Bangalore District Court
M/S Knightfield Engines Pvt. Ltd vs Sri. Suresh S.K on 5 December, 2024
C.C.NO.6298/2023
0
KABC030102972023
Presented on : 07-03-2023
Registered on : 07-03-2023
Decided on : 05-12-2024
Duration : 1 years, 8 months, 29 days
IN THE COURT OF THE XXVIII ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
Present:
Soubhagya.B.Bhusher,
B.A.,LL.B.,LL.M
XXVIII A.C.J.M, Bengaluru City.
DATED; THIS THE 05th DAY OF DECEMBER-2024
C.C.NO.6298/2023
Complainant: M/s.Knightfiled Engines Pvt.,Ltd.,
No.30/1, Surveyors Street, D.V.G.Road,
Bengaluru-560004.
R/by its Director, Sri.Arun.S.C.
Mobile No.9448396903.
Email:[email protected]
(By Sri.S.Nataraja.,Adv.,)
V/s
Accused: Sri.Suresh.S.K S/o Late Sri.Kallappa,
No.10042, P.R.G.Tower, 10 Wing 1,
4th Floor, Avalahalli, Doddaballapura
Road, Bengaluru-560064.
Mobile: 8095111444.
Also at: No.18, 4th Main, Jayanagar,
Chickmagalur-577101.
(By Sri.Ramesh.M.S.,Adv.,)
:JUDGMENT:
This case arises out of the private complaint filed by the complainant against the accused under section C.C.NO.6298/2023 1 200 of Cr.P.C., for an offence punishable under section 138 of Negotiable Instruments Act.
2. The case of the complainant's in brief is as under:
It is the case of the complainant is that the complainant is a registered company and is dealing in the business of agriculture and horticultural equipment. Further stated that the accused had joined the complainant company as a sales executive in the month of August 2013 and thereafter promoted as a sales head/cluster head. Further the accused was assigned the work to obtain the orders for its product and to make collection of dues from its customers/dealers. The accused had worked with the complainant company till June 2022. Further stated that the accused had drawn upto date salary from the complainant in respect of his service before he was removed from the job. Further stated that during the course of the service, the accused was regularly making the collection of dues on behalf of the complainant company from its customers/dealers and during the course of such collections, the accused has misappropriated the amount to the tune of Rs.1,44,00,000/- i.e., the accused had collected the dues from the various customer/dealers in his personal name by receiving the same by way of Google pay and PhonePe of his mobile No.8095111444 linked his bank C.C.NO.6298/2023 2 account No.093801511474 of ICICI Bank, Bengaluru and he did not report the same to the complainant company. Further stated that the complainant came to know about the misappropriation of funds by the accused during the month of April 2022 and immediately made through enquiry and when questioned him about the same, he had accepted his guilt and voluntarily made a written admission to that effect on 16.06.2022. After admission of misappropriation of funds, the accused had promised to repay the said amount to the complainant in 06 installments i.e., Rs.25,00,000/- on 17.06.2022, Rs.25,00,000/- on 30.06.2022, Rs.20,00,000/- on 27.07.2022, Rs.25,00,000/- on 28.08.2022, Rs.25,00,000/- on 27.09.2022 and Rs.24,00,000/- on 30.10.2022.
3. It is further stated that as promised and agreed the accused had paid a sum of Rs.45,00,000/- to the complainant company by way of cheque and by way of transfer of funds through RTGS and NEFT i.e., Rs.20,00,000/- on 20.06.2022, Rs.20,00,000/- on 28.06.2022 and Rs.5,00,000/- on 01.07.2022. But the accused has failed and neglected to pay the remaining amount despite its repeated requests and demands. After appropriating the said payments made by the accused he is still found to be due to the complainant company in a sum of Rs.99,00,000/- towards principal.
C.C.NO.6298/2023 3 The accused is also due and liable to pay interest at 24% p.a. It is further stated that after repeated demands for payment of aforesaid dues, the accused had signed and issued the cheque No.091265 dated:
05.01.2023 for Rs.99,00,000/- drawn on ICICI Bank, Rajarajeshwari Nagar Branch, Bengaluru-560098. The complainant has presented the said cheque for realization through its banker Kotak Mahindra Bank, Basavanagudi branch, Bangalore. But the said cheque was dishonored on 09.01.2023 as "Funds Insufficient".
Thereafter, on 20.01.2023 the complainant got issued a demand notice to the accused through its counsel, calling upon him to make payment of cheque within 15 days from the date of receipt of the said notice. The said notice was returned as "Not claimed" at one address on 30.01.2023 and addressee left at another address on 25.01.2023. After issuance of the legal notice the accused neither reply to the notice nor paid the cheque amount. As such, the accused have committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court on 02.03.2023.
4. After the complaint was filed, the cognizance of the offence cited therein was taken and it was registered as P.C.R No.1988/2023. Sworn statement of the complainant was recorded. Since there were sufficient materials to proceed against the accused, an C.C.NO.6298/2023 4 order was passed on 07.03.2023 to register the case in Register No.III.
5. Thereafter, summons was issued to the accused and he appeared before the court through advocate and secured bail. He was furnished its necessary papers as complied under section 208 of Cr.P.C. Thereafter, the plea of the accused was recorded by the court. He has pleaded not guilty and claimed to be tried.
6. The complainant in support of its case, have examined its Director as PW.1 and got marked 16 documents at Ex.P.1 to 16 and closed its side.
7. After closer of the evidence of the complainant, the statement under section 313 of Cr.P.C., was recorded. The accused has denied the incriminating evidence appeared against him. In his defence, the accused examined himself as DW.1 and 14 documents were marked at Ex.D.7 to 20. During the course of cross examination of PW.1 06 documents were marked at Ex.D.1 to 6 by way of confrontation.
8. I have heard the arguments on both the sides and also perused the written argument filed by the learned counsel for the accused and also perused the material placed on record.
9. The learned counsel for the complainant has relied upon the citations reported in 1999 Cri.L.J 4606 C.C.NO.6298/2023 5 SC, 2001(8) SC 458, (2001) 6 SC 16, 2010 AIR SEW 2946, SC Criminal Appeal No.123/2021, Cri.A.No.849- 850/2011, Cri.A.No.1233-1235/2002, (2019)18 SC 106 and (2019) 4 SCC 197.
10. Upon hearing the arguments and on perusal of the material placed on record, the following points arise for my consideration:
1.Whether the complainant proves the existence of legally enforceable debt/liability.?
2.Whether the complainant further proves that the accused had issued the cheque-
Ex.P.1, towards the discharge of the said legally enforceable debt/liability.?
3.Whether the complainant further proves that the cheque-Ex.P.1 was dishonored for the reasons "Funds Insufficient" and thereafter the accused had failed to repay the same within the statutory period, inspite of receipt of legal notice.?
4.Whether the accused have thus committed an offence punishable under section 138 of N.I.Act.?
5. What order?
11. My answers to the above points are as under:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: In the Affirmative Point No.4: In the Affirmative Point No.5: As per final order, for the following:
C.C.NO.6298/2023 6 :REASONS:
12. POINT NO.1 AND 2: These two points are inter- related to each other and finding given on any one point will bearing on the another. Hence, in order to avoid repetition of facts and evidence, I have taken these two points together for common discussion. The case of the complainant is that he was acquainted with the accused. Further the complainant is dealing in the business of agriculture and horticultural equipment. The accused had joined the complainant company as a sales executive in the month of August 2013 and thereafter promoted as a sales head/cluster head. The accused was assigned the work to obtain the orders for its product and to make collection of dues from its customers/dealers. The accused had worked with the complainant company till June 2022. Further the accused had drawn upto date salary from the complainant in respect of his service before removed from the job. During the course of the service, the accused was regularly making the collection of dues on behalf of the complainant company from its customers/dealers and during the course of such collections, the accused has misappropriated the amount to the tune of Rs.1,44,00,000/- i.e., the accused had collected the dues from the various customer/dealers in his personal name by receiving the same by way of Google pay and PhonePe of his mobile C.C.NO.6298/2023 7 number linked his bank account of ICICI Bank, Bengaluru and the accused did not report the same to the complainant company. The complainant came to know about the misappropriation of funds by the accused during the month of April 2022 and immediately made through enquiry and when questioned the accused about the same, he had accepted his guilt and voluntarily made a written admission. After admission of misappropriation of funds, the accused had promised to repay the said sum to the complainant in 06 installments.
13. Further as promised and agreed the accused had paid a sum of Rs.45,00,000/- to the complainant company by way of cheque and transfer of funds through RTGS and NEFT. The accused has failed and neglected to pay the remaining amount despite its repeated requests and demands. After appropriating the said payments the accused is still found to be due to the complainant company in a sum of Rs.99,00,000/- towards principal. The accused is also due and liable to pay interest at 24% p.a. After its repeated demands for payment of aforesaid dues, the accused had signed and issued the cheque in question in favour of the complainant. The complainant has presented the said cheque for realization through its banker. But the said cheque was dishonored as "Funds Insufficient". Thereafter, the complainant got issued a demand C.C.NO.6298/2023 8 notice to the accused through its counsel, calling upon him to make payment of cheque within 15 days from the date of receipt of the said notice. The said notices were returned as "Not claimed" and addressee left. Inspite of issuance of the legal notice the accused neither reply to the notice nor paid the cheque amount. As such, the accused have committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court.
14. At this juncture, it is necessary to go through the provisions of N.I.Act before proceeding further. The provisions under section 118(a) and 139 of the Act., 1881 are extracted and they reads thus;
"118. Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made:-
(a). of consideration-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
(b). as to date: that every Negotiable Instrument bearing date was made or drawn on such date;
C.C.NO.6298/2023 9 "139.Presumption in favour of holder:
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
15. On plain perusal of the provisions under section 118(a) and 139 of the N.I.Act., as extracted hereinabove, it can be seen that initially the presumptions constituted under these two provisions favour the complainant. However, it is open to an accused to raise a defence to rebut the statutory presumptions. An accused can raise a defence, wherein the existence of legally enforceable debt or liability can be contested.
16. It is also well established that an accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused have constitutional rights to maintain silence. Standard of proof on part of the accused and that of the prosecution in a Criminal case is different. The prosecution must prove the guilt of an accused beyond all reasonable doubts, the standard of proof so as to prove a defence on the part of an accused is "Preponderance of probabilities".
17. Under the light of above extracted provisions C.C.NO.6298/2023 10 of the Act, I have perused the oral and documentary evidence placed on record. In support of the case, the complainant have examined its Director as P.W.1 and 16 documents were marked at Ex.P.1 to 16. In the chief examination P.W.1 has repeated the contents taken by the complainant in the complaint. Ex.P.1 is the cheque issued by the accused dated: 05.01.2023 in favour of the complainant company for Rs.99,00,000/-. Ex.P.1(a) is the signature of the accused. Ex.P.2 the bank memo dated: 09.01.2023 informing of the dishonor of the cheque as "Funds Insufficient". Ex.P.3 is the office copy of the legal notice dated: 20.01.2023. Ex.P.4 are the postal receipts. Ex.P.5 and 6 are the returned postal covers. Ex.P.5(a) and 6(a) are the returned legal notices. Ex.P.7 is the Incorporation certificate. Ex.P.8 is the Minutes of board meeting. Ex.P.9 to 11 are the accounts statements. Ex.P.12 is the letter written by the accused to the complainant company. Ex.P.12(a) is the signature of the accused. Ex.P.13 is the Complaint.
Ex.P.14 is the bank statement of Kotak Mahindra Bank related O.D account of the complainant company for the period 01.04.2020 to 31.05.2022. Ex.P.15 is the running bank account statement of Kotak Mahindra Bank of the complainant company for the period 01.04.2020 to 31.05.2022. Ex.P.16 is the running bank account statement related SBI of the complainant company for the period 01.04.2021 to 31.05.2022.
C.C.NO.6298/2023 11
18. I have perused the exhibits on which the complainant have placed their reliance. On perusal of the exhibits, it is clear that cheque in question was presented for encashment within its validity. The bank endorsement with a shara "Funds Insufficient". The complainant issued a legal notice within one month from the date of receipt of memo. The notices were returned as "not claimed and addressee left" on 25.01.2023 and 30.01.2023. The complaint was filed on 02.03.2023, which is within limitation. The transaction with the complainant is not seriously disputed. The issuance of the cheque and the signature on the cheque-Ex.P.1 is admitted. Therefore, the documents on record clearly show that the complainant have complied the ingredients of section 138(a) to (c) of the N.I.Act. Therefore, the presumptions under section 118 and 139 of the N.I.Act arise in favour of the complainant. The presumptions are rebuttable and the burden is on the accused to rebut the presumptions. The presumption is that the cheque was issued for legally enforceable debt/liability. However, actual existence debt/liability can be contested. The accused can rebut the presumptions by raising probable defences and proving it relying on the evidence of the complainant or by leading his direct evidence.
19. The case was seriously contested by the accused and the service of notice was disputed. The C.C.NO.6298/2023 12 notices were returned as "not claimed" and "addressee left" on 25.01.2023 and 30.01.2023 as per Ex.P.5 and
6. The counsel for the accused cross-examined PW.1 in respect of non service of notice. But PW.1 denied the same. Further contended that the notice sent to the accused not served'; that the accused has no knowledge of the notices as its were not served on him; that the accused did not give reply notice as the notices were not served on him; that he did not produce any documents to show that the accused was not residing at the said address, the notices were not served on him and that the accused did not issue reply notice as he was not residing at the said addresses. The counsel for the accused argued that no legal presumption can be raised as the notice was sent to the wrong address and the accused was not residing at the said address. On the other hand, the counsel for the complainant cross examined DW.1 in length in respect of address of the accused, service of notice. He admitted that the address. He further admitted that he has not given the reply notice. When the notice at Ex.P.3, wherein the name of the accused is appearing, was confronted.
20. On perusal of Ex.P.3, it is clear that the name of the accused and two addresses are appearing in the notice. The same notices were sent to the accused. The accused not given reply. There is no evidence on record to show that the accused was residing at some C.C.NO.6298/2023 13 other address other than the addresses mentioned in the notice at Ex.P.3. The above discussion clearly shows that the addresses mentioned in the notice is the correct addresses of the accused. As the notice was given to the accused and the same notices were sent to him through separate RPAD, an inference can be drawn that the notices were served on the accused. Further the address mentioned in the notice being the correct address of the accused, the presumption as per Section 27 of General Clauses Act can be drawn. It states that the notice sent through post shall be deemed to be served, if it is properly addressed to a person to whom it is sent. Therefore, even though the notice sent to the accused through separate RPAD and returned with a postal shara 'not claimed' and 'addressee left', it is to be considered as deemed service of notice. Even otherwise as per the judgment of the Hon'ble Supreme Court of India has held in C.C Alavi Haji V/s Palapetty Muhammed and another, reported in 2007 AIR SCW 3578, wherein it has been held para No.17 as under;
17. It is also to be borne in mind that the requirement of giving of 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, can, within 15 days of receipt of summons from the court in respect of the complaint under section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of C.C.NO.6298/2023 14 summons (by receiving a 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 the summons from the Court along with the copy of the complaint under section 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s.138, by ignoring statutory presumption to the contrary under section 27 of the G.C.Act and Section 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 Section 138 of the Act.
21. In a nutshell it can be said that the statutory notice is an opportunity given to the accused to make payment and avoid the consequences of 138 of N.I.Act. In the case on hand, the summons issued to the accused returned as "refused" and thereafter he appeared before the court and contested the case by taking all probable defences. Therefore he cannot take the shelter of statutory requirement of service of notice to avoid the consequences of section 138 of N.I.Act. The complaint was filed on 02.03.2023, which is within limitation. The accused admitted the issuance of cheque in favour of the complainant and signature in the cheque. It is his defence that for the purpose of withdrawal of the cash he had issued the blank cheque C.C.NO.6298/2023 15 to the complainant. Therefore, the documents on record clearly show that the complainant have complied the ingredients of Section 138(a) to (c) of the N.I.Act. Therefore, the presumptions under 118 and 139 of the N.I.Act arise in favour of the complainant. The presumptions are rebuttable and the burden is on the accused to rebut the presumptions. Once the issuance of cheque and signature are proved, the presumption arises in respect of the fact that the cheque was issued for legally enforceable debt/liability. The accused can rebut the presumption by raising probable defence and proving it relying on the evidence of the complainant or by leading his direct evidence.
22. The accused is examined himself as DW.1 by way of affidavit and totally 20 documents were marked at Ex.D.1 to 20. In his chief examination affidavit he has repeated the defence taken by him. Ex.D.1 to 6 are the commercial test reports marked through PW.1 by way of confrontation. Ex.D.7 is the Resignation letter. Ex.D.8 and 9 are the ICICI bank statements for the period 01.04.2020 to 31.03.2021 and 01.04.2021 to 31.03.2022. Ex.D.10 is the Kotak Mahindra bank statement for the period 01.04.2020 to 31.03.2023. Ex.D.11 to 14 are the photos. Ex.D.15 is the C.D. Ex.D.16 is the Certificate under section 65(b) of Indian Evidence Act. Ex.D.17 is the date-wise payment details of the complainant. Ex.D.18 is the Kotak Mahindra C.C.NO.6298/2023 16 Bank statement for the period 01.04.2022 to 31.05.2022. Ex.D.19 is the ICICI Bank Statement for the period 01.04.2022 to 31.05.2022. Ex.D.20 is the bill-wise payment details in respect of Ex.D.18 and 19. Ex.D.20 is marked subject to objection.
23. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of legally enforceable debt/liability, for which the cheque came to be issued. The learned counsel for the complainant has argued that from the evidence placed on record, the fact that the complainant company is dealing in the business of agricultural and horticultural equipments. The accused had joined the complainant company as a sales executive in the month of August 2013 and thereafter promoted as a sales head/cluster head. Further argued the accused was assigned the work to obtain the orders from its product and to make collection dues from the its customers/dealers. Further argued that the accused had worked with the complainant till June 2022 and he had drawn upto date salary in respect of his service before he was removed from the job. Further argued that during the course of service, the accused was regularly making the collection of dues on behalf of the complainant company from its customers/dealers and that time he had misappropriated the amount to the tune of C.C.NO.6298/2023 17 Rs.1,44,00,000/- and he had collected the dues from the various customers of the complainant company in his personal name by receiving the same by way of Google pay and Phone-Pe of his mobile and linked his ICICI bank account and the accused not reported the same to the complainant. It is further argued that during the month of April 2022 it came to know about the misappropriation of funds by the accused and immediately made through enquiry and when questioned the accused about the same, he had accepted his guilt and voluntarily made written admission as per Ex.P.12 on 16.06.2022. Further argued that after admission of misappropriation of funds the accused had promised to repay the same in 6 installments. As per the promised the accused had paid a sum of Rs.45,00,000/- to the complainant company by way of RTGS and NEFT in different dates. Thereafter, the accused failed and neglected to pay the remaining amount. Further argued that after the repeated request made by the complainant, the accused has not paid any amount to the complainant. Thereafter the accused towards the discharge of the said payment, had issued the cheque-Ex.P.1 in favour of the complainant. He further argued that the accused has not denied Ex.P.1 being his cheque drawn on his account. When the signature is not disputed, the presumption under section 139 N.I.Act is to be drawn in favour of the complainant. The accused has failed to C.C.NO.6298/2023 18 elicit anything in the cross examination of P.W.1 to disbelieve the said evidence. The defence have failed to rebut the presumption under section 139 N.I.Act.
24. The counsel for the complainant further argued that the accused has failed to produce any believable evidence that he had issued blank cheques in favour of the complainant for the purpose of withdrawal of cash and also why he has not returned back the same is not clear. He further argued that the accused has failed to produce any documentary evidence regarding he had issued the blank signed cheques for the purpose of withdrawal of cash. Further argued that under section 139 of N.I.Act, there is a presumption that the cheques have been issued for discharge of legally enforceable debt/liability. In the present case, the accused has not disputed Ex.P.1 being his cheque drawn on his account. The said presumption is available to the complainant. It is further argued that the accused had failed to prove the very fact that the cheque was given to the complainant company for the purpose of withdrawal of cash and it was blank when it was given to the complainant. Moreover, under section 118 of N.I.Act, there is a presumption that the Negotiable Instruments is drawn on the date, for the amount and in favour of the person as shown in it. It is for the accused to rebut the said presumption. But, in the case on hand no such C.C.NO.6298/2023 19 evidence forthcoming. It was also argued by him that as per the defence taken by the accused is that he had given the blank singed cheques for the purpose of withdrawal of cash. As such, very defence of the accused is not believable. It is further argued that the accused in order to prove his defence he has not produced any documentary evidence before this court. It is further argued the accused has produced his statements of bank account as per Ex.D.8 to 10 and subsequent bank statements for the month of April and May 2022, but the amount mentioned in Ex.D.8 to 10 and subsequent bank statements have not been credited to the bank account of the complainant company in any of its bank account and to disprove the entries made in Ex.D.8 to 10 the complainant produced the bank statements of all three banks for the period from 01.04.2020 to 31.05.2022 as per Ex.P.14 to 16. Further argued that amount mentioned in Ex.D.8 to D.10 i.e., SI.No.a to z and S.I.No.aa to tt are not been credit to the bank account of the complainant company. Further argued that apart from the bank account in three banks statement of the complainant company i.e., Ex.P.14 to 16, the complainant company is having no other bank account in its name. It is further argued that the accused in order to escape from his legal liability produced the aforesaid bank statements before this court and given false evidence before this court. Upon careful perusal of the entire evidence of records both C.C.NO.6298/2023 20 the oral as well as documentary evidence the complainant have proved their case beyond reasonable doubt. Hence, he prays to convict the accused.
25. The learned counsel for the accused has argued that there was no legally enforceable debt/liability to the complainant from the accused for which the cheque-Ex.P.1 was issued. Further argued that the accused had issued the blank cheques to the complainant for the purpose of withdrawal of cash and one of the cheque was misused by the complainant. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of a legally enforceable debt/liability, for which cheque came to be issued. It is further argued that the complainant is only in order give trouble to the accused and with an intention to make illegal money from the accused filed this false case. This is not permissible under the law. Further argued that cheque was collected from the accused, as withdrawal of the cash. On looking it Ex.P.1 the signature of the accused is admitted. Whereas, the writing part of the cheque amount in words and in figure are different handwriting. Therefore, the entire cheque was filled up by the complainant as their whims. The complainant created all the documents and filed this false case against the accused. Further argued that the accused had already paid entire amount to the C.C.NO.6298/2023 21 complainant. Further argued that the accused had issued the blank cheques for the purpose of withdrawal of the cash, out of that the complainant presented the one of cheque for Rs.99,00,000/- to the bank on 05.01.2023.
26. Further argued that in the year 2013 S.A.Chandramohan and his son Sri.Arun.S.C has start up the complainant company and as such the accused has been directed by the S.A.Chandramohan to work in the complainant company and as such from 2013 onward the accused started working in the complainant company as a sales executive. It is further argued that Sri.Arun.S.C is looking after the complainant affairs and the accused and other workers are working under him as per his instructions. Further argued that the accused was discharged his duties in the complainant company without giving any room for omission. The accused was discharging his duties diligently, sincerely and honesty, as such during the period of 2016 to 2018 the accused have been awarded as a best performer of the years. Further argued that in the first week of April 2022 it was noticed by the accused that Sri.Arun.A.C in order to get the Government tender has started manipulating commercial test report under the name of BIRSA Agricultural University, Ranchi. After noticing the said fraud the accused had decided to left job and gave his resignation to Sri.Arun.A.C on 29.04.2022 as per C.C.NO.6298/2023 22 Ex.D.7. But he refused to accept his resignation and drawn the salary upto 30.04.2022. Further argued that the accused has left the job voluntarily and no such termination proceedings were taken place as alleged by the complainant/PW.1 in his cross examination. Further argued that during the service of the accused in the complainant company Sri.Mahadev, Akshaya and Sunil were also working in the complainant company. The said persons were going to the bank for depositing cash, cheques and also withdrawal of cash from the bank whenever the complainant company requires. Further argued that on 31.05.2022 the accused quit the job in the complainant company. All of a sudden on 16.06.2023 Sri.Arun.A.C, called the accused to his office and by giving life threat to the entire family of the accused forcibly with the help of the rowdies have taken a letter as per Ex.P.12 and further forcibly make the accused to transfer his money of Rs.45,00,000/- in different dates to the complainant bank account. Further Sri.Arun.S.C, warned the accused that if any police complaints are given, you have to face the serious consequences, as such the accused has not filed any police complaint.
27. Further argued that Sri.Arun.S.C, was looking after all the company affairs and during the period of 2020 to 2022 as per his instructions some of the dealers have made some payments to the accused C.C.NO.6298/2023 23 bank account by using his Google pay and PhonePe number and immediately after receipts of the payment from the dealers, whatever the payment has to be payable to the complainant company has been paid to his bank account. In order to show the payments the accused has produced the bank statements as per Ex.D.8 to 10, 18 and 19. Further argued that the complainant company maintains accounts for all the sales and payments, if they produced the relevant documents i.e., Books of Account, Bills, GST filings, Income Tax Returns, Stock Audit Report, Inward and Outwards of stocks, Bank Statements for the relevant period of 2020 to 2022, truth will come out. PW.1 has undertakes to produced all these documents, but he has not produced the same before this court with an intention to hide the truth and also to have some wrongful gain from the accused. Further argued that the complainant have falsely alleged in the complaint that during the course of collection of the payment, the accused have misappropriated an amount of Rs.1,44,00,000/-. But the accused not misappropriated any amount of the complainant company. Further argued that for the purpose of withdrawal of cash, Sri.Arun.S.C, used to keep one blank signed cheque of the accused. Ex.P.1-cheque is one of the cheque which is kept with the Sri.Arun.S.C. The said cheque has been misused by the complainant and filed this false complaint. Further argued that the cheque has not C.C.NO.6298/2023 24 been issued for discharging of any debt/liability and there is no such legally enforceable debt or other liability. Further argued that the accused never given any instructions to the complainant to present the alleged cheque to the bank and the complainant has misused the alleged blank cheque which was issued for the purpose of withdrawal of cash. Further argued that the complainant has filled up the particulars of the cheque and presented the same to his banker to cheat the accused.
28. Further argued that when the accused had received a summons from this court, then only he came to know that the complainant have misused the cheque of the accused by filing this false and frivolous complaint to enrich himself wrongfully at the hands of the accused. Further argued that the accused has not received any legal notice from the complainant or through his counsel regarding the subject matter of the cheque in question. Further argued that the accused have produced his bank statements which are marked as Ex.D.8 to 10 to show that the payments which were received from the dealers of the complainant company as per the instructions of PW.1 during the period between 2020 to 2022 has been paid to the complainant company bank account. Further the accused has produced the bank statements pertaining to his bank account to show further transaction as per C.C.NO.6298/2023 25 Ex.D.18 and 19. Further argued that some of the payments were also made during the aforesaid period to the complainant bank account. The complainant has denied the some of transactions which are stated in the further affidavit of PW.1, in fact the said payments are also reflecting in the bank statements produced by the complainant. The complainant/PW.1 has denied the payments in its further affidavit. Further argued that the aforesaid transactions are reflecting in the bank statements produced by the complainant i.e.,Ex.P.14 to 16 and also bank statements produced by the accused. It is further argued that in so far as the UPI transactions PW.1 has not produced his bank statement and the said UPI payments are reflecting in his bank statements as per Ex.D.10. Further argued that as per the bank statements, the accused already paid entire amount to the complainant. The complainant instead of returning the cheque to the accused, they have misused the same and filed a false complaint against the accused. When the cheque was given to the complainant it was blank. Further he argued that the accused has never admitted regarding repayment of amount and there is no transaction between the complainant and the accused as alleged by the complainant. When there is no due from the accused, then question of issuance of the cheque does not arise at all. Therefore, from the evidence placed on record, very due amount of the accused is not clearly made out C.C.NO.6298/2023 26 whereas the accused is succeeded in rebutting the presumption available under section 139 of N.I.Act, regarding existence of legally enforceable debt.
29. The learned counsel for the accused has filed detail written arguments. In his written argument reiterated the brief facts of the case. Further in his written argument he has elaborately discussed about the evidence of the complainant and evidence of the accused and also the cross examinations. Further in his written argument he has reiterated the section 13 and 16 of contract act, section 34 of Indian Evidence Act and section 128 of companies act. It is further submits that burden is also shifted on the complainant company that they did not get signature of the accused by playing undue influence and force on Ex.P.12. At the signing of any document, the wrong doer had influence over the innocent party. In a court of law there are two potential pathway to a decision actual undue influence or presumed undue influence. In actual undue influence, the innocent party must show the evidence that at the time of signing the document, the wrong doer an influence over the innocent party. In a presumed undue influence, certain relationships as a matter of law will raise a presumption of undue influence the burden of proof lies on the party who was in the position of trust to disprove undue influence on the victim. Certain relationship as a matter of law shift C.C.NO.6298/2023 27 the burden of proof to influencing party compelling those that have ascendancy to rebut on allegations of undue influence like parent/child, trustee/beneficiary, lawyer/client, doctor/patient, master/servant. From the above background Ex.P.12 is not a valid letter, because apparently appears signature of the accused on Ex.P.12 which is not a stamp paper, there are no witnesses and further it does not contained seal and signature of the complainant company for acceptance of Ex.P.12 and the letter has obtained by the complainant company by using his higher position. The accused explained in his evidence in what circumstances, his signed cheques handed over to the complainant company. Same was suggest to PW.1 during cross examination, for PW.1 has not given proper explanation/reasons regarding inconsistency in complaint averments and documents. The burden on the accused to prove his defense is not very high. The defence needs to be proved by only preponderance of probability. The degree of proof expected from the accused is not as rigorous as that of the complainant. He can discharge his onus by making dents in the case of the complainant. But the complainant is expected to prove his case to the hilt. He cannot take advantage of the failure on the part of the accused. This can be done either by proving his defence by adducing cogent evidence or destroying case of the complainant by pointing out loopholes in the complaint or by means of C.C.NO.6298/2023 28 cross examination.
30. It is further submits that the complainant has produced Ex.P.1 to 15 to show that the accused has committed alleged offence punishable under section 138 of N.I.Act, but he has not produced single document to show that the accused misappropriated the funds and there is exist legally recoverable debt against the accused. The complainant has produced the statement of accounts at Ex.P.14 and 15, but it does not disclose the misappropriation of accounts/funds. Therefore, without mentioning the misappropriated amount in the statement, it is unreasonable to hold that there exist legally recoverable debts or any other liability for which the accused has issued the cheque in question in favour of the complainant. Even it is relevant to note here that the complainant has not stated any specific date/durations of misappropriation of funds by the accused in his complaint or demand notice and further the complainant has not produced single piece of document to show that the accused has misappropriated the funds of the complainant company. PW.1 in his cross examination has made contrary statement. Except Ex.P.1 and other related documents has not been placed before this court. The complainant not produced books of account and other relevant documents to prove that alleged facts. The failure to C.C.NO.6298/2023 29 produce these materials creates doubt regarding existence of legally enforceable debt. The complainant company by producing Ex.P.1 to 6 complied the statutory ingredients of section 138, but specifically failed in proving there existence of legally enforceable debt against the accused. Therefore, the accused has made out probable case, thus the accused has successfully raised at probable defence and has been able to probabilise his defence by pointing out material infirmities in the case of the complainant by means of cross examination, also leading defence evidence and has discharged the burden of proof placed upon him. Accordingly the presumption raised under section 139 of N.I.Act R/w section 118 of N.I.Act in favour of the complainant stands rebutted. As stated above the complainant company has utterly failed to prove the guilt of the accused for the offence punishable under section 138 of N.I.Act. He has relied upon the citations reported in 2016(5) SCC 418, (1973) 2 SCC 808, AIR 2008 SC 1325, 2007 (5) SCC 264, ILR 2008 KAR 4629, 2008 Crl.L.J 2405, 2012 Crl.L.J NOC 568, 2010(2) DCR 680, 2020 15 SC 348, Crl.A No.3257/2024, 2014 AIR SCW 2158, 2021 SCC online Ker 1151, (2015) 1 SCC 99, 2020 12 SCC 724, 2018 2 Bankmann 187, 2015 AIR SCW 64, 2013 (3) SCC 86, Cri.A.No.513/2018, 2015(4) Crimes 430, 2012 (3) KCCR 2057, ILR 2008 Kar 3635, 2017(1) DCR 519, 2010(2) DCR 669, 2011 ALL MR (Crl) 1922, 2017(1) C.C.NO.6298/2023 30 Crimes 287, 2010(2) DCR 225, 2008 1 SCC 258, 2012(1) DCR 385, Crl.A.No.2099/2017, (2006) 6 SCC 39 and 2023 Live Law (SC) 46. Further submits that the aforesaid judgments which are produced by the accused are squarely applicable to the facts and circumstances of the case. Hence, he prays to acquit the accused by dismissing the complaint.
31. In the case on hand the complainant and the accused having some money transaction has not been seriously disputed by the accused. Further the accused has not seriously disputed he had issued the cheque- Ex.P.1 in favour of the complainant. It is not disputed that the complainant is a private limited company and the accused was an employee of the complainant. The accused in order to repayment of the said amount had issued the cheque-Ex.P.1 in favour of the complainant. Whereas, the accused has contended that he had given the chaques to the complainant for the purpose of withdrawal of cash. When he had given cheques, which were blank. The accused has specifically denied having debt/liability had issued the cheque in question towards the discharge of any debt/liability. He contends that the blank cheque given by the accused to the complainant as was misused by the complainant and a false complaint was filed against the accused.
32. In order to attract the offence of the section 138 of N.I.Act, the main ingredients of the existence of C.C.NO.6298/2023 31 the legally enforceable debt/liability, for which the cheque drawn on the account of the accused was given for discharge of the same, are to be proved. The complainant in order to prove its case, have examined its Director as PW.1 and 16 documents were marked at Ex.P.1 to 16. In chief examination, he has repeated the averments made by the complainant in the complaint. In the present case, the accused has not disputed Ex.P.1 being his cheque drawn on the accused account. The said presumption is available to the complainant.
33. Under section 139 of N.I.Act, there is a presumption regarding the existence of legally enforceable debt/liability. Such presumption is rebuttable presumption and it is opinion to the accused to raise defence discharging the existence of a legally enforceable debt/liability. In the case on hand also the accused has disputed the existence of legally enforceable debt and liability, for which cheque-Ex.P.1 was issued.
34. Since, the presumption under section 139 of N.I.Act is a rebuttable presumption the accused is firstly required to produce some probable evidence to rebut the same. Though in the criminal cases, the standard of the proof required for the accused is not so strict as required for the complainant to prove the case, further the accused has to produce some probable evidence, C.C.NO.6298/2023 32 which creates doubt about the existence of legally enforceable debt/liability. In the present case, as per the defence taken by the accused that he had given the blank cheques to the complainant for the purpose of withdrawal of cash. Further he has taken the defence that he has already paid entire amount to the complainant and there is no due to the complainant. Except, the said defence, he has not produced any materials to prove such defence. Except Ex.D.1 to 20. If the accused had given the blank cheques to the complainant company for the purpose of withdrawal of cash only, what prevented the accused to file the complaint immediately after the alleged illegal act made by the complainant. Further what prevented the accused to file the complaint against the complainant for misusing of the said cheque. On which date the accused came to knew about the alleged illegal act of the complainant, he did not whisper about on what date he came to know the alleged cheque illegally misused by the complainant. Admittedly the accused is having knowledge of the financial transaction, why he has given the blank signed cheques to the complainant without anticipating the consequence is not explained by him. So also, he has not stated anything as to what steps the accused took to receive back the blank cheques. Moreover, immediately after the alleged blank cheque misused by the complainant and he has not lodge any complaint before concerned police station.
C.C.NO.6298/2023 33 No steps have been taken to receive back the blank cheques, after he came to know about the same. The accused has taken the defence that the complainant giving life threat to the entire family of the accused and with the help of the rowdies have taken a letter-Ex.P.12 and forcibly make transfer of hard earned money of Rs.45,00,000/- to the complainant bank. Further the complainant warned the accused if any police complaints are given, you have to face the serious consequences, as such the accused not filed any police complaint. If really the complainant gave life threat to the accused and his family members and forcibly taken the letter and transfer the his money definitely the accused given the complaint to the jurisdictional police or any court. Further the accused has taken the defence that PW.1 in order to get the Government tender has started manipulating commercial test report under the name of BIRSA Agricultural University, Ranchi. After noticing the said fraud the accused had decided to left the job and gave his resignation to the complainant. But the accused after filing of this case also he has not taken any legal action against the complainant. It shows that the accused in order to escape from his legal liability he has taken such defence.
35. The learned counsel for the accused relied the citation reported in 2012 Crl.L.J NOC 568, the Hon'ble C.C.NO.6298/2023 34 Rajasthan High Court held that on the failure of the complainant to produce the loan papers and account statement which are in their possession it amounts to the presumption available under section 139 of N.I.Act, being rebutted by the accused. Further in 2011 ALL MR (Crl) 1922, the Hon'ble court has discussed that the complainant has to take all grounds available to him at the filing of the complaint and he cannot be permitted to change his stand at different times. In such circumstances the accused is entitled for benefit of doubt and his has relied other citations in respect of presumption, the Hon'ble Courts have observed that the accused if reasonably produces evidence to probables his defence, it is sufficient to discharge presumption. Then the burden is on the complainant to produce probables evidence. But in the case on hand as already above discussed except producing some documents and his oral evidence no material is produced by the complainant to prove the issuance of the cheque in order to discharge of liability. While on the other hand the accused has show that the cheque was given to the complainant for purpose of withdrawal of cash.
36. Further he relied upon the citation reported in AIR 2008 SC 1325, the Hon'ble Apex Court held that the accused not required to step into witnesses box, he may discharge his burden on the basis of materials C.C.NO.6298/2023 35 already bought on record. He can rely on the materials already on record. It was further observed that the standard of proof to prove the defence is preponderance of probabilities. Thus from the above discussion and placing reliance on the judgments noted above this court is of the opinion that the accused has succeeded in rebutting the initial presumption available to the complainant under section 139 of N.I.Act. When there is no other material produced by the complainant to support its contention for repayment of amount the accused had issued the cheque-Ex.P.1, the complainant have failed to prove the material ingredients of legally enforceable debt. Question whether statutory presumption rebutted or not, must be determined in view of other evidence on record. It is also no doubt that the accused has not produced any documentary evidence to substantiate his probable defence. It is well settled position of law that the accused need not entering in to the witness box and need not produced any documentary evidence to rebut the statutory presumptions available in favour of the complainant under section 118 and 139 of N.I.Act. On the other hand, it is also well settled position of law that the accused can definitely make use of materials produced by the complainant so as to rebut the statutory presumption under section 118 and 139 of N.I.Act. Hence, the accused has established his probable defence. Hence, he prays to acquit the C.C.NO.6298/2023 36 accused. I have gone through the citations relied by the accused. With great respect to the dictum laid by the honour, the same is not applicable to the case on hand.
37. Once issuance of the cheque and signature are admitted, the statutory presumptions would arise under sections 118 and 139 of the N.I.Act that the cheque was issued by the drawer for legally payable debt/liability and for valid consideration. The Hon'ble Supreme Court has held in Rangappa V/s Mohan, reported in 2010 AIR SCW 296, the presumption that the cheque was drawn in discharge of legally recoverable debt is a presumption of law that ought to be raised in every case, though, it is a rebuttable presumption. Of course, the presumption under section 139 and 118 of the N.I.Act., are rebuttal presumption. Further it is also held that mere plausible explanation by the drawer is not sufficient and proof of that explanation is necessary. The principle of law laid-down in the above decision is applicable to the facts of this case. In the instant case, since the complainant is in possession of the cheque-Ex.P.1 the court has to draw the initial presumption that he is the payee of that cheque. Once the initial burden is discharged by the complainant, the onus shifts on the accused to rebut the complainant's case.
38. In the case of K.S.Ranganatha V/s Vittal Shetty, reported in 2021 SCC Online SC 1191, the C.C.NO.6298/2023 37 Hon'ble Supreme Court held that once the cheque is admitted to be that of the accused, the presumption envisaged in section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability. It is further held that the position of law makes it crystal clear that when a cheque is drawn out and is relied upon by drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount; such presumption of course, is rebuttable by proving to the contrary. The onus is on the accused to raise a probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities.
39. In the case of Kalamani Tax and another V/s P.Balasubramanian, reported in (2021) 5 SCC 283, the Hon'ble Supreme Court has observed that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under section 139 of the Negotiable instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
40. Applying the above said principles to the C.C.NO.6298/2023 38 present case and before considering the point whether the accused succeeded to rebut the presumptions and to establish his defence to the extent of probabilities, it is just and necessary to accumulate undisputed facts in this case.
41. It is not in dispute that bounced cheque belongs to the bank account of the accused. It is also not in dispute that signature appearing on the bounced cheque is the signature of the accused. It is also not in dispute that the cheque presented by the complainant came to be dishonored by the banker of the accused for the reasons stated in the dishonor memo. To consider whether the accused succeeded to rebut the presumption and established the defence to the extent of probabilities, the accused has not produced any documents in this regard. If the accused has paid the entire amount to the complainant as per Ex.D.8 to 10, why he has not demanded the complainant to return the cheque and further why he has not taken any legal action against the complainant. It shows that he is due to pay the amount to the complainant. Hence, he no legal action can be taken against the complainant. It appears, just to escape from his legal liability, he has taken such contentions without any valid basis.
42. In the defence there is no ill-will between the complainant and the accused. Further the accused has not established any ill-will between the complainant and C.C.NO.6298/2023 39 the accused. Hence, misuse of cheque and filing false case is not possible. The accused admittedly having knowledge of business. It is implies, he is conversant with financial transaction. If the complainant misused the alleged cheque and had not return the same, inspite of collecting cheques leaves from him, as a prudent man, the accused should have inquired with the complainant and demanded to return those cheques. No ordinary prudent man would keep quite in such circumstances, without taking any steps. The conduct of the accused is very unusual, because he did not take any legal action against the complainant, even after filing of the complaint based on Ex.P.1. Further he could have issued notice to his banker to stop payment or legal notice to the complainant or he could have given complaint to the police station immediately. No such steps were taken by the accused. He simply makes a bald allegation of misuse of blank cheque against the complainant. It appears, just to escape from his legal liability, he has taken such contentions without any valid basis.
43. Moreover, the complainant have got issued a legal notice to the accused by registered through its counsel calling upon the accused to make repayment to the complainant. Before a person is held to be guilty of an offence punishable under section 138 of N.I.Act, the complainant have to prove the compliance of the C.C.NO.6298/2023 40 requirement under section 138 of N.I.Act. It is not in dispute that Ex.P.1 is the cheque drawn on account of the accused. In view of the above discussions, it is also held to be proved that it was drawn for discharge of legally enforceable debt/liability. From the evidence of P.W.1 and also cheque return memo-Ex.P.2 it is established that the cheque was dishonor for the reasons "Insufficient Funds''. A legal notice being issued as per Ex.P.3 within one month from the date of dishonor of the cheque is also not in dispute. In the case on hand the accused has seriously disputed regarding notice send by the complainant on his address. But his contention was that the said notice was not served on him. However, the accused had never asserted that the address mentioned in the document is not his address. The presumption under section 114 of the Evidence Act and section 27 of the General Clauses Act is that the notice was deemed to have been served. In the context of section 138 of the Act, makes it clear that if once the sender dispatches the notice by post with correct address written the notice is deemed to have been served by the sender. But, the accused failed to reply the notice, immediately after he received the demand notice. Thereby, he could have asserted his defence at an earliest available opportunity. In the case on hand the notice is sent to the accused at his address. When the accused has not seriously disputed, the notice sent to the correct C.C.NO.6298/2023 41 address is sufficient compliance under section 138 of N.I.Act. Therefore, there is sufficient proof of due service of the legal notice.
44. It is not the contention of the accused that thereafter he has repaid the cheque amount within stipulated time of 15 days on receiving the notice. Therefore, in the case on hand on perusal of the evidence placed on record, all the essential ingredients under section 138 N.I.Act, have been complied with. As the accused has not paid the cheque amount within stipulated period, as such the accused has committed an offence punishable under section 138 of Negotiable Instruments Act. The present complaint is filed before this court within one month after the accused failed to repay the cheque amount. Even the accused did not whisper anything about the defence while his plea was recorded under section 251 of Cr.P.C. In view of judgment of the Hon'ble Supreme Court in Indian Bank Association V/s Union of India and others, (2010 (5) SCC 590), it is clear that while recording the plea under section 251 of Cr.P.C., it becomes the duty of the accused to state whether he has any defence to make or he pleads guilty. Thus, unlike under section 240 of Cr.P.C., the accused has no option under section 251 of Cr.P.C., just to deny the allegations made against him. If he is not willing to plead guilty, he must explain what are the defences he wants to take. As such it has C.C.NO.6298/2023 42 to be considered, whatever defence raised by the accused during the trial are all after thought, just to get ride of statutory burden cast on him.
45. In addition to this in the case of T.P.Murugan (Dead) through legal representatives V/s Bojan, reported in 2018 (8) SCC 469, the Hon'ble Apex Court held that once the cheque has been signed and issued in favour of the holder of the cheque, there is statutory presumption that the cheque is issued in respect of legally enforceable debt or liability: rebuttal of such presumption must be by adducing credible evidence. Mere raising a doubt without cogent evidence with respect to the circumstances, presumption under section 139 of N.I.Act cannot be discharged. The principle of law laid down in the above decisions are applicable to the facts of this case. Except some bald contentions, the accused has not been able to make out a probable case on his behalf.
46. The learned counsel for the accused argued that except signature other writings on the cheque- Ex.P.1 is not in his handwriting, which was filled up by the complainant and it amounts to material alterations, so, the complaint is liable to be dismissed. When the accused admits his signature, he cannot take up a defence that other contents of cheque was filled up by the complainant and it amounts to material alteration. In this respect, ruling reported in 2019 SCC On-line (SC) C.C.NO.6298/2023 43
138), between Bir Singh V/s Mukesh Kumar, the Hon'ble Apex Court held as under:
"37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 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 a 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, if cheque is otherwise valid, the penal provision of Section 138 would be attracted.
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still the on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
40. Even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment. Would attract presumption Under section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."
47. The principles emerging from the above referred decision make it clear that, it is not mandatory and no law prescribes that the contents of the cheque should be written by the signatory to the cheque. A cheque can be written by anybody and if the account C.C.NO.6298/2023 44 holder of the cheque signs it, the presumption under section 139 of N.I.Act arises. The principle of law laid down in above decision is aptly applicable to the facts of this case. In view of section 20 of N.I.Act, the cheque being an inchoate instrument, if the drawer signs and delivers to the drawee, thereby he gives authority to the drawee thereof to make or complete the instrument.
48. As per the version of the accused he has nowhere denied money transaction. The accused himself has admitted that he is the holder of alleged cheque. It is sufficient hold that the accused had issued the cheque and even after he has not repaid the cheque amount the getting of receipt of notice. However, in any manner as the complainant have complied all the terms of ingredients of the provisions of 138 N.I.Act. Hence, the accused is liable for dishonor of cheque. In case of dishonor of the cheque, once the execution of the cheque is admitted by the accused, then it for him to first rebut presumption arising out of section 139 of N.I.Act. Accordingly, P.W.1 has established the case of the complainant. Therefore, the accused has failed to probables the defence taken by him that Ex.P.1 was the blank cheque given to the complainant for the purpose of withdrawal of cash. Therefore, the accused has failed to rebut the presumption under section 139 of N.I.Act. In the said circumstances, the complainant is not at all required to C.C.NO.6298/2023 45 produce any materials i.e., books accounts, bills, GST filing, income tax returns, stock audits report, inwards and outwards of stocks, bank statements as to the money transaction between the complainant and the accused, since the initial presumption is still available, when there is no rebuttal evidence.
49. PW.1 in his evidence has specifically deposed that the accused had joined the complainant company as a sales executive in the month of August 2013 and thereafter promoted as a sales head/cluster head. Further deposed that the accused was assigned the work to obtain the orders for its product and to make collection of dues from its customers/dealers. The accused had worked with the complainant company till June 2022. Further deposed that the accused had drawn upto date salary from the complainant in respect of his service before he was removed from the job. Further deposed that during the course of the service, the accused was regularly making the collection of dues on behalf of the complainant company from its customers/dealers and during the course of such collections, the accused has misappropriated the amount to the tune of Rs.1,44,00,000/- i.e., the accused had collected the dues from the various customer/dealers in his personal name by receiving the same by way of Google pay and phonePe of his mobile No.8095111444 linked his bank account C.C.NO.6298/2023 46 No.093801511474 of ICICI Bank, Bengaluru and he did not report the same to the complainant company. Further deposed that the complainant came to know about the misappropriation of funds by the accused during the month of April 2022 and immediately made through enquiry and when questioned him about the same, he had accepted his guilt and voluntarily made a written admission to that effect on 16.06.2022. After admission of misappropriation of funds, the accused had promised to repay the said amount to the complainant in 06 installments i.e., Rs.25,00,000/- on 17.06.2022, Rs.25,00,000/- on 30.06.2022, Rs.20,00,000/- on 27.07.2022, Rs.25,00,000/- on 28.08.2022, Rs.25,00,000/- on 27.09.2022 and Rs.24,00,000/- on 30.10.2022. It is further deposed that as promised and agreed the accused had paid a sum of Rs.45,00,000/- to the complainant company by way of cheque and by way of transfer of funds through RTGS and NEFT i.e., Rs.20,00,000/- on 20.06.2022, Rs.20,00,000/- on 28.06.2022 and Rs.5,00,000/- on 01.07.2022. As per the assurance made by the accused, he has deliberately failed to repay the remaining amount. Further deposed that the accused had issued the cheque in question in favour of the complainant. So also it is not in disputed that the complainant and the accused are known to each other, some point of period. But the accused has failed to rebut the presumption under section 139 of N.I.Act.
C.C.NO.6298/2023 47 Hence, non furnishing the details of money transaction no consequences to disbelieve the case of the complainant. The accused has failed to probables his defence. With these reasons, I answer point No.1 and 2 in the Affirmative.
50. POINT NO.3 AND 4: These two points are inter-related to each other and finding given on any one point will bearing on the another. Hence, in order to avoid repetition of facts and evidence, I have taken these two points together for common discussion Before a person is held to have committed an offence punishable under section 138 of N.I.Act, the complainant have to prove all the requirements of section 138 of N.I.Act. Ex.P.1 being his cheque drawn on the account of the accused is not in dispute. The said cheque having been dishonored for the reasons "Funds Insufficient", when it was presented by the complainant before the bank for encashment is also not seriously disputed by the accused. The accused has not taken up any contention that thereafter he had paid the cheque amount within stipulated time of 15 days, after issuance of the notice. As such, in the present case on perusal of the documents, the essential requirements of section 138 of N.I.Act, have been complied with. In this case if the accused had issued the blank cheque in favour of the complainant for the purpose of withdrawal of cash and why he has not C.C.NO.6298/2023 48 produced any documents after issuance of the legal notice. After issuance of notice the accused neither reply to the notice nor paid the cheque amount. Hence, the present complaint came to be filed before the court on 02.03.2023.
51. While discussing the point No.1 and 2, this court has already observed that the complainant have proved that the cheque-Ex.P.1 was issued for discharge of legally enforceable liability/debt and in view of the mandatory requirements under section 138 of N.I.Act, being complied with. The accused is found to have committed an offence punishable under section 138 of N.I.Act. With these reasons, I answer point No.3 and 4 in the Affirmative.
52. POINT NO.5: The accused is held to have committed an offence punishable under section 138 of N.I.Act. The complainant have proved its case. The accused has failed to prove his rebuttal for the reasons mentioned above and in view of the mandatory requirements of section 138 of N.I.Act, being complied with. The accused is found to have committed an offence punishable under section 138 of N.I.Act. Since, the said offence is an economic crime, the accused is not entitled for the beneficial provisions of probation of offenders Act. In view of the above discussions and the findings on point No.1 to 4, I proceed to pass the following;
C.C.NO.6298/2023 49 :ORDER:
Acting under section 255(2) of Cr.P.C. the accused is convicted for an offence under section 138 of N.I.Act.
The bail bond of the accused hereby stands canceled.
The accused is sentence to pay fine of Rs.99,10,000/- (Rupees ninety nine lakhs ten thousand only) to the complainant company.
It is further ordered that out of the said fine amount an amount of Rs.99,02,000/- (Rupees ninety nine lakhs two thousand only) shall be paid to the complainant company as compensation as per section 357(1)(b) of Cr.P.C., and remaining amount of Rs.8,000/- (Rupees eight thousand only) shall be remitted to the State.
In default of the payment of fine amount, the accused shall undergo simple imprisonment of six months.
(Dictated to the stenographer directly on computer typed by her, corrected by me and then judgment pronounced in the open court on 05 th day of December-2024) (Soubhagya.B.Bhusher) XXVIII Addl. Chief Judicial Magistrate, Bengaluru City.
C.C.NO.6298/2023 50 ANNEXURE List of witness examined on behalf of the complainant:
PW.1 : Sri Arun.A.C. List of documents marked on behalf of the complainant:
Ex.P.1 : Cheque. Ex.P.1(a) : Signature of the accused. Ex.P.2 : Bank endorsement. Ex.P.3 : Office copy of the legal notice. Ex.P.4 : Postal receipts. Ex.P.5 & 6 : Returned postal covers. Ex.P.5(a) & 6(a) : Returned legal notices. Ex.P.7 : Incorporation certificate. Ex.P.8 : Minutes of board meeting. Ex.P.9 to 11 : Accounts statements. Ex.P.12 : Letter written by the accused. Ex.P.12(a) : Signature of the accused. Ex.P.13 : Complaint. Ex.P.14 : O.D Bank statement. Ex.P.15 : Running bank account statement. Ex.P.16 : Running bank account statement.
List of witnesses examined on behalf of the accused:
DW.1 : Mr.Suresh.S.K. List of documents marked on behalf of the accused:
Ex.D.1 to 6 : Commercial test reports. Ex.D.7 : Resignation letter. Ex.D.8 and 9 : ICICI bank statements. Ex.D.10 : Kotak Mahindra bank statement. Ex.D.11 to 14 : Photos. Ex.D.15 : C.D. Ex.D.16 : Certificate under section 65(b) of I.E.Act. Ex.D.17 : Date-wise payment details. Ex.D.18 : Kotak Mahindra Bank statement. Ex.D.19 : ICICI Bank Statement. Ex.D.20 : Bill-wise payment details in respect of (Ex.D.18 and 19. Ex.D.20) XXVIII Addl. Chief Judicial Magistrate, Bengaluru City. C.C.NO.6298/2023 51 05.12.2024 (Judgment pronounced in the Open Court Vide Separate Sheet) :ORDER: Acting under section 255(2) of
Cr.P.C. the accused is convicted for an offence under section 138 of N.I.Act.
The bail bond of the accused hereby stands canceled.
The accused is sentence to pay fine of Rs.99,10,000/- (Rupees ninety nine lakhs ten thousand only) to the complainant company.
It is further ordered that out of the said fine amount an amount of Rs.99,02,000/- (Rupees ninety nine lakhs two thousand only) shall be paid to the complainant company as compensation as per section 357(1)(b) of Cr.P.C., and remaining amount of Rs.8,000/- (Rupees eight thousand only) shall be remitted to the State.
In default of the payment of fine amount, the accused shall undergo simple imprisonment of six months.
XXVIII Addl. Chief Judicial Magistrate, Bengaluru City.