Bangalore District Court
Sri. R.Ravikiran vs Sri. Krishna Murthy.A on 9 February, 2021
1
C.C.No.6168/2015 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 9th day of February, 2021
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.6168/2015
Complainant : Sri. R.Ravikiran,
S/o. M.R.Rangaswamy,
Aged about 35 years,
No.29, 'A Street', I Main Road,
New Guddadahalli,
Mysore Road,
Bengaluru 560 026.
(Rep.by Sri. R.V. Shivananda
Reddy., Adv.,)
Vs
Accused : Sri. Krishna Murthy.A,
S/o. Anjanappa,
Aged about 35 years,
PROPRIETOR
MATH'S TUTORIALS,
No.206, C.J.Venkatesh Das
Road, Padmanabhanagar,
Bengaluru - 560 070.
(Rep. by Sri. Pallava R.
Shashank.S., Adv.,)
2
C.C.No.6168/2015 J
Case instituted : 21.01.2015
Offence complained U/s 138 of N.I Act
of
:
Plea of Accused Pleaded not guilty
:
Final Order Accused is convicted
:
Date of order 09.02.2021
:
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, he and accused both were known to each other as friends and accused had financial difficulties in the month of July 2014 and approached him to help Rs.6 Lakhs financially and promised to repay the said money within 2 months, accepting the same he had given Rs.6 Lakhs to the accused by way of cash. The complainant furhter contends that, the accused in order to discharge his legal liability issued a cheque bearing No.50607 dt: 16.10.2014 for sum of Rs.6 Lakhs drawn on IDBI 3 C.C.No.6168/2015 J Bank, Saraswathi Arcade, No.7, Attimabbe Road, Banashankari 3rd Stage, Bangalore in his name and requested to present the same for encash in the 2 nd week of December 2014 by assuring that, he has sufficient balance in his account and said cheque would be honoured on its due presentation, as per the reqeust of the accused, he presented the said cheque for encashment but the said cheque was returned by the reason "Account Closed", thereafter he got issued a legal notice to the Accused on 24.12.2014 through RPAD calling upon the accused to pay cheque amount within 15 days from the date of receipt of notice and the said legal notice returned as "Addressee left the address" on 26.12.2014, thus the accused intentionally closed the account and an intention to cheat him has issued the cheque. Hence he has filed the present complaint praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed his affidavitinlieu of his sworn statement, in which, he has reiterated the averments of the complaint along with original documents.
4C.C.No.6168/2015 J
4. Primafacie case has been made out against the accused and summons was issued against the accused in turn he has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to him, to which he pleaded not guilty and claims to be tried.
5. Thereafter the complainant himself examined as PW.1 by filing his affidavit in lieu of examination in chief. In support of his oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.P1 to P.8 i.e, Original Cheque dated:16.10.2014 as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused is as per Ex.P.1(a) the Bank Memo as per Ex.P.2, the office copy of the Legal Notice as per Ex.P.3, the Postal Receipt as per Ex.P.4, returned notice as per Ex.P.5, postal cover as per Ex.P.6, postal receipt as per Ex.P.7 and postal acknowledgement as per Ex.P.8 and closed his side.
6. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence 5 C.C.No.6168/2015 J appearing against him and has chosen to lead his rebuttal evidence.
7. Accused himself examined as DW.1 and has produced as many as 35 documents i.e., certified copies of order sheet in CC No.3467/2014, complaint, vakalath, affidavit filed in lieu of examiantioninchief, statements are marked as Ex.D.1 to D.5 respectively, certified copies of order sheet in CC No.3468/2014, complaint, vakalath, affidavit filed in lieu of examinationinchief, statements are marked as Ex.D.6 to D.10 respectively, certified copies of affidavit of the accused and statements marked as Ex.D.11 and D.12 respectively, certified copy of the Ex.D.1 in CC No. 3468/2015 as per Ex.D.13, certified copies of the order sheet in CC. No.3470/2015, complaint, vakalath of the complainant, examinationinchief, further examination inchief and depositions of crossexaminations, affidavit filed by the accused in lieu of examinationinchief and further examination inchief are marked as Ex.D.14 to D.20 respectively. Certified copies of the order sheet in CC. No.2478/2015, complaint, vakalath of the complainant, sworn statement affidavit, deposition of further examinationinchief and crossexamination of 6 C.C.No.6168/2015 J the complainant and copies of the Ex.P.1 to P.5, affidavit of the accused filed in examiantionincheif, further examiantioninchief of the accused, deposition of the crossexamination, examinationinchief of the D.W.2 and deposition of crossexamination of DW.2 and the documents which are marked as exhibits in favour of the accused are marked as Ex.D.21 to D.32. Certified copy of the Dairy marked as Ex.D.33, certified copy of the Rental Agreement marked as Ex.D.34 and certified copy of the Aadhar card marked as Ex.D.35 and closed his side.
8. Heard and perused the written argument submitted by learned counsel for the complainant and perused the materials on record and the decisions relied upon by the learned counsel for the complainant ie., 1) Crl. Appeal No.271/2020 SC, decided on 14.2.2020, - Aps Forex Services Pvt. Ltd., Vs. Shakti International Fashion Linkers; 2) AIR 2010 SC 1898 Rangappa Vs. Mohan; 3) AIR 2019 SC 4003 - Sri. Dhaneshwari Traders Vs. Sanjay Jain and another; 4) 2015 Crl.LJ 3618 Mainduddin Abdul Sattar Shaik; Vs. Vijay D. Salvi 5) CrlAppeal 7 C.C.No.6168/2015 J No.735/2018, High Court of Karnataka; dt:
10.12.2019 - Sony Pharmaceuticals Vs. Nagaraj.
9. The learned counsel for the Accused has relied upon the decisions i.e. 1) Crl. Appeal No.2784/2012
- Sri.Santosh Vs. Shri Haribhai; 2) AIR 2009 SC 1518 Kumar Exports Vs. Sharma Carpets ; 2) AIR 2010 SC 1898 Rangappa Vs. Mohan; 3) AIR 2019 SC 942 ANSS Rajashekar Vs. Augustus reported in Jeba Ananth; 4) (2019) 5 SCC 418 in case of Basalingappa Vs. Mudibasappa.
10. On the basis of complaint, evidence of complainant and documents and having heard the arguments of both learned counsels for the complainant and the accused, the following points that are arise for consideration are:
1. Whether the complainant proves that the accused has issued cheque bearing No. 050607 dated:16.10.2014 for Rs.6 Lakhs drawn on IDBI Bank, Attimabbe Road, Banashankari III Stage, Bangalore to discharge legally recoverable debt to the complainant and when the complainant has presented a 8 C.C.No.6168/2015 J cheque for encashment through his banker but the said cheque has been dishonoured for the reasons "Account closed" on 09.12.2014 and the complainant issued legal notice to the accused on 24.12.2014 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
11. The above points are answered as under:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS
12. Point No.1: Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An 9 C.C.No.6168/2015 J essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act presupposes three conditions for prosecution of an offence which are as under:
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has 10 C.C.No.6168/2015 J to be filed within one month from the date on which cause of action arise to file complaint.
13. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e., U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
14. In the present case the complainant got examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire averments of the 11 C.C.No.6168/2015 J complaint and in his evidence testified that, he and accused both were known to each other as friends and accused had financial difficulties in the month of July 2014 and approached him to help Rs.6 Lakhs financially and promised to repay the said money within 2 months accpting the same he had given Rs.6 Lakhs to the accused by way of cash. The complainant further testified that, the accused in order to discharge his legal liability issued a cheque bearing No.50607 dt:
16.10.2014 for sum of Rs.6 Lakhs drawn on IDBI Bank, Saraswathi Arcade, No.7, Attimabbe Road, Banashankari 3rd Stage, Bangalore in his name and requested to present the same for encash in the 2 nd week of December 2014 by assuring that, he has sufficient balance in his account and said cheque would be honoured on its due presentation, as per the request of the accused, he presented the said cheque for encashment but the said cheque was returned by the reason "Account Closed", thereafter he got issued a legal notice to the Accused on 24.12.2014 through RPAD calling upon the accused to pay cheque amount within 15 days from the date of receipt of notice and the said legal notice returned as "Addressee left the address" on 26.12.2014, thus the accused intentionally 12 C.C.No.6168/2015 J closed the account and an intention to cheat him has issued the cheque.
15. In support of his oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.8 i.e., Original Cheque dated:16.10.2014 as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused is as per Ex.P.1(a) the Bank Memo as per Ex.P.2, the office copy of the Legal Notice as per Ex.P.3, the Postal Receipt as per Ex.P.4, returned notice as per Ex.P.5, postal cover as per Ex.P.6, postal receipt as per Ex.P.7 and postal acknowledgement as per Ex.P.8.
16. In the present case, there is no dispute between the complainant and Accused with regard to their acquaintance. It is also not in dispute by the accused that, the cheque in question belongs to his account and signature found at Ex.P.1(a) is also that of his signature. The Accused has also not disputed that the cheque in dispute presented for encashment and dishonoured for the reason of "Account closed" vide bank endorsement dated:09.12.2014, therefore as a matter on record and has been proved by Ex.P.2 issued 13 C.C.No.6168/2015 J by the concerned bank dated: 09.12.2014. Therefore the complainant has proved that, the cheque in question i.e Ex.P.1 was presented within its validity period and dishonoured as per bank endorsement issued by the banker of the Accused and the cheque in question belonging to the Accused account and signature of the Accused is at Ex.P.1(a).
17. In relation to the service of notice the Accused in his defence has denied service of notice upon him.
The complainant in order to prove service of notice upon the Accused, has produced the documents i.e copy of the legal notice, postal receipt, returned copy of the legal notice, returned RPAD cover and postal receipt postal acknowledgement which are at Ex. P.3 to P.8 respectively. On perusal of the Ex.P.6 i.e. the RPAD returned cover with an endorsement of "Addressee Left dt: 26.12.2014". Hence, it goes to show that, the legal notice caused by the complainant through RPAD to the address of the Accused shown in the notice returned with postal endorsement of "Addressee Left dt:
26.12.2014". The Accused during the course of cross examination of complainant and in his evidence has not denied or disputed that, the address mentioned by the 14 C.C.No.6168/2015 J complainant on RPAD cover i.e. on Ex.P.6 is not of his correct address but he contends that, in the year 2006 07 he has shifted his tuition center to the address I.e No.206, C.J.Venkatesh Das Road, Padmanabhanagar, Bengalore 560070 and since he suffered huge monetary loss in the tution business during September 2014 itself he shifted his base to Mysore city,thus the the Accused was not residing in the address shown in the complaint and legal notice but the complainant in his crossexamination has clearly denied the suggestions made to him to that effect and stated that, the accused is residing in the address mentioned in the legal notice and his affidavit evidence and the mother and father of the accused were also residing in the said address.
18. It is seen from the suggestions made to the complainant and admitted facts by theaccused with regard to address mentioned by the complainatn in his legal notice and complaint it appears that, the accused has admitted the address shown by the complainant is that of his address during the year 2014, but the only defence of the Accused that, since September 2014 itself the Accused was not in the address shown in the 15 C.C.No.6168/2015 J complaint and notice, to that effect burden is on the Accused to prove that, he has shifted from the said address during the month of September 2014 itself, but the Accused except the said suggestions has not produced any documents to show that, since in the month of September 2014 itself he was not resided or conducting tuition center in the address shown in the complaint and legal notice. Apart from that, the Accused in his crossexamination dt 10.12.2020 at page No.1 has clearly admitted that, "ಪ ಪತ ವರರ ಅಕಡಮಕ ಇಯರ ಅಅದರ ಮಮ ತಅಗಳನಅದ ಮಮಅಬರಮವ ಏಪಪಲ ತಅಗಳವರಗ ಟಟ ಟ ರನ ನಡಸಲಗಮತತದ ಎಅದರ ನಜ. ಟಟ ಟ ರನ ನಡಸಮತತದಗ ಮಧಟದಲ ನಲಸಲಗಮವದಲಲ ಎಅದರ ನಜ". Hence, the said admissions of the Accused makes it clear that, he has admitted that, he was running "Tuition Center" in the address mentioned in the legal notice and complaint and the said tuition center was running during the year 2014 till the April month of next year i.e., till the month of April 2015, therefore the very admissions of the accused goes to show that, as on the date of issuance of the legal notice by the complainant the accused was running the tuition center in the address and it cannot be held that during the month of September 2014 itself the accused 16 C.C.No.6168/2015 J has shifted his tuition center from the said address . In this regard, the accused has not produced any document ie to show that, he has shifted/vacated the said address during the month of September 2014 itself, in such circumstances unless and until the Accused produced the documents or proved the fact that, he is/was not residing or resided during the month of September 2014 in the address as shown in the legal notice i.e Ex.P.3. Therefore in view of the same, it cannot be held that, as on the date of issuance of the legal notice the Accused was not resided in the address shown in the legal notice i.e Ex.P.3 as contended by him in his defence.
19. The Accused has also produced copy of the certified copy of the Rent Agreement which is at Ex.D.34 but perusal of the said document it appears that, the Accused has entered into agreement with one Sri. A.Krishna Murthy in respect of the house property bearing D.No.29, situated at MMG Century Behind KHB colony, Belavadi post, Hootagalli, Mysore. The Accused has produced the Ex.D.34 to show that as on the date of rent agreement he was residing in the address shown in rent agreement i.e in the Mysore but not in the 17 C.C.No.6168/2015 J address shown by the complainant in his legal notice i.e Ex.P.3. But the contents of the Ex.D.34 nowhere discloses that, as on the date of rent agreement the possession of the house property mentioned therein was handed over to the Accused and even the Accused has not examined the owner of the said house i.e. the Rent agreement executed in favour of the Accused, in such circumstances it cannot be held that, as on the date of issuance of the legal notice or service of notice, the Accused was not resided in the address as mentioned by the complainant in the legal notice i.e Ex.P.3. Even though the Ex.D.34 discloses that, the Accused has entered into agreement in respect of the house property situated at Mysore on 15.10.2014 it cannot be held that, since then Accused residing in the house property mentioned in Rent Agreement i.e. Ex.D.34 as law does not allow to presume that, the person who entered into rent agreement is residing in the property involved in the rent agreement since the date of agreement, unless the tenant proved that, the actual possession of the rented premises handed over to him as on the date of agreement and since the date of agreement he is residing in the rented premises, on this count also only on the basis of production of rent agreement i.e 18 C.C.No.6168/2015 J Ex.D.34, it cannot be held that, Accused is residing in the rent preemies or house property shown in Ex.D.34 since the date of its agreement. It is also important to note that as it is already held in the above that, the Accused has admitted that he was running Maths Academy in the address shown in the legal notice issued by the complainant and has failed to produce document to show that, in the month of September 2014 itself he was vacated from the said address or he was not resided in the said address, therefore it can be held that, the Accused has admitted his correct address to which the complainant issued the legal notice. Apart from that, it is not the defence of the Accused that, the complainant by colluding with the postal authorities got created the postal endorsement on the Ex.P.6, RPAD cover, in such circumstances it can be held that, Accused has admitted the endorsement issued by the postal authorities on Ex.P.6 i.e., "Addresee Left" and the Accused has not examined concerned postal authorities to disprove the endorsement found on Ex.P.6 RPAD cover. Therefore in view of non disputing of the address of the Accused in the legal notice as well as on the RPAD cover makes it clear that, the Accused has admitted that, the legal notice caused by the complainant to his 19 C.C.No.6168/2015 J correct address through registered post, in such circumstances, it can be held that, the notice sent by the complainant to the correct address of the Accused is presumed to have been served on him U/s. 27 of General Clauses Act. In this regard, it is relevant here to refer the decision of Hon'ble High Court of Karnataka reported in 2011 ACD 1572 (KAR) in the case of Jayamma Vs. Lingamma, wherein the Hon'ble High Court held that, "Notice sent at correct address returned unclaimed - is deemed to be served. In another decision reported in 1998 KAR 1841 in the case of Shridhar M.A. Vs. Metalloy Steel Corporation and 1999 Cri.L.J. 4606 "K. Bhaskaran Vs. Vaidhanbalan wherein the Hon'ble Apex Court was concerned with the question as to when the service of notice could be inferred and it was held that if there is an endorsement like 'not available in the house' 'house locked' 'shop closed' 'unclaimed' the service should be deemed to have been effected. It is also relevant here to refer the decision reported in 2008(4) Civil code cases 027 (SC) "M/s. Indo Automobiles Vs., M/s. Jai Durga Enterprises and 20 C.C.No.6168/2015 J others." wherein the Hon'ble Apex Court held that, "notice sent by registered post with acknowledgement to a correct addressservice of notice has to be presumed". Therefore in view of the principles of law in the above decisions, it can be safely held that, the service of notice on accused in this case is presumed to have been served on him since in this case also the complainant has issued notice to the accused to his correct address through registered post and the said notice was returned with an endorsement of "Addressee Left dt: 26.12.2014 ", hence the notice issued by the complainant through registered post is held to be proper. In addition to that, it is relevant here to refer the decision reported in 2007 AIR SCW 3578 in the case of C.C.Alavi Haji Vs. Palapetty Muhammed and another., wherein the Hon'ble Apex court held that " the drawer of the cheque is permitted to deposit the cheque amount within 15 days from the date of his appearance before the court in pursuance of the service of summons on him and in such situation, his defence of non service of the legal notice cannot be available to 21 C.C.No.6168/2015 J him'. Hence, in view of the said principles of law, even for sake of discussion, though there is no cogent and reliable documentary proof to substantiate the claim of the complainant with regard to address of the Accused to show there is due service of the legal notice on the Accused, in view of settled position of law by virtue of the above said decision of Hon'ble Apex Court of India, the Accused is not entitled to the technical defence of the alleged non service of the legal notice. Therefore, the contentions taken by the learned counsel for the accused that, the notice issued by the complainant was not served on the accused and the complainant has not complied the mandatory requirements of Sec.138(b) of N.I.Act and complaint is not maintainable cannot be acceptable and are not sustainable in law.
20. It is also the defence of the Accused that, the complainant had no source of income to lend alleged loan amount of Rs.6,00,000/= specifically in the month of July 2014 and he had not obtained any amount from the complainant and complainant has not produced any document to show that, in the month of July 2014 he was having an amount of Rs.6 Lakhs and the Accused has issued the cheque in question i.e Ex.P.1 to the 22 C.C.No.6168/2015 J complainant towards discharge of loan amount. In this regard, the learned counsel for the Accused cross examined the complainant in length but nothing has been elicited to discredit or discard his evidence, instead of eliciting anything materials from the complainant the Accused rather concentrated his defence that, the complainant has not collected any other document except the cheque in question at the time of lending of the loan amount and there was no financial transaction between him and the complainant and Accused has not received any amount from the complainant, but the suggestions made by the Accused to that effect were stoutly denied by the complainant. It is true that, complainant in his crossexamination admitted that, he had Rs.6 Lakhs in the month of July 2014 at his house and the said amount includes his salary and also the rent amount received by his mother and his wife and he has not stated the same in his complaint, and he is doing audit work and getting an amount of Rs. 35,000/= p.m. as salary and his wife receiving rent amount of Rs.20,000/= and his mother was also receiving an amount of Rs.25,000/= towards rent amount during the year 2014 and the said amounts were collected from his wife and his mother and 23 C.C.No.6168/2015 J retained with him. The complainant/PW.1 has also stated that, his wife and mother were also present at the time of lending of the loan amount of Rs.6 Lakhs to the accused and he had not collected any documents at the said time from the accused since the accused is his friend. It is important to note here that, the careful perusal of the entire crossexamination of the complainant, the accused during the course of cross examination has made some suggestions ie., the accused has received small loan amounts from the complainant ie., an amount of Rs.1 Lakh on 25.6.2009 and an amount of Rs.1 Lakh on 10.3.2010, and an amount of rs.1 Lakh on 28.10.2010, and an amount of Rs.1 Lakh on 15.2.2011, and an amount of Rs.2 Lakh on 30.4.2014 for development of his Maths Academy Tuition Center on interest basis ie. at the rate of 3%,
3.5% and 4% by giving signed blank cheques to the complainant towards security to the said loan amounts., hence , the said suggestions itself sufficeint to hold that, the Accused had financial transactions with the complainant. It is also seen from the documents produced by the accused that, he used to borrow the loan amounts from the complainant and other persons for the purpose of development of his 24 C.C.No.6168/2015 J Maths Tutorials i.e Academy which is an admitted fact by the Accused, as evidenced by the document i.e. Ex.D.33 certified copy of the dairy produced by him wherein it is seen that, the Accused has borrowed loan amount from one Ravikiran and others and same has been mentioned in the dairy, in such circumstances when the Accused himself admitted that, he had financial transactions with the complainant on various dates, the Accused cannot be permitted to dispute or deny the financial capacity of the complainant and the necessity of the Accused to borrow the loan amount from the complainant.
21. The complainant/PW.1 in his cross examination has specifically denied the suggestions made to him that, he had lent a loan of Rs.1 Lakhs to the Accused at 4% interest on 25.6.2009 by collecting signed blank cheque towards security of the said loan amount and he had lent a loan of Rs.1 Lakhs to the Accused at 4% interest on 10.03.2010 by collecting signed blank cheque towards security of the said loan amount and he had lent a loan of Rs.1 Lakhs to the Accused at 4% interest on 08.10.2010 by collecting signed blank cheque towards security of the said loan 25 C.C.No.6168/2015 J amount and he had lent a loan of Rs.1 Lakhs to the Accused at 3% interest on 15.2.2011 by collecting signed blank cheque towards security of the said loan amount and he had lent a loan of Rs.2 Lakhs to the Accused at 3.5% interest on 30.4.2014 by collecting signed blank cheque towards security of the said loan amount and also lend loan amount to the sister of the accused by collecting her signed blank cheque towards security of the said loan. The complainant/PW.1 has also denied the suggestions made to him that, all the above said loan amounts were returned to him and same has been mentioned by the accused in his dairy. The complainant has also denied the suggestions made to him that, the complainant ie., Mr.Pradeep Kumar in CC No.3470/2015 was doing money lending business without obtaining license and there were financial transactions between him and the accused and he has given the Ex.P.1 cheque to the said Pradeep Kumar towards security of one of such financial transaction and the said cheque has been misused by the complainant by filing this case. It is also denied by the complainant that, he and Pradeep Kumar colluded to each other and have filed four false cases against the accused. Therefore the entire perusal of the cross 26 C.C.No.6168/2015 J examination of PW.1 nothing has been elicited to disbelive or discredit the evidence of PW.1 and to accept the defence of the accused that, the cheque in question was collected by one Pradeep Kumar who was complainant in CC No.3470/2015 in respect of financial transaction between them and the said cheque is also the Ex.P.1 in this case which is misused by the complainant.
22. It is important to note here that, on careful perusal of the entire oral and documentary evidence produced by the complainant i.e Ex.P.1 to P.8 and admitted facts by the Accused, the complainant proved that the cheque in question belongs to the Accused i.e Ex.P.1 and signature found at Ex.P.1(a) is that of the signature of the Accused and also proved that, the cheque in question was presented within its validity period and it was dishonoured for the reason of "Account Closed" as per Ex.P.2 and thereafter the legal notice caused by him through RPAD to the Accused was presumed to be served on him and Accused has not given any reply to the legal notice, in such circumstances, it can be held that, the complainant has discharged his initial burden by 27 C.C.No.6168/2015 J complying the mandatory requirements as required U/s.138 of N.I. Act and initial presumptions are available in favour of the complainant U/s.118a and 139 of the N.I.Act. Consequently it is for the Accused to rebut the said presumptions available in favour of the complainant to show that, the cheque in question was not issued either to the complainant or towards discharge of any legally recoverable debt by producing cogent and convincible evidence but not mere suggestions or even by plausible explanation. In such circumstances, when the presumptions U/s.118 and 139 of N.I.Act are available to the complainant, even a presumption can be drawn to the extent of existence of legally recoverable debt or liability against the Accused unless and until the said presumptions are rebutted by the Accused, even in the absence of documents produced by the complainant with regard to loan transaction in question.
23. It is true that, the complainant has not produced documents except the cheque in question i.e., Ex.P1 to show that, he has lent an amount of Rs.6 Lakhs to the Accused and in turn the Accused has issued the Ex.P.1 cheque towards discharge of the said 28 C.C.No.6168/2015 J debt and has also not produced documents to show his source of income, but it is already held in the above that, the Accused himself admitted that, he has borrowed loan amounts from the complainant on various occasions, in such circumstances indirectly he has admitted the financial capacity of the complainant. Apart from that, it is relevant here to refer the decisions reported in 2001 AIR Karnataka HCR 2154 between 'M/s.Devi Tyres V/s.Navab Jan' and in 2011 ACD 1521 (KAR) between 'Smt. Usha Suresh V/s. Shashidharn', in 2010 SC 1898 between 'Rangappa Vs. Mohan' and 2011 ACD 1412 (KAR) between 'N.Hasainar Vs. M.Hasainar, S/o. Ibrahim'. The Hon'ble High Court of Karnataka in the above decision i.e., 2001 AIR Karnataka HCR 2154 at para No.6 was pleased to hold that issuance of cheque itself was adequate proof of existence of debt or liability. In another decision of Hon'ble Apex Court of India i.e. Hon'ble Three Judges Bench Decision reported in (2010) 11 SCC 441 in the case of Rangappa Vs. Sri. Mohan ., wherein the Hon'ble Apex Court held that " A. Negotiable Instruments Act, 1881 - S.139 - Presumption under - scope of - Held, presumption 29 C.C.No.6168/2015 J mandated by S. 139 includes a presumption that there exists a legally enforceable debt or liability - However such presumption is rebuttable in nature - Criminal Trial - Proof - Presumptions - Generally. Further held that "Signature on the cheque was his, statutory presumption under S.139 comes into play and the same was not rebutted even with regard to the materials submitted by complainant Appellant not able to prove "lost cheque" theory - Apart from not raising a probable defence appellant was also not able to contest the existence of a legally enforceable debt or liability - hence, his conviction by High Court, held, proper. In another decision of Hon'ble Apex Court of India, reported in CRIMINAL APPEAL NO. 508 OF 2018 DT 15032018 between ROHITBHAI JIVANLAL PATEL Vs STATE OF GUJARAT AND ANR held that "Negotiable Instruments Act facts like source of funds are not relevant if the Accused has not been able to rebut the presumption. It is further held that " When such a presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or 30 C.C.No.6168/2015 J accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the Accused has been able to rebut the presumption or not". In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, " Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. It is also held that, " the accused has failed to lead any evidence to rebut the statutory presumption, a 31 C.C.No.6168/2015 J finding returned by both the Trial Court and High Court. Both courts not only erred in law but also committed perversity when the due amount is said to be disputed only on the account of discrepancy in the cartons, packing materials or the rate to determine the total liability as if the appellant was proving his debt before the civil court. Therefore it is presumed that, the cheque in question were drawn for consideration and the holder of the cheques received the same in existing debt". It is also held that, " the Trial court and the High Court proceeded as if, the appellant is to prove a debt before civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. A dishonour of cheque carries statutory presumption of consideration. The holder of cheque in due course is required to prove that, the cheque was issued by the Accused and that when the same presented , it was not honoured Since there is a statutory presumption of consideration, the burden is on the Accused to 32 C.C.No.6168/2015 J rebut the presumption that, the cheque was issued not for any debt or other liability ". It is also relevant here to refer the decision of Hon'ble High Court of Karnataka reported in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption mandated by Sec.139 of N.I Act includes the presumption that, there existed a legally enforceable debt or liability, however such presumption is rebuttable in nature". In another decision of Hon'ble High Court of Karnataka in the case of Shri.V.R.Shresti Vs. Shri. Bhaskara.P. in Crl. Appeal No. 2109/2017 dated: 15.10.2019 wherein the Hon'ble High Court of Karnataka held that "the Accused has not given any reply to the notice and also in the crossexamination, he categorically admits that, the cheque has bounced on account of no sufficient fund in the bank account of the Accused. Mere non producing of the document before the court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The Accused ought to have rebutted the 33 C.C.No.6168/2015 J contention of the complainant by producing cogent evidence before the court and mere denial is not enough". Therefore on careful reading of the principles of law laid down by the Hon'ble Apex Court of India and High Court of Karnataka in the above referred decisions makes it very clear that, once the holder in due course i.e. the complainant proved that, the cheque in question belongs to the drawer and signature appearing on the cheque is that of the drawer i.e., Accused and complied the mandatory requirements as required U/s.138 of N.I.Act, presumptions U/s.118a and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt and when such presumption is drawn the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence regarding source of funds were not of relevant unless the Accused rebutted the presumption available to the complainant as held by the Hon'ble Apex Court and High Court of Karnataka in the above decisions. In the present case also the complainant has complied mandatory requirements and has proved that, the Accused has issued the cheque in question in his favour and the Accused has admitted the cheque belongs to him and signature appearing on the cheque 34 C.C.No.6168/2015 J is that of his signature and even after service of the notice, the Accused has not given any reply or complied the terms of the notice, in such circumstances, presumptions have to be drawn towards existence of legally enforceable debt as per Sec.139 of N.I.Act.
24. Therefore, for the above said reasons the defence taken by the Accused that, the complainant has not produced the documents to show that, he was having source of income or funds to lend the loan amount to the Accused as on the date of lending of the loan amount and has not collected the documents for having advancing the loan amount of Rs.6 Lakhs to the Accused at the time of alleged lending of loan amount cannot be acceptable one. The defence taken by the Accused appears that, the complainant has to prove his claim by producing his evidence as if it is required for proving of his debt before the Civil Court, but same cannot be permissible in a proceedings initiated U/s.138 of N.I. Act, as held by the Hon'ble Apex court of India in the above referred decisions, therefore in view of the principles of law laid down in the above referred decisions it is presumed that, cheque in question was drawn for consideration as the Accused has admitted 35 C.C.No.6168/2015 J the cheque in question belongs to him and signature found on the cheque in question is also that of his signature. With due respect to the principles of law laid down in the decisions relied upon by the learned counsel for the Accused i.e., 1) Crl. Appeal No.2784/2012 - Sri.Santosh Vs. Shri Haribhai; 2) AIR 2009 SC 1518 Kumar Exports Vs. Sharma Carpets ; 2) AIR 2010 SC 1898 Rangappa Vs. Mohan; 3) AIR 2019 SC 942 ANSS Rajashekar Vs. Augustus reported in Jeba Ananth; 4) (2019) 5 SCC 418 in case of Basalingappa Vs. Mudibasappa are not applicable to the defence of the Accused as the facts and circumstances of this case and facts and circumstances of the decisions relied upon by the learned counsel for the Accused are not one and the same.
25. In order to rebut the presumptions available to the complainant and to substantiate thedefence of the accused, the accused himself examined as DW.1. The accused/DW.1 in his evidence denied the loan transaction in question and also issuance of cheque i.e Ex.P.1 in favour of the complainant to dishcarge the loan transaction in question as claimed by the complainant. The accused/DW.1 further deposed that, 36 C.C.No.6168/2015 J he and complainant and one Mr.Pradeep Kumar were classmates while studying Bsc in Bangalore University and there were known to each other and after BSC he pursued MSC in Mathamatics, thereafter in the year 200506 he started Tuition center in the name and style of "Maths Academy" and in order to develop the said tuition center he needed more financial resources, for that purpose he has availed loan from many peoples including the complainant. The accused/DW.1 further deposed that, on 25.6.2009, 10.3.2010, 8.10.2010, 15.2.2011, and 30.4.2014 had borrowed various small amounts from the complainant on exorbitant interest and on each such transaction the complainant used to obtain a blank signed cheque from him as security and at one instance on 8.10.2010 the complainant had even obtained blank signed cheque belonging to his sister Netravathi as security for loan of Rs.1Lakh and likewife he had availed various small amounts as loan from one Mr.pradeep Kumar B.R. who is the complainant in CC.No.3470/2015 and during one such transactions the said Mr. Pradeep Kumar as a security for the payment of the loan advanced by him had collected two blank signed cheques from him i.e cheques bearing No. 050607 and 050608 pertaining to his account. The 37 C.C.No.6168/2015 J accused/DW.1 further deposed that, though he had repaid the loans borrowed from the complainant in this case and also to Mr.Pradeep Kumar in cash and he has shifted to the Mysore due to huge monetary loss in the tuition business, the complainant and said Mr. Pradeep Kumar have misused the cheques issued by him as a security for repayment of the amounts and the complainant was obtained the disputed cheque from Mr.Pradeep Kumar and got filed this false case against him.
26. In support of oral evidence of the Accused, he has produced the 35 documents i.e., certified copies of order sheet in CC No.3467/2014, complaint, vakalath, affidavit filed in lieu of examiantioninchief, statements are marked as Ex.D.1 to D.5 respectively. Certified copies of order sheet in CC No.3468/2014, complaint, vakalath, affidavit filed in lieu of examinationinchief, statements are marked as Ex.D.6 to D.10 respectively. Certified copies of affidavit of the accused and statements marked as Ex.D.11 and D.12 respectively. Certified copy of the Ex.D.1 in CC No. 3468/2015 as per Ex.D.13, certified copies of the order sheet in CC. No.3470/2015, complaint, vakalath of the complainant, 38 C.C.No.6168/2015 J examinationinchief, further examinationinchief and depositions of crossexaminations, affidavit filed by the accused in lieu of examinationinchief and further examination inchief are marked as Ex.D.14 to D.20 respectively. Certified copies of the order sheet in CC. No.2478/2015, complaint, vakalath of the complainant, sworn statement affidavit, deposition of further examinationinchief and crossexamination of the complainant and copies of the Ex.P.1 to P.5, affidavit of the accused filed in examinationincheif, further examiantioninchief of the accused, deposition of the crossexamination, examinationinchief of the DW.2 and deposition of crossexamination of DW.2 and the documents which are marked as exhibits in favour of the accused are marked as Ex.D.21 to D.32. Certified copy of the Dairy marked as Ex.D.33, certified copy of the Rental Agreement marked as Ex.D.34 and certified copy of the Aadhar card marked as Ex.D.35.
27. The Accused in order to substantiate his defence has produced the certified copy of the dairy alleged to have been recorded by him in respect of the loan amounts borrowed from the complainant and others which is at Ex.D.33. The perusal of contents of 39 C.C.No.6168/2015 J Ex.D.33 though there is mentioning of names of the persons from whom the Accused borrowed alleged loan amounts and there is mentioning of amounts infront of the respective names of the persons, but the complainant during the course of crossexamination of the Accused has not admitted the Ex.D.33 i.e .the dairy in which the loan amount advanced by him is recorded by the Accused, therefore to that, extent, the burden is on the Accused ie., to prove that, the loan amounts borrowed from the complainant and from Mr. B.R.Pradeep Kumar and same were repaid to the them and Mr.B.R.Pradeep Kumar had collected his two signed blank cheques including the cheque in dispute towards security of the loan amounts advanced by him. It is seen from the Ex.D.33 that, though there is mentioning of name of the complainant ie Ravi and kiran and one Pradeep (Vicky) and in front of the name of the Pradeep (Vicky), the amounts mentioned and into the bracket rate of interest is also mentioned and also mentioned that, 2 cheques, 1 Agreement, R.C. book Form 2930, 1 Promissory note but it is nowhere mentioned that, the alleged loan amounts borrowed by the Accused have been repaid to the complainant or to Mr.Pradeep Kumar either by way of cheques or by way of cash as alleged in 40 C.C.No.6168/2015 J the defence by the Accused. According to him he has repaid the loan amounts to the complainant and Mr.Pradeep Kumar by way of cash but in the cross examination the Accused has admitted that, there is no mentioning of endorsement by the lenders of the loan amount for having lend the loan amount or receiving of the loan amount and there are no signatures of the persons who have advanced the loan amount and received the repayment found in Ex.D.33, therefore when the Accused himself admitted that, there is no mentioning of names of the persons or their signatures who have allegedly lend the loan amount to the accused and in turn they have received the loan amount, in such circumstances it cannot be held that, the Accused has borrowed the loan amounts by giving signed blank cheques towards security to the said loan amounts or the said Mr. B.R.Pradeep Kumar had collected his two signed blank cheques including the cheque in dispute towards security to the loan transactions and he has repaid the said amounts as alleged by him in his defence. In addition to that, if really the Accused has repaid the alleged loan amounts by way of cash, definately he would have mentioned the same in the Ex.D.33 dairy itself as admittedly the Accused himself 41 C.C.No.6168/2015 J recorded the alleged borrowal of loan amounts from the complainant and other people in Ex.D.33 and if that is true fact definately he would have recorded if any repayment of the loan made by him to the complainant or the other persons as mentioned in the Ex.D.33, but no such recitals are found in Ex.D.33 regarding alleged repayment made by the Accused in favour of the complainant or any of the persons mentioned in the Ex.D.33. Even the Accused has not stated anything why and for what reasons he has not recorded in Ex.D.33 in respect of the alleged repayment made by him by way of cash, in such circumstances an adverse inference can be drawn against the Accused that, he has failed to substantiate his defence that, he has repaid the alleged loan amounts borrowed from the complainant and Mr.B.R.Pradeep Kumar or other persons mentioned in Ex.D.33. It is also important to note here that, according to the him one Mr. Pradeep Kumar B.R. had collected two blank signed cheques from him pertaining to IDBI bank account during the financial transaction and out of the said two cheques the disputed cheque is also one of the cheque and the complainant had obtained the cheque in dispute from Mr. B.R.Pradeep Kumar and same has been misused by the complainant 42 C.C.No.6168/2015 J by filing this complaint inspite of repayment made by him in respect of the loan amount borrowed from the Mr.B.R.Pradeep Kumar. It is interesting to mention here that, if really the Mr. Pradeep Kumar B.R had collected two blank signed cheques of the Accused i.e. cheques bearing No. 050607 and 050608 i.e., the disputed cheque in question as a security towards the loan transactions, definitely the cheque numbers should have been recorded in Ex.D.33 dairy but there is no reference of cheque numbers in the Ex.D.33 dairy, in such circumstances it is very difficulty to accept the defence of the Accused that, during the loan transactions with Mr.B.R.Pradeep Kumar, the said Mr. Pradeep Kumar B.R had collected his two blank signed cheques pertaining to IDBI bank account and out of them one of the cheque is disputed cheque in question, in such circumstances the defence of the Accused appears to be mere denial of the claim made by the complainant and in order to avoid repayment of the loan amount and liability in question, the Accused has taken such defence which cannot be acceptable because the Accused has miserably failed to prove his defence by producing cogent and convincible evidence. The other documents which were produced by the accused are not 43 C.C.No.6168/2015 J related to this case and are not helpful to prove his defence.
28. It is relevant here to mention that, according to the defence of the Accused that, one Mr.B.R.Pradeep Kumar had collected his two blank signed cheques pertaining to IDBI Bank account i.e., 050607 and 050608 i.e., the cheque in dispute as a security towards the loan transactions between him and the said Mr.B.R. pradeep Kumar and though he has repaid the entire loan amounts to the said Mr.B.R.Pradeep Kumar, but the complainant has obtained the cheque in dispute from the said Mr.B.R.Pradeep Kumar and has filed this false complaint against him. It is already held in the above that, the accused has not produced any documents to show that he has repaid the loan amounts borrowed from Mr.B.R.Pradeep Kumar and has not produced any document to show that, the said Mr.B.R.Pradeep Kumar had collected his blank signed cheques towards security in respect of the loan transaction as alleged by him. Apart from that, the Accused has clearly admitted in his crossexamination that, he has not issued any legal notice or filed any police complaint before the police complaint or has not 44 C.C.No.6168/2015 J initated any legal action against the said Mr.B.R.Pradeep Kumar or the complainant alleging that, even after repayment of the loan amount the said Mr.B.R.Pradeep Kumar or complainant did not returned his cheques and has misused the same by filing this complaint, in such circumstances it can be held that, if really the Accused has repaid the loan amounts along with interest to the said Mr.B.R.Pradeep Kumar or complainant as alleged by him and even after his repayment the said Mr.B.R.Pradeep Kumar or complainant did not returned the cheques, definitely he would have initiated legal action against the the complainant or Mr.B.R.Pradeep Kumar in respect of alleged misuse of his signed blank cheques which were issued towards security of the loan amounts. If really the complainant by colluding with the said Mr.B.R.Pradeep Kumar and have misused the blank signed cheques of the Accused which were alleged to have been given towards security of the loan amounts, the accused would have made an efforts to get return of the said blank cheques either from the complainant or from Mr.B.R.Pradeep Kumar by issuing legal notice through the advocate or by filing police complaint before the police or before the courts of law, admittedly he has 45 C.C.No.6168/2015 J not made such efforts, in such circumstances, an adverse inference can be drawn against the Accused that, in order to overcome the liability in question the Accused has taken such defence and said defence cannot be acceptable one. In this regard, it is relevant here to refer the decision of Hon'ble Apex Court of India reported in AIR 2018 SC 3601 in a case of T.P.Murugan (dead) Thr. Lrs.V. Bhojan Vs. Posa Nandi, rep. Thr. Lrs. PA holder, T.P. Murugan V. Bhojan, wherein the Hon'ble apex Court held that "Negotiable Instruments Act (26 of 1881) Ss.118, 138, 139 - Dishonour of cheque - Presumption as to enforceable debt cheques allegedly issued by accused towards repayment of debt Defence of accused that 10 cheques issued towards repayment of loan back in 1995 - behavior of accused in allegedly issuing 10 blank cheques back in 1995 and never asking their return for 7 years, unnatural - Accused admitting his signature on cheques and pronote, presumption under S.139 would operate against him - Complainant proving existence of legally enforceable debt and issuance 46 C.C.No.6168/2015 J of cheques towards discharge of such debt Conviction, Proper." Hence by applying the above principles of law to the present facts of the case in the present case, the Accused has not produced any document to prove his defence, under such circumstances, it can be held that, the accused has not made any efforts to get return of the cheque in question or other cheques alleged to have been collected by the Mr.B.R.Pradeep Kumar as a security towards the alleged loan amounts borrowed by him and the said cheques have been misused by the complainant by colluding with Mr.B.R.Pradeep Kumar, under such circumstances, the said unnatural conduct of the accused in non taking of action may leads to draw an adverse inference against the accused that, the cheque in question issued by the accused towards discharge of the liability and presumption U/s.139 of N.I. Act would operate against him, as he has admitted the signature and cheque in questions belongs to him.
29. It is also the specific defence of the Accused that, the Mr.B.R.Pradeep Kumar had collected his two cheques including the cheque in question as a security at the time of financial transaction with him and the 47 C.C.No.6168/2015 J complainant has obtained disputed cheque from the said Mr.B.R.Pradeep Kumar and even after repayment made by him the complainant by colluding with the said Mr.B.R.Pradeep Kumar has misused the cheque in question and has filed this false complaint against him. But as it is already held in the above that, the Accused has miserably failed to prove that, he has borrowed the loan amount from the said Mr.B.R.Pradeep Kumar or complainant and at the time of advancing the loan the said Mr.B.R.Pradeep Kumar has collected his blank signed cheques including the cheque in dispute and he has repaid the loan amount as alleged by him, in such circumstances the defence taken by the Accused cannot be acceptable one, on the contrary the fact of receiving of loan amount and issuance of cheque in favour of the complainant remained as it is, in such circumstances also it can be held that, the cheque in question has been issued by the Accused towards discharge of the loan transaction in question as the Accused has miserably failed to prove that, the alleged transaction between him and the said Mr.B.R.Pradeep Kumar. In this regard, it is also relevant here to refer the decisions of Hon'ble High Court of Karnataka reported in 2015 (1) KCCR 235 in the case of Lale Patel Vs. 48 C.C.No.6168/2015 J Sharanabasappa., wherein the Hon'ble High Court held that, NEGOTIABLE INSTRUMENTS ACT, 1881 section 138 - Dishonour of cheque for insufficiency of funds Plea of accused that he had given a blank cheque signed as security for a transaction and complainant filled up the contents and denied existence of any debt or loan - Conviction by Trial court Affirmed by Appellate Court - Revision against. Hence the Hon'ble High Court of Karnataka in the said decision clearly held that, if the Accused has taken defence that, the a blank signed cheque has been issued as a security for transaction and the complainant filled up the contents and the accused denied the existence of debt or loan in such circumstances it is for the accused to prove his defence by producing cogent and convincible evidence, if the Accused has not proved the same in such circumstances, it cannot be held that, the cheque in question was issued for the purpose of security in connection with the transaction. In the present case also the Accused has failed to establish his defence that, the cheque in question was collected by the said Mr.B.R.Pradeep Kumar in respect of the alleged loan transaction and inspite of repayment of the said 49 C.C.No.6168/2015 J loan amounts the cheque in question was not return to him and misused by the him through the complainant, under such circumstances the cheque so issued cannot be considered as the one issued as stated by the accused in his defense and the defence taken by the Accused is untenable one. In another decision reported in 2015 (4) KCCR 2881 (SC) in the case of T. Vasanthakumar Vs. Vijayakumari wherein the Hon'ble Apex court held that "NEGOTIABLE INSTRUMENT Act, 1881 Section s138 and 139 - acquittal - If justified Accused not disputing issuance of cheque and his signature eon it Plea that it was issued long back as security and that loan amount was repaid Not supported by any evidence - Fact that date was printed, would not lend any evidence to case of accused Acquittal not proper. Hence in the present case also it is the main defence of the Accused that the cheque in dispute was alleged to have been collected by the complainant towards loan transaction and the said loan amounts were repaid to the complainant but the cheque in question were not returned to him but in this regard the accused has not produced documents or proof in such 50 C.C.No.6168/2015 J circumstances by applying the principles of law laid down in the above decision the defence of the Accused cannot be acceptable one. Therefore for the above said reasons the contents of the written arguments submitted by the learned counsel for the defence cannot be acceptable one or not sustainable.
30. It is also important to note here that, the Accused has not denied or disputed that the cheque in question as well as the signature therein do belong to him and he has failed to prove his defence and how the cheque in question has come to the possession of the Complainant, this would also give rise to an adverse inference against him. This preposition of law finds support from the decisions of Hon'ble High Court of Karnataka reported in 2010(1) KCCR 176 in the case of "Siddappa Vs. Manjappa". In another decision of Hon'ble Apex court of India decided in Crl.A.No.664 of 2012 dated: 19.9.2019 in the case of "M.Abbas Haji Vs. T.M.Chennakeshava" held that, " the Accused has to explain how the cheque entered into the hands of complainant". Therefore for the above said reasons the defense taken by the accused cannot be 51 C.C.No.6168/2015 J acceptable one and accused has miserably failed to rebut the presumption available in favour of the complainant by adducing cogent and convincible evidence.
31. Therefore considering all these aspects of the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant and accused the complainant has successfully established beyond all reasonable doubt that, he has lent an amount of Rs.6 Lakhs to the Accused and in turn the Accused has issued the Ex.P.1 cheque in question in his favour towards discharge of the said loan amount and thereafter the complainant has presented the said cheque through his banker and same was returned dishonoured with an endorsement of "Account Closed" and thereafter he got issued legal notice to the accused and the said notice was presumed to be served on him, inspite of it, the Accused did not paid the cheque amount, hence the complainant filed the present complaint against the accused. On the other hand, the accused has failed to rebut the presumption available infavour of the complainant with regard to the existence of legally recoverable debt under 52 C.C.No.6168/2015 J Ex.P.1 Cheque. Therefore accused has committed an offence punishable U/s.138 of N.I. Act, accordingly for the above said reasons this point is answered in the Affirmative.
32. Point No.2: Negotiable Instrument Act was enacted to bring credibility to the cheque and the very purpose of enactment is to promote the use of negotiable instrument, while to discourage the issuance of cheques without having sufficient funds in their accounts. Such being the case the intention of the legislature is that, complainant be suitable compensated while accused be punished for his act. Hence while awarding the compensation the said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly it will not cause injustice to the accused, accordingly the complainant is entitled for the compensation as ordered by the court and for the said reasons, it is just and proper to pass the following : ORDER Acting U/sec.255(2) of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.6,15,000/= (Rupees Six 53 C.C.No.6168/2015 J Lakhs and Fifteen Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.6,10,000/= (Rupees Six Lakhs and Ten Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
The Bail bond of the Accused stands cancelled.
Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 9th February 2021).
(SRI.S.B. HANDRAL), 54 C.C.No.6168/2015 J XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant: P.W.1 : Sri. R.Ravikiran;
2. List of documents exhibited on behalf of the Complainant: Ex.P1 : Original Cheque;
Ex.P1(a) : Signature of the Accused;
Ex.P.2 : Bank Memo; Ex.P.3 : Office copy of the Legal Notice; Ex.P.4 : Postal Receipt; Ex.P.5 : Returned Legal notice; Ex.P.6 : Postal Envelope; Ex.P.7 : Postal Receipt; Ex.P.8 : Postal acknowledgement.
3. List of witness/s examined on behalf of the Accused: DW.1 : A.Krishna Murthy;
4. List of documents exhibited on behalf of the Accused: Ex.D.1 : Certified copy of order sheet in CC No.3467/2015;
Ex.D.2 : Certified copy of complaint in CC No.3467/2015;
Ex.D.3 : Certified copy of Vakalath of PW.1 in
CC No:3467/2015
Ex.D.4 : Certified copy of affidavit filed in lieu
55
C.C.No.6168/2015 J
of examinationinchief in CC
No.3467/ 2015;
Ex.D.5 : Certified copy of further Chief
examination of PW.1 in CC.No.3467/
2015;
Ex.D.6 : Certified copy of the order sheet in CC
No.3468/2015,
Ex.D.7 : Certified copy of complaint in CC
No.3468/2015;
Ex.D.8 : Certified copy of Vakalath of PW.1 in
CC No.3468/2015
Ex.D.9 : Certified copy of affidavit filed in lieu
of examinationinchief in CC
No.3468/ 2015
Ex.D.10 : Certified copy of further examination inchief of PW.1 in CC.No.3468/2015; Ex.D.11 : Certified copy of affidavit filed in lieu of examinationinchief of accused in CC No.3468/2015;
Ex.D.12 : Certified copy of further examination inchief of accused in CC No.3468/2015;
Ex.D.13 : Certified copy of the Ex.D.1 in CC No. 3468/2015 ;
Ex.D.14 : Certified copy of the order sheet in CC. No.3470/2015 ;
Ex.D.15 : Certified copy of complaint in CC No.3470/2015, Ex.D.16 : Certified copy of the vakalath of the complainant in CC No.3470/2015 56 C.C.No.6168/2015 J Ex.D.17 : Certified copy of the examinationin chief and further examinationinchief of PW.1 in CC No.3470/2015;
Ex.D.18 : Certified copy of the depositions of
crossexamination of PW.1 in CC
No.3470/2015;
Ex.D.19 : Certified copy of the affidavit filed by the accused in lieu of examinationin chief in CC No.3470/2015;
Ex.D.20 : Certified copy of the further
examinationinchief of DW.1 in CC
No.3470/2015;
Ex.D.21 : Certified copy of the order sheet in CC.
No.2478/2015 ;
Ex.D.22 : Certified copy of complaint in CC No.2478/2015 ;
Ex.D.23 : Certified copy of the vakalath of the complainant in CC No.2478/2015;
Ex.D.24 : Certified copy of the Sworn statement affidavit in CC. No.2478/ 2015 Ex.D.25 : Certified copy of deposition of further examinationinchief in CC No.2478/ 2015;
Ex.D.26 : Certified copy of crossexamination of the complainant in CC No.2478/2015;
Ex.D.27 : Certified copies of legal notice, cheque, bank memo,RPAD cover (in all marked as Ex.D.27) Ex.D.28 : Certified copy of affidavit of the accused filed in examiantionincheif of accused in CC No.2478/ 2015;
57C.C.No.6168/2015 J Ex.D.29 : Certified copy of further examination inchief of DW.1 in CC No.2478/2015;
Ex.D.30 : Certified copy of crossexamination of the accused in CC No.2478/ 2015;
Ex.D.31 : Certified copy of examinationinchief of and deposition of crossexamination of DW.2 and Certified copy of examinationinchief of DW.3 in CC No.2478/ 2015, Ex.D.32 : Certified copies of the document relating to ICICI Bank, and Aadhar card,Agreement of rent, Voter ID card, Complaint in CC No.14181/2015, complaint in CC No.6168/2015, Order sheets, (in all marked as Ex.D.32) Ex.D.33 : Certified copy of the Dairy Ex.D.34 : certified copy of the Rent Agreement Ex.D.35 : certified copy of the Aadhar card (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
58C.C.No.6168/2015 J 09.02.2021 Case called out, Counsel for the complainant and complainant absent. Accused absent, Counsel for the accused present, E.P.Filed. Heard and allowed.
Judgment pronounced since the fine amount and default sentence is only imposed against the Accused, no separate sentence is imposed against the Accused vide separate order, ORDER Acting U/sec.255(2) of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.6,15,000/= (Rupees Six Lakhs and Fifteen Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.6,10,000/= (Rupees Six Lakhs and Ten Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of 59 C.C.No.6168/2015 J Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
The Bail bond of the Accused stands cancelled.
Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
XVI ACMM, B'luru.
60 C.C.No.6168/2015 J