Bangalore District Court
Sri.K.V.Ravindra vs Sri.Dinakaran.K on 7 March, 2023
KABC030214382018
IN THE COURT OF XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
PRESENT: BHOLA PANDIT,
B.Com.,LL.M.,
XX ADDL. C.M.M.
Bengaluru.
Dated this the 7th day of March 2023
C.C.No.7752/2018
Complainant : Sri.K.V.Ravindra,
S/o Late.Venkateshaiah,
Age 64 years,
R/at.No.415/2/2,
4th Cross, Wilson Garden,
Bengaluru- 560 027.
{ By Smt.G.V.Padmavathi. - Advocate }
Vs.
Accused : Sri.Dinakaran.K,
S/o Kailasam,
Age 26 years,
R/at.No.7/2 (old No.3),
2 C.C.7752/2018
Old Anjaneya Temple Street,
Ulsoor,
Bengaluru- 560 008.
{By Kumar & Kumar Advocates - Advocate}
Offence complained : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of Order : 07-03-2023
JUDGMENT
The present complaint is filed under section 2(d) read with section 200 of code of criminal procedure against the accused seeking to punish him for the offence punishable under section 138 of the Negotiable Instruments Act ( in short referred as "N.I. Act").
3 C.C.7752/2018
02. The thumbnail of the averments of the complaint are as under;
It is contended in the complaint that, the accused and the complainant are friends and well known to each other and out of the said relationship, the accused has borrowed a sum of Rs.6,00,000/- from the complainant on 20.07.2015 with interest at the rate of 12% per annum for the purpose of purchase the property and had executed on demand promissory note to repay the said amount within 30 months. It is further stated that, in the month of December 2017, when the complainant had approached the accused, the accused has issued two post dated cheques, i.e., cheque bearing No.000008 dated 20.02.2018 for a sum of Rs.6,00,000/- drawn on HDFC bank, Kondapur Branch, Hyderabad, Andra Pradesh towards the principal amount and cheque bearing No.000009 dated 20.03.2018 for a sum of Rs.1,80,000/- drawn on HDFC bank, Kondapur 4 C.C.7752/2018 Branch, Hyderabad, Andra Pradesh towards interest on the principal amount in favour of the complainant. When the complainant had presented the cheque bearing No.000008 dated 20.02.2018 for a sum of Rs.6,00,000/- drawn on HDFC bank, Kondapur Branch, Hyderabad, Andra Pradesh for encashment through his banker i.e., Shushruthi Souhardha Sahakara Bank Niyamitha, Wilson Garden Branch, Bengaluru, but it returned unpaid with banker's endorsement dated 22.02.2018 as "Funds Insufficient". On 26.02.2018, demand notice was issued to the accused, which returned with postal shara as ' not claimed '. Thus, the complainant has sought to convict the accused for the offence punishable under section 138 of NI Act and award double of the cheque amount to the complainant.
03. On presentation of complaint, this court has verified the averments of complaint along with records and thereby 5 C.C.7752/2018 had taken cognizance for the offence punishable under section 138 of NI Act. Thereby, as per the verdict of the Hon'ble Apex court reported in AIR 2014 SC 1983 in the case of Indian Bank Association and others V/s Union of India and others, the sworn statement of the complainant has been recorded as PW.1 and got exhibited nine documents at Ex.P.01 to Ex.P.09. During cross examination of the DW.1, Ex.P.07 to 09 got marked on confrontation. Having been made out the prima-facie case, the complaint has been registered in Register No. III and issued process against the accused.
04. In response to the summons, the accused put his appearance before the court through his counsel and filed bail application under section 436 of Code of Criminal Procedure, the accused has been enlarged on bail. The substance of accusation has been recorded and read over to the accused, he pleaded not guilty and intends to put 6 C.C.7752/2018 forth his defense. On filing application by the complainant under section 145(1) of NI Act, sworn statement of the complainant has been treated as examination in chief. Similarly, on filing application under section 145(2) of NI Act, the accused has been permitted to cross examine PW.1. On completion of the trial of the complainant's side, the statement of accused under section 313 of Code of Criminal Procedure has been recorded and read over to the accused, the incriminating material found in the trial of the case of the complainant. The accused has denied the same in toto and gave explanation that, complainant has filed false case against him. The accused also wants to lead his defense evidence. Similarly, the accused has filed his evidence in the form of affidavit. As per the judgment of the Hon'ble High Court of Karnataka in Cr.Pet.No.9331/2017 dated 02.07.2019 in the case of Vittal Sambrekar Vs. Manjunath, the accused is permitted to lead his defense 7 C.C.7752/2018 evidence by way of affidavit and got exhibited seven documents at Ex.D.01 to 07.
05. Heard the oral argument of Learned counsels for both the parties. Perused the materials available on record.
In support of his argument, the Learned counsel for the complainant has relied the following verdicts;
1. 2022(3) AKR 381 AIR Online 2022 kar 2570 M.S.Sathya Narayana Vs. Lingaraje Urs
2. AIR 2020 Supreme Court 945 APS Forex Services (P) Ltd., Vs. Shakthi International Fashion Linkers In support of his written arguments, the Learned counsel for the accused relied the following verdicts;
1. 2007 AIR SCW 7008 M/S.Rahul Builders \ Vs. Arihant Fertilizers and Chemical and another
2. 2007 AIR SCW 6482 M/S. Sarav Investment and Financial consultants pvt.Ltd and another Vs. 8 C.C.7752/2018 L.Loyds Register of Shipping Indian Office Staff Provident Fund and Another.
3. (2007)5 SCC 264 Kamala S. Vs. Vidyadharan M.J. & Another
4. AIR 2007 (NOC) 2612 (AP) G.Veeresham Vs. S.Shiva Shankar & Another.
5. (2009)2 SCC 513, Kumar Exports Vs. Sharma Carpets,
6. AIR 2009 (NOC) 12330 A.Vishwanatha pai Vs. Vivekananda S.Bhat 7.2010SCC Online Kar 2464 SanheetaVed Vs. Iqmen Data Solutions Pvt.Ltd.,
8. 2010(3) AIR kar 207 S.Thimmappa Vs. L.S.Prakash
9. 2012(3) KCCR 2057 Veerayya Vs. G.K.Madivalar
10. 2012(2) AIR KAR R 285
11. 2014(2) SCC 236 John K Abraham Vs. Simon C.Abraham & Another 12.2015(5) KLJ 457
13. 2016 SCC Online Gau 745 Anjelus Topno Vs. Shree Kanta Sharma 9 C.C.7752/2018
14. AIR 2019 SC 1983 Basalingappa Vs. Mudibasappa
15. 2019(5) SCC 418
16. ILR 2020 KAR 227 Mr.Manjunath.S.Vs. Mr.B.K.Subbarao.
I have carefully and meticulously gone through the above relied precedents.
06. The following points that arise for my consideration are as under;
POINTS
1. Does the complainant proves beyond reasonable doubts that, the accused has issued a cheque bearing No.000008 dated 20.02.2018 for a sum of Rs.6,00,000/- towards the discharge of his lawful liability of the complainant and when the said cheque was presented for encashment, it was returned unpaid due to "Funds Insufficient" in the account of the drawer as per banker's memo and inspite of issuance of demand notice , the accused has failed to pay the cheque 10 C.C.7752/2018 amount, thereby has committed the offence punishable under section 138 of NI Act?
2. What Order or sentence ?
07. My findings to the above points is as follows;
1. Point No.1: In the affirmative
2. Point No.2: As per final order for the following;
REASONS
08. POINT No.1: It is the specific case of the complainant that, the accused had borrowed hand loan of Rs.6,00,000/- from the complainant and towards discharge of the said hand loan amount, the accused has issued the disputed cheque and when the said cheque was presented for encashment, it returned unpaid due to "Funds Insufficient" in the account of the drawer and inspite of receipt of demand notice, the accused has failed to make the payment of the cheque amount.
11 C.C.7752/2018
09. To substantiate and establish this fact before the court beyond reasonable doubts as per the verdict of the Hon'ble Apex court in the case of Indian Bank Association and others V/s Union of India and others , the sworn statement of the complainant has been treated as affidavit evidence. In his affidavit evidence, PW.1 has replicated the averments of the complainant. To corroborate the evidence of PW.1, the complainant has placed on record in all seven documents as per Ex.P.01 to 09. Ex.P.1 is the disputed cheque dated 20.02.2018, Ex.P.1 (a) is the signature of accused, Ex.P.2 is the banker's memo dated 22.02.2018, which shows the reasons for the return of the cheque at Ex.P.1 for unpaid is as "Funds Insufficient" , Ex.P.3 is the legal notice dated 26.02.2018 demanding for payment of cheque amount by replicating the averments of complaint. Ex.P.4 is the the postal receipt about sending legal notice at Ex.P.3, Ex.P.5 is the returned postal cover, Ex.P.6 is the on demand promissory note, Ex.P.6(a) & (b) are the 12 C.C.7752/2018 signature of accused and Ex.P.6(c) is the signature of PW.2 and Ex.P.7 is the bank account statement of the accused by name Mr.Dinakaran.K.
10. To corroborate the oral testimony of PW.1, he has adduced evidence of one witness by name S.Arun Kumar, S/o Subramanya as PW.2, who testified in his affidavit evidence that, he knows the complainant since ten years and he use to purchase cloths and building materials regularly on credit basis from the complainant. He deposed that, on 20.07.2015 he had been to the house of complainant to place an order for buying building material and on that day, the accused Dinakar and his mother had came to the house of complainant, the complainant lent a sum of Rs.6,00,000/- to the accused in cash in his presence and has executed on demand promissory note and consideration receipt, for which he put his signature on the DP note as one of the attesting witness. He identified 13 C.C.7752/2018 his signature as well as the signature of accused on DP note at Ex.P.6 and his signature as Ex.P.6(a). The Learned Defense Counsel cross examined PW.1 & PW.2 at length.
11. In order to disprove the case of the complainant as well as to rebut the statutory presumption which could be drawn in favour of the complainant and also to prove the probable defense to the touch stone of preponderance of probabilities, the accused adduced his oral evidence before the court by way of filing his affidavit in the form of examination of chief as DW.1 and got marked in all five documents at Ex.D.01 to 07. Ex.D.1 is the HDFC bank account statement of accused, Ex.D.2 is the copy of the document DD bearing No.666785 dated 19.01.2015 for Rs.45,000/-, Ex.D.3 is the view cheque status copy dated 04.04.2022 in respect of cheque bearing No.8 and the status shown as cheque stopped. Ex.D.4 is also one of the view cheque status dated 04.04.2022 pertaining to cheque 14 C.C.7752/2018 bearing No.9 showing status as cheque stopped and Ex.D.5 is the certificate under 65b-(4) of Indian Evidence Act pertaining to documents at Ex.D.2 to 4, Ex.D.6 is the letter dated 29.09.2022 and Ex.D.7 is bank account statement of the accused. The Learned Prosecuting Counsel has cross examined DW.1 in substance.
12. It is vehemently argued on behalf of the complainant side that, the signature on the cheque is not disputed and the on demand promissory note very much corroborates the oral testimony of PW.1 thus, the legal presumption shall be drawn in favour of the complainant. No reply was given to the demand notice, hence hence an adverse inference can be drawn against the accused as per section 114 of Evidence Act. It is further argued that, the accused has paid Rs.45,000/- to his own loan account and the same is shown as he has received the only the said amount as loan from the complainant. The said amount of Rs.45,000/- 15 C.C.7752/2018 was not all paid by the complainant. It is further argued that, the documents at Ex.D.6 & 7 supports the case of the complainant and not the defense of the accused and thereby the accused has failed to rebut the statutory presumption under section 118(a) & 139 of NI Act. Hence, it is sought to convict the accused. In support of his argument, the Learned Prosecuting Counsel has relied the judgments as listed above.
Per contra, the Learned Defense Counsel strenuously contended that, the complainant not established before the court the service of demand notice, hence under section 138 of NI Act is not strictly complied. It is further argued that, the complainant not proved before the court the existence of legally enforceable debt so also his financial capacity to advance the alleged hand loan amount in cash. It is argued that, by the oral evidence of DW.1 coupled with the documents produced in the D-series, the accused has raised probable defense and thereby has proved the same 16 C.C.7752/2018 and stands rebutted the legal presumptions raised in favour of the complainant. The complainant has failed to discharge the onus shifted upon him, accordingly it is sought to dismiss the complaint and thereby to acquit the accused. In support of argument, the Learned Defense Counsel has relied the judgments as listed above.
13. Before to appreciate the oral and documentary evidence relied by the respective parties and also to appreciate the arguments canvassed by the both the Learned counsels, it is necessary to know as to whether the present complaint is filed in consonance with the provisions of section 138 of NI Act or not?. In this regard, the Learned Defense Counsel has also relied two judgments of the Hon'ble Apex Court reported in 2007 AIR SCW 7008 in the case of M/S Rahul Builders and another judgment reported in 2007 AIR SCW 6482 in the case of M/S. Sarave Investment Financial Consultants Private Limited and 17 C.C.7752/2018 Another. On perusal of the cheque in question at Ex.P.1, the return memo at Ex.P.2, the demand notice at Ex.P.3 and postal receipt at Ex.P.4. They clearly whispers that, the cheque in question has been presented to the bank for encashment within its validity period. The demand notice at Ex.P.3 clearly whispers that, within 30 days from the date of receipt of return memo it was issued. The complainant produced postal cover marked at Ex.P.5 and behind the said cover, the postal authority has made shara " door lock, intimation delivered" on 01.03.2018. By this shara made by the postal authority depicts that, the notice sent under Ex.P.5 was address to the correct and proper address of the accused. On the other hand, during the cross examination of PW.1 and even in his affidavit evidence before the court at para No.5, the accused has denied the service of demand notice. Admittedly, as per shara made on Ex.P.5, the demand notice was not personally served on the accused, but since the said notice 18 C.C.7752/2018 has been sent to the proper and correct address of the accused and the same returned with a shara as "door locked, intimation delivered" the same can be treated as deemed service of notice to the accused as per section 27 of General Clauses Act. The shara made by the postal authority at Ex.P.5 carries presumption of service as per section 114 of Evidence Act. When the accused is denying the service of demand notice, which is not established before the court about the non service of legal notice, no other steps has been taken by the accused to rebut the statutory presumption attached to the shara made by the postal authority. In this regard, it is profitable to refer the decision in the case of State of MP Vs. Hiralal reported in 1996(1) J.T.(SC) 669, it is held that;
" The endorsements such as, " not available in the house" , "house locked", "shop closed" and "left, not known" shall be taken as deemed service of notice."
Hence, in the case on hand, considering the shara made by the postal authority on Ex.P.5, I am of the 19 C.C.7752/2018 considered opinion that, though the accused did not receive the demand notice personally, but since the postal cover at Ex.P.5 has been properly addressed and sent to the correct address of the accused. Now, I am of the considered opinion that, there is a deemed service of notice under section 27 of General Clauses Act. Therefore, I do not consider any merit in the argument of the Learned Defense Counsel about non service of demand notice to the accused. Considering the presentation of complaint before the court on 24.03.2018 and taking note of date of shara made on Ex.P.5 01.03.018, I am of the considered opinion that, the present complaint has been filed only after complying the requirements of section 138 of NI Act.
14. As per sections 118(a) & 139 of NI Act are two important provisions and they provides for raising mandatory presumptions in favour of the complainant until the contrary is proved by the accused. Even in the catena of 20 C.C.7752/2018 decisions i.e., in the case of Rangappa Vs. Mohan reported in 2010(11) SCC 441, in the case of Bir Singh Vs. Mukesh Kumar reported in 2019(4) SCC 197, in the case of APS Forex Services (P) Ltd., Vs.Shakthi International Fashion Linkers reported in 2020(12) SCC 724, in the case of Rajeshbai Muljibhai Patel Vs. State of Gujarat, reported in 2020(3) SCC 794, in the case of Triyambak S. Hegde Vs. Sripad reported in Live Law 2021 SC 492 and it is laid down that, " Once the issuance of cheque and the signature thereon is admitted by the accused, the court is required to raise presumption in favour of the complainant stating that, the accused has issued the cheque for some consideration towards discharge of his legal debt or liability of the complainant and that the complainant is the due holder of the said cheque. The burden shifts on the accused to rebut the statutory presumptions under sections 118(a) & 139 of NI Act." Now, it is well established law that, the presumption mandated by section 139 of NI 21 C.C.7752/2018 Act, thus indeed includes the existence of legally enforceable debt or liability and it is open for the accused to raise a probable defense wherein the existence of legally enforceable debt or liability can be contested and he shall prove before the court on preponderance of probabilities, only thereupon a statutory presumption raised in favour of the complainant stands rebutted.
15. In the well known judgment of the Hon'ble Apex Court reported in AIR 2019 SC 1983 , in the case of Basalingappa Vs. Mudibasappa in para No.19, the top court of the country held that;
"Applying the rule of the word 'proved' under section 3 of Evidence Act, it became evident that in a trial under section 138, a prosecution will have to be made out every negotiable instrument was made or drawn for consideration and that it was extended for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges burden to prove that instrument was executed by the accused, the rules of presumptions under 22 C.C.7752/2018 section 118 & 139 help him to shift the burden on the accused.
The presumptions will live, exists & survive & shall and only when the contrary is proved by the accused, that is the cheque was not issued for consideration and in discharge of any debt or liability. A presumption itself is not evidence, but only makes a prima-facie case for a party to whose benefits it exists.
The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insists in every case the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated, but bare denial of the passing of consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is possible has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration & debt did not exists or their non- existence was so probable, that a prudent man would under the circumstances of the case act upon the plea that they did not exists."23 C.C.7752/2018
In the instant case on hand, though the accused did not give any reply to the demand notice issued under Ex.P.3, an adverse inference cannot be drawn against the accused as per section 114 of Evidence Act as such, the demand notice sent to the accused is not personally sent on the accused. While recording the substance of accusation, the accused simply has denied the accusation and not put forth his defense. The accused has put forth his defense only during the cross examination of PW.1. On page No.12 of the cross examination of PW.1 it has been suggested that, during the year 2015 PW.1 has availed loan of Rs.2,45,000/- from the Panjab and Sindh Bank and out of which, Rs.2,00,000/- was kept for himself and Rs.45,000/- was paid to the accused through DD and at that time, as security for repayment of the said loan of Rs.45,000/-, the complainant had took two cheques from the accused. PW.1 has denied this suggestion made from 24 C.C.7752/2018 the defense side. But, looking of this suggestion made to PW.1, it appears that, it is the defense of the accused put forth before the court. Even the accused in his affidavit evidence in para No.4 of the evidence has clearly admitted that, he has issued two signed blank cheques and on demand promissory note marked at Ex.P.6. Neither during cross examination of PW.1 not in his oral evidence, the accused not at all denied his signatures on the disputed cheques. Therefore, as per the aforesaid judgments of the Hon'ble Apex Court, the legal presumptions under section 118(a) & 139 of NI Act shall go in favour of the complainant and against the accused to the extent that, the accused has issued disputed cheque at Ex.P.1 from his account for some consideration towards the discharge of his debt or liability owes towards the complainant and that the complainant is the due holder of the said cheque and also payee of the same. Here, the Learned Defense Counsel vehemently argued that, the legal presumption under 25 C.C.7752/2018 sections 118(a) & 139 of NI Act shall not extends, but the complainant shall proved the same before the court beyond all reasonable doubts than only the said legal presumption shall lies in favour of the complainant. In support of his contention, the Learned Defense Counsel has relied the judgments of Hon'ble Apex Court reported in 2014(2) SCC 236 in the case of John K Abraham Vs. Simon C.Abraham and another. However, in the case of Rangappa Vs. Mohan reported in 2010(11) SCC 441, the larger bench of the Hon'ble Apex Court has clarified the law with regard to drawing presumption under section 118(a) & 139 of NI Act and held that, the presumption under section 118(a) & 139 of NI Act shall includes that the cheque issued towards the discharge of legally recoverable debt or liability by the complainant. Later in the latest judgment of the Hon'ble Apex Court reported in 2021(5) SCC 283 and 2022(1) SCC 742, the larger bench of the Hon'ble Apex Court has reiterated the law laid down in the case of Rangappa Vs. 26 C.C.7752/2018 Mohan , since the judgment of the Rangappa Vs. Mohan has been reaffirmed in the subsequent two judgments of the larger bench of the Hon'ble Apex Court, the judgments in the case of John K Abraham do not prevail over the ratio of the larger bench of the Hon'ble Apex Court, the judgment in the case of Rangappa Vs. Mohan followed by latest two judgments of the larger bench of the Hon'ble Apex Court would rule the filed of law, therefore the contention of Learned Defense Counsel is not acceptable in this regard. Since, the accused has admitted the cheque belongs to his account and also admitted his signature on the cheque. Therefore, the burden shifts on the accused to rebut the statutory presumption under section 118(a) & 139 of NI Act which goes in favour of the complainant. Now it is well settled law that, to rebut the statutory presumption under section 118(a) & 139 of NI Act, the accused is required to raise produced and thereby to prove the same on preponderance of probabilities by producing his own 27 C.C.7752/2018 evidence or he may rely upon the evidences produced by the complainant.
16. To rebut the statutory presumption under section 118(a) & 139 of NI Act, the accused adduced his oral evidence by way of filing his examination in chief in the form of affidavit as DW.1, wherein the accused has admitted the entire case of the complainant inter alia deposed in para No.4 stating that, in the 2nd week of January 2015, he approached the complainant for financial help of Rs.45,000/- as such, he had came to know about the sanction of loan of Rs.2,45,000/- to the complainant from Panjab and Sindh Bank, Chickpet Branch, Bengaluru. Accordingly, out of the said loan amount of Rs.2,45,000/-, the complainant himself had received a sum of Rs.2,00,000/- and he was given Rs.45,000/- by way of DD No.686785 dated 19.01.2015 and he got encashed the said DD amount by deposit to his account. He further deposed 28 C.C.7752/2018 that, periodically he has remitted loan of Rs.45,000/- to the accused along with interest and when he has asked the complainant for the return of his undated blank signed cheques bearing No.000008 and 000009 of HDFC bank, Kondapur Branch, Hyderabad, Andhra Pradesh, which were taken as surety and also requested for the return of his on demand promissory note which was taken as security. He further deposed that, no transaction of Rs.6,00,000/- had taken place between himself and the complainant, just to harass himself unnecessarily the complainant has filed this complaint against him. In support of his oral evidence, the accused has placed before the court in all seven documents which are marked at Ex.D.1 to 7. The Learned Defense Counsel has also cross examined PW.1 at length. During the cross examination of PW.1, no such material evidence culled out from the mouth of PW.1 that, he has not obtained any documents from the accused in respect of alleged advancement of hand loan amount. Further, 29 C.C.7752/2018 elicited from his mouth that, he has not produced any of his bank account statement before the court to establish his financial condition for the advancement of alleged hand loan amount, thereby questioned the financial capacity of the complainant to lend such a huge loan amount. As per my findings above, the burden to prove the alleged advancement hand loan of Rs.6,00,000/- and also the financial capacity of the complainant lies on the complainant himself only when the accused has successfully rebutted the legal presumption by producing cogent and acceptable evidence. After scrutinizing the oral evidence of complainant as well as accused and also the oral evidence of PW.2, it is admitted fact that, the complainant and accused are known to each other. The accused stated in his evidence that, the loan amount of Rs.2,45,000/- was sanctioned to the complainant in the Panjab and Sind Bank, Chamarajpet Branch, Bengaluru and out of the said loan amount, the complainant himself 30 C.C.7752/2018 had received Rs.2,00,000/- and Rs.45,000/- was lent to him through DD No.666785. In order to prove this fact before the court, the accused did not produce before the court the loan account statement of complainant in support of his defense. On the other hand, the complainant got marked one account statement by confronting with DW.1, which is marked at Ex.P.7 and similar document is also produced by the accused side, which is marked as Ex.D.7. By scrutinizing these two documents at Ex.P.7 & Ex.D.7 it can be clearly seen that, the accused himself had a loan account bearing No.03481200000824 in Panjab and Sind bank at Chickpet Branch, Bengaluru. These two account statements further whispers that, on 19.01.2015 a loan amount of Rs.2,40,000/- was sanctioned to the accused and the said amount was credited to the loan account of accused by debiting the same from the bank account and the said entry has been coined as loan disbursement debt vide DD No.666783. The term loan disbursement debt in 31 C.C.7752/2018 the banking transaction refers to a fact that, after sanction of the loan, the loan amount would be released to the account of the borrower and it became credit amount to the borrower by debiting the same to the lender account. The accused himself has produced one document titled as 'Loan Closure Cum No Due Certificate' dated 29.09.2022 issued by Panjab & Sind bank, Chickpet Branch, Bengaluru and the same has been marked as Ex.D.6. The contents of this Ex.D.6 clearly reveals that, the accused Mr.Dinakaran was sanctioned personal loan amount of Rs.2,45,000/- on fixed deposit amount of Mr. K.V.Ravindra, who is the present complainant in this case. This Ex.D.6 further reveals that, out of the loan amount of Rs.2,45,000/- from the loan account as shown in Ex.P.7 (Ex.D.7), an amount of Rs.2,00,000/- was transferred to the joint account of one Suman K.R & K.V.Ravindra through DD No.666784 on 19.01.2015 to their account bearing No.03481200000253 at Panjab & Sind Bank, JC Road Branch, Bengaluru and 32 C.C.7752/2018 the balance loan amount of Rs.45,000/- has been transferred vide DD bearing No.666785 dated 19.01.2015 to the another account of accused maintained in HDFC bank and same amount was credited to HDFC Bank account on 21.01.2015 it is evident from his HDFC bank account marked at Ex.D.1. That apart, during his cross examination, DW.1 has admitted the certified copies of documents confronted to him, therefore those two documents marked on behalf of the complainant as Ex.P.8 & 9. Ex.P.8 is the copy of the demand notice issued by the Advocate to the accused Dinakaran.K on behalf of Panjab & Sind bank demanding for the repayment of the loan amount of Rs.2,45,000/- together with interest at the rate of 12.25% per annum and Ex.P.9 is the certified copy of the acknowledgement and the accused has admitted his signature on Ex.P.9. Meaning thereby, the accused has received his demand notice sent to him under Ex.P.8 to put his signature on the acknowledgement at Ex.P.9. 33 C.C.7752/2018 Although, in his oral evidence and also during his cross examination, the accused has denied that he had having loan account in Panjab & Sind bank at Chamarajapet, Bengaluru as per Ex.P.7 & Ex.D.7, but since the documents at Ex.P.7 (Ex.D.7), Ex.D.6 coupled with the other two documents at Ex.P.8 & 9, I am of the considered opinion that, the accused himself borrowed personal loan of Rs.2,45,000/- by opening loan account as per Ex.P.7 (Ex.D.7) on the fixed deposit amount of complainant and that the complainant K.V.Ravindra stood as a guarantor to the said loan amount borrowed by the accused. Further, as per demand notice at Ex.P.8, when the accused has became defaulter in repayment of the said amount either by EMI or lump sum amount, the lending Panjab & Sind bank got issued demand notice to the accused, Ex.P.8 for the repayment of the said loan amount. Therefore, the accused has failed to raise probable defense before the court and also failed to prove the same on preponderance 34 C.C.7752/2018 of probabilities. The documents at Ex.D.3 & 4 clearly whispers about dishonour of both the cheques bearing No.000008 & 000009 for which, the complainant has filed present cases. The Learned Defense Counsel relied the further judgments of the Hon'ble Apex Court, Hon'ble Gowhati High Court at Sl No.12 to 16 and with due respect to the ratio laid down in the relied judgments, I have carefully gone through the facts of the case of the relied judgments. Since the facts of the present case on hand is different from the facts of the relied judgments, the ratio put forth in both relied judgments are not applicable to the case on hand. The Learned Defense Counsel also relied the judgment reported by Hon'ble Apex Court in the case of Basalingappa Vs. Mudibasappa reported in AIR 2019 SC 1983 , wherein also by relying the earlier verdicts of the Hon'ble Apex Court in the case of Rangappa Vs. Mohan held that, ' if the accused raised probable defense and established the same on preponderance of probabilities and 35 C.C.7752/2018 questioned the alleged transaction as well as the financial capacity of the complainant to lend the alleged loan amount, under such circumstances, the onus again shifts on the complainant to prove the case on beyond all reasonable doubts and also his financial capacity to lend the disputed loan amount.' In the instant case on hand, when the accused has failed to raise probable defense and prove the same on the touch stone of the preponderance of probabilities, the verdict of the Hon'ble Apex Court in the case of basalingappa Vs. Mudibasappa is not applicable to the case on hand in order to acquit the accused, but the law laid down in the said judgment is commonly applicable to all the proceedings for the offence punishable under section 138 of NI Act. The Learned Prosecuting Counsel also relied recent judgment of the Hon'ble Apex Court reported in 2022(3) AKR 381, with due respect to the ratio of this judgment, this principle of law is applicable to the case on hand wherein it is held that, ' Once the accused has 36 C.C.7752/2018 admitted his signature and cheque, the legal presumption shall go in favour of the complainant'. The Learned Prosecuting Counsel relied another judgment of Hon'ble Apex Court reported in AIR 2020 SC 945 wherein also the Hon'ble Apex Court pleased to held that, ' once the accused admits signature and cheque, the presumption goes in favour of the complainant that there is a existence of legally enforceable debt or liability. The plea of accused that, cheque was given by way of security and the same has been misused by the complainant complainant and accused is liable to be convicted'. In the present case on hand also, the accused took the same defense contending that, while availing loan of Rs.45,000/- from the complainant, the disputed cheques of both the cases and DP note at Ex.P.6 was taken from him by the accused and after repayment of the said loan amount, the cheques and DP note s was not at all returned. In order to substantiate this contention, except his self serving testimony, the 37 C.C.7752/2018 accused did not produce any iota of evidence. That apart, as per the evidence of accused, when he has repaid the loan amount of Rs.45,000/- to the complainant, what had prevented him to take steps to get back his signed blank cheques and signed blank DP notes. Even, he did not lodge any complaint before any jurisdictional police against the complainant for the alleged misusing of his cheques and DP notes. On the other hand, the oral evidence of PW.1 very much corroborates the substantive evidence of PW.1 and during his cross examination, nothing has been suggested with regard to the defense taken by the accused. Thus, from his oral evidence coupled with the documents produced at Ex.D.1 to 7 and also considering the material evidence found during the cross examination of DW.1, I am of the considered opinion that, the accused has failed to raise probable defense and thereby also failed to prove the same on preponderance of probabilities. Hence, I answered point No.1 in the affirmative.
38 C.C.7752/2018
17. POINT NO.2: In view of the reasons stated and discussed above, the complainant has proved the guilt of the accused punishable under section 138 of N.I. Act It is worth to note that, the offence is of the nature of civil wrong. Hence, it is proper to award sentence of fine, instead of awarding sentence of imprisonment. Accordingly, this court proceed to pass the following;
ORDER
Acting under section 255 (2) of
Criminal Procedure Code, accused is
hereby convicted for the offence
punishable under section 138 of
Negotiable Instrument Act and
sentenced to pay fine of
Rs.07,60,000/-(Rupees Seven Lakhs
Sixty Thousand only). In default, he
shall undergo simple imprisonment for 6 (Six) months.
Acting under section 357(1) of code of criminal procedure, it is ordered 39 C.C.7752/2018 that an amount of Rs.07,50,000/-
( Rupees Seven Lakhs Fifty
Thousand only), there from shall be
paid to the complainant as a
compensation, remaining fine amount
of Rs.10,000/- (Rupees Ten
Thousand only) is defrayed to the
state for the expenses incurred in the
prosecution.
The bail bond of accused stands
canceled subject to appeal period.
Supply free copy of judgment to the
accused.
{Dictated to the stenographer, transcribed and computerized by her, revised corrected and then pronounced in the open court on this 7 th day of March 2023}.
(BHOLA PANDIT) XX ACMM, Bengaluru.
40 C.C.7752/2018ANNEXURE List of witnesses examined on behalf of complainant:
P.W.1 K.V.Ravindra PW.2 S.Arun Kumar
List of documents produced on behalf of complainant:
Ex.P.1 Cheque
Ex.P. 1(a) Signature of the accused
Ex.P. 2 Bank endorsement
Ex.P. 3 Copy of the legal notice
Ex.P. 4 Postal receipt
Ex.P. 5 Returned postal cover
Ex.P.6 On demand promissory note
Ex.P.6(a) & (b) Signatures of accused
Ex.P.6(c) Signature of PW.2
41 C.C.7752/2018
Ex.P.7 Bank account statement of
accused.
Ex.P.8 Copy of the demand notice
issued by the Advocate to
the accused Dinakaran.K
on behalf of Panjab & Sind
bank.
Ex.P.9 Acknowledgement
List of witnesses examined on behalf of accused:
D.W.1 Dinakaran List of documents produced on behalf of accused:
Ex.D.1 HDFC bank account statement
of accused.
Ex.D.2 Copy of the document DD
bearing No.666785 dated
19.01.2015 for Rs.45,000/-.
Ex.D.3 View cheque status copy dated
04.04.2022 in respect of cheque
bearing No.8.
42 C.C.7752/2018
Ex.D.4 View cheque status dated
04.04.2022 pertaining to
cheque bearing No.9.
Ex.D.5 Certificate under 65b-(4) of
Indian Evidence Act pertaining
to documents at Ex.D.2 to 4.
Ex.D.6 Letter dated 29.09.2022
Ex.D.7 Bank account statement of the
accused.
Digitally signed by
PANDIT PANDIT S BHOLA
S BHOLA Date: 2023.03.13
18:11:31 +0530
XX A.C.M.M.,
Bengaluru.