Bangalore District Court
S/O.Panchappa vs Has Issued Cheque Bg.No.777883 ... on 9 November, 2015
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE.
Present: Smt.C.G Vishalakshi, B.A., L.L.B.,
XIII A.C.M.M Bangalore.
C.C. NO.28615/2014
Dated: This the 9th day of November 2015
Name of the Sri.Manjunath.J
complainant S/o.Panchappa,
Aged about 50 years,
R/at.Halau Village,
Huvina Hadagali Taluk-583217
Name of the accused Sri.Hemanth Kumar Bharathi,
S/o.Kenchappa,
Aged about 61 years,
R/at.No.8/991,
Green View Building,
TINI, Main Road,
Gokul 1st Stage,
Bangalore-560 054.
Offence U/s.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Convicted
****************
JUDGEMENT
This complaint is filed against the accused U/s.200 of Cr.P.C. for the offence punishable U/s.138 of N.I Act.
.
2. The gist of the complaint is as follows; 2 C.C.No.28615/2014 The complainant and the accused are known to each other as they are hailing from the neighbouring villages of Holalu Hobli, Hoovina Hadagali Taluk. The agricultural lands of the complainant and the accused are situated in the same area. The accused intended to contest the assembly elections scheduled to be conducted in the month of May 2013. To meet his financial crises and also to meet his domestic needs, he has approached the complainant to lend a sum of Rs.13,50,000/-. The complainant by considering the request of the accused, as he is known person, has lent a sum of Rs.13,50,000/- in favour of the accused on 3.3.2013. The accused had agreed to repay the said loan within 2 months from the date of borrowing loan. Thereafter on demand, the accused has issued cheque bg.No.777883 dt.07.05.2013 for a sum of Rs.13,50,000/- drawn on Corporation Bank, Malleshwaram 18th Cross, Branch, Bangalore. The said cheque on its presentation for encashment through his banker Syndicate Bank, Hadagali Branch, bounced back dishonoured, with an endorsement dt.12.07.2013 as "Payment Stopped by Drawer". Thereafter, the 3 C.C.No.28615/2014 complainant got issued legal notice against the accused on 05.08.2013 through RPAD. The said notice was served on the accused on 10.08.2013. But inspite of receipt of same, the accused failed to make payment within statutory time, but gave untenable reply. Hence, the complainant approached this court contending that, the accused has committed an offence punishable U/s.138 of N.I Act and prays to deal the accused in accordance with law.
3. On presentation of the complaint, this court has taken cognizance of the offence, Sworn statement of the complainant was recorded. On perusal of the documents and on hearing the complainant, process was issued against the accused. In pursuance of the process, the accused appeared before this court and enlarged on bail. Copies of the complaint papers supplied to him. Substance of accusation was readover and explained to the accused. Accused did not pleaded guilty and claims to be tried. Hence, the matter was posted for evidence of the complainant.
4 C.C.No.28615/2014
4. In order to prove the case of the complainant, he got examined himself as PW.1 & examined one witness as PW2 and got marked documents as Ex.P.1 to P.25 and closed his side evidence. After completion of the complainant evidence, the accused was examined under U/s.313 of Cr.P.C. and his statement was recorded. The accused denied all the incriminating evidence appeared against him and chosen to lead his defence evidence. To substantiate his defence and to falsify the claim of the complainant, the accused has examined himself as DW1 got marked document Ex.D.1.
5. Heard arguments. In addition to their oral arguments both submitted their written arguments along with citations.
The counsel for the complainant has relied on the citation reported below;
1. AIR 2010 SC 1898 between Rangappa Vs. Mohan.
2. AIR 1998 SC 1057 between M/s. Modi Cements Ltd., Vs.Kuchil Kumar Nandi.
3. 2002 SCC (Cri) 14 between K.N. Beena Vs. Muniyappa & Anr.
5 C.C.No.28615/2014
4. ILR 2000 Kar. 1570 between Dr.K.G. Ramachandra Gupta Vs. Dr.G.Adinarayana.
5. 2006(4) KCCR 2685 between S. Parameshwarappa & Anr Vs. S.Choodappa. The accused in support of his defence has relied on the citations reported below;
1. 2008 Cri.L.J 2405 (Bom) betweenShri Vinay Parulekar Vs.Shri Pramod Meshram.
2. 2013 Cri.l.J (Noc) 472 (GAU) between Sanjya Kabra & Anr. Vs. M/sSesami Chemicals (P) Ltd., & Ors.
3. AIR 2009 (NOC) 2327 (Bom) between Sanjay Mishra Vs. M/s.Kanishka Kapoor @ Nikki & Anr.
4. 2007 Cri.L.J 4437 (Kar) between M/s.LMJ International Ltd., & Ors Vs. State of Karnataka & Anr.
5. ILR 2007 Kar 2709 between M.Senguttuvan Vs. Mahadevaswamy,
6. ILR 2009 Kar 1633 between Kumar Exports Vs. Sharma Carpets.
7. 2008 Cri.L.J (Noc) 409 (Ker) between G.Mohan Vs. Tonny Varghese & Anr.
6. Upon reading the entire materials on record and on hearing the arguments the following points that arise for my consideration:
6 C.C.No.28615/2014
(i) Whether the complainant proves
beyond all shadow of doubt that, the
accused has committed an offence
punishable U/s.138 N.I Act ?
What order?
7. My answer to the above points are as follows:-
Point No.1: In the Affirmative Point No.2: As per the final order, for the following.
REASONS
8. Point No.i : As the accused did not pleaded guilty the complainant has chosen to examine himself as PW1 and got marked documents as Ex.P.1 to P.25.
9. As per the decision reported in ILR 2008 Kar. Pg. 4629 between Shivamurthy Vs.Amruthraj, and in another decision rendered by the Hon'ble Apex court in AIR 2008 SC 1325 between Krishna Janardharn Bhat Vs. Dattareya G. Hegde, in order to attract Sec.138 of N.I Act, the complainant has to satisfy 3 essential ingredients like, 1) there is legally enforceable debt, 2) that the cheque was drawn from the account of the Bank 7 C.C.No.28615/2014 of the accused for discharge of whole or part of any debt or other liability which pre-supposes to be legally enforceable debt, 3) cheque so issued returned unpaid due to Insufficient of funds.
10. Keeping the documents in view, let us proceed to discuss that, whether the cheque in question belongs to the accused and whether the signature found on disputed cheque is that of the accused.
11. On looking the materials on record which shows that, there is no dispute so as to the fact that Ex.P.1 cheque is belongs to the accused Bank account and signature Ex.P.1(a) is his signature, as it is the specific defence of the accused that, he had given the said cheque in favour of one Mahendra M Jyothi in the name of the complainant as per his say in order to celebrate the victory of the elections as he had information that, he succeeds in the Assembly Election held during May 2013. Hence, it is his contention that the said cheque was not issued in favour of the complainant towards the discharge of any debt or 8 C.C.No.28615/2014 liability. Thus, there is no dispute so as to the fact that, Ex.P.1 cheque belongs to the bank account of the accused and Ex.P.1(a) is his signature.
12. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR 1981 Pg. 2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the execution of N.I Act (Cheque in question) is admitted as well as proved.
13. In view of the decision reported in 2010 SC 1898 between Rangappa Vs. Mohan, once the execution of Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption U/s.139 of N.I Act, in favour of the complainant to that effect that the said Negotiable Instrumen i.e, the disputed cheque has been drawn for valid consideration and it is towards legally recoverable debt and it is drawn for valuable consideration.
9 C.C.No.28615/2014
14. It is the specific case of the complainant that accused is known person and hails from his neighboring village. Their agricultural land is situated in the same area. On such acquaintance, the accused had approached him through one Mahendrappa Jyothi and borrowed loan of Rs.13,50,000/- on 03.03.2013 to meet the expenses towards Election and for his domestic needs as he intended to contest the Assembly Elections from Holalu, Hoovinahadagali Constituency which was scheduled to be conducted during the month of May 2013. It was agreed to repay the said loan amount within 2 months. On demand, the accused had issued Ex.P.1 cheque towards the discharge of the said loan. The said cheque on its presentation for encashment bounced back unpaid for the reason "payment stopped by drawer". Inspite of brining the fact of dishonor of the cheque to the knowledge of the accused by causing due notice, the accused not made good of the cheque amount but gave untenable reply. Thus it is the allegations of the complainant that, the accused has committed an offence punishable U/s. 138 of N.I Act.
10 C.C.No.28615/2014
15. But it is the defence of the accused that there is no any loan transaction in between himself and the complainant and he never borrowed any loan from the complainant and he does not know about the complainant himself as he left his village during the year 1964 and after completion of his education at Harihara, Davangere & at Bangalore etc., he joined Government service during the year 1977 and thereafter was appointed as KAS Officer during the year 1988 and he had served at different places and at different Departments during his service and retired from the service on 03.12.2012. He never worked at his Home Town or Home District. Hence, it is the contention of the accused that, he never visited his village after leaving the said village and thus there was no occasion for him to borrow any loan from the complainant. On the other hand, he had contested for Assembly elections of Hadagali constituency which was conducted in the month of May 2013. One Mahendrappa Jyothi was one of the party worker who was canvasing in his favour during the elections. There was a report that, he will win in the elections. Hence, in order to celebrate the victory, the 11 C.C.No.28615/2014 said Mahendrappa Jyothi was in need of money and as it was not possible for the complainant to come to Bangalore to take money, he had issued a cheque in favour of the said Mahendrappa Jyothi by mentioning the name of the complainant, as per instruction of the Mahendrappa Jyothi. But he lost his elections and though he had asked the said Mahendrappa Jyothi several times to return the said cheque but the said Mahendrappa Jyothi did not returned the cheque. Hence, he has given "stop payment" instructions to the Bank authorities.
16. Thus, he denies the very loan transaction in between himself and the complainant and about issuance of Ex.P.1 cheque in favour of the complainant towards discharge of any debt or liability.
17. Having admitted the fact that Ex.P.1 cheque belongs to his Bank account Ex.P.1 (a) is his signature presumption has arose in favour of the complainant U/s.139 of N.I Act is belongs to his Bank account of Ex.P.1 (a) is his signature, the presumption arose in 12 C.C.No.28615/2014 favour of the complainant U/s.139 of N.I Act and it is the burden of the accused to rebut the said presumption with necessary probable evidence.
18. To substantiate the same, though accused counsel lengthily cross-examined PW1 but not elicited any material admission from the mouth of PW1 as PW1 denied each and every suggestions made by the counsel for the accused in that regard. Though accused has elicited evidence during the course of PW1 that, the accused had left his village during the year 1964 and at that time, the complainant was aged about 2 years but PW1 clearly stated that even after the same, the accused used to visit his village. To substantiate his statement, he relied on the cross-examination of DW1, wherein it is elicited that, the accused has agricultural land at Kuruvathi village and it is also elicited that, the originally the name of the accused is Hanumanthappa Mayappanavar and later it was changed to Hanumanthappa and thereafter, it is changed as Hemanth Kumar Bharathi. Further the complainant has produced RTC which is marked at Ex.P.17 which reflects 13 C.C.No.28615/2014 the fact that the accused has agricultural land to the extent of 3 acres 67 cents at Kuruvathi Village. This aspect is admitted by the accused during his cross- examination. Though accused has denied the suggestions of the complainant that, the distance between his village Kuruvathis and Holalau is 5 kilometers, but as per Ex.P.8 to P.17 RTC's, Dombarahalli, Holalu and Kuruvathi are all situated within the limits of Hirehadagali Hobli and they are all neighboring villages. Further as per the RTC, the lands of the complainant and accused are situated on the side of each othr as Kuruvathi and Dombarahalli are adjacent villages. This shows that the complainant and the accused were residents of neighboring villages and they are hailing from the adjacent neighbouring villages of the Hoovinahadagali Taluk, as stated by the complainant.
19. Further, as per the admission of the accused he has agricultural land at his village. Though accused has stated that, he left his village during the year 1964 and he never visited his village and thereafter etc., but the say of the accused is not acceptable one. No doubt he 14 C.C.No.28615/2014 might be on duty at several places during his service, but that does not mean that he never visited his native place. Hence, the say of the accused that, he does not know the complainant who is resident of his neighboring village is not acceptable one.
20. It is further case of the complainant that, after retirement he has contested for Assembly Elections scheduled during May 2013 from Hoovinahadagali Constituency and he was given ticket from BSR party and there was report that, he will win in the Elections. In this regard his party worker namely Mahandrappa Jyothi was in need of money. He had no time to come to Bangalore to take money, hence, he had given Ex.P.1 cheque for Rs.13,50,000/- in favour of Mahendrappa Jyothi by mentioning the name of Manjunatha Jyothi i.e, the name of the complainant on say of the said Mahendrappa Jyothi. But he was defeated in the said Election. As such, there was no occasion for celebration of the victory. Hence, he had asked the said Mahendra Jyothi to return the said cheque. But as he did not returned the same, he has given stop payment 15 C.C.No.28615/2014 instruction to the Bank etc. To substantiate the said defence, though he has produced documents like notification form-B nomination Form, Identity Card issued by the Election Commision, which are marked at Ex.D.11 to D.13 to show that he had contested for Assembly Elections from Hoovinahadagali Constituency, but not elicited any evidence from mouth of PW1 about issuance of Ex.P.1 cheque infavour of one Mahendrappa Jyothi in the name of the complainant to adjust.arrange money to celebrate to victory as he had report that he will succeed in the said Election, as PW1 denied each and every suggestions of the accused counsel in this regard.
20. Further, the accused not examined the said Mahendrappa Jyothi as his witness on his side nor placed any cogent evidence to show that he had given Ex.P.1 cheque in favour of the said Mahendrappa Jyothi in relation to the celebration of victory in the Elections. On the other hand, the complainant has examined the said Mahendrappa Jyothi as PW2, who in his evidence deposed with regard to the loan transaction in between the complainant and the accused and about borrowing of loan of Rs.13,50,000/- by the accused from the 16 C.C.No.28615/2014 complainant on 03.03.2013 by way of cash in his presence to meet the expenses towards election and for his domestic needs.
21. During cross-examination though much effort made by the accused counsel to elicit that there was no loan transaction in between the accused and the complainant and the accused never visited his village after he left his village during the year 1964 and he does not know about the complainant itself but PW2 denied all these suggestions as false. Further PW2 has also denied about the suggestions that Ex.P.1 cheque was issued in his favour in the name of the complainant as per his instruction to celebrate victory as there was report that the accused will win the Elections. Thus there is no material admission elicited from the mouth of PW2 in establishing the fact that Ex.P.1 cheque was not issued in favour of the complainant towards the alleged loan transactions and on the other hand, it was issued in favour of the PW2 in the name of PW1 as per his instructions to arrange money in order to celebrate the victory of his Elections. Hence, there is no Iota of 17 C.C.No.28615/2014 evidence to substantiate his defence. On the other hand, the evidence of PW2 corroborates the evidence of PW1 in establishing the fact that there was loan transaction in between the complainant and the accused and the complainant had advanced loan in favour of the accused on 03.03.2013 to the tune of Rs.13,50,000/- for his domestic expenses as well as the expenses towards Elections.
22. No doubt, the accused placed some paper publications namely Bharani Publications to show that PW2 was his party worker and he was canvasing on his side during the Elections. But the said article published in the Bharani News Paper was not proved by the complainant as per law. Because the accused not made any attempt to confront this article to PW2 during cross- examination. Because it is the defence of the accused that, the said article was given by the PW2 as he was his party worker and was canvasing in his favour during the Elections. Even otherwise, if we concedes the arguments of the accused that the said article was given by the PW2 only then also it does not helps the accused in proving 18 C.C.No.28615/2014 his defence that he issued Ex.P.1 cheque in favour of PW2 in the name of the complainant on the instructions of PW2 to arrange money to celebrate the victory in the Elections and to falsify the case of the complainant that the Ex.P.1 cheque was issued in favour of the complainant, towards discharge of the loan allegedly borrowed by him. Hence, except his self serving testimony no other material evidence either material admission from the mouth of PW1 & PW2 or any documentary evidence made available before this court in establishing his defence. Thus defence taken by the accused is not probable one.
23. No doubt the counsel for the accused during the cross-examination contended that there is contradictions in the notice of the complainant which was issued in favour of the accused on account dishonour of the cheque and in the complaint by arguing that in Ex.P.4 demand notice, it is stated that the accused only approached the complainant for loan for the purpose of domestic needs, but only after issuance of reply notice as per Ex.P.5 by taking the name of the 19 C.C.No.28615/2014 Mahendrappa Jyothi stating that the cheque was issued in favour of Mahendrappa Jyothi in the name of the complainant to arrange o money for celebration of victory as there was report that he will win the election then, the complainant has filed this complaint in improved manner by pleading that it is the accused who had approached him through one Mahendrappa Jyothi for loan and borrowed loan from the complainant to meet the domestic expenses and Expenses towards election. Hence, argued that, there is contradiction in between Ex.P.4 notice and Ex.P.22 complaint and hence, the theory of the complaint is rebutted etc., But mere the fact that, the complainant has not stated full details in his notice about the person who had approached him for loan and purpose for which the alleged loan has been obtained, it cannot be said that, it is an improvement in the complaint and the said ground is not suffice to rebut the presumption. Because, strict procedures of pleadings cannot be expected as like in Civil Procedure Code as in cased filed under the provisions of N.I Act. Hence, the arguments of the accused in this regard holds no water. 20 C.C.No.28615/2014
24. Further the accused has taken up the defence that, though complainant stated that he had lent loan in favour of the accused to the tune of Rs.13,50,000/- etc., but there is no such loan agreement or receipt placed before this court to substantiate the fact that he had advanced loan in favour of the accused. But nowhere, he has suggested to PW1 about obtaining about any such documents or receipt towards loan transaction. Though complainant has not produced any supporting documents to show that he has advanced loan in favour of the accused but he has examined PW2 Mahendrappa Jyothi in whose presence the alleged loan transaction had been taken place and who in his evidence clearly stated about loan transaction in between the complainant and the accused and about borrowing loan of Rs.13,50,000/- by the accused from the complainant to meet his financial crises and to meet his domestic needs and expenses towards Elections.
25. Though accused made an attempt to show that PW2 is the relative of PW1 and as such he is an interested person etc., but not elicited any favourable 21 C.C.No.28615/2014 answer from the mouth of PW2. On the other hand, PW2 clearly stated that, he is not the relative of the PW1 but stated that he knows him as he is from his village. Hence, the arguments of the accused that he is an interested person is not acceptable one.
26. Further, on reading the entire materials on record, it shows that the said Mahendrappa Jyothi, id known person to the accused and it is his specific defence that he had issued Ex.P.1 cheque in favour of Mahendrappa Jyothi in the name of the complainant as per his instruction to arrange the money to celebrate his victory in the Elections etc., but the said person i.,e PW2 Mahendrappa Jyothi only stated about the loan transaction in between the complainant and the accused and about borrowing of the loan by the accused. Thus, the evidence of PW2 could be accepted in coming to conclusion that there was loan transaction in between the complainant and the accused and accused had borrowed loan of Rs.13,50,000/- from the complainant. 22 C.C.No.28615/2014
27. No doubt the accused has taken the defence that only on the instructions of the said Mahendrappa Jyothi he has given Ex.P.1 cheque in the name of the Manjunatha Jyothi i.e, the complainant to arrange money in order to celebrate victory of Elections etc, but the accused is not an ordinary lay man or rustic villager or illiterate person, on the other hand, as per the records produced by him before the court, he is well educated person and he is a retired KAS Officer. When such circumstance, he must know the pros and consequences of giving cheque in the name of some other person. Thus the say of the accused that Ex.P.1 cheque was given in the name of the Manjunatha Jyothi i.e, the complainant only on the instructions of the said Mahendrappa Jyothi and he does not know the complainant itself is not acceptable one.
28. Further, the accused has taken the defence that the complainant has not placed any documents to show his monetary capacity to lend the loan to the tune of Rs.13,50,000/- in favour of the accused and no books of account or IT Returns is placed before this court. But 23 C.C.No.28615/2014 during cross-examination it is elicited that, the complainant is not an income tax assess and he is not paying the income tax. Further it is elicited PW1 has annual income of Rs.15,00,000/- to Rs.20,00,000/- through agricultural per year. No doubt he has not maintained any records with regard to the income derived from the agricultural and about selling of crops. Mere that fact it cannot be said that the complainant had no monetary capacity in lending loan as the complainant has placed documents like RTC's to show that he has agricultural land and crop certificate as per Ex.P.8 to P.10 and Ex.P.18 to P.21. The accused has not denied this documents. On the other hand, the accused made an attempt to show that the complainant had borrowed loan of Rs.4,00,000/- from State Bank of Mysore, and he has not discharged the same, and still, he is due for a sum of Rs.1,00,000/- towards the Bank. With this the accused made an attempt to say that when the complainant only borrowed loan of Rs.4,00,00/- then how it could be possible to lend loan to tune of Rs.13,50,000/- in his favour and thus, argued that, he had no monetary capacity etc. But PW1 has given 24 C.C.No.28615/2014 explanation that as the interest for agricultural loan is very low and the Government will return 2% interest when they borrow loan from the Banks, and as such, they have borrowed loan. Hence contended that, mere that fact, it cannot be said that he had no monetary capacity and on the other hand, he has clearly stated that, he used to continue the loan at the Bank by discharging and by obtaining fresh loan. To substantiate the said fact, he has relied on the Bank statement which is marked at Ex.P.7. It clearly discloses the fact that he has sufficient income from the agriculture, though he has loan on the agricultural land.
29. Further, Ex.P.7 RTC pertains to the land of the accused and it reflects the fact that the accused also had borrowed loan from the Bank to the tune of Rs.5,00,000/-, though, he claimed that he has sufficient income and there was no need for him to borrow loan from the complainant etc. Thus, the say of the accused that the complainant had no monetary capacity holds no water.
25 C.C.No.28615/2014
30. Further, it is also the argument of the accused that, the complainant has not paid income tax and not filed income tax returns. Hence, the loan allegedly advanced in favour of the accused is not legally enforceable debt etc., but the complainant argued that any income from the agricultural land is exempted from the tax. Further, if the complainant had not paid the income tax et., then, it is the look out of the concerned Department. Hence, the arguments of the accused in this regard holds no water. Hence, the decision relied by the accused reported in 2008 page 2406 & AIR 2009 NOC pg.2307, with due respect, I beg to submit that the facts and circumstances narrated in those citations are not applicable to the facts and circumstances of this case.
31. Further at one stretch the accused has taken the defence that, he being Ex-KAS-Officer, has sufficient income and his wife has also sufficient income and there was no necessity for them to borrow the hand loan as alleged by the complainant. Hence, contended that, there was no any monetary transaction in between 26 C.C.No.28615/2014 himself and the complainant, but on the other hand, the complainant by misusing the cheque which was given in favour of the Mahendrappa Jyothi towards celebration of victory of the Elections, has filed this false complaint. To substantiate the same though accused has produced documents like Ex.P.19 & P.20 the pass books of the accused and his wife, FD Receipts and also AG Slip interest certificate and FD deposits as per Ex.P.18 to P.23 and Ex.D.25 and those documents reflects that he has sufficient income and bank balance. But there is no hard and fast rule that a person who has sufficient income shall not contract for loan and there is presumption in favour of the accused in that regard. Further, no body can say about how and when the circumstances and situation emerges. Further, the purpose of loan is towards expenses towards Election and circumstances whatever the money the contestant has may fall short. Hence, the say of the accused that, he has sufficient income and as such, there was no need for him to borrow any loan and accordingly, he had not borrowed any loan from the complainant is not acceptable one.
27 C.C.No.28615/2014
32. Further, the accused had issued the stop payment instructions to the Bank authorities only after lapse of one month 10 days and he has not given such instruction soon after his defeat in the Elections of soon after the Mahendrappa Jyothi had not returned the alleged cheque. If really, was there any transaction of issuance of said cheque in favour of the Mahendrappa Jyothi by mentioning the name of the complainant, as per his say, for the purpose of celebrating victory in the Elections and he lost his Elections and the said Mahendrappa Jyothi had not returned the said cheque then, what was the impediment for the accused to lodge complaint with the Police against the said Mahendrappa Jyothi by narrating these aspects and what was the impediment for him to cause necessary legal notice against the said Mahendrappa Jyothi demanding him to return the said cheque or what was the impediment for him to issue necessary instruction to the Bank authorities soon after his defeat in the Elections. But no such attempt by the accused in this regard. On the other hand, as aforesaid he has given the alleged stop payment 28 C.C.No.28615/2014 instruction only after lapse of 1 month 10 days. Hence, the reason assigned by the accused for giving stop payment instructions to the Bank authorities is not convincing one.
33. Hence, with all these reasons, this court is of the opinion that, the accused utterly failed to rebut the presumption which arose in favour of the complainant. On the other hand, the complainant has proved the fact that, he had lent loan to the tune of Rs.13,50,000/- in favour of the accused in the presence of Mahendrappa Jyothi and towards the discharge of the said loan the accused had issued Ex.P.1 cheque and the said cheque on its presentation bounced back dishonoured for the reason "payment stopped by the drawer" and inspite of brining the fact of dishonour of the cheque to the knowledge of the accused he has not complied with the demands of the notice. Hence, the complainant has complied all the essential ingredients of Sec. 138 of N.I Act to bring home the guilt of the accused. 29 C.C.No.28615/2014
34. Hence, with all these reasons, this court is of the opinion that the accused though made an attempt to rebut the presumption available U/s.139 of N.I Act in favour of the complainant, but he has failed in his attempt. Hence, the onus not shifted on the shoulders of the complainant, on the other hand it rests on the shoulder of the accused only. Hence, I am of the opinion that, complainant has proved that the accused has committed an offence punishable U/s.138 of N.I Act. Hence, I answered Point No.1 in the Affirmative.
35. Point No.iv : In view of my discussions on Point No.1 in the Affirmative I proceed to pass the following.....
ORDER
Acting U/s.255(2) Cr.PC, the
accused is convicted for the offence
punishable U/s.138 of N.I.Act.
The accused shall pay a fine of
Rs.14,50,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Six Months.
30 C.C.No.28615/2014
Out of the said amount,
Rs.14,40,000/- shall be paid to the
complainant as compensation, as
provided U/s.357 of Cr.P.C. and
Rs.10,000/- shall be remitted to the
state as fine.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in open court by me on this the 9th day of November, 2015) (C.G.Vishalakshi) XIII A.C.M.M., Bangalore.
ANNEXURE Witnesses examined on behalf of the complainant:
PW1 : Manjunatha.J PW2 : Mahendrappa Jyothi
Documents marked on behalf of the complainant:
Ex.P.1 : Cheque
Ex.P.2 & 3 : Bank Endorsements
Ex.P.4 : Copy of the Legal Notice
Ex.P.5 : Reply Notice
Ex.P.6 : RPAD postal acknowledgement
Ex.P.7 : Statement of account
Ex.P.8 : RTC of complainant
Ex.P.9 to 16 : 8 RTC's
Ex.P.17 : RTC 259 A of Hadagali Tq.
Ex.P.18 to 21 : 4 Crop Certificate
Ex.P.22 : Complaint
31 C.C.No.28615/2014
Ex.P.23 & 24 : Geneology Tree & RTC
Sy.No.104/2A
Ex.P.2 : Bank pass book
Witnesses examined on behalf of the accused:
DW1 : Hemanth kumar Bharathi Documents marked on behalf of the accused:
Ex.D.1 : T.C issued by Kuruvathi Village Ex.D.2 : Certificates Ex.D.3 : Migration Certificate Ex.D.4 : Memo regarding appointment Ex.D.5 : Hall ticket Ex.D.6 : Karnataka Gazette dt.27.02.1986 Ex.D.7 : memo dt;09.07.1986 Ex.D.8 : Monthly Magazie Ex.D.9 : Salarly Slip Ex.D.11 : Letter dt.23.12.2011 Ex.D.11 : Paper publication EX.D.12 : Samyuktha Papper Ex.D.13 : G.Form Ex.D.14 : Identity Card Ex.d.15 : Bharani News Paper Ex.D.16 : Letter dt.05.06.2013 Ex.D.17 : Receipt of income Tax Ex.D.18 : Declaration by the accused Ex.D.19 : Bank pass books Ex.D.20 : Bank pass books 32 C.C.No.28615/2014 Ex.D.21 : FD Receipts Ex.D.22 : FD Receipts Ex.D.23 : Income tax report Ex.D.24 : Letter dt.17.06.2014 XIII A.C.M.M Bangalore.
• Accused copy furnished.33 C.C.No.28615/2014
(Order typed vide separate Sheet) ORDER Acting U/s.255(2) Cr.PC, the accused is convicted for the offence punishable U/s.138 of N.I.Act.
The accused shall pay a fine of Rs.14,50,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Six Months.
Out of the said amount, Rs.14,40,000/-
shall be paid to the complainant as compensation, as provided U/s.357 of Cr.P.C. and Rs.10,000/- shall be remitted to the state as fine.
(C.G.Vishalakshi) XIII A.C.M.M., Bangalore.34 C.C.No.28615/2014