Bangalore District Court
On 05.03.2020 Against The Vehicle ... vs Issued Cheque Bearing No.490674 Dated ... on 17 April, 2023
1 CC.8791/2022(J)
KABC030222972022
Presented on : 19-03-2022
Registered on : 19-03-2022
Decided on : 17-04-2023
Duration : 1 years, 0 months, 29 days
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY.
Dated this the 13 th Day of April-2023
Present: Lokesh Dhanapal Havale. B.A.L.L.B.,
XV Addl.C.M.M., Bengaluru.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.8791/2022
2.Name of the Complainant: Ramesh Chand Kothari H.U.F
No.39, 1st Anjaneya Temple Steet,
Link Road, Seshadripuram,
Bangalore-560 020.
Rep by its Kartha
Ramesh Chand Kothari
S/o Jabarchand Kothari
Aged about 53 years.
3.Name of the accused: AFZAL
S/o Ameer Sab,
No.589, Ramasandra Road,
Mulbagal Town,
2 CC.8791/2022(J)
Kolar District.
4.The offence complained of : U/s.138 of Negotiable Instruments
Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(2) Cr.P.C., accused
is Convicted.
7.Date of final Order 13.04.2023.
* * *
This complaint is filed by the complainant U/Sec.200 of
Cr.P.C., by the complainant against the accused No.1 & 2 for the
offence punishable U/Sec.138 of the Negotiable Instruments Act,
1881.
2. The facts of the complaint in brief are as under:
The complainant is doing the business of hire purchase of
vehicles and the accused is one of his customers. The accused
approached him for hire purchase of Eicher Vehicle and
accordingly obtained hire purchase loan of Rs.1,50,000/- from
complainant on 05.03.2020 against the vehicle bearing No.AP-02-
Y-1494 and entered into hire purchase agreement with him. The
accused issued cheque bearing No.490674 dated 02.12.2021 for a
sum of Rs.1,69,500/- drawn on State Bank of India, Mulbagil
3 CC.8791/2022(J)
towards the repayment of said hire purchase. On presentation of
the cheque for encashment through its banker Canara Bank,
Sheshadripuram branch, Bengaluru and it was returned
dishonoured with shara "Kindly contact drawer drawee bank and
please present again" on 15.12.2021. He issued legal notice dated
23.12.2021 to the accused and the notice sent through RPAD
returned with shara 'six days not in station, return to sender' on
04.01.2022. The accused did not pay the amount within 15 days
even after the service of the notice. Hence prayed to punish the
accused and compensate the complainant.
3. After the institution of the complaint the Court
registered PCR No.1964/2022 and took cognizance of the offence.
The sworn statement of the complainant was recorded. On the
basis of sworn statement and other materials on hand, the criminal
case was registered against the accused and issued summons to
him. In response to the summons, the accused put his appearance
through his learned counsel and got enlarged on bail and it was
followed by the supply of the prosecution papers to the accused
and the plea was recorded. He pleaded not guilty and claimed to
be tried.
4. During trial the complainant examined himself as PW-1
and got marked Ex.P.1 to P5. The statement of the accused was
not recorded due to his absence. The accused did not lead any
evidence.
4 CC.8791/2022(J)
5. I have heard the arguments and perused the entire
materials. The following points would arise for my consideration;
1. Whether the complainant proves that
the accused issued a cheque bearing
No.490674 dated 02.12.2021 for
Rs.1,69,500/- drawn on State Bank of
India, Mulbagil and on its presentation for
encashment, it was returned dishonoured
with shara "Kindly Contact Drawer
Drawee Bank and Please Present Again"
and the accused failed to pay the amount
within 15 days from the date of service of
notice and thereby accused has committed
an offence punishable U/Sec.138 of N.I.
Act, 1881 ?
2. Whether the accused rebuts the
presumption U/s.139 of N.I.Act?
3. What order?
6. My answers to the above points are as under.
Point No.1 : In the Affirmative
Point No.2 : In the Negative
Point No.3 : As per final order for the following;
5 CC.8791/2022(J)
REASONS
7. Point No.1 & 2:- The points are taken together for
discussion to avoid repetition of facts and evidence. At this
juncture it is necessary to discuss the provisions under Section
138, 118(a) and 139 of the N.I. Act., 1881 and the said provisions
are extracted and they read as under;
138. Dishonour of cheque for insufficiency,
etc., of funds in the account - 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 in part, of any debt or other liability, 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 provision of this Act, be
punished with imprisonment for a term which
may be extended to two years, or with fine
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which may extend to twice the amount of the
cheque, or with both:
Provided that 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 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.
7 CC.8791/2022(J)
Explanation:- For the purposes of
this section, "debt or other liability"
means a legally enforceable debt or other
liability.
"118. Presumptions as to negotiable
instruments. - Until 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 transferred, was
accepted, indorsed, negotiated or
transferred for consideration.
(b) as to date:- that every
Negotiable Instrument bearing date was
made or drawn on such date;
"139. Presumption in favour of
holder.- 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
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discharge, in whole or in part, of any
debt or other liability."
8. On plain perusal of the provisions under Section 118(a)
and 139 of the N.I.Act., as extracted herein above, it can be seen
that initially the presumptions constituted under these two
provisions favour the complainant. However, it is open to an
accused to raise a defence to rebut the statutory presumptions.
An accused can raise a defence, wherein the existence of legally
enforceable debt or liability can be contested.
9. It is also well established that an accused for discharging
the burden of proof placed upon him under a statute need not
examine himself. He may discharge his burden on the basis of the
materials already brought on record. An accused has constitutional
rights to maintain silence. The standard of proof on part of the
accused and that of the prosecution in a Criminal case is different.
The prosecution must prove the guilt of an accused beyond all
reasonable doubts, the standard of proof so as to prove a defence
on the part of an accused is "Preponderance of probabilities".
10. Under the light of above extracted provisions of the
Act, I have perused the oral and documentary evidence on record.
In order to prove his case the complainant examined himself as
PW.1 and got marked Ex.P.1 to P.5. Ex.P.1 is the cheque bearing
No.490674 dated 02.12.2021 for a sum of Rs.1,69,500/- drawn on
State Bank of India, Mulbagil and Ex.1.2(a) is the signature of the
9 CC.8791/2022(J)
accused on the cheque. Ex.P.2 is the Bank endorsement dated
15.12.2021, which was issued with a shara "Kindly contact drawer
drawee bank and please present". Ex.P.3 is the office copy of the
statutory notice dated 23.12.2021 issued by the complainant to the
accused demanding the repayment of cheque amount. Ex.P.4 is the
postal receipt for having sent the legal notice to the accused.
Ex.P.5 is the postal envelope. Ex.P5(a) is the notice. It discloses
that the notice sent to the accused addressing properly to the
correct address of the accused was returned with shara 'six days
not in station, return to sender' on 04.01.2022
11. I have perused the exhibits on which the complainant
has placed his reliance. On plain perusal of the exhibits, it is clear
that the cheque at Ex.P1 bearing No.490674 dated 02.12.2021 for
a sum of Rs.1,69,500/- drawn on State Bank of India, Mulbagil
was presented through the Bank within its validity for encashment.
On presentation of the cheque for encashment, the Bank issued
endorsement as per Ex.P2 dated 15.12.2021, which was issued
with a Shara "Kindly contact drawer drawee bank and please
present". In the case of Laxmi Dyechem v. State of Gujarat,
reported in (2012) 13 SCC 375 the Hon'ble Supreme Court held
that the expression "amount of money ... is insufficient"
appearing in Section 138 of the Act is a genus and dishonour for
reasons such as "account closed", "payment stopped", "referred
to the drawer" are only species of that genus. Just as dishonour
of a cheque on the ground that the account has been closed is a
dishonour falling in the first contingency referred to in Section
10 CC.8791/2022(J)
138, so also dishonour on the ground that the "signatures do not
match" or that the "image is not found", would constitute a
dishonour within the meaning of Section 138 of the Act. Therefore
the shara "Kindly contact drawer drawee bank and please
present" also attracts the provision u/sce.138 of N.I Act. The
complainant issued statutory notice dated 23.12.2021 as per Ex.P.3
within time from the date of receipt of Bank memo. The notice
was returned with shara 'six days not in station, return to sender'
on 04.01.2022. In the case of C.C. Alavi Haji v. Palapetty
Muhammed reported in (2007) 6 SCC 555, the Hon'ble
Supreme Court held that when the notice is sent by registered
post by correctly addressing the drawer of the cheque, the
mandatory requirement of issue of notice in terms of clause (b) of
proviso to Section 138 of the Act stands complied with. It is
needless to emphasise that the complaint must contain basic facts
regarding the mode and manner of the issuance of notice to the
drawer of the cheque. In the case of N. Parameswaran Unni v.
G. Kannan reported in (2017) 5 SCC 737 the Hon'ble Supreme
Court held that it is clear from Section 27 of the General Clauses
Act, 1897 and Section 114 of the Evidence Act, 1872 that once
notice is sent by registered post by correctly addressing to the
drawer of the cheque, the service of notice is deemed to have
been effected. However, the drawer is at liberty to rebut this
presumption. Therefore the notice issued to the accused is deemed
to have been served and the burden is on the accused to show
that the address mentioned in the notice is not the correct
address. The issuance of the cheque and the signature on the
11 CC.8791/2022(J)
cheque at ExP.1 are not disputed. The complaint was filed on
21.01.2022, which is within limitation. Therefore, the documents
on record clearly show that the complainant has complied the
ingredients of Section 138(a) to (c) of the N.I.Act. Therefore the
presumptions U/s.118 and 139 of the N.I.Act arise in favour of the
complainant. The presumptions are rebuttable and the burden is
on the accused to rebut the presumptions. The accused can rebut
the presumptions by raising probable defences and proving it
relying on the evidence of the complainant or by leading his direct
evidence.
12. The plea of the accused was recorded on 23.08.2022.
The case was posted for cross-examination of PW-1 on 22.09.2022.
The accused remained absent since long time. Sufficient
opportunities have been given to the accused to cross-examine
PW-1. The Court has also issued and reissued NBW against the
accused. He appeared and got the NBW recalled but again
remained absent and NBW was re issued. The accused was not
secured. Therefore the cross-examination of PW-1 was taken as nil.
The accused did not appear before the Court since long time.
Hence the statement of the accused U/s.313 of Cr.P.C could not be
recorded. The Hon'ble High Court of Karnataka in Crl. Revision
Petition No.437/2010 in the case of R.V.Kulkarni Vs.
Dakshina Murthy vide Judgment dated 28.06.2012 held that it
was for the accused to appear before the Court and to have
defended himself effectively and to make himself available for the
Court to record the statement U/s.313 of Cr.PC. In the said case
12 CC.8791/2022(J)
the complainant preferred the revision before the Hon'ble High
Court challenging the order of the First Appellate Court in
remanding the matter for fresh trial for non recording of the
statement of the accused U/s.313 of Cr.P.C. The Hon'ble High
Court of Karnataka observed that there is no justification of the
Appellate Court for having held that there is failure of justice on
account of statement of the accused not having been recorded
U/s.313 of Cr.P.C. The Hon'ble High Court of Karnataka also
discussed settled law in respect of statement of accused U/s.313 of
Cr.P.C by referring to the decision of three judge bench of Hon'ble
Supreme Court in the case of Basavaraj R.Patil Vs.State of
Karnataka reported in (2000) 8 SCC 740. It is clear from the above
decision that it is the duty of the accused to appear before the
Court and make available himself for recording of statement
U/s.313 of Cr.P.C. and to lead defence evidence. The accused
failed to utilize the opportunity by remaining absent. Therefore the
statement of the accused U/s.313 of Cr.PC was not recorded and
the defence evidence is taken as nil. The case was posted for
arguments on 21.02.2023. The complainant argued the matter and
the case was posted for judgment by taking the arguments on the
accused side as nil due to his absence. Thereafter the accused
appeared and got the NBW recalled. He also filed application
u/sec.311 of Cr.P.C to recall the PW.1, who is the material
witness, for cross examination. The counsel for the complainant
submitted no objections and the application filed by the accused
u/sec.311 of Cr.P.C was allowed on costs of Rs.1,000/- and PW.1
was recalled for cross examination. However the accused remained
13 CC.8791/2022(J)
absent. Therefore once again the Court passed order on 01.04.2023
and posted the case for judgment. The order sheet shows the
accused has knowledge of the proceedings and dragging the matter
by using delaying tactics. This shows the conduct of the accused
in delaying the proceedings. It appears that the accused is not
interested in challenging the evidence of the complainant on
record.
13. Further as per the judgment of the Hon'ble Supreme
Court of India in the case of Md. Sukur Ali v/s State of
Assam in Crl. Appeal No.546/2011 dated 24.2.2011, wherein it
was held that if the criminal case whether a trial or appeal or
revision is decided against accused in the absence of counsel there
will be violation of Article 21 of the Constitution . However this
Court is of the opinion that as the accused No.2 has the right to
fair trial, he is also under the duty or obligation to promptly
appear before the Court and contest the case. As per the law of
jurisprudence, there is always duty or obligation corresponding to
the right. The accused remaining absent for the years together at
his peril and therefore he can not be expected to claim the right.
Further the judgment in the case of Md. Sukur Ali (supra) can be
distinguished on the basis of the facts of the present case. The
facts of the said case are that the Crl. Appeal No.137 of 2003 was
decided by the Hon'ble Gauhati High Court on 1.6.2010 in the
absence of the counsel for the Appellant-accused and the
conviction was upheld. The question before the Hon'ble Supreme
Court was that whether in a criminal case, if the counsel for the
14 CC.8791/2022(J)
accused does not appear, for whatever reason, should the case be
decided in the absence of the counsel against the accused, or the
Court should appoint an amicus curie to defend the accused.
Usually in appeal or revision, there is no question of recoding of
evidence of the parties. The counsels appearing for the parties
canvass the arguments on behalf of their parties assisting the Court
about the correct position of law and the error committed by the
Trial Court or Appellate Court as the case may be. However that
is not the case when it comes to a trial. The parties have to
personally appear before the Court and lead evidence and the
complainant has only benefit of recording the evidence through
GPA/SPA holder. In a case where the accused himself is not
appearing and because of instructions being not given or for any
other reason, the counsel is also not appearing, if the Amicus
Curie is appointed by the Court to defend the accused, he could
not proceed with the case without there being any instructions of
the accused and knowledge of the facts/the defence of the accused.
If the Amicus Curie is unaware of the defence of the accused
under the facts of a particular case, he is unable to proceed with
the case in effective manner. If the accused himself is not
appearing, there is no question of leading the defence evidence.
Further at a later stage, the accused may appear and if at all
something went against him in his absence, he might challenge it.
If the counsel for the accused appear at a later stage, he might
also challenge it. Therefore with due respect to the judgment of
the Hon'ble Supreme Court in the case of Md. Sukur Ali (supra)
this Court is of the opinion that under the circumstances as
15 CC.8791/2022(J)
elaborated herein above the appointment of Amicus Curie in trial
is not feasible. Further the proceedings under the N.I Act are quasi
civil in nature and the object of the N.I Act is to bring back the
credibility of Negotiable Instrument which were loosing their
credibility because of lack of responsibility on the part of the
drawer and to inculcate faith in the efficacy of banking operations
in transacting business on Negotiable Instrument in general to
bring the erring drawer to book, so that such irresponsibility is
not perpetuated, to protect the honest drawer and to safeguard the
payee who is almost a looser. Such being the case, if the accused
is allowed to abuse the process of the Court, the object of the Act
would be defeated. Further in the case of K.S Panduranga v/s
State of Karnataka, reported in 2013(3) SCC 721 the Hon'ble
Supreme Court held that, "regard being had to the principles
pertaining to binding precedent, there is no trace of doubt that
the principle laid down in Md. Sukar Ali (Supra) by the learned
judges that the Court should not decide a criminal case in the
absence of counsel of the accused as an accused in a criminal case
should not suffered for the fault of his counsel and the Court
should, in such a situation must appoint another counsel as
amicus curie to defend the accused and further if the counsel does
no appear deliberately, even then the Court should not decide the
appeal on merit is not in accordance with the pronouncement by
larger bench in Bani Singh." The Hon'ble Court further held that
in view of the aforesaid annunciation of law, it can safely be
concluded that the dictum in Md. Sukur Ali (Supra) to the effect
that the Court can not decide a criminal appeal in the absence of
16 CC.8791/2022(J)
counsel for the accused and that too if the counsel does not
appear deliberately or shows negligence in appearing, being
contrary to the ratio laid down by the larger bench in Bani Singh
(Supra) is per in curium. Furthermore the transaction alleged in
the case is purely a commercial transaction entered into between
the private individuals i.e. hire purchase agreement of vehicle and
the accused is not in judicial custody and he does not fall under
any of the parameters under the Legal Services Authority Act to
get free legal aid. Under such circumstances the question of
appointing counsel for the accused at the cost of state may not
arise at all. Hence, in view of the law laid down in the case of
K.S Panduranga (Supra), the case is proceeded on merit.
14. The accused failed to cross examine PW1 and he did not
lead any defence evidence. Further the order sheet shows the
conduct of the accused in delaying the proceedings. The accused
has been given number of opportunities for cross examination of
PW1 but the accused failed to cross examine PW1. Therefore, the
cross examination of PW1 was taken as nil. The accused did not
lead the defence. Therefore the defence evidence is also taken as
nil. The case was posted for arguments. The conduct of the
accused itself shows that he is postponing the liability by abusing
the process of the Court. If at all the accused had no liability
towards the complainant as alleged in the complaint and if at all
he had not issued the cheque in question for the said liability, he
would have promptly proceeded with the case and also he would
have lead defence evidence by taking probable defences and
17 CC.8791/2022(J)
proving the same by leading cogent evidence. The same has not
been done. Therefore there is nothing on record to disbelieve the
case of complainant.
15. The cheque and signature on the cheque at ExP.1 are
not disputed. It is marked as Ex.P.1(a). It attracts the ratio laid
down by the Hon'ble Supreme Court of India in its decisions
reported in 2011 (11) SCC - 441 - Rangappa V/s.Sri.Mohan and
SCC 2015 (8) Page No.378 - T.Vasanthakumar V/s.Vijayakumari
and the recent Judgment delivered in Crl. Appeal No.508/2019 -
Rohit Bhai Jeevanlal Patel V/s.State of Gujarath and another. The
ratio is that the cheque shall be presumed to be for consideration
unless and until the court forms a belief that the consideration
does not exist or considers the non-existence of consideration was
tenable that a prudent man would under no circumstances act
upon the plea that the consideration does not exist. On perusal of
Ex.P1, it clearly shows that the signature, contents of the cheque
are written in same ink. However as per Section 20 of the N.I.Act,
if the person signs and delivers Negotiable Instrument and it is left
incomplete and thereby he authorizes the holder to complete the
Negotiable Instrument and thereby he is liable for the amount
mentioned in the Negotiable Instrument. In the Judgment rendered
by the Hon'ble Supreme Court of India in Bir Singh
V/s.Mukesh Kumar reported in AIR 2019 SC 2446, it was held
by the Hon'ble Apex Court that "If a signed blank cheque is
voluntarily presented to a payee, towards some payment, the
payee may fill up the amount and other particulars. This in itself
18 CC.8791/2022(J)
would not invalidate the cheque. The onus would still be on the
accused to prove that the cheque was not in discharge of a debt
or liability by adducing evidence. Even a blank cheque leaf,
voluntarily singed and handed over by the accused, which is
towards some payment, would attract presumption under Section
139 of the Negotiable Instruments Act, in the absence of any
cogent evidence to show that the cheque was not issued in
discharge of a debt." Therefore there is nothing on record to
disbelieve the case of the complainant.
16. The Hon'ble Supreme Court of India in the case of
Rangappa Vs. Mohan reported in 2011 (11) SCC 441 held as
under;
The presumption mandated by Section 139 of N.I.Act
does indeed include the existence of legally
enforceable debt or liability. It is rebuttable
presumption and it is open to the accused to raise a
defence wherein the existence of legally enforceable
debt or liability can be contested. However there can
be no doubt that there is an initial presumption which
favours the complainant. Section 139 of the Act is an
example of reverse onus clause that has been included
in furtherance of the legislative objective of improving
the credibility of negotiable instruments.
19 CC.8791/2022(J)
Therefore the as per the presumption U/s139 of N.I.Act,
if the cheque and signature are admitted then it shall be
presumed that there is legally enforceable debt.
17. The Hon'ble Supreme Court of India in its latest case
of M/s. Kalamani Tex v. P. Balasubramanian reported in 2021
SCC OnLine SC 75 observed at para No.14 to 16 as under:-
14. Adverting to the case in hand, we find on a
plain reading of its Judgment that the trial Court
completely overlooked the provisions and failed to
appreciate the statutory presumption drawn under
Section 118 and Section 139 of NIA. The Statute
mandates that once the signature(s) of an accused on
the cheque/negotiable instrument are established, then
these 'reverse onus' clauses become operative. In such
a situation, the obligation shifts upon the accused to
discharge the presumption imposed upon him. This
point of law has been crystalized by this Court in
Rohitbhai Jivanlal Patel Vs. State of Gujarat, (2019) 18
SCC 106 in the following words:
"In the case at hand, even after purportedly
drawing the presumption under Section 139 of the NI
Act, the trial Court proceeded to question the want of
evidence on the part of the complainant as regards
the source of funds for advancing loan to the accused
20 CC.8791/2022(J)
and want of examination of relevant witnesses who
allegedly extended him money for advancing it to the
accused. This approach of the Trial Court had been at
variance with the principles of presumption in law.
After such presumption, the onus shifted to the
accused and unless the accused had discharged the
onus by bringing on record such facts and
circumstances as to show the preponderance of
probabilities tilting in his favour, any doubt on the
complainant's case could not have been raised for
want of evidence regarding the source of funds for
advancing loan to the appellant-accused....."
15. Once the 2nd Appellant had admitted his
signatures on the cheque and the Deed, the trial
Court ought to have presumed that the cheque was
issued as consideration for a legally enforceable debt.
The trial Court fell in error when it called upon the
Complainant-Respondent to explain the circumstances
under which the appellants were liable to pay. Such
approach of the Trial Court was directly in the teeth
of the established legal position as discussed above,
and amounts to a patent error of law.
16. No doubt, and as correctly argued by
senior Counsel for the appellants, the presumptions
raised under Section 118 and Section 139 are
21 CC.8791/2022(J)
rebuttable in nature. As held in M.S.Narayana Menon
Vs. State of Kerala, (2006) 6 SCC 39, which was
relied upon in Basalingappa (supra), a probable
defence needs to be raised, which must meet the
standard of "preponderance of probability", and not
mere possibility. These principles were also affirmed
in the case of Kumar Exports (supra), wherein it was
further held that a bare denial of passing of
consideration would not aid the case of accused.
Therefore it is clear from the above judgments that the
accused has to raise a probable defence and prove it by adducing
evidence, which must meet the standard of preponderance of
probabilities. Unless the same has been done, doubt can not be
raised on the case of the complainant.
18. On perusal of the evidence, the Court has raised
presumption U/s.139 of N.I.Act in favour of the complainant as
the complainant has complied all the ingredients of 138 of N.I.Act.
The presumption would operate in favour of the complainant
unless the contrary is proved. The onus is on the accused to prove
his defence and rebut the presumption. The accused has not taken
specific defence. If at all the cheque in question was misused by
the complainant, then the accused would have taken legal action
against the complainant which has not been done. The accused
appeared before the court and he is having the knowledge of the
proceedings at all times. Therefore the overall evidence on record
22 CC.8791/2022(J)
gave the impression that the accused issued the cheque in favour
of the complainant in respect of the transaction as averred in the
complaint.
19. For the reasons mentioned herein above, it is
crystallized that the accused has utterly failed to prove that there
was no existence of legally enforceable debt/liability between him
and the complainant and he has not at all issued the instant
cheques towards the discharge of legally enforceable debt. On the
other hand, the complainant has proved that the accused issued
the cheques for the legally enforceable debt; the cheque is
dishonored due to the reason 'kindly contact drawer, drawee bank
and please present again' and the notice issued by him was
returned unserved with shara 'six days not in station, return to
sender' which is deemed service of notice. The complainant proved
his case beyond reasonable doubt. The accused failed to rebut the
statutory presumptions U/s.118(a) & (b) and 139 of the N.I.Act.
Accordingly the accused is found guilty for the offence punishable
U/s.138 of the N.I.Act. Hence, I proceed to answer the Point
No.1 in Affirmative and Point No.2 in the Negative.
20. Point No.3 : In view of the reasons assigned in Point
No.1 and 2, I proceed to pass the following:-
23 CC.8791/2022(J)
ORDER
As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby convicted for the offence punishable u/s.138 of NI Act, 1881 and sentenced to pay fine Rs.1,75,000/- (Rupees One Lakh Seventy Five Thousand Only). On deposit of fine amount, the complainant is entitled for compensation of Rs.1,70,000/- (Rupees One Lakh Seventy Thousand Only). The remaining balance amount of Rs.5,000/- is to be forfeited to the State.
In default of payment of the fine amount accused shall undergo simple imprisonment for two months.
The personal bond executed by the accused is hereby stands cancelled and cash surety of Rs.1,000/- furnished by the accused shall be refunded to him after expiry of appeal period.
The copy of the judgment shall be furnished to the a at free of cost.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by him, is verified and then pronounced by me in Open Court on this the 17th day of April-2023.) (Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.
24 CC.8791/2022(J) ANNEXURE Witnesses examined for the Complainant:-
PW.1 Sri. Ramesh Chand Kothari Documents marked for the Complainant:-
Ex.P.1 Cheque
Ex.P.1a Signature of the accused
Ex.P.2 Bank endorsement
Ex.P.3 Office copy of the legal notice
Ex.P.4 Postal Receipt
Ex.P.5 Postal Envelope
Ex.P5(a) Legal notice
Witnesses examined For Defence:- Nil Documents marked for Defence:- Nil (Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.
25 CC.8791/2022(J) 17.04.2023 (Judgment Pronounced in the Open Court Vide Separate ) ORDER As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby convicted for the offence punishable u/s.138 of NI Act, 1881 and sentenced to pay fine Rs.1,75,000/- (Rupees One Lakh Seventy Five Thousand Only). On deposit of fine amount, the complainant is entitled for compensation of Rs.1,70,000/- (Rupees One Lakh Seventy Thousand Only). The remaining balance amount of Rs.5,000/- is to be forfeited to the State.
In default of payment of the fine amount accused shall undergo simple imprisonment for two months. 26 CC.8791/2022(J) The personal bond executed by the accused is hereby stands cancelled and cash surety of Rs.1,000/- furnished by the accused shall be refunded to him after expiry of appeal period.
The copy of the judgment shall be furnished to the a at free of cost.
XV Addl.CMM., Bengaluru.