Bangalore District Court
Sri. H. Govindaiah vs Sri. Murthy B on 1 June, 2016
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 1st day of June, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No.18776/2012
Complainant: Sri. H. Govindaiah,
S/o Hanumanthaiah,
Aged about 57 years
R/at No.13, Byrappa Layout,
RMV 2nd Stage, Nagashetty Halli,
Bangalore - 560094
Accused: Sri. Murthy B.
Aged about 40 years,
R/at C/o Mahadevappa,
No. 6, 4th Main Road,
Shakambari Nagar,
Banashankari 2nd Stage,
Kanakapura Road,
Bangalore.
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: 1st June 2016
JUDGMENT
The complainant has filed this complaint u/s. 200 of Cr.P.C. against the accused for the offences punishable u/s. 138 of NI Act.
2. The brief facts of the complainant is that the Accused is well-known to him and out of the friendship, had approached this 2 C.C. 18776/2012 Complainant for the financial assistance and borrowed a sum of Rs.4,00,000/- (Rupees Four Lakhs only) for his legal necessity in the month of April 2008. The Complainant had advanced the loan amount of Rs.4,00,000/- (Rupees Four Lakhs only) out of which a sum of Rs.2,00,000/- (Rupees Two Lakhs only) in cash and remaining Rs.2,00,000/- (Rupees Two Lakhs only) by way of cheque bearing No.085432 dated 12.04.2008. After receipt of loan amount, the accused has failed to make payment of the loan amount and after on his repeated request and demand to this Accused, the accused towards the part-payment of the loan amount, had issued a Cheque bearing No.208741 dated 21.04.2012 amounting to Rs.2,25,000/- (Rupees Two Lakhs and Twenty-five thousand only) drawn on HDFC Bank, Banashankari Branch, Bangalore with a request to present the said cheque for encashment on its due date and it will be honoured on its presentation.
3. The Complainant further stated that on the assurance of the Accused to present the Cheque, he presented the said Cheque before his banker, Syndicate Bank, Rajajinagar Branch, Bangalore, On 25.04.2012 and the said Cheque returned dishonored with an endorsement "Account Closed" on 25.04.2012 and it was communicated to complainant on 26.04.2012 and same was intimated to this Accused.
3 C.C. 18776/2012
4. The Complainant further stated that the accused has failed to make payment of the Cheque amount, therefore the Complainant got issued the Legal Notice on 09.05.2012 through RPAD, calling upon the Accused to pay the Cheque amount with in 15 days from the date of receipt of Legal Notice and the same was duly served upon the Accused on 16.05.2012. Even in spite of receipt of Legal Notice the Accused neither chosen to make payment of the Cheque amount nor he sent his reply. The Accused knowing fully well that his account has already been closed, had issued bogus Cheque and thereby accused has committed an offence punishable under section 138 of NI Act.
5. After recording of sworn statement of the complainant the private complaint lodged by the complainant was registered as a 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 claims to be tried.
6. The Complainant got examined as PW1 and he got produced 6 documents marked as Ex.P.1 to Ex.P.6 and closed his side of evidence.
4 C.C. 18776/2012
7. After closure of complainant side evidence, accused statement u/s.313 Cr.P.C. was recorded and read over to the accused. The accused has denied the entire incriminating evidence made against him and he intended to lead his evidence. The accused got himself examined as DW1. Subsequently, after the orders passed by the Hon'ble Addl. City Civil & Sessions Judge in Crl. Appeal No.1076/2014, the accused led his further evidence and got produced the one document marked as Ex.D1 and closed his side of evidence.
8. I have heard the arguments and perused the documents. The learned Counsel for the accused has also filed his written arguments.
9. 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?
10. 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:
11. 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 5 C.C. 18776/2012 same, Complainant stepped into the witness box and got examined as PW1 and filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
12. He deposed that the Accused had borrowed the hand loan of Rs.4,00,000/- (Rupees Four Lakhs only) for his legal necessity by way of cash of Rs.2,00,000/- and Rs.2,00,000/- by way of cheque bearing No. 085432 dtd. 12.4.2008 and towards the part-payment of the loan amount, had issued a Cheque bearing No.208741 dated 21.04.2012 amounting to Rs.2,25,000/- (Two Lakhs and Twenty -five Thousand only) drawn on HDFC Bank, Banashankari Branch, Bangalore and on the assurance of the accused, he presented the said cheque before his banker for encashment but the said Cheque returned dishonored with an endorsement "Account Closed" on 25.04.2012 and the same was informed to him by his banker on 26.04.2012. He further deposed that he got issued the Legal Notice on 09.05.2012 through RPAD as the accused has failed to make payment of the cheque amount and said Notice was served upon the Accused on 16.05.2012. He deposed that even in spite of receipt of Legal Notice the Accused has neither chosen to make payment of the Cheque amount, nor he has sent his reply notice by denying the transaction.. He further deposed that the Accused knowing fully well that his account was already closed, 6 C.C. 18776/2012 issued a bogus Cheque with an intention to cheat him and thereby accused has committed an offence.
13. PW1 in order to prove his case got produced Cheque issued by this Accused marked as Ex.P.1, he deposed that the signature found on Ex.P.1 is that of this Accused, he got identified the signature of this Accused marked as Ex.P.1(a), he got produced bank endorsement marked as Ex.P.2. He got produced Copy of Legal Notice along with RPAD receipt, marked as Ex.P.3 and Ex.P.4 respectively. He got produced Postal acknowledgement due card for having served the notice marked as Ex.P.5. He got identified the Complaint marked as Ex.P.6.
14. The Accused denied the entire case of the Complainant and also denied the very fact that he had borrowed a hand loan amount of Rs.4,00,000/- from this Complainant and towards the part-payment of the loan amount, had issued Ex.P.1 cheque for Rs.2,25,000/- and his Cheque was bounced with a reason "Account Closed".
15. The Learned Counsel for the Accused subjected PW1 for cross examination and he extensively cross examined PW1 by denying his testimony. In the cross examination, the PW1 has denied the entire suggestions put to him and denied that there was no any direct loan transaction in-between him with this Accused for Rs.4,00,000/-. He 7 C.C. 18776/2012 denied the suggestion that he had not advanced loan amount of Rs.4,00,000/- to this accused. Though he admitted the suggestion that he advanced a sum of Rs.50,000/- to one Smt. Mangala Gowramma and a sum of Rs.2,60,000/- to one Sri Manjunath on the request of this Accused after taking loan from his Apex Bank and even admitted the suggestion that this accused assisted him to borrow loan from the Apex bank. However, he has categorically denied the suggestion that had advanced the loan amount to Smt. Mangala Gowramma and Sri Manjunath on the personal guarantee of this accused and for the security of the said loan amount, he insisted this accused to issue his cheque and accordingly, this accused for the security of the loan amount of Smt Mangala Gowramma and Sri Manjunath, had issued his Ex.P1 cheque for Rs.2,25,000/-.
16. He denied the suggestion that the said Smt. Mangala Gowramma and Sri Manjunath paid the interest at the rate of 5% on the loan amount for a period one year and subsequently, he insisted them to repay the entire loan amount and for his insistence the accused had paid a total sum of Rs.1,05,000/- by way of cash under 6 installments. He further denied the suggestion that as he insisted this accused to repay the entire loan amount, the accused after pledging the gold ornaments of his wife, had repaid the entire loan amount of Rs.2,25,000/- and even after receipt of entire loan amount, he has 8 C.C. 18776/2012 failed to return the cheque received from this accused towards the security of the loan amount of Smt. Mangala Gowramma and Sri Manjunath.
17. The accused during the cross-examination of PW1 has taken up the specific defence that he had already repaid the entire cheque amount of Rs.2,25,000/- on 3.6.2011 and even after receipt of entire cheque amount, the PW1 instead of returning his cheque, misused his cheque and filed this false complaint. Though the said defence was put to PW1 during his cross-examination. However, as I have discussed supra, PW1 has categorically denied the said suggestion put to him and denied that the accused is not liable to pay the cheque amount. He denied the suggestion that this Accused had also paid the interest at the rate of 5% per month to the loan amount of Smt Mangala Gowramma and Sri Manjunath for about one year as he stood as a guarantor to the loan amount of Smt. Mangala Gowramma and Sri Manjunath.
18. The Accused except putting some suggestions to PW1, which has been categorically denied by PW1, nothing has been elicited from his mouth to disbelieve his testimony or to discard his evidence. Though PW1 in his cross examination stated that he is well acquainted to Accused and out of acquaintance, he had advanced a hand loan 9 C.C. 18776/2012 amount of Rs.4,00,000/- to this Accused. On the contrary, he has categorically denied the suggestion that this Accused has not at all borrowed any loan from him and even he has not advanced any loan amount to this Accused.
19. PW1 in his cross examination denied the entire other suggestions put to him and denied that this Accused is not liable to pay the Cheque amount. The Accused except putting some suggestions to PW1, which has been categorically denied by PW1 has not chosen to deny a fact that Ex.P.1 Cheque is belong to him and even the signature found on Ex.P.1 marked as Ex.P.1(a) is that of him. This fact was not denied by the Accused. No suggestion was put to PW1 by denying the Ex.P.1 Cheque and also the signature found on Ex.P.1 Cheque marked as Ex.P.1(a). The accused even admitted the fact that his cheque was bounced when the same was presented for encashment on the ground that "account closed". The accused even did not chosen to deny a fact that he personally received the notice issued as per Ex.P3 u/Sec.138 (b) of N.I. Act as per Ex.P5 and even after receipt of Legal Notice, he neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. However, PW1 in order to prove that well within the period of limitation, he got issued statutory notice u/Sec.138 (b) of N.I. Act and 10 C.C. 18776/2012 the same was duly served upon this accused, got produced Ex.P3 to Ex.P5 documents.
20. These documents clearly proves that before filing of this Complaint, Complainant immediately after the receipt of Ex.P.2 endorsement well with in the period of limitation, got issued Ex.P.3 Legal Notice u/s. 138 of N.I. Act, calling upon the Accused to pay the Cheque amount and even inspite of receipt of Legal Notice the Accused has neither chosen to make payment of the Cheque amount nor he has sent his reply by denying the transaction. In such situation, an adverse inference can be drawn against this Accused that he after admitting the transaction and also admitting the contents of the notice that he had issued Cheque for repayment of the loan amount, he has kept quite with out resisting the claim of the Complainant. The oral and documentary evidence adduced before this Court by the Complainant clearly proves that the Accused even after receipt of Legal Notice, neither chosen to make payment of the Cheque amount nor he sent his reply by denying the transaction. Admittedly, the entire burden is on the Accused to rebut presumption available to this Complainant u/s. 139 of NI Act and also to prove his defense.
21. The accused in order to prove his defence, stepped into the witness box and got examined as DW1. The DW1 deposed that there 11 C.C. 18776/2012 was no any direct loan transaction in between him with this Complainant and he has not at all borrowed any loan from this Complainant. He had deposed that one Smt. Mangala Gowramma and Sri Manjunath @ Manjunatha Babu had borrowed financial assistance from this Complainant and he himself has taken Smt. Mangala Gowramma and Sri Manjunath @ Manjunatha Babu to this Complainant and on his assurance, the Complainant had advanced loan in favour of Smt. Mangala Gowramma and Sri Manjunath @ Manjunatha Babu. He deposed that the Complainant had collected a duly signed blank cheque from him for the security of the loan amount of Sri Manjunath @ Manjunatha Babu and Smt. Mangala Gowramma for Rs.2,25,000/-.
22. He deposed that subsequently on 3.6.2011 he repaid the entire loan amount of Rs.2,25,000/- to this accused in the presence of his wife and son and even after receipt of entire loan amount, the Complainant has failed to return his cheque on the ground that the cheque collected for the security of the loan amount, was misplaced and he will return the said cheque once he traced out the cheque. He deposed that the Complainant had also executed a receipt in his favour for having received the entire loan amount and he got produced the said document marked as per the direction of the Hon'ble Sessions Judge even though the said document was 12 C.C. 18776/2012 unstamped and xerox as Ex.D1. He deposed that the Complainant himself written the entire contents of the entire document in his own hand-writing. He further deposed that on 12.4.2008 he has not borrowed any loan from this Complainant and even on 12.4.2008 no amount has been deposited to his bank account.
23. He deposed that even though the Complainant had received the entire loan amount, misused his cheque, created the same as Ex.P.1 for Rs.2,25,000/- and filed this false Complaint before this Court and making false claim from him. DW1 prays to dismiss the complaint.
24. On the contrary, the Complainant has categorically denied the testimony of DW1 and his Learned Counsel subjected DW1 for cross examination. DW1 in his cross examination has categorically admitted that the Ex.P.1 Cheque is belong to him and even admitted that the signature found on Ex.P.1 marked as Ex.P.1(a) is that of him. He further admitted the suggestion that he has personally received the notice issued as per Ex.P3 and even admitted that the signature found on Ex.P.5 Postal Acknowledgement Due Card is that of him. Even though he has denied the suggestion the he had borrowed hand loan amount of Rs.4,00,000/- from this Complainant and for the repayment of the said loan amount, he had issued Ex.P.1 Cheque for Rs.2,25,000/. 13 C.C. 18776/2012
25. On the contrary, admittedly the Accused except adducing the oral evidence that he had issued his duly signed cheque as a security for the loan amount of one Smt. Mangala Gowramma and Sri Manjunath @ Manjunatha Babu, has not chosen to prove the same to the satisfaction of the court. The Accused has not chosen to examine the said Smt. Mangala Gowramma and Sri Manjunath @ Manjunatha Babu before this Court to prove his defence. No doubt the DW1 got produced Ex.D1 document before this court. On the contrary, the Complainant has seriously denied the execution of Ex.D1 document and also denied his signature found on Ex.D1. Admittedly, the Ex.D1 document is typed on a blank white paper and it is neither stamped document nor it is the original document. Admittedly, the Ex.D1 is the xerox copy of the document and this accused has not explained before this court about the original document nor he has proved the contents of the document.
26. Moreover, as I have discussed supra, the accused has not even chosen to examine Smt. Mangala Gowramma and Sri Manjunath @ Manjunatha Babu to prove the contents of the document. No doubt, the accused filed an application seeking to refer the Ex.D1 document to the Hand-writing Expert to prove the signature of the document. However, the court rejected his prayer on the ground that the Ex.D1 14 C.C. 18776/2012 document is neither the original document nor it is a stamped document.
27. Moreover, the Accused has not even chosen to issue any notice to PW1 immediately after he issued Ex.P.1 Cheque by clearly instructing him that he had issued Ex.P.1 Cheque for the security of the loan amount to Smt.Mangala Gowramma and Sri Manjunath @ Manjunatha Babu and therefore the same has not to be used for any other purpose. The Accused has not even chosen to send his reply even after receipt of Ex.P3 notice nor he has filed any application before his banker not to honour the Cheque, if the same is presented for encashment by this Complainant by clearly stating that he had issued said Cheque for the security of the loan amount of some third person in favour of this Complainant. In such situation, without any cogent evidence from the side of this Accused, mere oral testimony of DW1 that he had issued Ex.P.1 Cheque as a security for the loan amount of one Smt. Mangala Gowramma and Sri Manjunath @ Manjunatha Babu in favour of this Complainant for Rs.2,25,000/- and he by misusing the said cheque, filed this false Complaint with an intention to make an unlawful gain cannot be believable and acceptable. There is no cogent evidence from the side of this Accused to believe his defense. There is nothing on record to discard the evidence of PW1.
15 C.C. 18776/2012
28. As I have discussed supra, the entire burden is on this Accused to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. As I have discussed supra, there is no cogent evidence from the side of this Accused to believe his defense. Even at the stage when the Accused was questioned under Sec. 313 of Cr.P.C. the Accused except denying the incriminating evidence made against him by PW1, has not put forth any defence from his side. The Accused even did not chosen to convince this court why he has not taken any legal action against this Complainant for misusing his Cheque issued for the security of the loan amount of one Smt Mangala Gowramma and Sri Manjunath and even he has not initiated any legal action against this Complainant by alleging that even though he had received the entire loan amount along with interest thereon paid on behalf of Smt Mangala Gowramma and Sri Manjunath instead of returning the cheque, misused the cheque.
29. The defence taken by the Accused clearly makes out that he only with an intention to ran away form his liability to pay the Cheque amount and if he once admits to pay the Cheque amount he will be held liable to pay the Cheque amount had taken the false defense that he had issued Ex.P.1 Cheque in favour of this Complainant towards the security of the loan amount of one Smt. Mangala Gowramma and Sri Manjunath and subsequently, he repaid the entire loan amount 16 C.C. 18776/2012 to the Complainant on behalf of Smt. Mangala Gowramma and Sri Manjunath @ Manjunatha Babu.
30. Admittedly, the Accused has not chosen to prove his defence to the satisfaction of the court. The Accused has utterly failed to rebut the presumption available to this Complainant u/Sec. 118 and 139 of N.I. Act which reads as:
31. 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;17 C.C. 18776/2012
32. Likewise, he also failed to rebut the presumption available u/Sec.139 of N.I. 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.
33. There is no cogent and convincing evidence on record from this Accused to disprove the case of the Complainant and to discard the evidence of PW1. The Learned Counsel for the Complainant has vehemently argued that this Complainant has complied all the procedures prescribed u/Sec.138 of N.I. Act before filing of this Complaint. The Accused has not proved his defence that he has been falsely implicated in this case even though there was no loan transaction in-between them. He has argued that the Accused even after receipt of Legal Notice, has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction and therefore, by drawing an adverse inference against this accused that he after receipt of the liability by admitting the contents of the Legal Notice, did not resisted the claim of the Complainant. He has argued that the Accused only with an intention to ran away from his liability to pay the cheque amount, has taken up the false defence. He has argued that the Accused has neither denied the receipt of loan amount nor he has denied the issuance of Ex.P.1 18 C.C. 18776/2012 Cheque. The arguments canvassed by the Learned Counsel for the Complainant is fully convince this court.
34. On the contrary, the written arguments filed by the Learned Counsel for the Accused, is not also convinced this court. No doubt, he has vehemently stated in his written arguments that the Complainant has not produced any documents before this Court to prove the loan transaction with this Accused and even he has not produced documents before this Court to prove that he had advanced a sum of Rs.2,25,000/- by way of Cheque to this Accused. He has argued that the Complainant has utterly failed to discharge his initial burden before this Court and therefore, by considering all these facts, the Accused has to be acquitted.
35. He further stated that the Complainant except denying the Ex.D1 document, has not chosen to disprove the document. No doubt the Complainant denied his signature on Ex.D1 document by stating that the said signature is not that of him and he has not executed the said document. However, when the accused filed an application seeking refer to send the document for Handwriting Expert for comparison of the signature, the Complainant has seriously objected to allow the said application. The Complainant even has not challenged the orders passed by this court by rejecting the 19 C.C. 18776/2012 application filed by this accused to refer the cheque to Handwriting Expert.
36. He has argued that the Complainant knowing fully well that he himself has issued Ex.D1 document after receipt of the entire loan amount, did not challenged the execution of Ex.D1 document. He has argued that by considering all these facts and by holding that the accused by adducing oral and documentary evidence before this court, has proved that he had already repaid the cheque amount and after receipt of the cheque amount, the Complainant had issued Ex.D1 document, the accused has to be acquitted. His arguments is not convinced this court and it holds no merit.
37. As I have discussed supra, the accused except producing and marking Ex.D1 document, has failed to prove the execution of the document and he failed to examine the Smt. Mangala Gowramma and Sri Manjunath. In such situation, the arguments of the learned Counsel for the accused that the accused has proved the Ex.D1 document and based on the said document, the accused has to be acquitted, cannot be acceptable and it holds no merit. Likewise, the Judgment relied by the Learned Counsel for the Accused in support of his arguments reported in ILR 2008 KAR 3635 between 20 C.C. 18776/2012 K. Narayana Nayak v/s. Sri. M. Shivarama Shetty wherein it is held that;
"Negotiable Instruments Act, 1881 - Sec. 138 - Offence under
- Acquittal - Complainant's Appeal - Cheque issued not for discharge of any existing debt, but issued as a security for advancing loan - Presumption - Held, that the Cheque issued by the respondent to the appellant is only as a security and not for discharge of any existing debt. So far as a security and not for discharge of any existing debt. So far as the presumption as to issuance of the Cheque for consideration and in discharge of debt, the respondent/accused need not disprove the appellant's case in its entirety. He can discharge his burden on the basis of preponderance or probabilities through direct or circumstantial evidence, for which he can also rely on the evidence adduced by the Complainant - Evidence on record clearly establishes that the Cheque was not issued towards discharge of any legally enforceable debt, but the blank signed Cheque was issued as security - Order of acquittal is justified."
2009 CRI.L.J. 4460 Karnataka High Court between M/s. Matheson Bonsanquet v/s. K.V. Manjunatha wherein it is held that:
"Negotiable Instruments Act (26 of 1881), - Sec. 138 - Dishonour of Cheque - Cheque whether issued as security or discharge of any existing debt - but is towards security - not case of complainant as averred in complainant that Accused committed breach of contract - No offence u/s. 138 committed.
2011(3) AIR Kar R 434 between B. Girish v/s. S. Ramaiah wherein it is held that:
"Negotiable Instruments Act, (26 of 1881), - Sec. 19, 118, 138
- Dishonour of Cheque - Presumption as to legally enforceable debt - rebuttal of - Accused specifically denied monetary transaction - except Cheque no evidence produced to show that Accused had acknowledged receipt of money.21 C.C. 18776/2012
1998 Cri.L.J.906 (Andhra Pradesh High Court) between A. Boosanrao V. Purushothamdas wherein it is held that;
"Negotiable Instruments Act (26 of 1881),S.138 - Dishonour of cheque - Legally enforceable debt - Proof as to, necessary
- claim Complainant that he had lent huge amount by cheque - Accused denying same - Complainant failing to prove that he had sufficient capacity to lend said amount that too by cheque - Also he could not prove that such amount was actually drawn by accused - Accused not liable to be punished for offence under S.138. "
2012 (1) DCR 410 Gauhati High Court between Shri Jose Pulln @ Joseph P. Vs. Smt. Uma Jasrasaria wherein it is held that;
Negotiable Instruments Act, 1881, - Section 138 and 139 - Dishonour of cheque - Revision against acquittal - Validity
- Held - If accused has successfully rebutted statutory presumption against him by preponderance of probabilities and surrounding circumstances then there is no need to interfere in the judgment of acquittal - Revision dismissed". IV (2012) BC 322 (SC) Supreme Court of India between Rev.Mother Marykutty Vs. Reni C. Kottaram & Another wherein it is held that;
"Negotiable Instruments Act, 1881 - Section 138, 142 - Dishonour of cheque - Presumption - No circumstance warranting the execution of cheque in favour of respondent - It is not necessary for defendant to disprove the existence of consideration by way of direct evidence - Inference of preponderance of probabilities can be drawn not only from materials on record but also by reference to circumstances upon which he relies - Judgment of trial court to the effect that appellant sufficiently rebutted the initial presumption as regards the issuance of cheque under Sec.138 and 139 of Act, was perfectly justified - High Court has failed to discharge its onerous responsibility of considering the material evidence available on record- Conviction and sentence imposed in impugned judgment set aside." 22 C.C. 18776/2012
These judgments are also not applicable to the facts of the present case on hand and it will nowhere helpful to the defence of this Accused. The argument canvassed by the Learned Counsel for the Accused, is not convinced this court and it holds no merit.
38. The law laid down in these judgments are amply applicable to the facts of the present case on hand. There is no convincing evidence from the side of this Accused to believe his defence. On the contrary, the Complainant by adducing oral and documentary evidence before this Court, has proved that the Accused had borrowed loan and this Accused after admitting and acknowledging the loan transaction in order to repay the loan amount, had issued Ex.P.1 Cheque and the same was bounced when the same was presented before his banker for encashment with an endorsement "Account Closed" and even inspite of receipt of Legal Notice, the Accused has not chosen to make payment of the Cheque amount well with in the period of limitation. The Complainant by adducing sufficient evidence before this Court, has bring home the guilt of the Accused beyond all reasonable doubts. There is no whatsoever doubt in the mind of the 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 the case of 23 C.C. 18776/2012 Complainant. Therefore, by taking into consideration the facts and circumstances and evidence available on record, I answer this point No.1 in affirmative.
39. 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/s.255 (2) of Cr.P.C. the accused is hereby convicted for the offence punishable u/s. 138 of N.I. Act.
The accused is sentenced to pay a fine of Rs.2,55,000/- (Rupees Two Lakhs Fifty-five 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.2,50,000/- (Rupees Two Lakhs and Fifty 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 supply free copy of this Judgment to the Accused.
(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 1st day of June, 2016) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bangalore 24 C.C. 18776/2012 Annexure:
Witnesses examined on behalf of the Complainant:
PW.1 H. Govindaiah Witnesses examined on behalf of the Accused: DW1 Murthy B.
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 Legal Notice
Ex.P.4 RPAD receipt
Ex.P.5 Postal acknowledgement due card
Ex.P.6 Complaint
Documents marked on behalf of the Accused:
Ex.D1 Receipt
XIX ACMM, B'lore