Bangalore District Court
Sri.G.Janardhan vs Sri.Devendra on 14 March, 2022
KABC020082812019
IN THE COURT OF THE JUDGE COURT OF SMALL CAUSES
AND A.C.M.M, AT BENGALURU
Present: UMESHA.H.K, B.A., LL.B.,
JUDGE, Court Of Small Causes,
Bengaluru.
Dated this the 14th day of March, 2022
C.C. No: 1919/2019
Complainant: Sri.G.Janardhan,
S/o.Late Ganapaiah,
Aged about 60 years,
R/at No.360, 24th 'B' Cross,
9th Main, BSK 2nd Stage,
Bengaluru - 560 070.
(By Sri.R.C- Adv.)
-Vs-
Accused: Sri.Devendra,
S/o.Munireddy,
aged about 56 years,
No.2451, 17th 'E' Cross,
9th Main Road,
Banashankari II Stage,
Bengaluru - 560 070.
(By Sri.K.N.S-Adv)
SCCH-09 2 CC.1919/2019
JUDGMENT
Complainant has filed this private complaint under Sec. 200 of Cr.P.C., against accused for an offence punishable under Sec.138 of Negotiable Instruments Act.
2. It is the case of the complainant that, accused father Munireddy had purchased property bearing Sy.No.62, of Doddakallasandra Village, Uttarahalli Hobli, Bangalore South Taluk to an extent of 1 acre 30 guntas including karab land of 6 guntas and entered into an Sale Agreement on 11 th June 2015 and received Rs.25 lakhs as advance by way of cheque bearing No.89799 dt.11.06.2015 drawn on Vijaya Bank, Hanumanthanagara Branch, Bengaluru and it was encashed during June 2015. Further, for completion of sale transaction 9 months time was fixed. The accused also agreed to complete the sale transaction within 9 months. The complainant was ready and willing to perform his part of contract, but accused was not able to execute and register the sale deed. Further despite several reminders, accused was not able to execute and Teresita sale deed. Hence, after SCCH-09 3 CC.1919/2019 negotiation, complainant has agreed to receive back the amount paid with interest. Thereafter, accused agreed to pay sum of Rs.10 lakhs through RTGS and remaining amount of Rs.35 lakhs through cheques and for due discharge of the part amount accused issued three cheques i.e., bearing No.439821 and 439822, both dt.27.12.2018 both were drawn on Indian Overseas Bank, Banashankari II Stage Branch, Bengaluru for sum of Rs.12,50,000/- each and another cheque bearing No.375989 dt.18.02.2019 drawn on Tumkur Grain Merchants Co-Operative Bank Ltd., Jayanagar Branch, 3rd Block, Jayanagar, Bengaluru for sum of Rs.10,00,000/-. On presentation of said cheques through his banker i.e., Vijaya Bank, Hanumanthanagar Branch, Bengaluru and said cheques were returned with an endorsement "Funds Insufficient"
dtd.06.02.2019, 06.02.2019 and 19.02.2019 respectively.
3. It is further case of complainant that he issued legal notice, dated 25.02.2019 through RPAD, the said notice was duly served on 26.02.2019. However, accused did not paid the aforesaid amount. As such accused committed an offence SCCH-09 4 CC.1919/2019 punishable under Section 138 of N.I.Act and prays to convict accused.
4. My Predecessor in Office by taking cognizance for the offence punishable U/Sec.138 of N.I. Act, registered the case as PCR. Sworn statement of complainant was recorded. Thereafter, by perusing the averments of complaint, documents, this court has registered the case as CC in register No.3 and issued summons to accused. In pursuance of summons accused appeared through his Advocate and he is on bail. Plea read over as per the provisions of U/Sec.251 of Cr.P.C. accused pleaded not guilty and claimed to be tried.
5. Complainant in order to prove his case, he himself examined as PW-1 and got marked documents Ex.P1 to 11. Thereafter statement of accused U/Sec. 313 of Cr.P.C. was recorded. Accused denied the incriminating evidence available against him and adduced his defense evidence as DW1 and got marked 13 documents as per Ex.D1 to D13 on his behalf and closed their side.SCCH-09 5 CC.1919/2019
6. Heard the arguments of learned counsel for complainant and accused.
The learned counsel for complainant has filed the following citations:
1) Crl.Petition No.246/1999, dtd.31.08.2001 (P.Vijaylakshmi V/s P.V.Manoharan & anr.)
2) Laws (UTN) 2013 9 35 (Narendra Kumar Sharma V/s Vinod Kumar Kashyap)
3) (2017) 11 SCC 239 (Ashok Kumar Guptha V/s State of Uttar Pradesh & anr.)
4) AIR 2018 SC 3601 (T.P.Murugan (Dead) Thr. Lrs.V Bojan Posa Nandhi Rep. Thr. POA older
5) (2019) SC 126 - AIR 2019 SC 2446 Bir Singh V/s Mukesh Kumar
6) AIR 2019 SC Rohit Bai Jeevanlal Patel V/s State of Gujarath
7) 2002 Crl.L.J 3814
8) 2021 (1) KCCR 545 (M/s. Kalamani Tex & Anr V/s P.Balasubramanian) CRL. Appeal.No.123/2021 (arising out of SLP (Crl.) No.1876 of 2018) dtd.10.02.2021.
The learned counsel for accused has filed the following citations:
SCCH-09 6 CC.1919/2019
1) Crl.Appeal No.838/2008 dt.08.05.2008 (Aneeta Hada) V/s God Father Travels & Tour Pvt. Ltd., (2008) 13 SCC 703
2) (2020) 15 SCC 348 (Anss Rajashkear V/s August Jeba Ananth
3) (2006) 6 SCC 39 (Narayana Menon @ Mani V/s State of Kerala & anr.)
4) (2019) 5 SCC 418 (Basalingappa V/s Mudibasappa)
5) (2019) 4 SCC 197 (Bir Singh V/s Mukesh Kumar)
6) (2015) 1 SCC 99 (K.Subramani V/s K.Damodara Naidu)
7) (1999) 7 SCC 510 K.Bhaskaran V/s Sankaran Vaidhyan Balan & anr.
8) ILR 2008 KAR 4629 (Shiva Murthy V/s Amruthraj)
9) (2008) 4 SCC 54 (Krishna Janardhan Bhat V/s Dattatraya G.Hegde
10) (2008) 4 SCC (John K.John V/s Tom Varghese)
11) (2010) 11 SCC 441 (Rangappa V/s Mohan)
12) (2020) 12 SCC 724 (APS Forex Services Pvt. ltd., V/s Shakti International Fashion Linkers & Ors.)
7. The following points are arise for my consideration:
1. Whether complainant proves that the accused has committed an offence punishable under Sec.138 of N.I. Act?
2. What order?SCCH-09 7 CC.1919/2019
8. My findings on the above points are as under:
Point No.1 : In the Affirmative;
Point No.2 : As per the final order;
for the following:
REASONS
9. Point No.1:- Before appreciation of fact and oral, documentary evidence of the present case. It is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the accused beyond all reasonable doubt. However, a proceeding U/Sec. 138 of N.I. Act is quasi criminal in nature and quasi civil in nature. In this proceeding proof beyond all reasonable doubt is subject to presumption as envisaged U/Sec. 118, 139 of N.I. Act. An essential ingredients of Sec. 138 of N.I. Act is that Whether a person issues cheque to be encashed and the cheque so the issued towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing cheque, shall be deemed to have been committed an offence punishable U/Sec.138 of N.I. Act. N.I.Act presupposes conditions for prosecution of an offence which are as under: SCCH-09 8 CC.1919/2019
1. Existence of legally enforceable debt or liability and issuance of cheque in discharging of said debt or liability.
2. Cheque shall be presented for payment within specified time i.e., from the date of issue before expiry of its validity.
3. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
4. The drawer, inspite of demand notice fails to make payment within 15 days from the date of the receipt of such notice.
10. If the above said ingredients are satisfied by the holder in due course gets cause of action to launch prosecution against the drawer in respect of the bounced cheque and as per Sec. 142 (b) of N.I. Act the complainant has to be filed within one month from the date on which the cause of action arise to file complaint.
11. It is also one of the essential ingredients of Sec. 138 of N.I. Act that, a cheque in question must have been issued SCCH-09 9 CC.1919/2019 towards legally recoverable debt or liability. Sec. 118 and 139 of N.I. Act, envisages certain presumption. U/Sec. 118(a) presumption shall be raised regarding consideration, date, transfer, endorsement and holder, in due course of Negotiable Instrument. Even Sec.139 of N.I. Act are rebuttable presumption shall be raised that, cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumption are mandatory presumptions that are required to be raised in case of Negotiable Instrument. But, the said presumption are not conclusive and they are rebuttable one. This preposition of law has been laid down by Hon'ble Apex Court and Hon'ble High Court of Karnataka in catena of decisions.
12. It is the case of the complainant that accused agreed to sale the property bearing Sy.No.62 of Doddakallasandra Village, Uttarahalli Hobli, Bangalore South Taluk for Rs.25 lakhs and received an amount of Rs.10,00,000/- as advance by way of cheque bearing No.89799 dt.11.06.2015 drawn on Vijaya Bank, Hanumanthanagara Branch, Bengaluru. But accused SCCH-09 10 CC.1919/2019 failed to execute the regular sale deed, then he has agreed to return the amount and agreed to pay Rs.35 lakhs and issued three cheques in that connection, on presentation of said cheques they were dishonoured. Inspite of Issuance of notice accused failed to comply the conditions.
13. It is the defense of the accused that he never issued cheque in dispute to the complainant and complainant had stolen the cheques and filed false complaint and in this regard he lodged police complaint to the Police and also private complaint, which is pending for consideration. It is further defense of the accused that he has paid Rs.10 lakhs through RTGS on 21.02.2019 and remaining Rs.15 lakhs he has paid in the presence of witnesses viz., Janardhan and Anil on the same day by way of cash. Complainant has misused his cheques by stealing the said cheques. It is further defense of the accused he never received notice and no notice was served on him. As such, complaint is liable for dismissal. It is further defense of the accused that the stolen cheque belongs to Srinivasa Theatre, which is a partnership firm and Srinivasa Theatre is SCCH-09 11 CC.1919/2019 not made has not made as party to the proceedings. On this ground also, complaint is liable for dismissal etc.
14. In the light of above specific contention of both the complainant and accused, I have carefully perused the evidence adduced by both the parties. During the cross- examination of PW1 accused counsel has denied the signature of accused in Ex.P1 to 3 and suggested the above defense but PW1 has specifically denied the said material suggestions. Further during the cross-examination of DW1/accused, learned counsel for complainant has also suggested that the cheque in dispute are issued for discharge of agreed amount of Rs.35 lakhs. But, DW1 has denied the said suggestions. He specifically denied the signature found in Ex.P1 to 3. But he has admitted the said cheques belongs to his account. Since, the accused has denied the signatures once again I have carefully perused the evidence placed on record. Admittedly, the cheques i.e., Ex.P1 to 3 are returned for reasons "Funds Insufficient" and not for signature Differs or for any other reasons. Further, accused has formally denied the signatures SCCH-09 12 CC.1919/2019 and he has not made any effort to send the signatures to FSL for handwriting expert, to take opinion about genuineness of his signatures. If really the signatures are forged or doesnot belongs to him, he could have taken steps to send the signatures for handwriting expert. So, it clearly establishes only for the formal sake, he has denied his signature. Further, in the alleged complaint lodged by accused under Ex.D5 & D7 there is no whisper regarding forgery or creation of his signature in Ex.P1 to P3 documents. If really, he is so firm, he could have stated the said creation or forgery of his signatures in his complaint, which is marked under Ex.D5 & D7. It shows only for the formal sake, he denied the signatures. Further, as discussed above, if the signatures are differs definitely bank authorities would have issued the endorsement stating that signature differs or not tallied etc. Admittedly, no such endorsement has been issued by the bank authorities.
15. This Court by using the power U/Sec.73 of Evidence Act has tallied and verified the admitted signatures with Ex.P1 to 3 signatures. From naked eye, it can be seen that the SCCH-09 13 CC.1919/2019 signatures made in Ex.P1 to 3 and the admitted signatures of accused made in vakalath, 313 statement, plea and his evidence and in Ex.D1 document, they appears that they are made by one and the same person. As discussed above, only for formal sake accused has denied his signature in Ex.P1 to 3. Except that, there is no iota of evidence to show that the signatures are forged or created etc. Thus, the defense of the accused is not acceptable and believable one.
16. Further, defense of the accused is that he was not served the mandatory notice U/Sec.138 (b) of N.I.Act. During the course of his evidence also, he stated he was not served with the notice as such complaint is not maintainable and liable for dismissal etc. But this defense of accused is also not acceptable one. Because on perusal of Ex.D1 and P10, the address of the accused is shown as - "M.Devendra S/o.Late Munireddy, No.2541, 17th E Cross, 9th Main Road, BSK II Stage, Bengaluru". Accused not disputed the said address. In fact, in his evidence also he has given same address. On perusal of Ex.P7 notice, it discloses to the above address only notice was SCCH-09 14 CC.1919/2019 issued to the accused. When such being the case, the contention of accused that he was not served with the mandatory notice etc., is not acceptable one. Further, on perusal of Ex.P9 i.e., Postal Track Consignment, it discloses notice was delivered on 26.02.2019 to the above said address. Except, his self serving statement that no notice was served on him, accused has not placed any contrary evidence to show that he was not at all residing in the address shown in Ex.P7 and he was not served with notice. Even no single suggestion was made to PW1 with regard to service of notice. Further, accused has not placed any document to substantiate his contention of non service of notice. Even during his chief examination he has not stated what is his correct address or as on that day where he was residing etc. So, under such circumstances, the contention of accused that he was not served with the mandatory notice etc., is not acceptable one. As we know, there is a presumption Under Sec.27 of General Clause Act that if the notice is sent through registered post or any post to the correct address, it is the duty of the court to SCCH-09 15 CC.1919/2019 presume that the notice was duly served to the addressee. Therefore, the drawer i.e., the accused is the competent person to rebut the presumption about non service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned in the cover was incorrect or that the letter was never tender or that the report was incorrect etc. Unless and until, the contrary is proved by the addressee/accused, service of notice is deemed to have been effected, at the time of which the letter could have delivered in the ordinary course of business. Therefore, in view of the said presumption when stating that a notice has been sent by registered post to the address of accused. It is mandatory on the part of court to raise the presumption regarding service of notice. As already stated above except some denial in the evidence and in the cross-examination by accused he has not placed any contrary evidence to the evidence placed by complainant to show that, the notice which was issued under Ex.P7 was not duly served on him etc., SCCH-09 16 CC.1919/2019 Therefore, the defense of the accused that he was not served with the mandatory notice is not acceptable one.
17. At this juncture I would like to rely upon a decision reported in; 2007 (5) Supreme 277 C.C Alavi Haji Vs. Palapetty Muhammed, wherein the Hon'ble Apex Court as held in para 17 as under:
PARA 17 - It is also to be borne in mind that the requirement of giving notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer, who claims that he did not receive the notice sent by post, within 15 days of receipt of summons from the court in respect of complaint under Section 138 of N.I.Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving the copy of complaint with the summons) and therefore, the complaint is liable to be rejected. A person, who does not pay within 15 days of receipt of summons from the SCCH-09 17 CC.1919/2019 Court along with copy of complaint U/Sec. 138 of N.I.Act., cannot obviosly contend that there was no proper service of notice as required U/Sec. 138 of N.I. Act., by ignoring statutory presumption to the contrary U/Sec.27 of General Clause Act and Sec. 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (Supra), if the 'giving of notice' in the context of clause (b) of the proviso was the same as the 'receipt of notice' a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Sec.138 of N.I.Act. So, in view of the above decision the contention of accused that he was not served with the notice etc., cannot be accepted.
18. Further defense of the accused is that complainant used to come to his office as he is a Land Developer and when complainant came to his office for discussing he has stolen the SCCH-09 18 CC.1919/2019 cheques kept on the table in his office and he never issued cheques and he has informed the jurisdictional police and lodged the complaint before the Deputy Commissioner of Police, Bengaluru South etc. In this regard, he has relied upon Ex.D3 & Ex.D7 to documents. During the course of arguments learned counsel for accused has submitted his arguments based on these documents and defense of the accused.
19. On the other hand, learned counsel for complainant has submitted that the alleged story narrated by accused is an after thought concocted story and the alleged complaints are subsequent to filing the PCR that too after receipt of legal notice, he has created the said documents just to escape from liability. Therefore, the said documents and story narrated by accused cannot be taken into consideration and prays to convict the accused.
20. In the light of above specific defense, once again I have carefully perused the evidence. No doubt, Ex.D3 to D7 documents placed by accused discloses accused has lodged the complaint before the Banakshankari Police Station and SCCH-09 19 CC.1919/2019 thereafter to Deputy Commissioner of Police, Bengaluru South and also lodged a private complaint before the III Addl. Chief Metropolitan Magistrate Court, Bengaluru. As rightly pointed out by learned counsel for complainant the said complaints are lodged after filing of this case. This case was registered on 23.03.2019 and subsequently he filed the complaint. On perusal of Ex.D3, it discloses it was lodged on 11.03.2019. If really, the accused has lodged the complaint on 11.03.2019 how he got the PCR No. 1625/2019 before registering the PCR on 23.03.2019. So, this document clearly establishes only after filing PCR by the complainant on 23.03.2019 subsequently by putting anterior date lodge the false complaint against complainant.
21. Even on perusal of said complaint no where in the said complaint accused stated that he has discharged the amount he only stated his cheques were stolen. If really, he has discharged the amount he would have stated the said fact in the said complaints. So, it crystal clear that the defense of the accused that he has discharged the amount by way of cash to SCCH-09 20 CC.1919/2019 the tune of Rs.15 lakhs is also false and not acceptable one. No prudent man would pay huge amount of Rs.15 lakhs without taking any documents. The say of accused that the receipt has been placed in PCR etc., is also not acceptable one. If really such kind of receipt is available with accused he would have produce the same in the present case to substantiate his defense. He has not produced such document except some xerox copies. When complainant has specifically denied regarding receipt of of Rs.15 lakhs cash payment, it is burden on the accused to place such documents before the Court. So, in the absence of such document, the oral say of accused that he has paid Rs.15 lakhs by way of cash is not acceptable one. If really, he has paid the said amount as discussed above, he would have stated the same thing in his complaint. As stated above, there is no mention about such payment in the complaint. So, all these documents and evidence placed by accused in this regard are not probable and doesnot inspire the confidence of the Court and the documentary evidence placed by accused at Ex.D3 to D5 documents clearly SCCH-09 21 CC.1919/2019 establishes they are an after thought documents and only to set up some defense, he has produced such documents and it is an after thought defense and there is no truth in it.
22. As discussed above, the notice was duly served on accused. Inspite of service of notice, he has not replied the notice. If really the story narrated by accused is genuine one and accused has paid the amount as contended by him. Immediately he could have replied the notice. But, he has not issued the reply. The silence on the part of accused clearly establishes since he was due an amount as stated in the complaint he has not replied nor taken any legal action against complainant for musing of the cheques and the said defense of accused is an after thought defense and it is taken just for the sake of the case to escape from liability if possible.
23. Admittedly, accused is not a layman and he is Proprietor of Srinivasa Theatre and he knows the bank transaction. If really, his signed cheques are stolen immediately he would have given application for Stop Payment. Admittedly, no such attempt was made by the SCCH-09 22 CC.1919/2019 accused. So, it clearly establishes the story narrated by accused is an after thought story and defense. Even in the said complaints under Ex.D3, 5 & D7, there is no specific date or month, year is mentioned on which date they were stolen etc. So under such circumstances, the said complaint filed by the accused doesnot inspires the mind of Court with regard to genuineness of complaint allegations.
24. Further, defense of accused is that the cheques in dispute i.e., Ex.P1 & 2 are pertaining to Partnership Firm and complainant has not made the Partnership Firm i.e., Srinivasa Enterprises and Theatre as a party to the complaint. On this ground complaint is liable for dismissal and all the persons/partners, who are liable and are responsible for the day-to-day conduct and business of said firm are necessary parties. So, on this score alone, complaint is liable for dismissal. During the course of arguments, learned counsel for accused has more concentrated on this defense and submitted lengthy argument on this point and in support of his arguments he has relied upon the decision reported in - SCCH-09 23 CC.1919/2019 (2008) 13 SCC 730 Aneetha Hada V/s God Father's Travels & Tours Pvt. Ltd. In support of his arguments, the learned counsel for accused has mainly relying on Ex.D8 to 13 documents.
25. On the other hand learned counsel for complainant countering the arguments of accused counsel submitted that accused during the course of his cross-examination has specifically admitted Ex.P1 & 2 cheques are pertaining to his account and in the entire cross-examination of PW1 no single suggestion was made in this regard when accused himself has admitted the question of impleading the firm as accused would not arise at all and prays to convict the accused.
26. In the light of above, submissions and contentions, once again, I have perused the evidence. No doubt, the documentary evidence placed by accused at Ex.D8, 10 to 13 discloses Srinivasa Enterprises is a Partnership Firm. But, accused himself during the cross-examination has admitted the cheques at Ex.P1 & 2 are belongs to his account and they were issued by Indian Overseas Bank for his account. When SCCH-09 24 CC.1919/2019 such being the case, the contention of accused that these Ex.P1 & 2 pertaining to firm or partnership account etc., cannot be accepted. Further, accused has not placed any other details with regard to who operating the partnership firm account, who is the authorized signatory, whether it was jointly operated or not etc. So, under such circumstances, the defense of the accused is not acceptable one. As discussed above, accused himself during the cross-examination has admitted the said Ex.P1 & 2 cheques were issued to his account.
27. Further, no single suggestion is made in the cross- examination of PW1 regarding partnership firm and with regard to cheque belongs to partnership firm etc. Only in additional chief examination DW1 stated they are belongs to firm cheques etc. Further, no where it is stated either in the complaint lodged by the accused or in the cross-examination of PW1 that the cheques at Ex.P1 & 2 are issued for and on behalf of firm or they belongs to firm account. Assuming that, the cheque belongs to partnership firm, by issuing the said SCCH-09 25 CC.1919/2019 cheques knowingly that the said cheques are firm's account cheque, accused has committed the cheating, the act of accused clearly establishes the intention of cheating. Who knows? Accused in order to cheat the complainant might have issued said cheques. Any how, as discussed above, there is no acceptable evidence to show that the said cheques belongs to partnership firm or partnership account. Merely, because in Ex.P1, it is mentioned as Srinivasa Theatre it cannot be said that the said cheques pertaining to partnership firm or Srinivasa Enterprises as contended by accused. As stated above, no details or evidence is placed by accused to show that the said cheques pertaining to the account of partnership firm of Srinivasa Enterprises or Theatre.
28. I have gone through the decision relied by learned counsel for accused in Aneetha Hada's case. The Hon'ble Apex Court has held that - the company, which is jurisdict person, owns primary responsibility for dishonour cheques under Section U/Sec.138 of N.I.Act and complaint U/Sec.138 of N.I.Act against accused Director was therefore maintainable and SCCH-09 26 CC.1919/2019 every person, who at the time of offence was committed was in-charge of and was responsible to the company for the conduct of the business of the company shall be liable to be punished and all the Director or Manager or Secretary or other officers, who are responsible at the time of commission of offence shall be made as parties along with company as accused. No doubt, as per the said decision, the company or partnership firm has to be made as accused. But, in the present as discussed above, accused has not placed any cogent evidence to show that Ex.P1 & 2 cheques are only pertaining to the partnership firm etc. So, under such circumstances, the arguments learned counsel for accused that Srinivasa Enterprises/Theatre ought to have been made as accused etc., is not acceptable one. With great respect to the decision referred above and relied by accused, the facts and circumstances of said case are not applicable to the case on hand.
29. I have carefully perused the other decisions relied by learned counsel for accused with great respect to the decision, SCCH-09 27 CC.1919/2019 the principles laid down in said decisions are not applicable to the case on hand and facts are altogether different to the case on hand.
30. Learned counsel for complainant relied so many decisions regarding presumption. I have gone through the said decisions, wherein also the Hon'ble Apex Court and Hon'ble High Court of Karnataka have held that - Rule of presumption of innocence of accused cannot be applied with same rigour to offence U/Sec.138, particularly where the presumption is drawn that holder received the cheques for discharge of liability. When all basic ingredients of Sec.138 of N.I. Act are apparent on record Court is required to be presumed that the cheques in question were drawn for consideration and complainant received it, in discharge of existing debt. Once presumption of existence of legally enforceable debt drawn in favour of complainant, onus is shifted on accused. Unless onus is discharged by the accused that preponderance of probabilities or tilting in his favour, doubt on case of complainant cannot be raised for want of sufficient evidence etc. SCCH-09 28 CC.1919/2019
31. Mere, plausible explanation is not sufficient or enough to rebut the presumption available in favour of complainant. Sec.139 of N.I.Act mandates that unless the contrary is proved, it is to be presumed that holder of the cheque received the cheque of the nature referred to U/Sec. 138 of N.I.Act for the discharge in whole or in part, of any debt or other liability. Needless to mention that the presumption contemplated U/Sec.139 of N.I.Act is rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque.
Sec.139 introduces an exception to the General Rule as to the burden of proof and shifts the onus on the accused. The presumption U/Sec.139 of N.I.Act is presumption of law, as distinguished from presumption of facts.
Presumption or rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond all reasonable doubt. The obligation on the prosecution may be discharged with the help of presumption of law and SCCH-09 29 CC.1919/2019 presumption of facts, unless the accused adduces evidence showing the reasonable possibility of the non existence of presumed fact as held by Hon'ble Apex Court in the decision of - Hiten P Dalal V/s Bratindranath Banerjee reported in (2001) 6 SCC
16.
32. A meaningful reading of the provision of N.I.Act including, in particular Sec.20, 87, 118, 138 , 139 makes it amply clear that - a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of liability. Further, it is immaterial that the cheque may have been filled by any person other than the drawer, if the cheque is duly signed by the drawer and it would attract the provisions of Sec.138 of N.I.Act. As discussed above, except some plausible explanation accused has not placed any iota of evidence to accept his contention. Even the alleged explanation offered by accused is not acceptable and believable one. Accused has not placed any probable defense in this regard, to displace the presumption available in favour of complainant and the defense raised by the accused doesnot inspires the SCCH-09 30 CC.1919/2019 confidence or to meet the standard of preponderance of probability. So, the evidence of accused is not trustworthy and not accepted.
33. Therefore, considering all these aspects of the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of complainant and accused, the complainant has successfully established beyond all reasonable doubt that accused is due an amount of Rs.25,00,000/- and for due discharge of said amount accused has issued Ex.P1 to 3 cheques for Rs.25,00,000/- in favour of complainant. On the other hand, accused has miserably failed to rebut the presumption available in favour of complainant with regard to the existence of legally recoverable debt under Ex.P1 to 3 cheques. Therefore, accused has committed an offence punishable U/Sec.138 of N.I.Act. Thus, for the above reasons, I answer Point No.1 in the Affirmative.
34. Point No.2: As discussed in point No.1, the complainant has proved the guilt of the accused. It is worth to SCCH-09 31 CC.1919/2019 note that the offence is of the nature of quasi civil and quasi criminal wrong. Hence, it is proper to award sentence of fine only instead of imposing sentence of imprisonment to the accused. At this juncture, it is worth to place the reliance of recent decision of Hon'ble Apex Court reported in 2020 (1) SCC 283 Kalamani Text. and another V/s. P Balasubramaniam, Wherein the Hon'ble Apex court at head note D has held that Negotiable Instrument Act 1881- Sec. 138 - compensation under - there needs to be a consistent approach towards awarding it compensation and unless there exist special circumstance, the court should uniformly Levy fine of up to the double of cheque amount along with simple interest at 9%. So considering the pendency of the case from 2019 and loan transaction this court, feels an amount of Rs.35,00,000/- can be awarded as compensation to the complainant, which would meet the ends of justice. Thus for the above reasons, I proceed to pass the following:
SCCH-09 32 CC.1919/2019
ORDER Acting under Section 255[2] of Cr.P.C, the accused is hereby convicted for the offence Punishable U/s. 138 of the N.I. Act.
The accused is sentenced to pay total fine amount of Rs.40,10,000/-. In default of payment of fine amount, the accused shall under go Simple Imprisonment for a period six months.
After deposit of fine amount an amount of Rs.40,00,000/- shall be paid to the Complainant as compensation as provided U/s.357 (1) Cr.P.C. The remaining Rs.10,000/- be appropriated to the state as fine.
The bail bond of the accused is hereby stand cancelled.
Office is directed to furnish free copy of this judgment to the accused.
(Dictated to the stenographer on computer, corrected and then pronounced by me in the open court on this the 14th day of March, 2022.) (Umesha.H.K) Judge, Court of Small Causes & ACMM Bengaluru.
ANNEXURE List of Witnesses examined on behalf of complainant:
PW1 Sri.G.Janardhan SCCH-09 33 CC.1919/2019 List of Documents marked on behalf of complainant:
Ex.P1 to 3 Cheques Ex.P1 to 3(a) Signatures of accused Ex.P4 to 6 Bank endorsements Ex.P7 Legal Notice Ex.P8 Postal receipt Ex.P9 Track Consignment Ex.P10 Sale Agreement Ex.P11 State of Accounts
List of Witnesses examined on behalf of accused:
D.W.1 M.Devendra List of documents marked on behalf of accused Ex.D1 Registered Agreement of Sale Ex.D2 Customer Record Slip Ex.D3 Copy of complaint lodged to BSK Police Ex.D4 Postal receipt Ex.D5 Copy of complaint lodged to Deputy Commissioner of Police Ex.D6 Postal receipt Ex.D7 Copy of PCR Ex.D8 Bank Statement Ex.D9 Income Tax Returns for the year 2017-2018, 2018-2019 Ex.D10 Form- "G"SCCH-09 34 CC.1919/2019
Ex.D11 Form 1- Partnership Act, 1932 Ex.D12 Letter issued by Auditor Ex.D13 Receipts (Umesha.H.K) Judge, Court of Small Causes & ACMM, Bengaluru.