Bangalore District Court
Sri Thirthachari vs Sri H.K. Mohan on 23 March, 2016
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 23rd day of March, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No.21/2012
Complainant: Sri Thirthachari
S/o. Late N.D. Sanna Yallachar,
Major,
No.B-9, Adarsha Enclave,
II Space, Sidedahalli,
Nagasandra Post,
Bangalore -560 073..
Accused: Sri H.K. Mohan
S/o. Keshavachar (Keshavanna)
Major,
First Division Revenue Officer,
Kadur Town Municipal Council,
Kadur,
Chikmagalur.
Offence complained of: U/s.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found guilty
Date of order: 23rd March 2016
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act.
2. The brief facts of the complaint that, the accused had issued him cheque bearing No. 14475 dtd. 10.8.2011 for Rs.2,57,500/- drawn 2 C.C.No.21/2012 at M/s. Chickmagalur Pattana Sahakara Bank Niyamitha, Chickmagalar towards discharge of his liability in respect of the loan availed by him from this Complainant and due to the Complainant. When the Complainant presented the said cheque for encashment before his banker M/s. Vijaya Bank, Malleshwaram Branch, Bangalore but the said cheque returned dishonoured with an endorsement "funds insufficient" on 12.8.2011 and the same was informed to this Accused.
3. It is further submitted by the Complainant that as the Accused has failed to make payment of the cheque amount, the Complainant got issued the Legal Notice through his advocate on 3.09.2011 through RPAD, calling upon the Accused to make payment of the cheque amount within 15 days from the date of receipt of notice and the said notice was duly served upon this Accused on 7.9.2011. The accused even inspite of receipt of Legal Notice, neither chosen to make payment of the cheque amount nor he has complied the notice by paying the cheque amount. The Accused knowing fully well that he has no sufficient funds in his bank account, had issued bogus a cheque only with an intention to cheat this Complainant and thereby the accused committed an offence punishable u/Sec.138 of N.I. Act.
4. After recording of sworn statement of the complainant the Private Complaint lodged by the complainant was registered as a 3 C.C.No.21/2012 Criminal Case, summons was issued as against the accused. The accused appeared through his Counsel and he was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claimed to be tried.
5. The complainant himself got examined as PW1 and he got produced 7 documents marked as Ex.P1 to Ex.P7 and closed his side of evidence.
6. After closure of the complainant side evidence, accused Statement u/Sec.313 Cr.P.C. recorded and read over to the accused. The accused denied the incriminating evidence in toto and he intended to lead his evidence. The accused got examined himself as DW1 and he got examined 3 witnesses from his side as DW2 to DW4. No documents were marked from his side and closed his side of evidence.
7. I have heard the arguments and perused the entire records. The learned Counsel for the accused has also filed his written arguments.
8. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?4 C.C.No.21/2012
9. My findings to the above point are as under:
Point No.1 : In the Affirmative
Point No.2 : As per final order
for the following:
REASONS:
10. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, the complainant stepped into the witness box, got examined as PW-1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
11. PW1 deposed that the accused had issued him cheque bearing No. 14475 dtd. 10.8.2011 for Rs.2,57,500/- drawn at M/s. Chickmagalur Pattana Sahakara Bank Niyamitha, Chickmagalar towards discharge of his liability in respect of the loan availed by him and due to him. He deposed that he presented the said cheque for encashment before his banker but the said cheque returned dishonoured with an endorsement "funds insufficient" on 12.8.2011 and the same was informed to this Accused.
12. He further deposed that as the Accused has failed to make payment of the cheque amount, he got issued the Legal Notice through his advocate on 3.09.2011 through RPAD, calling upon the Accused to make payment of the cheque amount within 15 days from the date of 5 C.C.No.21/2012 receipt of notice and the said notice was duly served upon this Accused on 7.9.2011. He deposed that the accused even inspite of receipt of Legal Notice, neither chosen to make payment of the cheque' amount nor he has complied the notice by paying the cheque amount. He deposed that the Accused knowing fully well that he has no sufficient funds in his bank account, had issued bogus a cheque only with an intention to cheat him and thereby the accused committed an offence
13. PW1 in order to prove his case, got produced the original cheques issued by this accused marked as Ex.P1. He deposed that the signature found on Ex.P1 is that of this accused and he got identified the signature found on the cheque marked as Ex.P1(a). He got produced the bank endorsement marked as Ex.P2. He got produced copy of the legal notice along with two postal receipts marked as Ex.P3 to Ex.P5 respectively. He got produced the Postal Acknowledgement Due Card for having duly served the notice to this accused marked as Ex.P.6. He got identified the complaint marked as Ex.P.7.
14. The accused has denied the entire case of the Complainant and also denied the very fact that he borrowed the hand loan of Rs.3,00,000/- from this Complainant and he in order to repay the said loan amount, had issued his Ex.P1 cheque for Rs.2,57,500/- and the same was bounced.
6 C.C.No.21/2012
15. The learned Counsel for the accused subjected PW1 for cross- examination and he extensively cross-examined the PW1.
16. PW1 in his cross-examination stated that the accused is his close relative and he is his cousin-brother and he by considering the request of the accused, who is staying at Bangalore City had advanced the loan amount of Rs.3,00,000/- on his request. He further stated that he is working as a Agent in MSIL and getting income of Rs.50,000/- per month. He has stated that he had borrowed a sum of Rs.2,00,000/- from his friends Sri Shivegowda and Smt. Rukmini and after adding Rs.1,00,000/- saved by him from his income, had advanced a sum of Rs.3,00,000/- to this accused on his request as a loan.
17. He further stated that he has no documents with him to prove that he had borrowed a sum of Rs.2,00,000/- from his friends Sri Shivegowda and Smt. Rukmini., He admitted the suggestion that in his notice issued as per Ex.P3 he has not stated where exactly and when exactly he advanced the loan amount and even he has not stated for what purpose the accused had borrowed the loan amount. PW1 categorically stated that as this accused was constructing a residential house , he had borrowed the loan amount of Rs.3,00,000/-. 7 C.C.No.21/2012
18. He further stated that the accused had issued him Ex.P1 cheque towards repayment of the loan amount and he issued the said cheque at Kadur in a hotel after writing all the contents of the cheque. He admitted the suggestion that he has no own house in Bangalore City and he is residing in a rented house on a month rent of Rs.5,500/-. He denied the suggestion that as he was in need of money in the year 2010 to get a house on mortgage he requested this accused to advance loan and as this accused was not having sufficient amount he has given his duly signed blank cheque to get a loan from the Financer as this accused was Government Servant as a security. He denied the suggestion that even though he had taken loan from the Financer and after repaying the entire loan amount to the Financer, he has taken back the cheque given by this accused to the Financer and instead of returning the said cheque to this accused, he misused the said cheque and filed this false complaint by creating and concocting the said cheque as Ex.P1 for Rs.2,57,500/-. PW1 denied the suggestion that this accused had returned the loan amount to his mother-in-law at Chickmangalur and even though he received the entire loan amount advanced to this accused, he by misusing the duly signed blank cheque of this accused with an intention to make an unlawful gain for himself and to cause monetary loss to this accused, filed this false complaint. 8 C.C.No.21/2012
19. He admitted the suggestion that during year 2010 the accused has constructed a residential house at Chickmangalur City. He further admitted the suggestion that on 12.11.2010 he advanced a sum of Rs.1,76,000/- to this accused by way of his Vijaya Bank cheque. PW1 further stated that the remaining amount was paid by him through cash and the same was acknowledged by this accused. He denied the suggestion that out of Rs.1,76,000/-, the accused has already repaid Rs.42,500/- at Bangalore City. He further denied the suggestion that on 10.9.2012 the accused repaid the remaining amount through his sister Smt. Yogalakshmi in the presence of the younger sister of this accused Smt. Kanthamani and even though he received the entire loan amount he filed this false complaint by misusing the duly signed blank cheque. He further denied the suggestion that he himself has requested this accused to advance the loan amount of Rs.3,00,000/- as this accused was refused to advance the loan amount on the ground that very recently he constructed a house and he has no amount with him to advance it as loan, he by misusing the duly signed blank cheque of this accused for his convenience, filed this false complaint.
20. The accused during the cross-examination of PW1 admitted that there was loan transaction in-between them and also admitted that he had borrowed loan from this Complainant for his house construction work. No doubt, the accused has taken up the defence that 9 C.C.No.21/2012 he had borrowed only Rs.1,76,000/- during the year 2010 and subsequently, on 10.09.2012 he repaid the entire loan amount to this Complainant through his elder sister Smt. Yogalaksmi as per the instruction of this Complainant and even though the Complainant had received the entire loan amount, he by misusing his duly signed blank cheque, created and concocted the sane as Ex.P1, filed this false complaint. On the contrary, the said defence was categorically denied by PW1 in his cross-examination and denied that except the loan transaction of the year 2010 there was no any loan transaction in- between them in the year 2011. PW1 categorically denied the suggestion that he advanced only Rs.1,76,000/- by way of cheque on 12.11.2010 and subsequently, the accused has repaid the entire loan amount to his elder sister Smt. Yogalakshmi on his instruction and even though he received the entire amount through his sister, he filed this false complaint.
21. PW1 stated that Ex.P1-cheque was issued by this accused towards the repayment of the loan amount of Rs.3,00,000/- for a sum of Rs.2,57,500/- and the said cheque was dishonoured when the same was presented for encashment on the ground that there was no sufficient funds in the bank account of the accused.
22. The accused has taken up the specific defence that after he borrowed the loan amount of Rs.1,76,000/- from this Complainant by 10 C.C.No.21/2012 way of cheque he repaid the entire loan amount to PW1 and the same was duly acknowledged by this Complainant. During the cross- examination of PW1 accused suggested that during the year 2011 itself the accused has repaid the entire loan amount in his favour and the same was duly acknowledged by him through his sister Smt. Yogalakshmi. However, PW1 has categorically denied the suggestion that he had already received the entire loan amount by way of cash from this accused and even inspite of receipt of entire loan amount he instead of returning Ex.P1 cheque to the accused, misused the same and filed this false complaint only with an intention to make an unlawful gain for himself and to cause monetary loss to the accused.
23. The accused except putting some suggestions to PW1 that he is not liable to pay the cheque amount, has not chosen to deny a fact that there was a loan transaction in-between them and even he had borrowed loan amount from this Complainant for the purpose of construction of his house.
24. The accused by putting this suggestion to PW1 has categorically admitted the issuance of Ex.P1 cheque in favour of this Complainant. No doubt the accused has stated that he had issued his Ex.P1 cheque as a security to help this Complainant to get the loan from the Financer and the same was misused by the Complainant after 11 C.C.No.21/2012 repayment the loan amount to the Financer. However, the said defence was categorically denied by PW1. As I have discussed supra, the accused admitted the issuance of Ex.P1 cheque in favour of PW1 and also admitted his signature found on Ex.P1 marked as Ex.P.1(a). The accused even admitted the fact that his Ex.P1 cheque was bounced as there was no sufficient funds in his bank account.
25. Likewise, the accused has not chosen to deny his Ex.P1 cheque was bounced as there was no sufficient funds in his bank account. The accused even did not chosen to deny that immediately after receipt of Ex.P2 - Bank endorsement, the PW1 got issued Ex.P3 notice u/Sec.138 (b) of N.I. Act, calling upon him to pay the cheque amount and also by intimating the dishonour of the cheque and the said notice was duly served upon him. On the contrary, the PW1 has categorically deposed that he immediately after receipt of Ex.P2 bank endorsement got issued Ex.P3 notice u/Sec.138 (b) of N.I. Act, calling upon the accused to make payment of the cheque amount and also by intimating the dishonour of the cheques and the said notice was duly served upon this accused.
26. He further deposed that the accused even after receipt of Ex.P3 has neither chosen to payment of the cheque amount nor he has sent his reply by denying the transaction. Even these facts were not 12 C.C.No.21/2012 denied by this accused. No suggestions were put to PW1 either by denying the issuance of Ex.P3 notice or by receipt of cheque as evident in Ex.P3 to Ex.P6. The Ex.P3 to Ex.P6 documents clearly prove that the PW1 well within the period of limitation, got issued the statutory notice u/Sec.138 (b) of N.I. Act and the said notice was duly served upon this accused. The oral and documentary evidence adduced before this court by PW1 clearly proves that the accused even after receipt of Legal Notice neither chosen to payment of the cheque amount nor he has sent his reply by denying the transaction. In such situation, an adverse inference has to be drawn against this accused that the accused after admitting the contents of Ex.P3 did not resisted the claim of the Complainant by sending his reply nor he has complied the notice by paying the cheque amount. Admittedly, the entire burden is on this accused to rebut the case of the Complainant and also to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act.
27. The accused in order to prove his defence, got examined himself as DW1. DW1 deposed that during the year 2010 when he was constructing a house at Chickmangalur City he was in need of money an therefore he requested this accused, who is his close relative to advance a sum of Rs.2,00,000/- to him. He deposed that the Complainant by considering his request, had advanced him a sum of 13 C.C.No.21/2012 Rs.1,75,000/- by way of his Vijaya Bank cheque in the year 2010 and subsequently, in the year 2011 when he went to his bank to repay the loan amount to the Complainant by depositing the said amount in to the bank account of this Complainant, the bank officials refused to take the money on the ground that unless he furnish the PAN number they will allow him to deposit the amount in the bank account of this Complainant and as such he informed the Complainant through telephone by stating about his inability to deposit the loan amount. He deposed that after about 2 days there was a function at his town, to which the elder sister of this Complainant and his brother-in-law had came and as per the request of the Complainant, he repaid the entire loan amount to the elder sister of this Complainant and his brother-in- law in the house of his younger sister Smt. Kanthamani through Kanthamani.
28. He further deposed that after about one year the Complainant approached him for the hand loan of Rs.3,00,000/- and he showed his in-ability to advance the loan amount to this Complainant, for which the Complainant requested him to issue his duly signed blank cheque on the ground that with the help of his cheque he will borrow loan from the Financer by furnishing the blank cheque as a security. He deposed that as he was working as Government Servant he issued his duly signed blank cheque in favour of this Complainant 14 C.C.No.21/2012 with an intention to help this Complainant to borrow loan from the Financer. He further deposed that after this Complainant repaid the entire loan amount to the Financer he repeatedly requested the Complainant to return his duly signed blank cheque and even inspite of his repeated requests, the Complainant has failed to return his cheque.
29. He further deposed that only after receipt of the Legal Notice he came to know about the mischief committed by this Complainant by misusing his duly signed blank cheque. Even after receipt of Legal Notice, he requested the Complainant to return his duly signed blank cheque but the Complainant on one or other pretext went on post-pone to return his cheque and subsequently, he received summons from this court about the filing of this complaint. He deposed that he has not issued Ex.P1 cheque towards repayment of the loan amount and even he is not liable to pay the cheque amount to this Complainant. He deposed that the Complainant only with an intention to make an unlawful gain for himself and to cause monetary loss to him, filed this false complaint. DW1 prays to dismiss the complaint.
30. The Complainant categorically denied the testimony of DW1 and his learned Counsel subjected DW1 for cross-examination. 15 C.C.No.21/2012
31. The DW1 categorically admitted that during the year 2010 he constructed a house. However, he denied the suggestion that for the construction of the house, he had borrowed a hand loan of Rs.3,00,000/- from this Complainant. DW1 stated that till this day, he has not initiated any legal action against this Complainant for misusing his cheque issued towards security of the loan amount borrowed by this Complainant from the Financer even though the Complainant repaid the loan amount to the Financer and taken back his cheque from the Financer. The DW1 has categorically admitted that he has no documents with him to prove that he had returned a sum of Rs.1,75,000/- to this Complainant through his sister and brother-in-law and this Complainant even though acknowledged the said amount, misused his duly signed blank cheque. DW1 further admitted that Ex.P1 cheque is belonged to his bank account and admitted his signature found on Ex.P1 marked as Ex.P.1(a). Moreover, he has admitted that he has personally received the notice issued by this Complainant and even inspite of receipt of Legal Notice, he has not sent his reply by denying the transaction nor he has complied the notice by paying the cheque amount.
32. Though the DW1 denied the suggestion that he in order to repay the loan amount, had issued his Ex.P1 cheque and the same was 16 C.C.No.21/2012 bounced. On the contrary, as I have discussed supra, DW1 admitted that he issued his Ex.P1 cheque in favour of this PW1 in respect of a financial transaction.
33. Moreover, the DW1 except adducing the oral evidence that he has given his duly signed blank cheque in favour of this Complainant as a security with an intention to help the Complainant to borrow loan from the Financer, has not chosen to prove the same to the satisfaction of the court. The DW1 except adducing the oral evidence that he has given his duly signed blank cheque in favour of this Complainant, has utterly failed to prove by adducing documentary evidence before this court. The burden is heavily on this accused to prove that he had given his duly signed blank cheque in favour of this Complainant as a security with an intention to help the Complainant to obtain loan from the Financer and this Complainant by misusing his duly signed blank cheque, filed this false complaint even though there was no any loan transaction in-between them. The oral evidence of DW1 itself is not sufficient and convincing to believe the defence of the accused and to discard the case of the Complainant.
34. No doubt, the accused in order to prove that he repaid as sum of Rs.1,75,000/- to the elder sister of this Complainant and his brother-in-law Sri. Basavaraj got examined the sister of this 17 C.C.No.21/2012 Complainant Smt. Yogalakshmi and his brother in law Sri. Basavarajachar as DW2 and DW3. However, both these witnesses have not supported the defence of the accused. Both these witnesses are categorically deposed that they have not received any amount from this accused to pay it to the Complainant in the month of June 2011. Admittedly, both DW2 and DW3 have given hostile evidence to the defence of the accused. In such situation, the defence of the accused that he had repaid a sum of Rs.1,75,000/- to the Complainant through his sister and brother-in-law - DW2 and DW3 cannot be believable and acceptable. The evidence of DW2 and DW3 is nowhere helpful to the defence of the accused and it cannot be acceptable.
35. The accused also got examined his younger sister Smt. Kanthamani as DW4. Though this witness has deposed that in her house, his brother accused on 9.9.2012 at about 11.00 a.m. had paid a sum of Rs.1,75,000/- payable to the Complainant in the hands of DW2 and DW3 and the same was acknowledged by them. On the contrary, the Complainant even denied the testimony of DW4 and his learned Counsel subjected DW4 for cross-examination. Though DW4 denied the entire suggestions put to her and denied that she only with an intention to help her brother accused, is deposing false before this court that in her house the accused had repaid a sum of Rs.1,75,000/- to DW2 and DW3 payable to the Complainant. On the contrary, the oral testimony 18 C.C.No.21/2012 of DW4 is not convince the court about the repayment of the loan amount of Rs.1,75,000/- to the Complainant through DW2 and DW3.
36. The accused except adducing the oral evidence that he had borrowed only Rs.1,75,000/- from this Complainant and he has already repaid the said amount through DW2 and DW3 and the same was acknowledged by this Complainant and except this loan transaction there is no other loan transaction in-between them, which has been categorically denied by the Complainant, nothing has been placed before this court to believe his defence and to discard the case of the Complainant. The DW1 failed to convince this court why he did not resisted the claim of the Complainant immediately after receipt of Ex.P3 notice. Admittedly, there is no explanation from the side of this accused about the same. If at all there was no loan transaction for Rs.3,00,000/- as deposed by PW1 then definitely the accused would have not be kept quite immediately after receipt of Ex.P3 notice. Even after perusal of Ex.P1 cheque it does not make out that the contents of the document were subsequently inserted by this Complainant. On perusal of Ex.P1 document, it clearly make out the contents of Ex.P1 cheque and the signature marked as Ex.P.1 (a) are written by the same person in his own hand-writing. In such situation, the defence of the DW1 that he has not issued Ex.P1 cheque towards repayment of the loan amount of 19 C.C.No.21/2012 Rs.2,57,500/- in favour of this Complainant , cannot be acceptable and believable. As I have discussed supra, the entire burden is on this accused to rebut the case of the Complainant and also to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. Here in this case, the accused except adducing the oral evidence that he has not issued Ex.P1 cheque towards repayment of the loan amount in favour of this Complainant, has utterly failed to disprove the case of the Complainant.
37. There is nothing on record to believe that this Complainant by misusing the duly signed blank cheque of this accused, created the same for Rs.2,57,500/- and filed this false complaint, even though there was no any loan transaction in-between them. The evidence adduced before this court by the accused will not take away the case of the Complainant and it will not rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. The accused has utterly failed to prove that there was no any loan transaction in-between him with this Complainant much less amounting to Rs.3,00,000/- and he has not issued his Ex.P1 cheque in favour of PW1 towards repayment of the loan amount. The defence taken by the accused during the course of trial, cannot be believable and acceptable.
20 C.C.No.21/2012
38. Even when the Accused was questioned u/Sec. 313 Cr.P.C. by this court, the Accused except denying the incriminating evidence made against him by the PW1, has not put forth any evidence from his side before this court. The Accused except denying the incriminating evidence made against him by PW1 has not stated anything with respect to his defence. Likewise, the Accused has utterly failed to rebut the presumption available to this Complainant u/Sec.118 and also u/Sec.139 of N.I. Act it reads thus respectively.
39. As per the provisions of Sec.118, which reads thus:
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 transferred, was accepted, indorsed, negotiated or transferred for consideration;
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 accepted 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 its maturity; e. As to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; f. As to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped; g. That holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course;21 C.C.No.21/2012
Likewise, he also failed to rebut the presumption available u/s. 139 of NI Act which reads:
It shall be presumed, unless 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, of any debt or other liability.
40. There is nothing on record to believe the defence of the accused and to discard the case of the Complainant.
41. The written arguments filed by the learned Counsel for the accused that if at all the Complainant had advanced a sum of Rs.3,00,000/- to this accused he would have stated this fact in Ex.P3 and Ex.P7 and also in his examination-in-chief and this Complainant even though had advanced only Rs.1,76,000/- by way of cheque and the same was already been received by him through DW2 and DW3 the Complainant only with an intention to make an unlawful gain for himself and to cause monetary loss to this accused, filed this false complaint and by considering the facts and evidence adduced before this court by the parties, the accused has to be acquitted, is not convinced this court and it holds no merit.
42. Likewise, his arguments that the Complainant by misusing the duly signed blank cheque of this accused issued with an intention to 22 C.C.No.21/2012 help this Complainant to get the loan from the Financer, created the same for Rs.2,57,500/- and filed this false complaint, even though there was no any loan transaction in-between them and this accused has not issued his Ex.P1 cheque in favour of this Complainant, is not convinced this court and it cannot be acceptable. Likewise, his arguments that the Complainant himself has written the contents of the cheque and filed this false complaint. Therefore, by considering these facts, the complaint has to dismissed is also not convinced this court.
43. On the contrary, the learned Counsel for the Complainant has vehemently argued that this the Complainant has followed all the procedures prescribed u/Sec.138 of N.I. Act and this Accused even after receipt of the Legal Notice, has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction and this accused only with an intention to ran away from his liability to pay the cheque amount, has taken up the false defence before this court during the stage of trial, is fully convinced this court. Admittedly, the accused after receipt of the Legal Notice, neither sent his reply by denying the transaction nor he has complied the notice by paying the cheque amount. In such situation, an adverse inference has to be drawn against the accused that he after admitting the contents of Ex.P3 notice, kept quite without resisting the claim of the Complainant and even without complying the notice by paying the cheque amount. 23 C.C.No.21/2012
44. He further argued that the accused, who is a Government Servant and he issued his duly signed blank cheque in favour of this Complainant with an intention to help him to get the loan from the Financer as a security, even without taking any document towards security from the Complainant itself creates a doubt about the defence of the accused. He has further argued that the accused only for the sake of defence, has taken up the false defence before this court that he has given the duly signed blank cheque in favour of this Complainant as a security to borrow loan from the Financer. He further argued that the accused only with an intention to ran away from his liability to make payment of the cheque amount, has taken up the false defence during the course of trial. He has argued that by drawing an adverse inference against this accused and he even after admitting the contents of the notice and after receipt of the notice, did not resisted the claim of the Complainant. The arguments canvassed by the learned Counsel for the Complainant, is fully convinced this court.
45. The complainant by adducing oral and documentary evidence before this court has proved the guilt of the accused beyond all reasonable doubt. There is no whatsoever doubt in the mind of court about the case of the complainant. The oral and documentary evidence adduced before this court by the complainant, is fully corroborating with each other and convinced this court about this case. The 24 C.C.No.21/2012 complainant by adducing oral and documentary evidence before this court bring home the guilt of the accused beyond all reasonable doubt. Therefore, by taking into consideration the facts and circumstances and evidence available on record, I answer this Point No.1 in affirmative.
46. Point No.2. In view of my findings on the above point and the reasons stated therein, I proceed to pass the following ORDER Acting u/Sec.255 (2) of Cr.P.C. the accused is hereby convicted for the offence punishable u/Sec.138 of N.I. Act.
The accused is sentenced to pay a fine of Rs.3,50,000/-(Rupees Three Lakhs and fifty Thousand only). In any default to pay fine amount shall under go simple imprisonment for 6 months.
Out of fine amount recovered under Section 357 of Cr.P.C. a sum of Rs.3,45,000/- (Rupees Three Lakhs and forty-five thousand only) shall be paid to the complainant which includes the cheque amount and also cost of the proceedings. Remaining fine amount of Rs.5,000/- shall be forfeited to State.
The bail bond and surety bonds of the accused stands cancelled. Office to furnish free copy of the judgement to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 23rd day of March, 2016) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bangalore 25 C.C.No.21/2012 ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. Thirthachari
Witnesses examined on behalf of the Accused:
D.W.1 Sri H.K. Mohan
D.W.2 Smt.Yogalakshmi
D.W.3 Sri Basavarajachar
D.W.4 Smt. Kanthamani
Documents marked on behalf of the Complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of the accused
Ex.P.2 Bank endorsement
Ex.P.3 Copy of the legal notice
Ex.P.4 & Ex.P5 Postal receipts
Ex.P.6 Postal Acknowledgement Due Card
Ex.P.7 Complaint
Documents marked on behalf of the Accused:
Nil
XIX ACMM, B'lore.