Bangalore District Court
Sri.Raghavendra.R vs Mr.Khaja Sab on 25 July, 2022
C.C.No. 1690/2019
1
IN THE COURT OF THE XII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated : This the 25th day of July 2022
Present: Sri.N.M.RAMESHA, B'com,L.L.M
C/C. XII Addl.C.M.M., Bengaluru City.
Case No. : C.C.No.1690/2019
Complainant : Sri.Raghavendra.R.
S/o.Ramanna.S.,
No.712, 11th Cross,
7th Main Road,
Bandappa Gardan,
Muthyala Nagar,
Bangalore North,
Bangalore -560 054.
(By Sri. G.L.Mohan, Adv.,)
- Vs -
Accused : Mr.Khaja Sab,
S/o.Mehaboob Sab # 635/3,
1st Main Road, E Cross,
Mathikere, Bangalore North,
Bangalore-560054.
(By Sri.Khazasab, Adv.,)
Case instituted : 24.12.2018
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is conviction
Date of order : 25.07.2022
C.C.No. 1690/2019
2
JUDGMENT
The Complainant has filed this complaint against the accused under the provisions of Sec.200 of the Code of Criminal Procedure for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. The case of the complainant is as under:-
The complainant is running mobile sales and services under the name and style of B.R.Enterprises at Mathikere of Muthyalanagar of Bengaluru. The complanant and accused are known to each other. The accused had approached the complainant seeking personal loan of Rs.2,50,000/-. The complainant has paid an amount of Rs.1,07,500/- by way of cash on 06.8.2017, Rs.42,500/- on 7.08.2017 by way of cheque bearing No.49129758 and Rs.1 lakh on 10.08.2017 by way of cheque bearing No.49129761. The accued has executed an on demand pronote and loan agreement on 10.8.2017. The complainant has demanded the accused to repay the loan amount. The accused has issued a cheque bearing No.191949 dated 28.09.2018 for Rs.
2,50,000/- drawn on State Bank of India, Dollars colony branch, Bengaluru. The complainant has presented the cheque on 03.11.2018 for encashment before the Vijaya C.C.No. 1690/2019 3 Bank, Jalahalli branch, Bengaluru and in turn it was sent for collection to State Bank of India, Dollars colony branch, Bengaluru. The said cheque was came to be dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 3.11.2018. The complainant got issued legal notice on 27.11.2018. The said notice was returned as the 'Addressee left the address'. But inspite of service of notice, the accused has failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of N.I.Act. Hence, this complaint..
3. After presentation of complaint, it was ordered to be registered as PCR No.780/19 vide order dt:
17.01.2019.
4. The sworn statement of the complainant has been recorded as CW-1 and documents were got marked as per Ex.P.1 to P.6.
5. My learned predeccesor in office having heard the arguments of learned counsel for the complainant and on perusal of complaint, sworn statement of CW-1 and documents at Ex.P.1 to P6 and having satisfied with the prima-facie materials placed on record, has taken the cognizance for the offence punishable U/s.138 of N.I.Act and ordered to register the Criminal case in C.C.No. 1690/2019 4 CC.No.1690/2018 and process was issued against the accused vide order dated 17.01.2019.
6. On service of summons, the accused has appeared before the court through his learned counsel and obtained a bail vide order dt: 26.11.2021. The copies of complaint and documents were supplied to the accused.
7. The plea of accused for the offence punishable U/s.138 of Negotiable Instruments Act has been recorded and the substance of accussation has been read over and explained to the accused in the language known to him. But the accused has pleaded not guilty, but claims to be tried.
8. In order to substantiate his case, the complainant got himself examined as PW.1 and got marked the documents as per Ex.P.1 to P.6.
9. The Statement of accused as contemplated under the provisions of Sec.313 of Cr.P.C. is recorded and incriminating evidence as such forthcoming against the accused in the evidence of complainant and documents has been read over and explained to the accused in the language known to him. But, the accused C.C.No. 1690/2019 5 has denied the entire evidence of complainant. The accused did choose to enter the defence evidence.
10. In order to substantiate his defence, the accused got examined himself as DW-1 and got marked the documents as per Ex.D.1 to D.4.
11. I have heard the arguments of learned counsel for both the sides and perused the oral and documentary evidence placed on record.
12. Now, the points that are arise for my consideration are as under:
1. Whether the complainant proves that the accused has availed a loan of Rs.2,50,000/- and issued cheque bearing No.191949, dated 28.09.2018 for Rs.2,50,000/- drawn on State Bank of India, Dollars Colony Branch, Bengaluru and on presentation of the cheque for encashment on 3.11.2018 before the Vijaya Bank, Jalahalli branch, Bengaluru, it was came to be dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 03.11.2018 and inspite of issuance of legal notice dated 27.11.2018 and inspite of service of notice, the accused has failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of N.I.Act.
C.C.No. 1690/2019 6
2. What Order?
13. On considering the oral and documentatry evidnece placed on record, now my answer to the above points are as under:
Point No.1: In the Affirmative.
Point No.2: As per final order for the following:
REASONS
14. Point No.1: The provisions of Sec.118 of Negotiable Instrument Act deals about presumptions as to neogtiable instruments. As per this provisions of law, unit the contrary is proved, the following presumptions shall be made:-(a) of consideration: that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transfered, was accepted, indorsed, negotiated or transferred for considertaion: (b) as to date: that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance- that every accepted bill of exchange was accpted within a reasonable time after its date and before its maturity. (d) as to time of transfer-that every transfer of a negotiable instrument was made before the C.C.No. 1690/2019 7 maturity; (e) as to order of indorsement; that the indorsements appearing upon a negotiable instrument were made in the order in which they apear thereon; (f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped and (g) that holder is a holder indue course- that the holder of a negotiable instrument is a holder in due course.
15. The provisions of Sec.138 of Negotiable Instrument Act deals about dishonour of cheque for insufficiency etc., of funds in the accounts. As per this provisions of law where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or inpart, of any debt or othe rliability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other proviosn of this Act, be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both.
C.C.No. 1690/2019 8
16. As per the proviso attached to the above said provisions of law, nothing contained in this section shall apply unless-(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing , to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
17. The provisions of Sec.139 of Negotiable Instrument Act deals about presumption in favour of holder. As per this provisions of law, it shall be presumed, unles the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability.
C.C.No. 1690/2019 9
18. Now, keeping the above said provisions of section 118, 138 and 139 of N.I.Act in mind, let us consider as to whether the complainant could able to fulfil all the mandates, ingredients, terms and conditions enumerated under the provisions of Sec.138 of NI Act, so as to raise or to draw presumption in favour of the complainant under the provisions of Section 118 and 139 of N.I.Act.
19. It is averred in the complaint and stated by PW.1 in his oral evidence that the accused has availed a loan of Rs.1,07,500/- by way of cash on 06.08.2017, Rs.42,500/- on 07.08.2017 by way of cheque bearing No.49129758 and Rs.1 lakh on 10.08.2017 by way of cheque bearing No.49129761 and executed an on demand promissory note and loan agreement dated 10.08.2017. It is further averred in the complaint and stated by PW-1 in his evidence that the accused has issued a cheque bearing No.191949 dated 28.09.2018 for Rs.2,50,000/- drawn on State Bank of India, Dollars Colony branch, Bengaluru towards repayment of loan amount.
20. It is further averred in the complaint and stated by P.W.1 in his evidence that he has presented the cheque on 3.11.2018 for encashment which was came to C.C.No. 1690/2019 10 be dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 3.11.2018 and therefore, he has issued a legal notice dated 27.11.2018 which was returned as the addressee left the address vide dated 29.11.2017. But inspite of service of legal notice, the accused has failed to pay the cheque amount and therefore, he has presented the complaint before the Court on 24.12.2018.
21. The complainant has produced Ex.P.1 cheque dated 28.09.2018, Ex.P.2 bank endorsement dated 3.11.2018, Ex.P.3 legal notice dated 27.11.2018, Ex.P.4 postal receipt dated 27.11.2018, Ex.P.5 postal cover and Ex.P.6 Pronote dated 10.8.2017.
22. The accused neither disputed the availment of loan from the complainant nor issuance of cheque or execution of promissory note and consideration receipt or presentation of cheque for encashment or issuance of bank endorsement or issuance of legal notice. On the other hand, it is suggested to PW-1 that at the time of lending of money to the accused, he has taken the cheque and on demand promissory note. It is also suggested to PW-1 that the accused has put his signature on the cheque and pronote.
C.C.No. 1690/2019 11
23. Be that as it may. DW-1 in his cross-
examination has admitted that he knows the complainant since from childhood and since from 5 to 6 years he was having financial transaction between him and the accused. DW-1 has also admitted that he has received an amount of Rs.3,75,000/- from the complainant and there were was criminal proceedings bearing No.30059/2017. It is also admitted by DW-1 that he has availed a loan of Rs.42,500/- from the complainant on 07.08.2017 and Rs.1 lakh from the complainant on 10.08.2017 by way of cheques and the signatures found on Ex.P.1 and P.6 are belongs to him as per Ex.P.1(a) and P.6(a) and P.6(b) and he has executed an on demand promissory note in favour of the complainant.
24. So, it is crystal clear that the accused by necessary implications has admitted the availment of loan, execution of documents, issuance of cheque, presentation of cheque, dishonour of cheque, issue of bank edorsement and legal notice. However, on perusal of complaint averments, oral evidence of PW-1 and documentary evidence at Ex.P.1 to P6 including the admissions given by DW-1 and material suggestions put to PW-1, it clearly establishes that the accused has availed loan of Rs.2,50,000/- from the complainant and C.C.No. 1690/2019 12 executed promissory note and consideration receipt vide Ex.P.6.
25. The materials on record establishes that the accused has issued a cheque vide Ex.P.1 in favour of the complainant towards the repayment of loan and the complainant has presented the cheque on 03.11.2018 which was came to be dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 03.11.2018 as per Ex.P.2 and therefore, the complainant got issued a legal notice vide Ex.P.3 dated 27.11.2018.
26. So, it is crystal clear that the complainant has presented the cheque within its validity and also got issued the legal notice within the stipulated period from the date of receipt of bank endorsement and thereby complied the provisions of Section 138 of N.I.Act. Under these circumstances, when once the complainant has fulfilled all the mandates, ingredients, terms and conditions of 138 of N.I.Act, then this Cout has no option, but to draw the presumption in favour of the complainant U/s.118 and 139 of N.I.Act.
27. Admittedly, the presumption available in favour of the complainant is not conclusive proof, but it is rebuttable in nature. Therefore, when once the C.C.No. 1690/2019 13 complainant has fulfilled all the mandates of Section 138 of N.I.Act and when once the Court has drawn the presumption in favour of the complainant as contemplated under the provision of Section 138 of N.I.Act, then the onus shifts on the accused to rebut the statutory presumption available in favour of thte complainant U/s.118 and 139 of N.I.Act.
28. The learned counsel for the complainant has argued with force that the complainant has fulfilled all the mandates of Section 138 of N.I.Act by adducing oral evidence of PW-1 and by producing the documentary evidence at Ex.P.1 to P.6 and thereby complied the provisions of Section 138 of N.I.Act and therefore, the presumption is in favour of the complainant U/s.118 and 139 of N.I.Act. The accused has not seriously disputed the execution of documents and availment of loan. The notice has been issued to proper address and therefore, it amounts to deemed service.
29. It is further contended that the accused has taken a defence that he has availed loan of Rs.1,50,000/- only and not Rs.2,50,000/- and he has already repaid the loan and he has issued blank cheque and blank on demand promissory note and the complainant has misused thte cheque. But the accused C.C.No. 1690/2019 14 has not taken any action against the complainant for misuse of cheque and promissory note and nothing is elicited in the evidence of PW-1 and thereby failed to rebut the statutory presumption and therefore, the accused is liable for conviction.
30. In support of his submission, the learned counsel for the complainant has relied upon a decision reported in ILR 2001 KAR 4127 in between Muralidhar Vs.Ashok G.V. wherein dealing with the provisions of Section 138 of N.I.Act, the Hon'ble High Court has held that a hazy defence of the accused is not sufficient to rebut the statutory presumption.
31. The learned counsel that the complainant has also relied upoon a decision reported in AIR 2001 SC 2895 in between K.N.Beena Vs. S.Muniyappan and another, wherein while dealing with the provisions of Section 118, 138 and 139 of N.I.Act, the Hon'ble Supreme Court has pleased to held that in case of dishonour of cheque, burden of proving that the cheque had not been issued for any debt or liability is on the accused. The denial of avermentes in reply by the accused are not sufficient to shift burden of proof on the complainant.
C.C.No. 1690/2019 15
32. The learned counsel for the complainant has also relied upon a decision reported in AIR 2018 SC 3173 in between Kishan Rao Vs. Shankar gowda, wherein while dealing with the provisions of Section 138 and 139 of the N.I.Act, the Hon'ble Supreme Court has held that when the complainant proved the issuance of cheque for having signature of accused and when the accused has failed to rebut the presumption raised against him and when no evidence led by him in his support, then the accused is liable for conviction.
33. The learned counsel for the complainant has also relied upon a decision reported in 2019 (1) Kar.L.J. 171 in between S.M.Natarajan Vs.B.M.Prakash, wherein while dealing with the provision of Section 138 and 139 of N.I.Act, the Hon'ble High Court has pleased to held that merely pleading ignorance cannot be taken as a specific denial of suggestion put to the witnesses.
34. The learned counsel for the complainant has also relied upon a decision reported in 2017 (1) DCR 388 in between Sandeep Valia Vs.Sanjeev Delta, wherein while dealing with the provision of Section 138 and 139 of N.I.Act and Section 27 of General Clauses Act, the Hon'ble High Court of Himachal Pradesh has C.C.No. 1690/2019 16 held that as per Section 27 of General Clauses Act, it would be for drawer of cheque to prove that legal notice was not actually served upon him.
35. The learned counsel for the complainant has also relied upon a decision reported in A.I.R.2018 SC 3601 in Between T.P.Murugan Dead by LRs. Vs.Bhojan Peta Nanda represented by through P.O. holder, wherein while dealing with the provision of Sections 118, 138 and 139 of N.I.Act, the Hon'ble Supreme Court has held that in case of dishonour of cheque, the presumption is that the cheque issued by accused towards repayment of debt and when the accused admitted his signature on the cheques and pronote, then the presumption U/s.139 would operate against him. On the same principles, the learned counsel for the complainant has also relied upon a decision rendered by the Hon'ble Supreme Court in Crl. Appeal No.362/22 in between Tedhi Singh V/s.Narayan Mahanth, Crl Appeal No.849-850/2011 in between Thriyambika S.Hegde Vs.Sripad and Crl. Appeal No.1269-1270/2021 in between Sripathi Singh Vs.State of Zharkhand and another.
C.C.No. 1690/2019 17
36. Per contra, the learned counsel for the accused has vehemently contended taht the accused has not availed a loan of Rs.2,50,000/-, but has availed loan of Rs.1,50,000/- only which has already been paid by the accused to the complainant. At the time of availment of loan, the complainant has obtained a signed blank cheque and On Demand Promissory Note and even after the repayment of loan, the complainant has failed to return back the cheque and On Demand Promissory Note and misused the same by filing the complaint.
37. It is further contended that the accused has taken a probable defence and proved the same before the Court by adducing the evidence and also by eliciting the facts in the evidence of PW-1 and thereby rebutted the presumption available in favour of the complainant U/s.118 and 139 of the N.I.Act. The notice issued by the complainant has not been served on the accused and therefore, the complainant has failed to comply the provisions of Section 138 of N.I.Act. and therefore, question of drawing presumption in favour of the complainant does not arise. The evidence on record do not establish the guilt against the accused. The defence taken by the accused is more probable than that of the case made out by the complainant and therefore, the accused is entitled to an order of acquittal.
C.C.No. 1690/2019 18
38. Now keeping the arguments canvassed on both sides including principles laid in the above cited decisions in mind, let us consider as to whether the accused could be able to rebut the statutory presumption availabe in favour of the complainant under the provisions of section 118 and 139 of N.I.Act.
39. It is the evidence of accused that he has availed a loan of Rs.1,50,000/-only and he has already repaid the loan amount. At the time of availing the loan, he has issued a blank cheque and on demand promissory note towards the security of loan. But after repayment of loan, he has requested the complainant to return back the promissory note and cheque, but he has promised to return cheque and on demand promissory note on the ground they were mis-placed and therefore, he kept quite. DW-1 has also stated about the availment of Rs.3,70,000/- and compromise entered into between them in CC.No.33059/2017 for Rs.3 lakhs.
40. But, though the accused has taken this bald contention and defence, same has not been amplified before the Court in any manner. The accused neither produced any cogent documentary proof nor elicited anything in the evidence of PW-1 so as to substantiate his probable defence.
C.C.No. 1690/2019 19
41. No doubt, it is suggested to PW-1 that he has not given an amount of Rs.2,50,000/- to the accused, but the accused has taken a loan of Rs.1,50,000/- only; that by deducting an interest of Rs.7500/-, he has given amount of Rs.1,42,500/- to the accused by way of cheque; that he took blank signed cheques and on demand Promissory note and consideration receipt from the accused at the time of lending money; that he got filled Ex.P.1 to P.6; that the notice issued by him has not been served on the accused; that he has colluded with postman and created the documents; that the accused has refunded the loan of Rs.1,50,000/- that; the accused issued the chque vide Ex.P.1 and pronote vide ExP.6 as security; that he has misused the cheque and promissory note and therefore, the accused is not liable to pay any amount.
42. But all these material suggestions have been specificaaly denied by PW-1. Therefore, it is said that the denied suggestions are always remained as suggestions only and not come in the way of accused either to falsify the case made out by the complainant or to falsify the oral evidence of PW-1 or to falsify the documentary evidence of Ex.P.1 to P.6 or to substantiate the probable defence taken by the accused.
C.C.No. 1690/2019 20
43. It is pertinent to note here that if really the accused has availed a loan of Rs.1,50,000/- only by issuing blank promissory note and cheque and if really the accused has already paid loan of Rs.1,50,000/- to the complainant and if really the complainant has misused the cheque and on promissory note vide Ex.P.1 and P.6, then there was no impediment for the accused to take steps against the complainant for misuse of cheque and promissory note either by filing complaint before the Jurisdictional police station or before any police station or at least by filing complaint before the Court. But he has not done so. No explanation as such forthcoming in the evidence of DW-1. In the absence of such an explanation, an adverse inference has to be drawn against the probable defence taken by the accussed.
44. No doubt, it is true that the accused has produced the certified copies of bank statement, ordersheet in CC.30059/2017, complaint and promissory note dated 4.09.2017 and they are marked at Ex.D.1 to D.4. But the documents at Ex.D.1 to D.4 do not come in the way of accused either to substantiate his probable defence or to falsify the case made out by the complainant or to falsify the evidence of PW-1 or to falsify the document at Ex.P.1 to P.6.
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45. Because, even according to documents at Ex.D.1 to D.4, the accused has availed a loan of Rs.42,500/- on 7.8.2017 and Rs.1 lakh on 10.08.2017 from the complainant through A/c.payee cheques and received an amount of Rs.3,20,000/- from the complainant on 17.08.2017 by way of account payee cheque and in this regard there was a proceedings between the complainant and accused in CC.No.30059/2017 which was ended in compromise and the accused had also executed an On demand promissory note dated 4.09.2017 for having received Rs.3,75,000/- from the complainant.
46. In fact, DW-1 has admitted that he had received a loan of Rs.3,75,000/- from the complainant and with regard to said amount, a compromise has been enntered into between him and complainant in CC.No.30059/2017. It is also admitted by DW-1 that he has received an amount of Rs.42,500/- on 7.8.2017 and Rs.1 lakh on 10.8.2017 by way of cheques and he has executed an on demand promissory note to the complainant as per Ex.P.6 and his signature is found in Ex.P.6(a) and 6 (b).
47. So, it is crystal clear that the complainant has proved the loan transaction of Rs.2,50,000/-, issuance of cheque vide Ex.P.1 and execution of document at C.C.No. 1690/2019 22 Ex.P.6 on demand promissory note and consideration receipt. But, the accused has failed to prove his probable defence and thereby failed to rebut the presumption available in favour of the complainant as contemplated under the provisions of Section 118 and 139 of the N.I.Act.
48. DW-1 has admitted that he is residing at No.653/2, 1st Main road, Mathikere, Nethaji Circle, Bengaluru. Even according to DW-1 that his bank address is No.653/2, First Main Road, 'E' Cross, Mathikere, Bengaluru North -54. As could been seen from the legal notice vide Ex.P.3, the notice has been addressed to Mr.KhazaSab S/o.MehaboobSab No.635/3, first main road, 'E' Cross, Mathikere, Bengaluru North, Bengaluru-560054.
49. It is well settled position of law that when the notice has been issued to the proper address, then the presumption is that the notice has been served on the accused and it would be for the drawer of cheque to prove that legal notice was not acually served upon him. Reference in this regard may be made to a provisions of Section of 27 of the General Clauses Act 1897. In the present case, the notice vide Ex.P.3 has been issued to the proper address of the accused and therefore, it C.C.No. 1690/2019 23 amounts to deemed service. Therefore, the accused cannot contend that the notice has not been served upon him.
50. On appreciation of entire oral documentary evidence placed on record, it is found that the accused has availed a loan of Rs.2,50,000/- from the complainant and executed an on demand promissory note and consideration receipt vide Ex.P.6 and also issued cheque vide Ex.P.1 in discharge of legally recoverable debt. The complainant has presented the cheque well within its validity which was came to be dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 3.11.2018 as per Ex.P.2 and the complainant got issued a legal notice vide Ex.P.3 well within the stipulated period from the date of receipt of bank endorsement. But the accused has failed to pay the cheque amount. The complinant has proved the loan transaction including the issuance of cheque for legally recoverable debt and also execution of loan document. But the accused has failed to rebut the presumption and thereby failed to substantiate his probable defence.
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51. Under these circumsances, there is some legal force in the submission of the learned counsel for the complainant that the complainant has fulfilled all the mandates of Section 138 of N.I.Act by adducing oral and documentary evidence before the Court and also served the notice on the accused and therefore, the presumption is in favour of the complainant U/s.118 and 139 of N.I.Act and therefore, the accused is liable for conviction U/s.138 of N.I.Act and the decisions cited in this regard also applicable to the present facts and circumstances of the case.
52. On the other hand, the arguments of the learned counsel for the accused that the accused has issued signed blank cheque and signed blank on demand promissory note and consideration receipt for having received loan of Rs.1,50,000/- from the complainant and the accused has already repaid the entire loan amount, but the complainant has failed to return the cheque and promissory note and misused the cheque and promissory note and the accused has rebutted the presumption and proved the probable defence and the notice also not been served on the accused and the complainant has failed to prove the guilt against the accused and therefore, the accused is C.C.No. 1690/2019 25 not liable to pay any amount to the complainant is not sustainable under law and therefore cannot be accepted.
53. Hence, for the reasons discussed above, this Court is of the considered view that the complainant has proved that the accused has issued the cheque vide Ex.P.1 for discharge of legally recoverable debt and therefore, the accused is liable for payment of cheque amount. The materials on record clearly establishes the charges levelled against the accused. Hence I hold that the complainant has proved the guilt against the accused for the offence punishable U/s.138 of N.I.Act. Hence I answer the point No.1 in the Affirmative.
54. Point No.2: The provisions of Section 138 of N.I.Act provides for imprisonment for a term which may be extended to 2 years or with a fine which may extend to twice the amount of the cheque or with both. In the present case, the complainant and accused are known to each other and there were transaction between the complainant and accused and also legal proceedings between them. The earlier case between the complainant and the accused already ended in compromise. The complainant is running mobile services. Therefore, considering the nature of loan tranaction and also C.C.No. 1690/2019 26 regard being had to the facts and circumstances of the case including time taken for disposal of this case, this Court is of the considered view that if the following sentence is awarded, then it would meet the ends of justice. Hence, in veiw of my findings on point No.1, I proceed to pass the following:
ORD ER The accused is found guilty for the offence punishable U/s. 138 of N.I.Act.
Hence, 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 fine of Rs.4,00,000/-(Rupees Four Lakhs Only) to the complainant, in defualt of fine amount, the accused shall undergo simple imprisonment for six months for the offence punishable U/s.138 of N.I.Act.
Out of the fine amount of Rs.4,00,000/- collected from the accused, an amount of Rs.3,75,000/- shall be paid to the complainant as compensation U/s.357 of Cr.P.C.. The remaining fine amount of Rs.25,000/- shall be appropriated to the state expenses.
The bail bond and surety bonds of accused shall be in force till the appeal C.C.No. 1690/2019 27 period is over as contemplated U/s.437(A) of Cr.P.C.
The Cash surety of Rs.3000/-
deposited by the accused vide Q.No.7979 dated 26.11.2021 shall be refunded to the accused after the appeal period is over with due identification and proper verification of documents.
Office to supply the copy of the Judgment to the accused forthwith at free of cost.
(Dictated to the Stenographer, typed by him, printout taken by him, verified, corrected and then pronounced by me in the open Court on this the 25th July 2022).
. (N.M.RAMESHA),
C/C. XII ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant :
P.W.1 : Raghavendra. R
2. List of documents exhibited on behalf of the Complainant :
Ex.P.1 : Cheque.
Ex.P.1(a) : Signature of the Accused,
Ex.P.2 : Bank Endorsement dated 3.11.2018
Ex.P.3 : Office copy of the Legal Notice 27.11.2018
C.C.No. 1690/2019
28
Ex.P.4 : Postal Receipt.
Ex.P.5 : Postal Cover.
Ex.P.6 : On Demand Promissory note.
3. List of witness/s examined on behalf of the Accused :
DW-1 : Khaza Sab
4. List of documents exhibited on behalf of the Accused :
Ex.D.1 : Cerfified copy of Statement of Account. Ex.D.2 : Cerfified copy of complaint in C.C.No.30059/2017.
Ex.D.3 : Certified copy of order sheet in C.C.No.30059/2017.
Ex.D.4 : Certified copy of On demand promissary note.
(SRI.N.M.RAMESHA), C/C. XII ACMM, Bengaluru City.
C.C.No. 1690/2019 29 (Judgment prounounced in the Open Court Vide Separate sheet) ORD ER The accused is found guilty for the offence punishable U/s. 138 of N.I.Act.
Hence, 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 fine of Rs.4,00,000/-(Rupees Four Lakhs Only) to the complainant, in defualt of fine amount, the accused shall undergo simple imprisonment for six months for the offence punishable U/s.138 of N.I.Act.
C.C.No. 1690/2019 30 Out of the fine amount of Rs.4,00,000/- collected from the accused, an amount of Rs.3,75,000/- shall be paid to the complainant as compensation U/s.357 of Cr.P.C.. The remaining fine amount of Rs.25,000/- shall be appropriated to the state expenses.
The bail bond and surety bonds of accused shall be in force till the appeal period is over as contemplated U/s.437(A) of Cr.P.C.
The Cash surety of Rs.3000/- deposited by the accused vide Q.No.7979 dated 26.11.2021 shall be refunded to the accused after the appeal period is over with due identification and proper verification of documents.
Office to supply the copy of the Judgment to the accused forthwith at free of cost.
(N.M.RAMESHA), C/C. XII ACMM, Bengaluru City.