Bangalore District Court
Rep By Its Proprietor Sri.A.R.Sridhara vs Partner Of M/S Sri.Shiva Shakthi ... on 11 January, 2022
BEFORE THE COURT OF XXIV ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL & A.C.M.M. (SCCH26) AT BENGALURU
DATED THIS THE 11th DAY OF JANUARY 2022
PRESENT: SRI.R.MAHESHA. B.A.,L, LLB.,
XXIV ADDL. SCJ &
ACMM & MEMBER MACT
BENGALURU.
1. Sl. No. of the Case CC.No.2225 of 2018
2. The date of 11052018
commencement of
evidence
3. The date of closing 20092021
evidence
4. Name of the M/s A.R.Sridhara Murthy
Complainant Rep by its proprietor Sri.A.R.Sridhara
Murthy
No.1/1, Ground floor, Jayanthi building,
J.M.road
Bangalore560 002.
(By Sri.K.R.M.Advocate)
5. Name of the 1. Sri.K.Chandra Shekar
Accused Partner of M/s Sri.Shiva Shakthi Associates
2. Smt.K.Uma Shiva Kumar
Partner of M/s Sri.Shiva Shakthi
Associatesdeleted as per order dt.2009
2021
2 C.C.No.2225 of 2018
SCCH-26
(By Sri.D.S.M.Advocate)
3. M/s Sri.Shiva Shakthi Associates
Rep by its partner
Office at No.90/7A, 1st cross, Vittal nagar,
Mysore road, Bagalore560 0026
Sl.No.1 is residing at No.28, 21st main,
Muneshawara block,
Opp: Sri.Manjunatha condiments,
T block, Girinagar, Bangalroe560 085
Sl.No.2 is residing at No.429,
Shivaskanda Sai Sadan,
13th main, BSK 1st stage,
Bank colony,
Bangalore560 050.
(By Sri.H.S.D.Advocate)
6. The offence U/s.138 of the Negotiable Instruments Act
complained of
7. Opinion of the Accused found guilty
judge
JUDGMENT
The complainant filed this complaint Under Section 200 of Cr.P.C against the accused alleging that the accused has committed the offence punishable Under Sec.138 of the Negotiable Instruments Act, 1881. (In short for N.I.Act) 3 C.C.No.2225 of 2018 SCCH-26
2. The brief facts of the complainant case is as under:
The accused No.1 and 2 are partners and authorized signatory of accused No.3 has discounted a cheque of Rs.2,50,000/ from the complainant, upon executing a discount form on 21092017 in favour of the complainant. That the above said amount of Rs.2,50,000/ is given to the accused by cheque bearing No.2162611 dt.2292017 drawn on M/s union bank of India, CT street branch, Bangalore in favour of accused No.1, as per instructing of accused No.1 and 2, after deducting the discounting charges of Rs.23,502/ for a period of four months, Rs.2,26,498/. That the accused failed to keep up the promise to repay the same within four month and the complainant made various requests, demands and approaches the accused has instructed to present the discounted cheque, when the complainant presented to bank on 1422017, the same is dishonoured and unpaid. That the complainant informed to accused No.1, the accused requested not to present the cheque issued, due to sum 4 C.C.No.2225 of 2018 SCCH-26 financial stringency, later on the complainant made request and demand the accused for the repayment of discounted cheque amount, the accused No.1 has instructed the complainant second time to present the discounted cheque to bank for encashment, towards discharge of legal debt/liability. The complainant presented the cheque to the bank on 63 2018, the same is dishonoured by the accused bank and it is unpaid. That as on date the accused are due a sum of Rs.2,50,000/ plus interest at 24% p.a. from the date of cheque, as it is a commercial transaction in nature and also the complainant has accommodated by giving his business money. That the cheque bearing No.099548 dt.2212018 for Rs.2,50,000/ drawn on M/s Central Bank of India, Basavangudi branch, Bangalore, signed and issued by the accused No.1, in favour of complainant towards the discharge of debt has been presented to bank as per the instruction of the accused No.1 to the complainant's bank, the same is dishonoured by the accused bank with an endorsement dt.7 32018 to the effect EXCEEDS ARRANGEMENTS. That the 5 C.C.No.2225 of 2018 SCCH-26 complainant issued legal notice dt.442018 has been issued to the accused by RPAD on 542018 and accused have received the registered psot akcnwoeldgment due on 642018 and it is served. That the accused failed to pay the dishonour cheque amount nor replied to the legal notice. Hence filed this complaint.
3. After filing of this complaint, case was registered as P.C.R. and sworn statement of the complainant was recorded. Thereafter cognizance was taken and registered in Crl.Reg.No.III and summons issued to the accused. In response of summons, accused appeared through his counsel and got enlarged him on bail. The plea was recorded, read over and explained to the accused he pleaded not guilty and claims to be tried. Hence the case is posted for complainant evidence.
4. In order to establish his case, A.R.Sridhara Murthy proprietor of the complainant company himself examined as PW1 and got marked 12 documents as ExP1 to 12. one 6 C.C.No.2225 of 2018 SCCH-26 Sadananda Chowdari got examined as PW2 and got marked ExP13 to 15. One Uma Shivakumar accused No.2 got examined herself as DW1. K.Chandrashekar got examined himself as DW2.
5. Heard oral arguments from both counsel.
6. Upon perusal of the material placed on record, the following points arise for my consideration: POINTS
1. Whether the complainant proves that the accused had issued cheques in question in discharge of the legally recoverable debt as contended by him?
2. Whether complainant proves that the accused has committed the offence punishable under Sec.138 of NI Act?
3. Whether the complainant is entitled for the relief as prayed in the complaint?
4. What order?
7. My answer to the above points is as follows : Point No.1 to 3 :In the Affirmative Point No.4 : As per final order for the following : 7 C.C.No.2225 of 2018 SCCH-26 REASONS
8. POINT NO.1 to 3 : Since these points are interlinked and to avoid repetition they are taken together for common discussion. Before peeping the disputed facts it is appropriate to refer the undisputed facts, which can be gathered from the material placed before this court. On going through the rival contention of the parties, oral and documentary evidence, it is clear that the complainant proprietorship having three firms namely Ananth and Co., firm, A.R.Sridhar murthy HUF and M/s A.R.Sridhara murthy. The Ananth and co., firm proprietor of Smt.A.S.Nirmala Devi, she was wife of A.R.Sridhara murthy. The accused No.3 partnership firm, accused No.1 and 2 are the partners and authorised signatories to accused No.3. Accused No.2 was sisterinlaw to accused No.1. The accused No.1 having two other brothers they are Shivakumar and Rajaashekar. The accused No.2 wife of accused No.1 elder brother Shivakumar. The accused No.1 and 2 and their brother and husband i.e., Rajashekar, Majunath, Chandrashekar, they having many firms in their 8 C.C.No.2225 of 2018 SCCH-26 name, they are Ravi Pharmaceuticals, Varsha Pharmaceuticals its normally called as Raj Enterprises and M/s Sri.Shivashakthi associates,. The complainant proprietorship doing business of cheque discount . The accused No.1 having business transaction on behalf of accused No.3 with the complainant proprietorship. The accused No.1 and 2 were the authorized signatories for accused No.3. Initially the present complaint filed against accused No.1 to 3. The accused No.2 contest this case seriously during pending proceedings, the accused No.2 settled her part of amount. Therefore the complainant counsel filed memo stating that the accused No.2 was not signatory to present case papers. She settled her signed papers case, therefore he pray for delete accused No.2 from this case. Accordingly the said memo allowed by this court vide order dt.20092021. The accused No.2 as per this court order deleted. The accused No.2 examined before this court as DW1 and she conducted cross examination of PW1. Now case remained against accused No.1 and 3. The complainant himself delete accused No.2 name from this case 9 C.C.No.2225 of 2018 SCCH-26 the question of considering her defence does not arise. The accused No.1 examined as DW2 and he produced ExD1. This documents pertains to treatment taken from NIMHANS for mental disorder of accused No.1. The cheque in question issued for accused No.3 in favour of complainant. The accused No.1 is a signatory to cheque in question on behalf of accused No.3. The cheque in question on presentation got dishonoured for reason of "Exceeds arrangement". The complainant sent legal notice to accused No.1 to 3, the said legal notice served on accused No.1 wife Smt.Kalashekar. The accused No.1 did not replied to the statutory notice. The accused No.1 executed some documents in favour of complainant for his firm i.e., accused No.3. After receipt of statutory notice, accused No.1 did not paid disputed cheque amount within its statutory period.
9. With above admitted facts, now the facts in issue are analyzed, as already stated the accused No.1 has denied the entire case of the complainant proprietorship as to 10 C.C.No.2225 of 2018 SCCH-26 commission of the offence punishable under section 138 of NI Act. While recording his plea for the said offence and also accused No.1 has denied the incriminating circumstance found in the evidence of the complainant. At the time of recording of his statement under section 313 of Cr.P.C., The accused No.1 mainly denied the claim of complainant proprietorship, on going through the crossexamination of PW1, it is clear that in addition to the total denial of the case of the complainant proprietorship, the accused No.1 has specifically contended that the accused No.3 is a partnership firm, the accused No.1 and accused No.2 his sister in law were partners to accused No.3, they are doing business of pharmaceuticals. He did business in accused No.3 firm since 2001 to 2014 business of pharmaceuticals. The said firm business had lookout from his sisterinlaw and his elder brother Shivakumar. He did not done any business since 2014 of A3 firm due to he suffering mental disorder disease. He has been took treatment for his disease since 2014 In Apollo hospital, Bangalore, NIMHANS, Bangalore and he 11 C.C.No.2225 of 2018 SCCH-26 produced ExD1 total 33 pages and doctor advised him not to do business. The 3rd accused partnership firm not at all exists it was closed, he never executed any documents in favour of complainant and he never issued any cheques in favour of complainant. He did not know about anything about business since 2014. His elder brother and his sisterinlaw came to accused No.1 and took signature of accused No.1 to some documents, he did not know about complainant. The complainant proprietorship did not advanced any loan to accused No.1. The complainant has filed money recovery suit against accused No.1 and 2 and accused No.2 brother one Ramesh. The accused No.1 had no liability to pay anything to complainant firm. They filed false complaint against this accused. Therefore, on the above objections the accused seeking the present complaint is not maintainable and liable to be dismissed in limine.
10. It is needless to say that the proceeding under section 138 of NI Act is an exception to the general principle that the accused is presumed to be innocent until the guilty is 12 C.C.No.2225 of 2018 SCCH-26 proved beyond all reasonable doubt. In the proceedings initiated under section 138 of NI Act, proof beyond all reasonable doubt is subjected to presumption envisaged under section 139 of NI Act. Once the requirement of Sec.138 of NI Act is fulfilled, then it has to be presumed that the cheque was issued for discharge of the legally recoverable debt or liability. The presumption envisaged under Sec.139 of NI Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of NI Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa V/s Mohan reported in AIR 2010 SC (1898) by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishnajanardhana Bhat V/s Dattareya G. Hegde reported in AIR 2008 SC (1325) it was held that "existence of legally recoverable debt or liability is a matter of presumption under section 139 of NI Act". The Hon'ble Apex Court disapproved the principle laid down in Krishnajanardhana Bhat case that "initial burden of proving existence of the liability lies upon the complainant". In the 13 C.C.No.2225 of 2018 SCCH-26 case of Sri.B.H.Lakshmi Naryana V/s Smt. Girijamma reported in 2010(4) KCCR 2637 it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further the Hon'ble Apex Court in Crl. Appeal No.803/2018 Krishna Rao V/s Shankare Gowda reported in 2018(7) SCJ 300 reiterated the above principle further as provided under Sec.118 it is to be presumed that the cheque in question was issued for consideration on the date found therein.
11. In the light of the rival contention of the parties at the outset it is to be determined as to whether the complainant had complied with all the requirements of Sec.138 of NI Act as contended. In order to prove the case of the complainant, complainant proprietorship proprietor A.R.Sridharmurthy examined as PW1 and he reiterated the complaint averments in his examinationinchief by way of affidavit and got documents marked as ExP1 to 12. In support of complainant case, the complainant examined one Manager Central Bank of 14 C.C.No.2225 of 2018 SCCH-26 India, Basavanagudi branch, Bangalore as PW2 and he produced ExP13 to 15. n the other hand, accused No.1 himself examined as DW2 and he produced ExD2 (In CC 2621/2018). In addition to that the complainant has produced ExP1cheque dated 2212018 for a sum of Rs.2,50,000/ payee name mentioned as A.R.Sridharmurthy. The said cheque issued on behalf of accused No.3. The accused No.1 was a signatory to cheque in question. ExP2 bank endorsement dt.732018 for reasons the reasons of Exceeds arrangement. ExP3legal notice dt.442018 issued upon the instruction of M/s A.R.Sridhar murthy represented by its proprietor A.R.Sridhar murthy to accused. ExP4postal receipts ( 5 in nos), in ExP5 it is served on one Kalashekar on 642018. ExP5 and 6 are postal acknowledgments. ExP7 to 9 unopened and unserved RPAD covers. Ex7 pertaining to accused No.3 and ExP8 pertaining to accused No.1. ExP7 and 8 are returned as Left. ExP10 discount form dt.2109 2017. The accused No.1 executed ExP10 in favour of complainant firm on behalf of accused No.3. ExP11 letter 15 C.C.No.2225 of 2018 SCCH-26 addressed to A.R.Sridhar murthy by accused No.1 on behalf of accused No.3 dt.2192017, accused No.1 confirmed that he has received cheque bearing No.162611 for a sum of Rs.2,26,498/ after deducting a sum of Rs.23,502/ as discounting charges against discounting of cheque bearing No.0099548 dt.2212018 for a sum of Rs.2,50,000/. ExP12 bank a/c statement of complainant proprietorship on 229 2017 a sum of Rs.2,26,498/ credited to Sri.Shiva Bangalore service branch, Bangalore through cheque No.2162611. Ex P13 was the authorisation letter issued by Chief Manager Cntral bank of India, Basavanagudi for deposing evidence before this court to one Sadananda Chowdary. ExP14 certified copy of the loan application and signature card of accused No.1 and 2. ExP15 certified copy of the a/c statement of accused No.3.
12. On perusal of complainant oral and documentary evidence, it is clear that the complainant had presented the cheque for encashment within its validity, got issued statutory notice in time and presented the complaint within 16 C.C.No.2225 of 2018 SCCH-26 the prescribed period. So it is clear that complainant complied statutory requirements of presenting cheque, issuing notice and presenting complaint well in time.
13. In order to prove the case of complainant proprietorship the proprietor of complainant proprietorship one A.R.Sridhar murthy examined as PW1 and he produced ExP1 to 12 and he subjected cross examination by accused No.1. During course of his cross examination he mainly questioned about complainant other firms and whether the said firms registered or not and who are the proprietors of above said firms, what is the objective of complainant firm. PW1 contending the present complainant proprietorship having in its objective for doing business of cheque discount and further accused No.1 questioned the complainant firms regularly paying income tax and he further questioned about relations of accused No.1 and other brothers. Further accused No.1 counsel questioned about when accused No.3 started, what is the objectives of accused No.3 and whether complainant having documents pertaining to accused No.3 17 C.C.No.2225 of 2018 SCCH-26 firm and further accused No.1 counsel questioned PW1 how much firms accused No.1 and 2 family had and who are all partners of their firms and when accused No.1 transact with complainant. Further during course of cross examination of PW1 clearly and categorically stated that he knew well about each and every transaction held between accused No.1 with his firm. The accused No.1 done business with complainant proprietorship/firms a total sum of Rs.19 lakhs. The accused No.1 executed some documents in favour of complainant proprietorship/firm and complainant doing direct business with accused No.1 and he collected documents from accused No.1 on behalf of accused No.3. The PW1 clearly and categorically denied the suggestion of accused No.1 that at the time of execution of documents in favour of complainant proprietorship/firm accused NO.1 suffering from mental disorder and further PW1 denied the suggestion of accused, when accused No.1 having mental illhealth, the accused No.1 brother and his wife utilizing this situation and get signatures on some documents. The accused No.2 colluding with 18 C.C.No.2225 of 2018 SCCH-26 complainant filed false case against accused No.1. Further PW1 stated during course of cross examination that before they started business with any persons they clarify and know about full details of such person or firm. The counsel for accused questioned during course of cross examination that the contents of ExP1 and 10 not wrote by accused No.1 and PW1 also deposed he was not sure who wrote contents of Ex P1, 2, 3, 13, 14, 15. But PW1 specifically deposed before this court that ExP1 and 9 i.e., cheque and discount form in all cases executed by accused No.1 in favour of complainant proprietorship/firm. Further PW1 clearly and categorically denied the suggestion of accused that the complainant proprietorship done business of cheque discount without got licence from competent authority and done present business illegally and further PW1 denied the suggestion of accused he falsely filed this case against accused No.1 for illegally getting money from the accused No.1 and there is no existence of legally recoverable debt against accused No.1. Other 19 C.C.No.2225 of 2018 SCCH-26 suggestions putforth by accused No.1 clearly and categorically denied by PW1.
14. It is well settled principle of law through catena of decisions that though the statutory presumptions available under Sec.118 and 139 of NI Act are mandatory in nature, they are the rebuttal one. It is needless to say that when the complainant proves the requirement of Sec.138 of NI Act the onus of proof shifts and lies on the shoulder of the accused to rebut the presumptions available in favour of the complainant. It is the accused who has to rebut the presumptions with all preponderance of probability with clear, cogent and convincing evidence though not beyond all reasonable doubt. The accused has to make out probable defence by producing convincing acceptable evidence and thereafter only burden shifts on the shoulder of the complainant. It is also settled law that to rebut the presumption, the accused can also rely upon presumptions available under the Evidence Act. It is also set in rest that in order to rebut the presumption it is not imperative on the part of the accused to step into the witness 20 C.C.No.2225 of 2018 SCCH-26 box and he may discharge his burden on the basis of the Acts elicited in the crossexamination of the complainant. It is also equally true that, if the accused places such evidence so as to disbelieve the case of the complainant, then the presumptions stand rebutted. This view is also supported with the decisions of the Hon'ble Apex Court reported in 2006(3) SCC (CRL) 30 Tamilnadu Marcantile Bank Limited V/s M/s Subbaiah Gas Agency and others. ILR 2009 (2) 1633 Kumar Exports V/s Sharma Carpets, AIR 2008 SCC 1325 Krishnajanardhana V/s Dattareya G. Hegde, 2013 SCR (SAR) CRI 373 Vijay V/s Lakshman & another and AIR 2010 SC 1898 Rangappa V/s Mohan and Crl. Appeal No.230 & 231/2019 Bir Singh V/s Mukesh Kumar. Now the question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complaint.
15. In order to disprove the case of complainant and prove his defence the accused No.1 orally examined before this court as DW2 and he specifically deposed before this court 21 C.C.No.2225 of 2018 SCCH-26 that the accused No.3 is a partnership firm, the accused No.1 and accused No.2 his sister in law were partners to accused No.3, they are doing business of pharmaceuticals. He did business in accused No.3 firm since 2001 to 2014 business of pharmaceuticals. The said firm business had lookout from his sisterinlaw and his elder brother Shivakumar. He did not done any business since 2014 of A3 firm due to he suffering mental disorder disease. He has been took treatment for his disease since 2014 In Apollo hospital, Bangalore, NIMHANS, Bangalore and he produced ExD2 total 33 pages and doctor advised him not to do business. The 3 rd accused partnership firm not at all exists it was closed, he never executed any documents in favour of complainant and he never issued any cheques in favour of complainant. He did not know about anything about business since 2014. His elder brother and his sisterinlaw came to accused No.1 and took signature of accused No.1 to some documents, he did not know about complainant. The complainant proprietorship did not advanced any loan to accused No.1. The complainant has filed 22 C.C.No.2225 of 2018 SCCH-26 money recovery suit against accused No.1 and 2 and accused No.2 brother one Ramesh. The accused No.1 had no liability to pay anything to complainant firm. They filed false complaint against this accused. The DW2 has been subjected cross examination by complainant. During course of cross examination he specifically admitted that he was partner of Shivashakthi association and he was the signatory on behalf of accused No.3, in his family he had wife Smt.Kala and daughter Samadvitha and son Kruthik. Further he admitted that notice issued by complainant received by his wife Kalachandrashekar and address mentioned in postal acknowledgment card was correct, the cheque in question issued on behalf of accused No.3 in favour of complainant proprietorship/firm. DW2 during course of cross examination denied the signatures found on cheque in question, discount form, plea, vakalath filed by accused No.1 and confirmation letter and DW2 clearly admitted during course of cross examination that the signature found on 313 statement admitted as his signature. Further DW1 clearly admitted that 23 C.C.No.2225 of 2018 SCCH-26 the amount mentioned in cheque in question and amount mentioned in confirmation letter are one are the same and further he contended that he did not aware about amount received through bank from complainant proprietorship/firm and he specifically contended during course of cross examination that he did not aware about alleged transaction he was neuro patient and further he admitted that the particulars of discount form. Further DW2 clearly and categorically admitted that he produced ExD1 in CC No.2621/2018. In ExD1 at page 33 mentioned as he taken treatment on 1342018 and in ExD1 at page 30, he took followup treatment on 582016. On 582016 clearly recorded in ExD1 "seizure disorder under treatment seizure free" and in continuation in the same line wrote as depressive episode and in ExD1 at page 31 the doctor mentioned accused No.1 designation as owner of Shivashakthi firm and in continuation of same document, the doctor mentioned as "
he is better, it is better to away " bengodiazepines ". Further DW1 admitted that no doctor issued certificate by examining 24 C.C.No.2225 of 2018 SCCH-26 accused No.1. Now accused No.1 is fit and stable and accused No.1 took treatment as per ExD1 as outpatient. Further accused NO.1 exposed his inability to examine who issued Ex D1 i.e., doctor before this court. Further DW2 clearly admitted that he did not informed about his illhealth to firm registrar through in written form. Further accused No.1 clearly admitted during course of cross examination that there is a many cases pending against him before Bangalore courts in Magistrate units and he contended that the said cases falsely filed against him and other suggestions putforth by complainant counsel are clearly and categorically denied by accused No.1.
16. On careful analyze entire evidence and documents, it is clear that the complainant has produced many documents to show or substantiate complaint averments as on the date of issuance of cheque or prior to issuance of cheque, the legally recoverable debt exist between complainant and acused No.1. Complaiannt produced ExP1 to 12. On careful perusal of entire exhibits, it disclose that ExP1cheque dated 2212018 25 C.C.No.2225 of 2018 SCCH-26 for a sum of Rs.2,50,000/ payee name mentioned as A.R.Sridharmurthy. The said cheque issued on behalf of accused No.3. The accused No.1 was a signatory to cheque in question. ExP2bank endorsement dt.732018 for reasons the reasons of Exceeds arrangements. ExP3legal notice dt.442018 issued upon the instruction of M/s A.R.Sridhar murthy represented by its proprietor A.R.Sridhar murthy to accused. ExP4postal receipts ( 5 in nos), in ExP5 it is served on one Kalashekar on 642018. ExP5 and 6 are postal acknowledgments. ExP7 to 9 unopened and unserved RPAD covers. Ex7 pertaining to accused No.3 and ExP8 pertaining to accused No.1. ExP7 and 8 are returned as Left. ExP10 discount form dt.21092017. The accused No.1 executed ExP10 in favour of complainant firm on behalf of accused No.3. ExP11 letter addressed to A.R.Sridhar murthy by accused No.1 on behalf of accused No.3 dt.2192017, accused No.1 confirmed that he has received cheque bearing No.162611 for a sum of Rs.2,26,498/ after deducting a sum of Rs.23,502/ as discounting charges against discounting of 26 C.C.No.2225 of 2018 SCCH-26 cheque bearing No.0099548 dt.2212018 for a sum of Rs.2,50,000/. ExP12 bank a/c statement of complainant proprietorship on 2292017 a sum of Rs.2,26,498/ credited to Sri.Shiva Bangalore service branch, Bangalore through cheque No.2162611. ExP13 was the authorisation letter issued by Chief Manager Central bank of India, Basavanagudi for deposing evidence before this court to one Sadananda Chowdary. ExP14certified copy of the loan application and signature card of accused No.1 and 2. ExP15 certified copy of the a/c statement of accused No.3. The accused No.1 did not opt to conduct cross examination of PW2. The document produced by PW2 have presumptive value under NI Act as well as bankers book evidence Act. On perusal of ExP14 in CC No.2225/2018, it indicates that the accused NO.1 and 2 have obtained loan on behalf of accused No.3 for a sum of Rs.26 lakhs by giving collateral security and guarantor from Central Bank of India, Basavanagudi branch. The accused No.1 and accused No.2 are partners and authroised signatories on behalf of accused No.3. The accused No.1 and 27 C.C.No.2225 of 2018 SCCH-26 2 have still due loan towards Central bank of India, Basavanagudi branch, Bangalore. The accused No.1 not conducted cross examination of PW2 the evidence deposed by PW2 and documents placed by PW2 are unquestionable documents. Therefore this court accepted entire evidence of PW2 without any option. The gist of the case of the complainant that the accused No.1 and 2 are partners and authorised signatory of accused No.3, they discounted a cheque of Rs.2,50,000/ from the complainant upon executing discount form in favour of complainant. The complainant given amount of Rs.2,50,000/ through cheque in favour of accused No.1 by deducting discount charges and accused No.1 stated he would clear the above received amount within 3 ½ month and he issued cheque bearing No.099548 dt.221 2018 for Rs.2,50,000/ in favour of complainant towards discharge of debt. The said cheque on presentation got dishonoured. Therefore they issued legal notice, even though legal notice duly served, they did not come forward for repayment of cheque amount. To substantiate above facts he 28 C.C.No.2225 of 2018 SCCH-26 produced ExP1 the cheque in question issued by accused NO.1 on behalf of accused NO.3 in favour of complainant. The said cheque on presentation got dishonoured for the reasons of Exceeds arrangement norm and he immediately issued statutory notice as per ExP3. The said notice duly served on accused No.1. The said notice received by accused No.1 wife Smt.Kalashekar. The accused did not sent any reply to ExP3 at appropriate stage. On perusal of ExP9, the accused No.1 get discounted cheque amount of Rs.2,50,000/ and agree to pay with discount charges at 24% p.a. along with other charges and he received Rs.2,26,498/ through cheque from complainant. The accused No.1 sole signatory to ExP10 and
11. The accused No.1 clearly confirmed in ExP11 he received discounted cheuqe amount of Rs.2,26,498/ after deducting discounting charges through cheque bearing No.2162611, the accused No.1 clearly admitted as per terms provided in Ex P10 and 11. Further the complainant produced ExP12 for the proof of transfer discounted cheque amount from complainant to accused No.1, it clearly indicates on 2292017 the 29 C.C.No.2225 of 2018 SCCH-26 complainant transferred Rs.2,26,498/ to accused No.3 a/c through cheque No.2162611. So above documents and oral evidence of PW1 and 2 clears that the accused No.1 get discounted cheque amount by agreeing repay the same within 3 ½ months and for that security he issued cheque in question for discharge of debt. The main defence of the accused No.1 in this case that the accused N.1 was not in a sound of mind at the time of alleged transactions took place and accused No.1 sister in law and brother have misused the situation and get signatures of accused No.1 on some documents finally the said documents misused by his sister inlaw and brother colluding with complainant and filed false case against this accused. To substantiate his defence, he mainly placed reliance on ExD1 which is produced in CC No.2621/2018. On careful perusal of ExD1, it is pertaining to the year 2013, the accused NO.1 having two episodes of seizures in the month of August 2013 and he took treatment Ramakrishna Super speciality hospital Bangalore on 158 2013 and again he took treatment in Srinivasa clinic, BSK 1 st 30 C.C.No.2225 of 2018 SCCH-26 stage,Bangalore on 1782013, 1982013. Further DW2 took treatment in Raghava's diagnostic and research centre, Jayanagar, Bangalore on 1362014. The accused No.1 himself stopped medication on his own. Therefore he again had attack of seizure. Therefore the doctors advised to get some medications. The accused No.1 took treatment as a outpatient and again he took followup treatment in Raghava hospital on 1762014. Finally accused No.1 admitted as inpatient in Apolo hospital, Bangalore for history of epilepsy and concerned doctor treated and gave medications for seizure disorder, he admitted to Apolo hospital on 1762014 and discharged 2062014 and doctor clearly mentioned in discharge summary, " he also gives history of stopping epileptic medication and within 24 hours he had one episode of fits, during his stay his neurological state improved and he was shifted to wards continuing with the same medications, he is conscious, oriented and verbalizing fluently, recovering from his postical confusion state and is now being discharged with the 31 C.C.No.2225 of 2018 SCCH-26 following medications ". So as per medical records he had some seizure disorder and depressive episode in the year 2013 to 2016. In the month of December 2017 the doctor advised to stop addiction to bengodiazepines. Further DW2 clearly admitted during course of cross examination ನಶನ ಡ 1 ಪಟ 31 ರಲ ವವದದ ರರ ದನನಕ 15122017 ರನದರ ಶವಶಕಕ ಫ firm ನ owner ಎನದರ ಬರದದ ಎನದರ ಸರ. ಮರನದರವರದ ಪತ ತದಲ he is better, it is better to away bengodiazepines. ಎನದರ ಬರದದ ಎನದರ ಸರ.
17. The accused No.1 did not opt to examine the doctor who treated him before this court and he has not produced medical certificate which is certified by psychiatric to show before this court that at the time of alleged transaction took place between accused No.1 and complainant, the accused No.1 had mental disorder or neuro problem or any other mental diseases he did not produced any certificate issued by competent doctor. The alleged transactions taken place in the year 2018 in the month of January. So as per ExD1 i.e. own document filed by accused, in the year 2017 his health 32 C.C.No.2225 of 2018 SCCH-26 condition improved and doctor advised to stop medications and doctor mentioned his position in medical record as owner of Shivashakthi firm. Therefore the documents relied by accused did not helpful to his case. The accused does not dispute the fact that the cheque in question belongs to accused No.3 and bear signature in cheque in question belongs to accused No.1, the admission fo accused No.1 is sufficient to prove the execution of cheque by accused No.1. Once execution of the cheque by the accused proved by complainant, no evidence adduced by accused No.1 to prove his plea, it is sufficient to draw presumption in favour of complainant proprietorship or firm. When the absence of material evidence, this court has no option to accept version of the accused. So as on the date of issuance of cheque there is existence of legally recoverable debt and for such accused No.1 issued cheque in question in favour of complainant.
18. The cheque is an instrument comes under the N.I Act holder in due course of the cheque, has got good title over the cheque. Therefore on the basis of evidence of PW1 and 2 and 33 C.C.No.2225 of 2018 SCCH-26 documentary evidence it clearly establish that the accused No.1 issued the disputed cheque on behalf of accused No.3 to the complainant proprietorship or firm for legally dischargeable debt. The complainant proprietorship or firm has complied all essential ingredients of Sec.138 of NI Act. When complainant proprietorship or firm complied all essential ingredients of Sec.138, as per Sec.139 of NI Act the cheque is issued for legally recoverable debt.
19. On careful examination of all the documents of complainant, it is very clear that the complainant proprietorship or firm filed this complaint well within time and complied all the ingredients of Section 138 of N.I. Act 1881. The presumption Under Section 139 of the NI Act is a presumption of law, it is not a presumption of fact. This presumption has to be raised by the court in all the cases once the factum of dishonor is established. The onus of proof to rebut this presumption lies on the accused. The standard of such rebuttable evidence depends on the facts and circumstances of each case. Such evidence must be sufficient 34 C.C.No.2225 of 2018 SCCH-26 to prove the case. Therefore a mere explanation is not sufficient to rebut this presumption of law. It is profitable to refer and relied Hon'ble Apex court recent decision passed in Criminal Appeal No.123/2021 arising out of special leave petition (criminal) 1876/2018 between M/s Kalamani Tex and another Vs P.Balasubramanian disposal date on 10022021 (three judges bench). In this case, Apex court held that, "once signature on cheque admitted by the accused, court ought to have presume that, cheque was issued as consideration for a legally enforceable debt."
20. It is pertinent to refer and relied Hon'ble Apex court recent decision passed in Criminal Appeal No.292/21 between Sumethi Vij Vs. M/s Paramount Tech FAB Industries (Division Bench) disposed dated 9.3.2021 In this case Apex Court held that under Section 139 of the Act, a presumption is raised that holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. To rebut this presumption, 35 C.C.No.2225 of 2018 SCCH-26 facts must be adduced by the accused which on preponderance of probability (not beyond reasonable doubt as in the case of criminal offence. Must then be proved.
21. Further Apex court clarified that there is a mandate of presumption of consideration in terms of the provision of the act under Section 118 and 139 of Negotiable Instrument Act. The onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of section 138 of the NI Act.
"It is worthful to refer Hon'ble Apex Court decision in Crl. Appeal No.849, 850/2011 parties between Triyambak S, Hegde V/s Sripad, DD : 23092021 three Judges bench, Supreme Court of India. Wherein Apex Court held that if the signature on the cheque is admitted, then presumption U/s. 138 of N.I. Act that, the cheque was issued in discharge of a legally enforceable debt will be 36 C.C.No.2225 of 2018 SCCH-26 raise. Upon such presumption being raised, it is incumbent upon the accused to rebut the same."
22. Further Apex Court referred to the precedent in Basalingappa V/s Mudibasappa, 2019 where the principles on Section 118(a) and 139 of the N.I. Act were summarized in the following manner.
1) Once the execution of cheque is admitted, Section 139 of the Act mandates a presumption that, the cheque was for the discharge of any debt or liability.
2) The presumption under Section 139 is a rebuttable presumption and the owners is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
3) To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of 37 C.C.No.2225 of 2018 SCCH-26 preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
4) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
5) It is not necessary for the accused to come in the witness box to support his defence.
Wherein Apex Court again clarified that by reiterating the precedent laid by in Basalingappa V/s Mudilingappa case. Once signature on cheque admitted by the accused, then presumption u/s. 139 drawn in favour of the complainant, the cheque was issued a discharge of legally enforceable debt, the said presumption is rebuttal one. The accused rebut the same, the alleged cheque did not issued for the purpose of discharge of any debt or liability as on the date of presentation 38 C.C.No.2225 of 2018 SCCH-26 of the cheque. The standard of proof for rebut the presumption is that of preponderance of probabilities. To rebut the presumption, it is open for the accused to rely on evidence laid by complainant or the accused also by reference to the circumstances upon which their rely. The accused need not entered into witness box to support his defence. it is settled principle of law that, once accused admitted his signature on instrument, as per Section 118(a) and 139 of N.I. Act, presumption shall drawn in favour of the complainant. Such presumption is rebutted by the accused by placing rule of evidence i.e., preponderance of probabilities. But in the instant case, accused did not placed any materials to rebut the case of the complainant.
23. As per N.I. Act, the presumption is in favour of holder of cheque. Here, the holder of cheque is complainant and presumption is in favour of complainant. It is burden on the accused to rebut the above presumption. As per Section 118 of N.I Act, presumption has to be raised by the court in all the cases once the factum of dishonour is established, but it is 39 C.C.No.2225 of 2018 SCCH-26 rebuttal presumption. The onus of proof to rebut this presumption lies on the accused. The standard of such rebuttal evidence depends on the facts and circumstances of each case. Such evidence must be sufficient, cogent and should prove beyond any reasonable doubt. The accused has not taken and proved defence to rebut the presumption of law available in favour of the complainant envisaged U/s 118 r/w section 139 of NI Act. Accordingly the case of the complainant is acceptable as the complainant has proved that accused has intentionally without having sufficient money in his account and issued disputed cheque. Therefore, a mere explanation is not enough to repel this presumption of law.
24. Therefore in my considered view, the complainant company has established his case by way of documentary as well as oral evidence. Being accused liable to pay cheque amount of Rs.2,50,000/ to the complainant proprietorship/firm. Hence my answer to point No.1 to 3 in the Affirmative.
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25. Point No.4: Since this court has already held that the cheque in question was issued towards discharge of legally enforceable debt and the accused has committed an offence U/s 138 of NI Act. It is worth to note that the offence is of the nature of civil wrong. This court has power to impose both sentence of imprisonment and fine on the accused. This court is of the opinion that it is appropriate to impose the sentence of fine only on the accused, instead of sentencing him to undergo imprisonment. Hon'ble supreme court of India in a decision reported in 2015(17) SCC 368 in a case of H.K.Pukhraj Vs D.Parsmal observed that having regard to the length of trial and date of issuance of cheque it is necessary to award reasonable interest on the cheque amount along with cost of litigation. Further accused has to compensate the complainant in terms of money." In the result, this Court proceed to pass the following: 41 C.C.No.2225 of 2018 SCCH-26 : O R D E R : By Acting U/s 255(2) of Cr.P.C the accused is hereby convicted for the offence punishable U/s 138 of NI Act.
The accused is hereby sentenced to pay fine of Rs.3,15,000/ (Rupees Three lakhs fifteen thousand only) and acting U/s 357(3) of Cr.P.C. out of the total fine amount payable by the accused a sum of Rs.3,10,000/ shall be payable to the complainant as compensation and remaining amount of Rs.5,000/ shall be defrayed as state expense.
In default of payment of fine the accused shall under go simple imprisonment for a period of 6 months.
It is further made it clear that if the accused opt to undergo imprisonment, it does not absolve him from liability of paying compensation to the complainant.
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Office is hereby directed to supply free
certified copy of this judgment to the accused forthwith.
(Dictated to the stenographer, through online computer, thereof is corrected and then pronounced by me in the open Court on this the 11th January 2022) (R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.
ANNEXURE
WITNESSES EXAMINED ON BEHALF OF THE
COMPLAINANT:
PW1: A.R.Sreedhara Murthy
PW2: Sadananda Chowdari
DOCUMENTS MARKED ON BEHALF OF THE
COMPLAINANT:
Ex.P1: Cheque
Ex.P1(a): Signature
Ex.P2 : Bank memo
ExP3 : Legal notice
ExP4 : Postal receipt
ExP5 & 6 : 2 acknowledgments
ExP7 to 9 : 3 postal covers
ExP10 : Discount form
ExP11 : Confirmation letter
43 C.C.No.2225 of 2018
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ExP12 : Bank account statement
Ex.P13 : Authorisation letter
Ex.P14 : Loan application
Ex.P15 : A/c statement of accused No.3
WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:
DW1 : Uma Shivakumar DW2 : K.Chandrashekar
DOCUMENTS MARKED ON BEHALF OF THE ACCUSED:
NIL (R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.44 C.C.No.2225 of 2018
SCCH-26 Dt 1112022 Judgment pronounced in the Open Court vide separate order:
ORDER By Acting U/s 255(2) of Cr.P.C the accused is hereby convicted for the offence punishable U/s 138 of NI Act.
The accused is hereby sentenced to pay fine of Rs.3,15,000/ (Rupees Three lakhs fifteen thousand only) and acting U/s 357(3) of Cr.P.C. out of the total fine amount payable by the accused a sum of Rs.3,10,000/ shall be payable to the complainant as compensation and remaining amount of Rs.5,000/ shall be defrayed as state expense.45 C.C.No.2225 of 2018
SCCH-26 In default of payment of fine the accused shall under go simple imprisonment for a period of 6 months.
It is further made it clear that if the accused opt to undergo imprisonment, it does not absolve him from liability of paying compensation to the complainant.
Office is hereby directed to supply free certified copy of this judgment to the accused forthwith.
(R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.46 C.C.No.2225 of 2018
SCCH-26