Bangalore District Court
Towards Part Payment Of The Loan Amount ... vs On 27.02.2007 on 10 December, 2015
SCCH-14 1 CC No.14917/07
`
IN THE COURT OF THE XL ADDL.CHIEF METROPOLITAN
MAGISTRATE, BANGALORE CITY.
SCCH-14
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
XL ACMM,
BANGALORE.
C.C.No. 14917/2007
Dated this the 10th day of December 2015
1. Sl.No. of the case C.C. No.14917/2007
2. The date of Institution 03.04.2007
3. The date of commencement
of the evidence 07.11.2014
4. Name of the Complainant: THE FEDERAL BANK LIMITED
A Banking Company having its
Registered office at ALUVA
Kerala State and a Branch at
Koramangala
Bangalore-560 0095.
Bangalore-560 082.
Represented by its Senior
Manager
Sri.P.P.Thomas
Now: Represented by its Chief
Manager Mrs.Lalitha.R
W/o M.Subramani
Aged about 58 years,
(By pleader Sri MAR)
5. Name of the Accused R.Purushothaman
S/o late Ramachandran
Major,
No.76/B, Ookadapalayam
John Bull Street
Viveknagara
Bangalore-47.
(By pleader Sri SSK)
SCCH-14 2 CC No.14917/07
6. The offence complained of or Under Sec.138 of N.I. Act.
proved
7. Plea of the accused on his Pleaded not guilty
examination
8. Final Order Accused is convicted
9. Date of such order 10.12.2015
XL ACMM,
BANGALORE.
SCCH-14 3 CC No.14917/07
JUDGMENT
This is a complaint filed by the complainant against the accused for the offence punishable U/Sec.138 of Negotiable Instruments Act (hereinafter called the Act).
2. Brief averments of the complaint are as under:
The complainant is a Banking Company registered under the Companies Act having its head office at Aluva, Kerala, and one of its Branches is at Koramangala, Bangalore-95. The accused has availed loan from the complainant bank. After availing the loan, the accused has agreed to repay it with interest in monthly installments regularly. But the accused was not making repayment properly and remained to be a defaulter. The complainant approached and demanded the accused for repayment of the said loan amount and the accused has issued a cheque bearing No.187232 dated 21.02.2007 for Rs.57,067/- drawn on State Bank of India, Jeevanbima Nagar Branch, Bangalore in favour of the complainant towards part payment of the loan amount due by him. The complainant presented for encashment on 21.02.2007, but the cheque was dishonoured on the ground "Funds Insufficient" vide a memo dt.21.02.2007. Then, the complainant issued a notice to the accused on 26.02.2007 and dispatched on 26.02.2007, calling upon the accused to make the payment due under the dishonoured cheque. The said notice was received by the accused on 27.02.2007, but he has not paid the amount due by him in respect of the cheque issued by him. Hence, the complainant has filed this complaint praying for convicting the accused, punishing him in accordance with law.SCCH-14 4 CC No.14917/07
3. Cognizance of offence was taken on the basis of complaint and it was registered in PCR No.5843/2007. Sworn statement of the then Manager of the complainant was recorded. After hearing the complainant and his counsel, the court found sufficient material to issue process against the accused for the offence punishable U/s 138 of the Act. Accordingly, this criminal case was registered against the accused for the said offence and process was issued against the accused for the said offence. Initially, this case was pending before 13th ACMM, Bangalore and it was transferred to 19th ACMM, Bangalore and later, it came to be transferred to this court. In the pursuance of the process, the accused has appeared before court through his counsel and he is enlarged on bail. Then, substance of accusation was read over and explained to the accused. He has pleaded not guilty. Hence, the complainant was called upon to prove his case.
4. During evidence, the complainant has examined his Chief Manager as PW.1 and got marked documents as Ex.P1 to Ex.P7. Then, statement of accused was recorded. The accused has not adduced any evidence on his behalf.
5. Heard the arguments. The counsel for the complainant has filed written arguments and relied upon following rulings:
1. ILR 2005 Kar 5578 SC: CREF Finance Ltd., Vs., Shree Shanthi Homes Pvt.,Ltd., & Ors.,)
2. 2014 (1) DCR 107: M/S Canara Work Shops Ltd., Vs., Shri.Mahantesh
3. 2009(1) Banker's Journal 15 SC:
National Small Industries Cor., Ltd., V/s State (NCT of Delhi) SCCH-14 5 CC No.14917/07
4. AIR 2005 SC 109: V.Rajakumari V/s P.Subbarama Naidu & Ors.,
5. AIR 2001 SC 2895: K.N Beena V/s Muniyappan & Ors., The Counsel for the accused has relied upon following rulings:
1. AIR 1967 SC 778 : The State of Gujarat, Vs., Vinaya Chandra Chhota Lal Pathi
2. AIR 2010 SC 1898: Rangappa Vs. Mohan
3. 2011 (4) KCCR SN 444: Chandrashekharappa Vs. Sharanabasappa
4. 2011 (3) KCCR 1825: M/S United Distributors, Mangalore Vs. Smt. Geetha K.Rai
5. AIR 2008 SC 2255 : DCM Financial Services Ltd., Vs., J.N.Sareen & Anr.,
6. 2009 (1) DCR 611: Anand Urban Cooperative Credit Society Ltd., Vs. Vipin Lal Chand Mehta & Anr.,
7. 2009 (1) DCR 308 : Raman Finance Corporation Vs., Harmeet Singh
8. 2014 (1) DCR 381 : Daljit Singh Vs., Jasbir Singh Sandhu
9. 2009 (2) DCR 673: C.Bhaskaran Nair Vs. B.Mohanan
10. 2009 (2) DCR 483 : Shiva Murthy Vs. Amruthraj
11. 2011 (2) DCR 349: The Moti Urban Co-
Operative Bank Ltd., Vs., Bijya Damiya Vasave
12. 2010 (2) DCR 317: Ramakrishna Urban Co-
operative Credit Socity Ltd., Vs. Rajendra Bhagchand Warma
13. 2013 (1) DCR 577: REV.Mother Marykutty Vs., Reni C.Kottaram & Anr.,
14. 2013 (3) DCR 144: M/S Guru Nank Tractors Vs., Swarn Singh The counsel for the complainant has filed counter written argument in reply. The accused has filed IA U/Sec.250 Cr.P.C. and sought for awarding compensation after passing of Judgment. The said IA is heard along with main arguments.
SCCH-14 6 CC No.14917/07I have gone through the written arguments, rulings and perused the records.
6. Now the points arise for my consideration are:
1. Whether the complainant has proved that the accused has issued Ex.P-1 cheque in his favour towards discharge of legally enforceable debt without maintaining sufficient balance in his bank account and failed to pay the cheque amount within time inspite of service of demand notice?
2. What order ?
7. My findings are:
POINT NO.1 : In Affirmative.
POINT NO.2 : As per final order.
REASONS
8. POINT NO.1: The complainant has relied upon oral evidence of PW.1 and documentary evidence at Ex.P1 to 7 to prove his case. The accused has denied the incriminating evidence against him as false during 313 statement. He has not entered his defence. He has not adduced any evidence, either oral or documentary evidence on his behalf. But, he has placed reliance on the evidence adduced by the complainant to prove his defence. Rulings at Sl.No.7 and 9 have laid down principles that the accused can maintain silence during trial, that no positive evidence is necessary to prove his defence and that he may prove his defence on the basis of the evidence available on record. These rulings mandate the court not to draw adverse inference against the accused only on the ground of non production of positive evidence by him.
SCCH-14 7 CC No.14917/079. PW.1 Smt.Lalitha is the Chief Manager of the complainant and she has reiterated the entire averments of the complaint. The complainant has produced cheque, bank memo, copy of notice, postal receipt, UCP, acknowledgment and copy of GPA to corroborate the oral evidence of PW.1. It is brought out during cross examination that PW-1 never worked in Kormangala branch of the complainant bank and she have no personal knowledge of the transaction between the complainant and the accused, that name and address of PW.1 as stated in affidavit do not tally with the particulars of GPA holder named in Ex.P7, that name of executant of Ex.P7 is not mentioned therein and PW-1 is not sure that the said executant is still in service or not, that authority letter of P.P. Thomas who presented the complaint is not produced before the court, that PW-1 has not seen the accused signing any document, that no documents in respect of alleged loan transaction are produced, that there is discrepancy in the date of notice, date mentioned in acknowledgment and date written below the signature on acknowledgment, that the cheque was presented for encashment one day prior to its date, that the amount of cheque was intended to go to FHS account of the accused.
10. It is contended by the accused that the person who filled the blanks in the notice at Ex.P3 has written the contents of the cheque at Ex.P1, that signature on the acknowledgment at Ex.P6 is manipulated, that P.P. Thomas was not having authority to present the complaint and PW.1 has no authority or competency to depose regarding the facts of the case, that evidence of PW.1 as SCCH-14 8 CC No.14917/07 to signature of the accused on Ex.P1 is inadmissible as she has not seen him signing any document, that the executant of GPA had no authority to execute GPA and PW.1 has not acquired any right or authority under the same, that the complainant has not proved the existence of debt by producing proper documents, that the cheque was presented for encashment one day prior to its date which is against the authority given, that the discrepancies in respect of acknowledgment create confusion as to when the notice was sent and when it was delivered, that the cheque was drawn in favour of account of the accused as such offence U/Sec.138 is not attracted.
11. The counsel for the accused has argued that the court can compare the handwritings on the cheque and notice to find out as to whether the handwritings are of same person or not, that P.P.Thomas was not holding any GPA or authority to present the complaint as such taking of cognizance itself is bad, that the complainant has not produced authorization of P.P. Thomas till this date, that the GPA at Ex.P7 does not give any authority to PW.1 to give evidence on behalf of the complainant, that presumptions U/Sec.118 and 139 of the Act cannot be drawn in favour of the complainant as no documents are produced to prove the loan transaction and existence of legally enforceable debt on the date of cheque, that the complainant has not produced any evidence to prove that the bank has authority to fill up the blank cheque, that when there was no debt or liability on the date of cheque, offence U/Sec.138 of the Act is not attracted, that no notice is served on the accused as such Ex.P6 is created for this SCCH-14 9 CC No.14917/07 case. He has further argued that a false case is filed against the accused by misusing the blank cheque of the accused and made him to suffer a lot and hence, he has sought for acquittal of the accused and for awarding him compensation. He has relied upon rulings mentioned supra.
12. The counsel for the complainant filed written argument stating that non production of authorization letter of P.P.Thomas is no ground to dismiss the complaint, that notice is deemed to be served on the accused, that the complainant has discharged his primary burden and the accused has failed to prove his defence by preponderance of probability, that the accused has not discharged his burden as such legal presumptions U/Sec.118 and 139 of the Act remained unrebutted, that the accused has not explained as to how his cheque came in possession of the complainant, that the accused can not plead ignorance and he has not paid the cheque amount within time in spite of service of notice as such he has committed the offence punishable U/Sec.138 of the Act. Hence, he has sought for convicting the accused and for dismissing IA U/Sec.250 of Cr.P.C. He has produced the rulings mentioned above to support his argument.
13. There is no dispute that the complainant is a banking company registered under the Companies Act. Thus, the complainant is an artificial person and it shall be represented by some real person. The complaint reveals that one P.P Thomas, the Sr.Manager of the complainant has presented the complaint before the Court on 03.04.2007. Admittedly, deed of GPA and authorization letter pertaining to P.P. Thomas are not produced.
SCCH-14 10 CC No.14917/07However, designation of P.P. Thomas in respect of the complainant is not denied. He has presented the complaint in the capacity of Sr.Manager of complainant. Hence, non production of GPA and authorization letter pertaining to P.P. Thomas is not a ground to hold that taking cognizance is bad in law.
14. Any fact may be proved by oral or documentary evidence. However, admitted facts need not be proved. The facts which are not disputed or not denied are deemed to have been admitted and such facts need no further proof. The offence U/Sec.138 of the Act is a technical offence. Proof of said offence is mainly based on documentary evidence. It is settled law that documentary evidence prevails over oral evidence. PW.1 Smt.Lalitha never worked in Kormangala Branch of the complainant and she has no personal knowledge about the transaction involved in this case. However, her status as Chief Manager of Asset Recovery Branch of complainant is not denied. She is the in-charge of recovery branch. Ex.P7 is issued in her favour. Though, there is difference between the name of the PW.1 as shown in affidavit filed in lieu of examination-in-chief and the name of GPA Holder in Ex.P7, but both are of same person as the name mentioned in Ex.P7 appears to be the maiden name of PW.1. There is nothing on record to believe that the PW-1 is not the person named in Ex.P-7. Name of executant is not mentioned in Ex.P7. PW.1 does not know whether the executant is in service or not. It is not a GPA executed by any individual, but it is executed in favour of PW.1 by General Manager on behalf of the bank. Hence, name of executant and whether he is in service or not are SCCH-14 11 CC No.14917/07 immaterial. Such discrepancies do not take away the right of a Chief Manger to depose on behalf of the bank. Since, it is a technical offence, PW.1 need not have personal knowledge of every details of the transaction between the complainant and the accused because documents play a vital role and oral evidence just corroborates the documentary evidence. Hence, contention raised by the accused regarding competency of PW.1 to depose for the complainant is unacceptable.
15. The cheque at Ex.P1 is drawn in the name of the complainant for Rs.57,067/- on the account maintained in SBI, Jeevanbimanagar, Bangalore. PW.1 has identified the signature at Ex.P1(a) as the signature of the accused. But, her admission reveals that she is not competent to identify the signature of the accused as she has never seen him signing any document. However, there is no denial as to signature at Ex.P1(a). The accused has not contended that the cheque at Ex.P1 does not pertain to his bank account and it does not bear his signature. Failure on his part to deny the same induces the court to draw an inference that Ex.P1 cheque belongs to the accused and it was drawn on the account maintained by him in SBI, Jeevanbimanagar, Bangalore, that the said cheque bears his signature. But, the accused has disputed the handwriting on the cheque as can be seen from following portions of cross- examination of PW.1:
" I don't know the cheques obtained from the accused were duly filled or not. Witness volunteers that they must be duly filled. I don't know who has filled Ex.P1 cheque. I can identify the handwriting and SCCH-14 12 CC No.14917/07 signature of Mr.P.P. Thomas. Ex.P3 bears his signature, but the handwriting over it is not of the Mr. P.P. Thomas. It is true to suggest that I was not present when the notice at Ex.P3 was issued. I am not sure that handwriting on the cheque at Ex.P1 and that on the Ex.P3 are of same person.
Witness volunteers that those handwritings look similar. I don't know the cheque and the notice at Ex.P1 and Ex.P3 were filled by one and the same person. I am not able to say that the ink of the signature at Ex.P1(a) is darker than the ink of other writings on the cheque"
16. The accused has tried to make out that the contents of the cheque are written by the person who filled the notice. He was trying to represent that P.P. Thomas has filled the blanks in notice at Ex.P3 and filled the cheque at Ex.P1 to file this case. The court is empowered to compare the handwritings on the cheque and notice. Ruling relied upon by the accused at Sl.No.1 reiterates the said principle. On careful comparison of handwritings on Ex.P1 and 3, it reveals that the person who filled the blanks in the notice has written the contents of cheque at Ex.P1, but there is nothing on record to believe that those handwritings are of P.P. Thomas. Since, notice is issued by the complainant bank, one of its officials should have written its contents. It means, the contents of cheque at Ex.P1 are written by the official of the complainant, but that itself is not a ground to believe that the cheque of the accused is misused. Putting signature on the cheque is nothing but giving an authority to fill up the cheque. In other words, signature on the cheque confirms the correctness of its contents. Ignorance of law is no excuse. A person putting signature on a negotiable instrument cannot be permitted to deny the contents of the same without SCCH-14 13 CC No.14917/07 there being any cogent contrary evidence. Mere denial is not sufficient to hold that the cheque was filled without authority or consent of the accused. Hence, contention of the accused in that regard is unreliable.
17. It is argued that the cheque is not drawn in favour of the complainant as such he has no locus standi to file the complaint. Following portion of cross-examination of PW.1 makes the defence of the accused clear:
"It is false to suggest that the accused has not drawn Ex.P1 cheque in favour of the complainant bank. It is false to suggest that the cheque was issued for processing of loan which we have misused".
18. Ex.P1 is the cheque in dispute in which the name of the payee is mentioned as under:
"Purushothaman FHS A/c, Federal Bank".
The above name makes it clear that the cheque is issued in favour of the complainant towards FHS loan account of the accused. The name of the accused is mentioned first, but the cheque is in the hands of the complainant. Loan Account Number is mentioned on the cheque. Though, first name mentioned in the cheque is of the accused, it does not mean that the accused is the payee named therein. Secondly, evidence of PW.1 discloses that the accused has borrowed loan from the complainant and issued Ex.P1 cheque towards discharge of debt. It means, the complainant is holder in due course within the meaning of Sec.9 of the Act. I am of the opinion that the complainant is holder in due course and he has locus-standi file the complaint as per Sec.142 of the Act.
SCCH-14 14 CC No.14917/0719. The cheque at Ex.P1 is dated 21.02.2007. It was presented for encashment on 21.02.2007 and it came to be dishonoured for "Funds insufficient" as per memo dt. 21.02.2007 at Ex.P2. It is suggested to PW.1 that the cheque was sent for collection earlier to 21.02.2007 as such presentation of cheque was unauthorized. PW.1 has denied the same as false and stated that no such authorization is required. It is for the payee to present the cheque. Even if it was presented for encashment earlier to its date, it will not be honoured till arrival of the date on it. Ex.P2 reveals that the cheque was presented for encashment on 21.02.2007. Hence, I hold that presentation of cheque for encashment was proper.
20. The cheque at Ex.P1 is dishonoured for "Funds insufficient" vide memo dt.21.02.2007. Contents of Ex.P2 carry presumptive value. There is no denial by the accused regarding correctness of memo. It is not his defence that there was sufficient funds in his account to honour the cheque. There was 30 days time to issue demand notice. The complainant has issued notice as per Ex.P3 on 26.02.2007 to the accused demanding the payment of cheque amount. Postal receipt, UCP and acknowledgment are at Ex.P4 to 6. Three different dates are forthcoming from Ex.P3 to 6 which is material inconsistency as per the argument canvassed by the counsel for the accused. The notice is dated 26.02.2007. Postal receipt is dated 26.02.2007. UCP is dated 27.02.2007. Date of dispatching the notice is shown in acknowledgment as 27.02.2007 and the date below the signature is 27.02.2007. It is contended by the accused that the signature at Ex.P6 is manipulated. But, it is SCCH-14 15 CC No.14917/07 pertinent to note that the accused has not denied the correctness of the address mentioned in notice, UCP, Acknowledgment and the complaint. Addresses mentioned in all the said documents are one and the same. The order sheet and records of the case disclose that summons was served on the accused on the same address. Hence, I hold that the address mentioned in notice, UCP and acknowledgment at Ex.P3, 5 and 6 is the correct address of the accused. Postal receipt is a computer generated receipt in which date and time of dispatching the document is mentioned as 26.02.2007 at 14.33 hrs. Men may commit mistakes, but not computers in recording the date and time. Hence, I am of the opinion that the notice at Ex.P3 was sent to the correct address of the accused on 26.02.2007 and it was duly served on the addressee on 27.02.2007. UCP was posted on 27.02.2007. Hon'ble Supreme Court has held in ruling reported in AIR 2005 Supreme Court 1009: (V.Raja Kumari Vs. P.Subbarama Naidu & Anr.,) as under:
(A) Negotiable Instruments Act (26 of 1881), Ss.138, 142-Dishonour of cheque-
Complaint-Giving of notice of drawer-when to be presumed-No the dispatched by sender by post with correct address on it-It can be deemed to be served on sender unless he proves that if was not really served.
(B) Negotiable Instruments Act (26 of 1881).S.138-Dishonour of cheque-Complaint for-Service of notice to drawer-complaint cannot be dismissed at the threshold on ground that there was no proper service of notice-question has to be decided during trial".
SCCH-14 16 CC No.14917/07The above ruling is applicable to this case. The accused has not produced any evidence that the address mentioned in the notice is not correct and there was no chance of its service upon him. It is held above that the address shown in the notice and acknowledgment is the correct address of the accused and he was served with summons on the same address. Hence, I hold that the demand notice was valid and it was duly served on the accused on 27.02.2007. He was having 15 days time to pay the amount of cheque or to reply. PW-1 has stated that the accused has neither paid the amount nor replied the notice. There is nothing on record to disbelieve her evidence. 15 days period expired on 14.03.2007. Cause of action of file the complaint arose on 15.03.2007. There was one month time till 15.04.2007 to file the complaint. The complainant has filed the present complaint on 03.04.2007 which is well within time. Thus, the complainant has complied all requirements of Sec.138 and 142 of the Act. The complainant has discharged his primary burden by examining PW.1 and producing documents at Ex.P1 to 7. Hence, legal presumptions U/Sec.118 and 139 of the Act shall have to be drawn in favour of the complainant.
Sec.118 of the Act reads as under:
Sec.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, SCCH-14 17 CC No.14917/07 indorsed, negotiated or transferred for consideration:
(b) as to date- that every negotiable instrument bearing a date was made or drawn on such date:
(c) as to time of acceptance- that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity:
(d) as to time of transfer-that every transfer of a negotiable instrument was made before its maturity:
(e) as to order of endorsements-that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon:
(f) as to stamps- that a lost promissory note, bill of exchange or cheque was duly stamped:
(g) that holder is a holder in due course-
that the holder of a negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him".
Sec.139 of the Act reads as under
"Sec.139: Presumption in favour of holder; It shall be presumed, unless the contrary is prove, that the holder of a cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability:SCCH-14 18 CC No.14917/07
The above provisions mandate the court to believe that the cheque at Ex.P1 was drawn on 21.02.2007 for consideration and towards discharge of debt or other liability. 10th ruling relied upon by the accused laid down a principle that the complainant has to establish the existence of debt for availing the benefit of presumption U/Sec.139 of the Act. The said ruling was based on the ruling of Hon'ble Supreme Court in Krishna Janardhan Bhat case. But in 2nd ruling cited by the accused, Hon'ble Supreme Court has held that existence of debt or liability is also a matter of presumption U/Sec.139 of the Act. Hence, proof of existence of debt by independent evidence is not necessary. There is no evidence that the complainant has obtained the cheque by illegal means i.e., by playing fraud, misrepresentation, etc., Custody of the cheque with the complainant is lawful. Under the circumstances, the contention of accused regarding non production of loan documents by the complainant holds no water.
21. Evidence of PW-1 is corroborated by the contents of documents at Ex.P-1 to 6 which collectively substantiate the averments of the complaint. Legal presumptions U/s 118 and 139 of the Act are drawn in favour of the complainant. The cheque in the hands of the complainant indicates that the debt is not repaid. But, the presumptions are rebuttable presumptions. The accused has to rebut the presumptions by probable defence. Degree of proof required from him is preponderance of probability. Rulings relied upon by the accused at Sl.No.4 and 13 laid down the said principle. The last ruling as per list of the accused says that if the instrument is not supported by consideration, offence U/s 138 of SCCH-14 19 CC No.14917/07 the Act is not attracted. The burden is upon the accused to prove that the cheque at Ex.P-1 is not supported by consideration, that there was no legally enforceable debt or liability upon him to issue the cheque, that he has not issued it towards discharge of such debt or liability, that his cheque is being misused.
22. In the last ruling in the list of the complainant, Hon'ble Supreme Court has held in ruling reported in AIR 2001 SC 2895: (K.N.Beena Vs.Muniyappan & Anr.,) as under:
"Negotiable Instruments Act (26 of 1181).Sc. 138, 139, 118-Cheque dishonour complaint-Burden of proving that cheque liad not been issued for any debt or liability-
Is on the accused-Denial/averments in reply by accused are not sufficient to shift burden of proof onto the complainant-Accused has to prove in trial by leading cogent evidence that there was no debt or liability-Setting aside of conviction on basis of some formal evidence led by accused not proper".
The above ruling is aptly applicable to the facts of this case. The complainant has discharged his burden to prove his case. Then, the burden shifts upon the accused to rebut the case of the complainant by probable defence. It is settled law that mere denial of case of the complainant is not sufficient to rebut the presumptions. In this case, the accused has no defence at all. He has contended that the blank cheque was given to the complainant for processing the loan, but no evidence is adduced in that regard. He has not issued any reply to the demand notice. Failure on the part of the accused to reply the notice is fatal his contentions. Secondly, his defence is of total denial. No person keeps quite after issuing blank cheque when loan was not disbursed and after SCCH-14 20 CC No.14917/07 receipt of demand notice from a person to whom he is not liable to pay any amount. If the accused has not borrowed any loan from the complainant, his signed cheque would never be in the hands of the complainant. If the accused had contended that he borrowed amount from the complainant and issued blank cheque as security, that the complainant has misused his blank signed cheque, then the matter would be different. He has not admitted any transaction between him and the complainant. There is no enmity or grudge between the accused and the officials of the complainant. There will be no personal benefit for either P.P.Thomas or PW-1. The complainant is a scheduled bank working under the guidelines of RBI and we can not imagine filing of false cases by it without there being cogent evidence. The accused has not produced any evidence to believe that the complainant has obtained Ex.P-1 by illegal means, misused it and filed a false case against him. Admissions of PW-1 and discrepancies pointed out by the accused are not sufficient to disbelieve the oral evidence PW-1 and contents of Ex.P-1 to 7. Thus, the accused has failed to rebut the presumptions U/s 118 and 139 of the Act that are drawn in favour of the complainant. The accused has failed to raise probable defence, to discharge his burden and to disprove the case of the complainant. The evidence on record clearly reveals that the accused has borrowed loan from the complainant and issued Ex.P-1 cheque in his favour towards discharge of debt without maintaining sufficient balance in his account. He has failed to pay the amount of the cheque in spite of service of demand notice and thereby committed the offence SCCH-14 21 CC No.14917/07 punishable U/s 138 of the Act. Hence, he is liable for conviction. There was no reason for him to file I.A. U/s 250 of Cr.P.C. The provisions of said section would come into play only if the accused is acquitted. Hence, the said I.A. is liable to be dismissed with cost. I am of the opinion that the complainant has succeeded to prove this point and I answer the same in affirmative.
23. POINT NO.2: In view of above discussion and findings, I pass following:
ORDER The accused is found guilty and is convicted U/s 255(2) of Cr.P.C. for the offence punishable U/s 138 of Negotiable Instruments Act.
The accused is sentenced to pay fine of Rs.1,14,000/-. In default to pay the fine amount, the accused shall undergo SI for a period of 6 months.
Out of fine amount, Rs.1,10,000/- shall be paid to complainant towards compensation.
Bail bond of accused stands cancelled. I.A. U/s 250 of Cr.P.C. filed by the accused stands dismissed with cost of Rs.1,000/-.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 10th day of December 2015.) BASAVARAJ CHENGTI XL ACMM, BANGALORE.SCCH-14 22 CC No.14917/07
LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW.1 - Lalitha.R
LIST OF DOCUMENT MARKED ON BEHALF OF THE
COMPLAINANT:
Ex.P1 - Cheque
Ex.P1(a) - Signature of Accused
Ex.P2 - Bank Memo
Ex.P3 - Copy of Notice
Ex.P4 - Postal Receipt
Ex.P5 - UCP
Ex.P6 - Acknowledgment
Ex.P7 - Copy of GPA
LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENCE: Nil LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENCE:
Nil XL ACMM, BANGALORE.SCCH-14 23 CC No.14917/07
Dt;10.12.2015 C-MAR A-SSK For Judgment Order pronounced in open court vide separate judgment.
ORDER The accused is found guilty and is convicted U/s 255(2) of Cr.P.C. for the offence punishable U/s 138 of Negotiable Instruments Act.
The accused is sentenced to pay fine of Rs.1,14,000/-. In default to pay the fine amount, the accused shall undergo SI for a period of 6 months.
Out of fine amount, Rs.1,10,000/- shall be paid to complainant towards compensation.
Bail bond of accused stands cancelled. I.A. U/s 250 of Cr.P.C. filed by the accused stands dismissed with cost of Rs.1,000/-.
XL ACMM, BANGALORE.SCCH-14 24 CC No.14917/07