Bangalore District Court
V.G. Narasimha Murhy vs M/S. Mookambika Enterprises on 17 September, 2019
IN THE COURT OF THE JUDGE COURT OF SMALL
CAUSES AND XXVI A.C.M.M, AT BENGALURU
Present: Abdul Khadar, B.A., LL.B.,
JUDGE, Court Of Small Causes,
Bengaluru
Dated this the 17th day of September 2019
C.C. No: 32329/2014
Complainant: V.G. Narasimha Murhy
@ V.G.N Murthy,
S/o S. Ganganna,
Major in age.
R/at No. 44, 25th Cross,
Bagalgunte, Bangalore-73.
(By G.N.Venugopal - Advocate)
-Vs-
Accused : M/s. Mookambika Enterprises,
No. 623/7, Gokul 1st Stage,
2nd Phase, 7th Main, 1st Floor,
Yeshwanthpura, Bangalore-22,
Rep. by tis Proprietor Sri
Venkateshaih S/o Munishamappa)
(By K. Manjunath, Advocate)
JUDGMENT
The complainant filed the private complaint under Sec. 200 of Cr.P C., against the accused for having committed an offence punishable under Sec.138 of Negotiable Instruments Act.
2 CC.32329/2014SCCH9
2. The brief facts of the complainant case is that the accused is known to the complainant since several years, the accused used to supply bricks to the complainant at the time of construction of the complainant's house. The accused has approached the complainant for hand loan of Rs. 17,00,000/- in 1st week of January 2013 to meet his immediate legal business commitments and improve his business. The complainant paid the said hand loan amount of Rs.17,00,000/- to the accused on 23.01.2013 and executed a loan agreement in favour of the complainant. The accident had further promised and agreed to repay the said hand loan amount within six months. After lapse of stipulated period the complainant demanding him to repay the said loan. The accused issued two cheques bearing No.846426 and 846431 dated:14.10.2014 for sum of Rs.5,00,000/- each drawn on State Bank of India, Mathikere Road Branch, Bengaluru and the accused has promised to pay the balance loan of Rs.7,00,000/-. The complainant has presented the said cheques for encashment through his banker i.e., Karnataka Bank Ltd., Hessarghata Main Road Branch, Bengaluru. The said cheques were not honoured and same was returned as "Funds Insufficient" on 18.10.2014 and the said facts brought to the knowledge of the accused. Thereafter the 3 CC.32329/2014 SCCH9 complainant issued legal notice to the accused on 28.10.2014 through RPAD calling upon the accused to pay Rs.17,00,000/-within 15 days from the date of receipt of notice and the said notice was returned with a shara "left not known return to sender" on 28.10.2014. Inspite of receipt of demand notice the accused not replied the notice nor repaid the amount covered under cheques. Hence, he committed an offence punishable under Sec.138 of N.I. Act. Accordingly, he has filed the present complaint to take action against the accused in accordance with law.
3. Being satisfied with the complaint averments, this Court has taken cognizance and after recording sworn statement being satisfied with the prima-facie case, issued summons to the accused compelling his appearance. Accused appeared through his counsel before this Court and got enlarged on bail. Substance of accusation was read over to the accused. Accused pleaded not guilty for the offence punishable u/s.138 of NI Act. Hence, this Court called upon the complainant to prove her case.
4. In support of the case, the complainant himself examined as P.W.1 and got marked 16 documents as per Ex.P1 to P.16. One witness by name Badhariprasad examined as P.W.2 and got marked 4 documents as per Ex.P.17 to P.20. After closure of evidence of 4 CC.32329/2014 SCCH9 Complainant, the accused was examined as contemplated u/s.313 Cr.P.C and her statement was recorded. The accused has denied all the incriminating circumstances appearing in the evidence. Himself examined as DW-1 got marked 6 documents at Ex.D.1 to D.6 on his behalf. Three witnesses by name Vijaykumar, Jayashankar and Dhanashekaran are examined as D.W. 2 to DW.4 and DW.2 got marked four documents at Ex.D7 to D.10 on his behalf. After closure of evidence of complainant and accused, the case was posted for arguments on merits.
5. Heard arguments canvassed by the learned counsel for the complainant and the accused. Perused the materials available on record with citations produced by the accused..
6. Now the points that arise for my consideration are:
1.Whether the complainant proves that, the accused has issued cheques bearing No.846426 and No.846431 dated:14.10.2014 for sum of Rs.5,00,000/- each drawn on State Bank of India, Mathikere Road Branch, Bengaluru, towards discharge of his legal liability and when the said cheques presented for encashment which came to be dishonoured with an endorsement as "Funds Insufficient"
after issuance of legal notice, he fails to repay dishonoured cheques amount 5 CC.32329/2014 SCCH9 within the stipulated period and thereby committed an offence punishable under Sec.138 of N.I. Act?
2. What order?
7. My findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : As per the final order below for the following:
REASONS Point No.1:-
8. It is pertinent to note that, whenever a private complainant is filed seeking prosecution of the accused for an offence punishable under section 138 of Negotiable Instrument Act, if the issuance of cheques and the signature on the cheques is accepted and admitted by the accused, an initial presumption has to be raised by the Court in favour of the complainant, that the cheques in question were issued towards legally recoverable debt or liability. Of course, this presumption is rebuttable presumption. Such rebuttable evidence has to be placed before the Court by the accused. It is well known that, the accused can rebut the said legal presumption either by cross-examination of complainant or by leading evidence. The complainant himself examined as PW.1 filed affidavit by way of chief examination has reiterated the versions of complaint. I 6 CC.32329/2014 SCCH9 would not like to reproduce the same to avoid repetition of facts since the complainant has explained the details of complaint averments in chief examination. The complainant has got marked 20 documents at Ex.P1 to P.20.
9. So far as the documents are concerned, Ex.P1 & P.2 are the cheques bearing No.846426 and 846431 dated:14.10.2014 for sum of Rs.5,00,000/- each drawn on State Bank of India, Mathikere Road Branch, Bengaluru. Ex.P1(a) and Ex.P2(a) are the accused signatures. Ex.P3 & P.4 are the Bank Endorsements, wherein Ex.P1 & P.2 Cheques were presented by the complainant through his banker which came to be returned for the reason "Funds Insufficient". Ex.P5 is the legal notice dated 28-10-2014, wherein complainant called upon the accused for payment of Rs.10,00,000/- covered under cheques. Ex.P6 is the Postal receipt. Ex.P7 is the unserved postal cover, Ex.P7(a) is the contents of Ex.P7. Ex.P8 is the Courier receipt, Ex.P9 is the Courier acknowledgment, Ex.P10 is the sale agreement for advance dated 24.12.2013 wherein it appears that the accused entered sale agreement with the complainant in respect of Sy. No. 119 extent 8 guntas of Byalakere Village, Hesaragatta Hobli, Bangalore North for sale consideration of Rs. 20,00,000/- as PA holder of J. Deevakar, J. Srinivas, J.
7 CC.32329/2014SCCH9 Shashikumar and received advance amount of Rs.17,00,000/- by cash from the complainant and also agreed to execute the sale deed within 6 month by receiving balance sale consideration of Rs. 3laksh in favour of complainant in the presence of witness Hanumegowda and N. Nagabushana and signature marked at Ex.P10(a). Ex.P 11 is the GPA, executed by the J. Deevakar, J. Srinivas, J. Shashikumar in favour of accused authorizing to dispose the aforesaid land by executing sale deed on 06.02.2009. Ex.P12 is the affidavit sworned by the J. Deevakar, J. Srinivas, J. Shashikumar before notary. Ex.P13&14 are the loan sanction letters, wherein it appears that on 04.02.2013 Rs.13,60,000/- sanctioned for construction of first floor on existing ground floor by the Karnataka Bank Ltd. Hesaragatta Main Road Branch and on 01.03.2012 Rs.24,00,000/- sanctioned for purchase of land and construction of house thereon by the Karnataka Bank Ltd. Hesaragatta Main Road Branc. Ex.P15 is the Bank Statement from 01.01.2012 to 26.12.2013. Ex.P16 is the IT returns for the assessment year 2014-2015, Ex.P17&18 are the loan applications and Ex.P19&20 sanction order letters. According to the learned counsel for the complainant, when the issuance of cheque and his signature are admitted, then the presumption as required under Section 139 of N.I. Act comes to the aid 8 CC.32329/2014 SCCH9 of the complainant. It is the turn of the accused to explain or rebut the said presumption by raising a probable defence.
10. In this regard, the court has to see whether the accused has been successful in rebutting the presumption through cross-examination of PW-1 and his evidence. In support of his defence, the accused cross examined PW-1 in length, but nothing has been elicited from his mouth to show that there is no legally recoverable debt exists under Ex.P1 and P2 cheques. PW-1 deposed that the accused is proprietor of Mookabmika enterprises. He admits that at the time of purchase of bricks for the construction of his house, the Mookambika enterprises was existed. Accused gave cheque in the name of Mookambika enterprises. He knows the accused since 2009 and he used to pay the bricks payment to the accused by way of cash. He admits that accused used to receive advance payment for supply of bricks and he purchased thirty thousand bricks. He constructed the house by borrowing loan of Rs.37,00,000/- from the Karnataka Bank. He filed IT returns for the year 2013 on 23.01.2013. He has not pleaded in his complaint, notice from where he mobilized Rs.17,00,000/-. He had SB and Current account. He was filing IT returns since 2006 and he has not disclosed the advancement of 9 CC.32329/2014 SCCH9 loan of Rs.17,00,000/- in the IT returns for the assessment year 2013. He voluntaries that he disclosed the loan borrowed by him in the IT returns. He has not pleaded the schedule of sale agreement in his complaint. He do not remember the date of agreement. The Nagabushana and Hanumegowda are the witnesses to the sale agreement. He entered sale agreement in respect of 8guntas of land with the accused. He denied that in respect of supply of bricks, the accused received more advance amount, but not supplied the same in time as he obtained 2-3 blank cheques from the accused as security. He denied that out of said cheques, one cheque was filled Rs.2,50,000/-by the accused and the same has been over written and filled Rs.5,00,000/- filed this false complaint against accused.
11. He admits that the two cheques were issued on the same day by the accused. He has stated anything about his income in the complaint and in that connection he has not produced any documents. He is doing agriculture and business. At the time of advancement of loan to the accused Hanumegowda was present. At the time of advancement of loan he had Rs.37,50,000/-bank loan and 25 to 30lakhs savings was with him. He has not produced any documents before the court to show that he had 10 CC.32329/2014 SCCH9 savings with him. He admits that at the time of advancement of loan he received land documents with sale agreement from the accused. He knows the Ravi through the accused. He denied that the accused borrowed loan from Ravi at that time he had executed the aforesaid documents to Ravi. He denied that he has not given loan of Rs.17,00,000/- to the accused and deposing false evidence.
In the further cross examination he deposed that he constructed the house in the month of February- March 2012. The accused himself supplied the bricks for the constructions of three floors. He purchased 24,000 bricks from the accused at that time they entered into an agreement on 23.01.2013, but the same was not pleaded in his complaint, notice and chief affidavit. He denied that at the time of returning of that agreement, the accused repaid the entire loan borrowed by him. In Ex.P10 there is no mention about the existence of old agreement. He admits that prior to the loan agreement he borrowed loan from the bank. He admits that in Ex.P13,in 2nd page there is a recital that the loan was sanctioned on 4-2-2013 for the construction of first floor. He denied that that in Ex.P14 the loan sanctioned for construction of another house. He denied that he utilized all his savings amount , therefore, he borrowed loan from the bank.
11 CC.32329/2014SCCH9 He denied that on 23.01.2013 he withdrawn Rs.90,000/- by self and paid to the accused. In Ex.P15 there is no mention of Rs.17,00,000/- paid him to the accused. As per Ex.P.16 his gross income was Rs.2,85,920/- He denied that during the month of February 2011, the accused not supplied bricks at that time, he obtained two cheques for the security of Rs.1,00,000/-. Again in the year 2012, he paid Rs.1,00,000 to the accused and received another cheque for security. He denied that he totally paid Rs.2,90,000/- to the accused and received 5% interest from the accused and he created a signed blank stamp paper as per Ex.P10 which was given by the accused as security. He denied that without filing suit for specific performance of contract based on Ex.P10 he misused the cheques and filed this false complaint against the accused.
12. One witness Badhariprasad examined as PW.2 he deposed that as per summons received from the court he produced 2 loan applications and sanction order belonging to the complainant asper Ex.P17 to P20. This witness cross examined but nothing has been elicited from his mouth, to show that the sanctioned amount only utilized for the purpose of loan by the complainant. He deposed that the complainant obtained housing loan as per Ex.P17 and 19 and he has not 12 CC.32329/2014 SCCH9 produced progress report. He pleads ignorance that in Ex.P.13, there is no recital that the sanctioned loan amount has not been utilized to advance the same to other person . He admits that the complainant was constructed the house in the loan sanctioned site.
13. Admittedly, in the cross examination of PW-1 the accused has not elicited from the mouth of PW.1 that there is no existence of legally recoverable debt payable by the accused to the complainant. It is the defence of the accused that, he has not taken loan of Rs.17,00,000/- from him, but he has borrowed loan of Rs.2,90,000/- as advance to the supply of bricks at the time the complainant taken three cheques and signed blank stamp paper from him as security. The complainant has misused the said n cheques by filing Rs.5,00,000/- each and filed this false case against him. He is not due of Rs.10,00,000/- to the complainant. To prove the same the accused has not produced any documentary evidence. Hence the complainant has proved his case from four corners of NI Act. The accused has not disputed the issuance of cheques and his signatures on it. Hence it is crystal clear that the cheques in question were issued by the accused in favour of complainant towards discharge of his liability. If at all, the cheques were misused by the complainant, what prevented the accused to take legal 13 CC.32329/2014 SCCH9 action against the complainant immediately after the receipt of demand notice. To escape from the liability, the accused intentionally denied the transaction.
14. The statutory presumption under Sec.139 of N.I. Act explains initial presumption infavour of the producer of an instrument. It says court shall presume that one instrument is handed over infavour of another person only for the purpose of recover of existed debt. Therefore, the statutory presumption explained under Sec.139 of N.I. Act always provides presumption infavour of the complainant. But, it does not mean that the statutory presumption cannot be rebutted. The said presumption can be rebutted at the strength of strong oral and documentary evidence. Let us see the attempt of the accused to-rebut the evidence of complainant.
15. To defeat the case of the complainant, accused himself examined as DW-1, wherein he deposed that he know the accused since 2010-2011, who approached him to purchase bricks for construction of house to that effect the complainant paid Rs.10,00,000/- advance amount at that time he gave two signed blank cheques to the complainant. He repaid the said amount during the month of June-July 2012 along with interest to the complainant through his children Vijiay Kumar and Lakshminarayana. He further deposed that in the year 2013 he borrowed Rs.90,000/-
14 CC.32329/2014SCCH9 from the complainant. DW-1 deposed that he supplied bricks to the complainant and he remained balance of Rs.30 to 40,000/-, in that connection, there was quarrel held between himself and complainant. He deposed that during the year 2012, he borrowed Rs.1,00,000/- from the complainant and the complainant took his signature on e-stamp paper. He has not borrowed loan of Rs.17,00,000/- in the year 2017 from the complainant. He produced the five purchase orders as per Ex.D1 to D.5. Statement of account is at Ex.D6. He is not due to pay any amount to the complainant. Hence, prayed to dismiss the complaint.
16. On perusal of Ex.D1 to D.5 which reveals that The Tumkur Co-operative Milk Producers Societies Union Ltd., held tender for scrap materials for the value of Rs.1,08,000/- which has been purchased by the accused. The Anantharaja constructions purchased wire cut bricks for Rs.5,250/-. KMV projects Ltd., purchased wire cut red bricks for a sum of Rs.44,800/-, Rs.3,36,000/- and Rs.89,600/- received from the accused during the year March 2011.
17. This witness cross examined by the learned counsel for the complainant, wherein he categorically admits that, he is having bricks factory since 30 years. He is doing brick business. He has no documents show that to whom he supplied the bricks since 30 years and 15 CC.32329/2014 SCCH9 not disclosed the business income in IT returns. He knows the complainant from past 10-11 years through Ravi. The said Ravi brought the complainant to his house, the said Ravi advised him to settle the matter by paying amount the due to him. At that time, the complainant was also present. His son knows the money transaction. After issuance of NBW, the police called his son and intimated about this case to him. His son came to know the details of this case through him. He admits Ex.P.1 and P.2 cheques belongs to his account and Ex.P1(a) and P2(a) are his signatures. He admits that Ex.P11 is the GPA and P.14-affidavit were executed by Divakar, J.Srinivas and Shashikumar in respect of documents which was entered in respect of property situated at Byalakere village. He denied that to sell the property shown in Ex.P11, he executed Ex.P10-sale agreement in favor of complainant. He admits Ex.P7 notice served on him and has not given reply to the notice. He has shown the amount mentioned in Ex.D1 to D5 in his IT returns. He denied that he issued Exs.P.1 and P.2 cheques to the complainant towards discharge of his liability without having sufficient amount in his account and after receipt of notice, he is deposing falsely before the court that, he has not received the notice in order to cheat the complainant.
16 CC.32329/2014SCCH9
18. Vijay Kumar examined as DW.2. He deposed that the accused is his father. He knows the complainant through his father. He supplied 35 -40,000 bricks to the complainant in the year 2011-12. At that time, the complainant paid Rs.1,00,000/- as advance to his father. Due to some labour problem, his father could not supply the bricks as the complainant obtained one blank cheque from his father. Thereafter he cleared the amount by supplying bricks , thereafter his father borrowed hand loan of Rs.90,000/- from the complainant in the month of January 2013 on interest. Himself and Jayashankar paying the interest to the complainant on every month.Three-four months, his father not paid the interest as quarrel held in between his father and complainant. At the time of availing loan complainant has taken blank stamp paper and property GPA from his father. To show that he supplied bricks to the other companies produced four bills as per Ex.D7 to D10. His father not borrowed Rs.17,00,000/- from the complainant.
19.This witness cross examined wherein he categorically admits that, he knows the business of his father and where and how much loan was obtained by his father. He knows the complainant that, if any problems occurred in the business, at that time, his father was borrowing loan from the complainant. He 17 CC.32329/2014 SCCH9 admits Exs.P1(a), 2(a) and 10(a) are the signatures of his father and other suggestion were denied.
20. Jayashankar examined as DW.3. He deposed that, he knows the accused, he was transporting the bricks by purchasing from the accused. He is having business transaction of Rs.5,00,000/- per year. The accused having Rs.25,00,000/- income per year in the bricks business. The accused has no need of money in the year 2011-2013.
This witness cross examined wherein, he admits he do not know the personal affairs of the accused and he has not gone to the house of complainant, he used to pay the amount to the accused son.
22. Dhanashekarn examined as DW.4. He deposed that, he knows the accused past 10 years, 2011 -13. He was working at Ananatharaju constructions wherein the accused was supplying the bricks as per Ex.D.2. He do not know the complainant and he don't know the where the accused borrowed loan of Rs.17,00,000/- from the complainant. This witness also admits that he don't know the transaction held between the complainant and accused and he don't know the personal knowledge about Ex.D.2. Except this transaction he do not know other transactions held between complainant and accused.
18 CC.32329/2014SCCH9
23. Learned counsel for the accused in support of his defence has relied the following citations reported in:-
1. 2019 (2) AKR 29 in the case of Anss Rajashekar V/s. Augustus Jeba Ananth. Wherein it is held that, Dishonour of cheque - Presumption of complainant to establish source of funds alleged to be utilized for disbursal of loan to accused - Presnce of doubt on transaction as complainant nto disclosing facts as to cheques and any stepts taken by him for recovery of same - Material on record rendered probability as to absence of legally enforceable debt -
High Court convicting accused on ground that he reminded absent though notice of appeal was served, not proper.
2. 2006 CRL.L.J.4607 in the case of M.S. Narayana Menon alias Mani V/s State of Kerala and Anr. Wherein it is held that, Dishonour of cheque - Presumption as to - Rebuttal of Accused carrying on transaction in shares through respondent in Stock Exchange allegedly issued cheque for discharge of debt which was dishonoured - Said liability by way of debt arose in terms of transactions - Discrepancies found in book of accounts maintained by respondent for proving said transactions -Defence of accused that cheque was 19 CC.32329/2014 SCCH9 issued for purpose of discounting appears to be probable - Accused discharging his.
3. 2000 CRL.L.J. 257 in the case of Narinder Kumar V/s Harnam Singh. Wherein it is held that, Dishonour of cheque - Debt or liability - No subsisting debt or other liability found established which accused ws legally bound to discharge - Cheque also not issued with view to discharge such debt or liability - Accident entitled to be acquitted.
4. AIR 1979 SC 366 in the case of Union of India V/s Prafulla Kumar Samal and Anr. Wherein it is held that, Question regarding discharge - Determination of - Test and duty of Court. On bare reading of the above rulings relied by the accused are not applicable on the facts and circumstance of the present case on hand.
24. On perusal of evidence DWs.1 to DW.4, it is quite clear that, the accused had money transactions with the complainant. DW.2 also admitting the transactions between his father and complainant. DW3 and 4 are in no-way concerned to the transactions held between the complainant and the accused. No doubt that the accused has clearly admitted his signatures on Ex.P.1 and P.2, but he disputed that he has not issued cheques to the complainant to discharge his liability of Rs.10,00,000/-. The evidence of DW-1 clearly shows 20 CC.32329/2014 SCCH9 that no legal action has been taken by the accused against complainant in respect of misuse of cheques which was issued by him as security to the loan of Rs.90,000/-. There, itself the accused has failed to raise the probable defence. The documents on record show that the complainant had lent the money to the accused and the accused issued the cheques to the complainant to discharge the amount owed by him.
25. However the claim of the accused is that, he has not issued the cheques in dispute to the complainant for the loan of Rs.10,00,000/- borrowed by him in the year 2013. The say of accused is presumed to be true and then there was no impediment to the accused to issue stop payment instructions at the earlier point of time to his banker. Further what impediment was there to the accused to take legal action against the complainant. Therefore the contradiction in the version of the accused with regard to the issuance of the cheques in dispute by him to the complainant also gives raise to series doubts with regard to her defence. Accused has not made out any probable defence so as to shift the burden on the complainant. Accused has failed to establish his defence that the cheques were misused by the complainant. It is well settled law that rule of presumption of innocence of accused cannot be applied with same rigor to offence 21 CC.32329/2014 SCCH9 U/s 138, particularly where presumption is drawn that holder received the cheque for discharge, the debt or liability. Of course there is a variation in the complaint and the evidence of PW.1 with regard to advancement of loan and the purpose for which Ex.P1 and P2 cheques were issued by the accused. But mere variation in the sworn statement of PW.1 does not dissolve the liability of the accused to rebut the presumption. Thus, accused has failed to rebut the presumption arise in favour of the complainant under Sections 118(a) and 139 of N.I. Act.
26. On perusal of the entire evidence on record, it reveals that, cheques were presented to the bank for encashment which came to be dishonored as "Funds insufficient" and notice was issued to the accused was duly served on his. When the accused has admitted cheque belongs to his account and his signature on Ex.P1 and P2, it is sufficient to hold that the complainant has proved the existence of debt under Ex.P1 and P.2 by the accused. Thus it clearly goes to show that since the accused had issued the cheques in question to the complainant for consideration. The notice at Ex.P5 issued by the complainant was duly served on accused, after that the accused has not taken any legal action against complainant, there, itself the accused has failed to raise the probable defence. The 22 CC.32329/2014 SCCH9 documents on record shows that the complainant had lent the money to the accused and the accused issued the cheques to the complainant to discharge his liability.
27. Now, the question that arises that whether the issuance of cheques in question by the accused to discharge the liability of him to the complainant comes under the purview of Sec.138 of N.I. Act or not. It is settled law that in order to draw the presumption under Sec.118 read along with 139 of N.I. Act, the burden was heavily upon the complainant to have shown that he had paid Rs.17,00,000/- to the accused, that the issuance of the cheques in support of the said repayment was true and that the accused was bound to make the payment as had been agreed while issuing the cheques infavour of the complainant.
28. In this regard I relied on a decision reported in (2018) 8 SCC 469 in the case of TP Murugan(dead) through legal representatives V/s Bojan, wherein it is held that presumption under section 139 of NI Act in favour of holder of cheque, rebuttal of said presumption must be by adducing credible evidence mere raising a doubt sans cogent evidence, with respect to the circumstances, presumption under section 139 of NI Act cannot be discharged. Once a cheque has been signed and issued 23 CC.32329/2014 SCCH9 in favour of holder of cheque there is statutory presumption under section 139 of NI Act that a cheque is issued in discharge of legally enforceable debt or liability. On bare perusal of above decision it appears that mere raising a doubt without cogent evidence with respect to the circumstances will not discharge presumption under section 139. Issuer of the cheque can rebut that presumption by adducing credible evidence that the cheque was issued for some other purpose like security for loan. In the present case the accused has admitted that the cheques were signed by his and hence, presumption under section 139 gives me to operation.
29. The complainant has proved that the accused had issued the cheques in question to the complainant to discharge his liability which he owed to the complainant. When such being the case the contention of the accused and submission of learned counsel for the accused that the accused did not borrow any amount from the complainant and hence, he is not liable to pay the amount of cheques cannot be acceptable. Thus, the story brought by the accused is unworthy of credit. Apart from being unsupported by any evidence.
30. The oral and documentary evidence available on record are clear and categorically established all the 24 CC.32329/2014 SCCH9 ingredients of Section 138 of N.I. Act and also proved the fact that the accused had issued the cheques in question in favour of the complainant towards the discharge of his debt and the said cheques were dishonoured and then the accused failed to pay the amount of cheques within 15 days from the date of service of the demand notice. Hence, the dishonor of the cheques in question is clearly attracts the penal provision of Section 138 of the N.I. Act and the complainant has proved the guilt leveled against the accused for the offence P/u/s Section 138 of the N.I. Act. The accused has utterly failed to rebut the presumption under Sec.138 of N.I. Act infavour of the complainant. Hence, the complainant is entitled for benefit of statutory presumption as contemplated under Sec.139 of the Act. I did not find any informalities or contradictions elicited to render his evidence incredible. Therefore, the testimony of PW-1 inspires confidence to believe and to act upon the evidence of PW.1 and the documentary evidence at Ex.P1 to P20 are consistence, corroborative and supporting to each other and in accordance with the case of the complainant and which leads me to conclude that the complainant has proved beyond reasonable doubt against the accused for the alleged offence punishable under Sec.138 of N.I. Act. Accordingly, I answer Point No.1 in the Affirmative.
25 CC.32329/2014SCCH9 Point No.2:
31. In view of my above discussions and findings on Points No.1, I proceed to pass the following:
ORDER Acting under Section 255[2] of Cr.P.C, the accused is hereby convicted for the offence Punishable U/s. 138 of the N.I. Act. The accused is sentenced to pay total fine amount of Rs.11,00,000/-. In default of payment of fine amount, the accused shall under go Simple Imprisonment for six months.
Out of the amount so realized, the accused shall pay a sum of Rs.10,90,000/- to the Complainant by way of compensation U/s.357 Cr.P.C. The balance amount of Rs.10,000/- shall be remitted to the State. The bail bond and surety bond of the accused is hereby stands cancelled.
Office is directed to furnish free copy of this judgment to the accused.
(Dictated to the stenographer on computer, corrected and then pronounced by me in the open court on this the 17th day of September 2019) (Abdul Khadar) Judge, Court of Small Causes &XXVI ACMM Bengaluru ANNEXURE List of Witnesses examined on behalf of complainant:26 CC.32329/2014
SCCH9 PW1 V.G. Narasimha Murthy @ V.G.N.Murthy PW2 Badharinath List of Documents marked on behalf of complainant:
Ex.P1 &P2 Cheques Ex.P1(a)&P.2(a) Signatures of accused Ex.P3&4 Bank endorsements Ex.P5 Notice Ex.P6 Postal receipt Ex.P7 Unserved postal cover Ex.P8 Courier receipt Ex.P9 Courier acknowledgment Ex.P10 Advanced Sale deed agreement Ex.P10(a) Signature of accused Ex.P.11 GPA Ex.P12 Certificate Ex.P13&14 Loan sanction letters Ex.P15 Bank Statement Ex.P16 IT returns Ex.P17to20 Loan application and sanction order List of Witnesses examined on behalf of accused:
D.W1 Venkatesh D.W2 VijayKumar D.W3 Jayashankar D.W4 Dhanashekaran
List of documents marked on behalf of accused:
Ex.D.1to5 Furniture orders
Ex.D.6 Bank Statement
Ex.D.7to 10 Bills
(Abdul Khadar)
Judge, Court of Small
Causes & XXVI ACMM,
Bengaluru