said presumptions are rebutted by the Accused, even in the absence of documents produced by the complainant with regard to loan transaction in question.
28 C.C.No.28208/2014 J22. It is true that, the complainant has produced the documents i.e. I.T. returns documents for the particular year but the said documents have not been marked on his behalf to show that, he is having sufficient source of income to lend the loan amount, inspite of it, it is an admitted fact that, the subject cheque in question was issued by the Accused to the complainant and admitted signatures on the cheque, all those of Accused No.1 & 2, in such circumstances a presumption can be drawn towards existence of legally recoverable debt. 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 29 C.C.No.28208/2014 J Bench Decision reported in (2010) 11 SCC 441 in the case of Rangappa Vs. Sri. Mohan ., wherein the Hon'ble Apex Court held that " A. Negotiable Instruments Act, 1881 - S.139 -
Presumption under - scope of - Held, presumption mandated by S. 139 includes a presumption that there exists a legally
enforceable debt or liability - However such presumption is rebuttable in nature - Criminal Trial - Proof - Presumptions - Generally. Further held that "Signature on the cheque was his, statutory presumption under S.139 comes into play and the same was not rebutted even with regard to the materials submitted by complainant Appellant not able to prove "lost cheque" theory - Apart from not raising a probable defence appellant was also not able to contest the existence of a legally enforceable debt or liability - hence, his conviction by High Court, held, proper. In another decision of Hon'ble Apex Court of India, reported in CRIMINAL APPEAL NO. 508 OF 2018 DT 15-03-2018 between ROHITBHAI JIVANLAL PATEL Vs STATE OF GUJARAT AND ANR held that "Negotiable Instruments Act facts like 30 C.C.No.28208/2014 J 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 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 31 C.C.No.28208/2014 J 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 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 32 C.C.No.28208/2014 J prove that, the cheque was issued by the Accused and that when the same presented , it was not honoured Since there is a statutory presumption of consideration, the burden is on the Accused to rebut the presumption that, the cheque was issued not for any debt or other liability ". It is also relevant here to refer the decision of Hon'ble High Court of Karnataka reported in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption 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 cross-examination, he categorically admits that, the cheque has bounced on account of no sufficient fund in the bank account of the Accused. Mere non 33 C.C.No.28208/2014 J 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".
23. 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, a presumptions U/s.118a and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt and 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 regarding source of funds were not of relevant unless the Accused are rebutted the presumption available to the complainant as held by 34 C.C.No.28208/2014 J the Hon'ble Apex Court and High Court of Karnataka in the above decisions. In the present case also the complainant has complied the mandatory requirements and has proved that, the Accused have issued the cheque in question in his favour and the Accused have admitted the cheque belongs to them and signatures appearing on the cheque are those of their signatures and even after service of the notice, but the Accused have not given any reply or complied the terms of the notice, 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 defence of the Accused that, the complainant has not produced any documents to show that, he had sufficient source of income to lend the amount of Rs.2,50,000/= to them and has failed to produce any document to prove that, he has lent the loan amount to them and has not collected any documents from them to show that, he has lent the loan amount to them, cannot be acceptable one, in view of the principles of law laid down in the above referred decisions as it is presumed that, cheque in question was drawn for consideration, as the 35 C.C.No.28208/2014 J Accused have admitted the cheque in question belongs to them and signatures found on the cheque in question are also those of their signatures.
24. It is relevant here to mention that, the Accused No.1 and 2 in order to rebut the presumption available to the complainant U/s.118 and 139 of N.I.Act the Accused No.2 himself examined as DW.1, in his evidence stated that, since 20 years he is residing in the address shown by him and he knows the complainant since the year 2004 when he was working in Ganesh Agency and complainant was also working in Balaji Agency at that time, he was getting a salary of Rs.4,000/= to Rs.5,000/= p.m., and the complainant and he are used to visit their respective houses and also used to help each other whenever they are in need of such help. The DW.1 further stated that in the year 2008 he requires an amount of Rs.5,000/= to pay house rent , at that time he borrowed the said amount from the complainant and the complainant insisted him to give any document for security but at that time he was not having any document but the 36 C.C.No.28208/2014 J complainant has collected a blank signed cheque of his and his wife's joint account and advanced Rs.5,000/= to him and at that time he was only signed to the cheque but later the signature of his wife was also taken on the said cheque i.e Ex.p.1 . Thereafter he has return entire amount of Rs.5,000/= on monthly basis of Rs.1,000/= each and requested for return of the cheque given as a security but he postponed the same till the period of two years as it was kept in his friend's house but he did not return the said cheque to him. The DW.1 further stated that, he came to know about this case only after police have came along with warrant and has not received any notice in this case and has not taken any action against the complainant in view of their friendship.
25. The Accused No.1 and No.2/DW.1 in order to substantiate their defence have not produced any document to show that, the complainant has advanced an amount of Rs.5,000/= in the year 2008 and at the time of lending the said amount he has insisted to give document for security and collected the subject cheque i.e Ex.P.1 as blank 37 C.C.No.28208/2014 J signed cheque from the Accused No.1 and 2 as a security to the alleged loan of Rs.5,000/=. The Accused except the oral self serving statement have not produced any documents to show that, the Ex.p.1 was collected by the complainant as alleged by them, in the absence of such materials and documentary proof it is very difficult to accept the defence of the Accused.
26. It is relevant here to mention that, according to the Accused No.1 and 2 they have given signed blank cheque i.e Ex.P.1 to the complainant as a security towards the loan amount o Rs.5,000/= borrowed by the Accused No.2 from the complainant in the year 2008 itself and even though they had repaid the said amount to the complainant and requested to return the cheque given to him as a security but the complainant did not return the same. If really the Accused No.1 and 2 have given the subject cheque as blank signed cheque to the complainant towards security of their earlier alleged loan borrowed from the complainant and even after repayment of the said loan the complainant did not return the cheque, definitely the Accused would have 38 C.C.No.28208/2014 J taken any civil or criminal action against the complainant either by filing the complaint before the concerned police or filing the case before the competent course of law or by issuing notice to the complainant or atleast they would have issued stop payment instructions to their bank but no such efforts have been made by the Accused No.1 and 2 , in such circumstances the unnatural conduct of the Accused No.1 and 2 for non initiation of legal action against the complainant for getting return of their blank signed cheque , certainly an adverse inference can be drawn against them that, the cheque in question was issued to the complainant towards discharge of legally recoverable debt. In this regard, it is relevant here to refer the decision of Hon'ble Apex Court of India reported in AIR 2018 SC 3601 in a case of T.P.Murugan(dead) Thr. Lrs.V. Bhojan Vs. Posa Nandi, rep. Thr. Lrs. PA holder, T.P. Murugan V. Bhojan, wherein the Hon'ble apex Court held that "Negotiable Instruments Act (26 of 1881) Ss.118, 138, 139 - Dishonour of cheque - Presumption as to enforceable debt- cheques allegedly issued by accused towards repayment of debt- Defence of 39 C.C.No.28208/2014 J 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, Proper." Hence by applying the above principles of law to the present facts of the case in the present case though the Accused have taken contention that, the complainant has collected their blank signed cheque at the time of advancing loan of Rs.5,000/= to them as a security and same has been misused by him even after repayment of the said loan amount but the Accused have not produced any documents to prove the said defence, under such circumstances, it can be held that, the accused have not made any efforts to get return of the cheque in question alleged to have been given to the complainant for security of the amount given by the complainant in respect of alleged earlier loan 40 C.C.No.28208/2014 J transaction, 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 and presumption U/s.139 of N.I. Act would operate against them , as they have admitted the signatures and cheque in questions are belongs to them.
27. It is also relevant here to mention that, the Accused have taken specific defence that, the complainant has misused the cheque in question which was given by them as a security towards the earlier loan of Rs.5,000/= borrowed by him and even though they repaid the said loan amount the complainant did not return the blank signed cheque but it is already held in the above that, the Accused have miserably failed to prove their defence i.e. the cheque in question was issued by them towards security of the alleged earlier loan amount , in such circumstances it is relevant here to refer the decision of Hon'ble High Court of Karnataka reported in 2015 (1) KCCR 235 in the case of Lale Patel Vs. Sharanabasappa., wherein the Hon'ble High 41 C.C.No.28208/2014 J Court held that : NEGOTIABLE ISNTRUCEMTNS ACT, 1881- section 138 - Dishonour of cheque for insufficiency of funds - Plea of accused that he had given a blank cheque signed as security for a transaction and complainant filled up the contents and denied existence of any debt or loan - Conviction by Trial court - Affirmed by Appellate Court - Revision against. Hence the Hon'ble High Court of Karnataka in the above decision clearly held that, if the Accused has taken defence that, a blank signed cheque has been issued as a security for transaction and the complainant filled up the contents and the accused denied the existence of debt or loan in such circumstances it is for the accused to prove her defence by producing cogent and convincible evidence, if the Accused has not proved the same in such circumstances, it cannot be held that, the cheque in question was issued for the purpose of security in connection with the transaction. In the present case also the Accused have failed to establish their defence that, the cheque in question was issued towards security the earlier loan, under such circumstances the cheque so issued cannot be considered as the one 42 C.C.No.28208/2014 J issued as a security and the defence taken by the Accused is untenable one. In another decision reported in 2015 (4) KCCR 2881 (SC) in the case of T. Vasanthakumar Vs. Vijayakumari wherein the Hon'ble Apex court held that " NEGOTIABLE ISNTRUCEMTNS Act, 1881- Section s138 and 139 - acquittal - If justified- Accused not disputing issuance of cheque and his signature eon it- Plea that it was issued long back as security and that loan amount was repaid- Not supported by any evidence - Fact that date was printed, would not lend any evidence to case of accused- Acquittal not proper. Hence in the present case also it is the main defence of the Accused that the cheque in dispute was alleged to have been issued for security of the alleged earlier loan amount infavour of the complainant and the complainant by misusing the said cheque has filed this complaint but the Accused have admitted the issuance of cheque and their signatures on the said cheque but no documents or proof produced by the Accused to prove their defence in such circumstances by applying the principles of law laid down in the above decision the defence of the 43 C.C.No.28208/2014 J Accused cannot be acceptable one.
28. It is relevant here to mention that, according to the defence of the Accused that, the complainant had collected their blank signed cheque at the time of alleged lending of loan of Rs.5,000/= to them as a security and thereafter he has filled up the cheque and by misusing the said cheque has field this case against them but the complainant in his cross-examination has denied the said suggestions made to him. As it is already held in the above that, the Accused have failed to prove their defence that, the complainant had collected the alleged blank signed cheque from the Accused, in such circumstances the defence of the Accused cannot be acceptable one. However, even for sake of discussion if it is assumed that, the contents of the subject cheque is not filled in by the Accused even under such circumstances also, unless and until the Accused has proved their defence by producing cogent and convincible evidence, it cannot be held that, the contents of the cheque have been filled in by the complainant. In this regard, it is a relevant here to refer the decision of Hon'ble Apex Court of 44 C.C.No.28208/2014 J 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 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 have denied the contents of the cheque in question except their signatures but they have failed to prove their defence or produced any documents or satisfactory evidence to rebut the presumptions as available U/s.139 of the N.I. Act, under such circumstances in view of the above principles of law, it can be presumed even on fact also that the complainant has proved his case by discharging his burden and complying the mandatory provisions. In the said decision the Hon'ble Apex court has also 45 C.C.No.28208/2014 J held that, "presumption as to legally enforceable debt is rebuttable, the signed blank cheque if voluntarily presented to payee towards payment payee may fill up amount and other particulars and it in itself would not invalidate cheque and onus would still be on the accused to prove that, cheque was not issued or discharge of debt or liability by adducing evidence." In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, "
Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the 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 46 C.C.No.28208/2014 J held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. In such circumstances even if it is assumed that, the complainant admitted that, the contents of cheque in question were filled in by him 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 cheque was filled in by the complainant in presence of the Accused at his/her consent and the said cheque has been issued towards discharge of legally recoverable debt.
29. The learned counsel for the defence during the course of cross-examination of the complainant has elicited that, complainant has not produced his income tax returns and also failed to produce that, the complainant has declared the loan transaction in question in his I.T. returns. It is true that, the complainant has admitted that, he has not produced Income tax documents to show that, he is having sufficient source of income but that itself does not invalidates the transaction in question. In this regard, it is necessary here to refer the decision of our Hon'ble High court of Karnataka reported in 47 C.C.No.28208/2014 J 2019(1) Kar. L.R.185 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat in the said case the Hon'ble High Court of Karnataka held that "
Negotiable Instruments Act, 1881 - Sections 138 and 139 -Endorsement 'payment stopped by drawer' - The trial court in the instant case, merely considered a suggestion made from the Accused side in the cross-examination of PW-1 that the complainant was an income tax assessee and that he has not declared the alleged loan transaction in his returns and disbelieved the case of the complainant that too, ignoring that legal presumption under section 139 of the N.I. Act, was operating in favour of the complainant- For these reasons, it has to be held that the complainant has beyond reasonable doubt proved the guilt of the Accused punishable under Section 138 of the N.I. Act. As such, the impugned judgment of acquittal passed by the trial court deserves to be set aside and respondent/Accused is liable to be convicted for the offence punishable under Section 138 of the N.I. Act. Hence in view of the principles of law laid down by the Hon'ble High court of India in the 48 C.C.No.28208/2014 J above referred decision in the present case also both the complainant admitted that, he has not produced his I.T. Returns documents but as it is already stated that, the complainant has discharged his primary burden by complying the mandatory provisions of Sec.138 of N.I. act, therefore it is for the accused to rebut the presumption existing infavour of the complainant U/s.139 of Negotiable Instruments Act and in view of non production of document could not by itself draw an adverse inference and to hold that, there was no existence of legally enforceable debt or the presumption as envisaged U/s.139 of N.I.Act is successfully rebutted by the accused. In another decision of Hon'ble Madhya Pradesh High Court decided in C.R.R No.5263/2018 dated: 7.3.2019 in the case of Smt. Ragini Gupta Vs. Piyush Dutt Sharma Gwalior., wherein the Hon'ble High Court held that, mere non filing of income tax return would not automatically dislodge the source of income of the complainant and non payment of income tax is a matter between the revenue and assessee and if the assessee has not disclosed his income in the income tax return, then the income tax department is well 49 C.C.No.28208/2014 J within its right to reopen the assessment of income of the assessee and to take action as per provisions of Income Tax Act, however non filing of income tax return by itself would not mean that, the complainant had no source of income and thus no adverse inference can be drawn in this regard only because of absence of income tax return. Hence in view of the principles of law laid down by Hon'ble High Court of Madya Pradesh in the above said decision in the present case also though the complainant has admitted that, he has not produced the Income tax returns documents but that itself would not automatically dislodge the source of income of the complainant. Therefore the admissions of the complainant which are elicited in his cross-examination are not helpful for the accused to prove their defence that, in view of non disclosure of source of income of the complainant and transaction in question in his income tax returns that itself sufficient to hold that, the complainant has no source of income cannot be acceptable one.
30. Therefore considering all these aspects of 50 C.C.No.28208/2014 J the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant and accused the complainant has successfully established beyond all reasonable doubt that, he has lent a sum of Rs.2,50,000/= to the accused persons as a hand loan and the accused No.1 and 2 in turn have issued subject cheque to the complainant towards discharge of the said debt, thereafter the complainant has presented the said cheque through his banker and same was returned dishonoured with an endorsement of "Funds Insufficient" and thereafter he got issued legal notice to the accused No1 and 2 and the said notice was returned as the Accused were absent and returned to the sender"
and inspite of it, the Accused No1. and 2 did not repaid cheque amount, hence the complainant filed the present complaint against the accused persons. On the other hand, the accused have 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 No1. and 2 have committed an offence punishable U/s.138 of N.I. Act, accordingly for the 51 C.C.No.28208/2014 J above said reasons this point is answered in the Affirmative.
31. Point No.2: Negotiable Instrument Act was enacted to bring credibility to the cheque and the very purpose of enactment is to promote the use of negotiable instrument, while to discourage the issuance of cheque without having sufficient funds in their accounts. Such being the case the intention of the legislature is that, complainant be suitable compensated while accused be punished for their 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 No1. and 2 are convicted for the offence punishable U/sec.138 of N.I.Act.
The accused No.1 and 2 are sentenced to pay a fine of 52 C.C.No.28208/2014 J Rs.2,65,000/= (Rupees Two Lakhs and Sixty Five Thousand only) within one month from the date of order, in default the Accused No.1 and 2 shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.2,60,000/= (Rupees Two Lakhs and Sixty Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
The Bail bond of the Accused No.1 and 2 stands cancelled.
Office is directed to furnish free certified copy of this judgment to the Accused No.1 and 2 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 29th day of January 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.53 C.C.No.28208/2014 J
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.Rajanna;
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 : Original Cheque; Ex.P-1(a) & : Signatures of the Accused No.1 & 2; 1(b) Ex.P-2 : Bank Memo; Ex.P-3 : Office copy of the Legal Notice; Ex.P-4 & P-5 : Postal Receipts;
Ex.P-6 & P-7 : Returned Legal Notices;
Ex.P-8 & P-9 : Postal covers;
Ex.P-10 & : Postal Receipts; P-11 Ex.P-12 & : Postal acknowledgements. P-13
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Sri. Ramesh;
4. List of documents exhibited on behalf of the Accused:-
- Nil-
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.54 C.C.No.28208/2014 J
29.1.2020 Judgment pronounced in the open court vide separate order.
ORDER Acting U/sec.255(2) of Cr.P.C. the accused No1. and 2 are convicted for the offence punishable U/sec.138 of N.I.Act.
The accused No.1 and 2 are sentenced to pay a fine of Rs.2,65,000/= (Rupees Two Lakhs and Sixty Five Thousand only) within one month from the date of order, in default the Accused No.1 and 2 shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.2,60,000/= (Rupees Two Lakhs and Sixty Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
The Bail bond of the Accused No.1 and 2 stands cancelled.
55 C.C.No.28208/2014 JOffice is directed to furnish free certified copy of this judgment to the Accused No.1 and 2 incompliance of Sec.363(1) of Cr.P.C.
XVI ACMM, Bengaluru.