Bangalore District Court
Hdfc Bank Ltd vs Kmp Constructions on 1 April, 2025
KABC030353712024
IN THE COURT OF XXXVIII ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU
~:PRESENT:~
SRI. VEERESH KUMAR C.K. B.A.L, LL.M, CC [Cyber Laws]
XXXVIII ADDL. CHIEF JUDICIAL MAGISTRATE
BENGALURU
C.C. No.20166/2024
Date Of Judgment: 1st day of April, 2025
M/s. HDFC Bank Limited
Branch office at:
Ground Floor, Rashtrothana Bhavan,
Municipal No.3/1, Ward No.77
Nrupathunga Road,
Bengaluru-560 001
Rep. By its Authorized Signatory
Mr.Hemanth Kumar.R ...Complainant
(By Sri.S.Ramakrishnan, Advocate)
----//VERSUS//----
KMP Constructions
Office at:
Vinayaka Extension behind
Mini Vidhana Soudha Arakala
Gudukote
Bangalore-573 102
Rep. By its Proprietor
Sri.Paramesh K.M ...Accused
(Rep. by Sri.A.S.Naveen, Advocate )
KABC030353712024 Judgment C.C No.20166/2024
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:: J U D G M E N T ::
T his case emanates from a private complaint filed by the complainant alleging that the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act, 1881 by issuing cheque for an amount of Rs.4,96,359/-, as the same was dishonored.
2. The Essential Facts:
It is the case of the complainant that it is banking company incorporated under the companies Act operating in the banking business. The complainant is represented by its Legal Manager. The complainant in the course of its financial services it had introduced commercial loan facilities for the benefit of its customers. Under the said scheme the accused had approached for commercial equipment retail loan and the complainant company sanctioned the loan and accused agreed to repay the loan amount in equated monthly installments. The accused a cheque bearing No.283659 dated 04/04/2024 KABC030353712024 Judgment C.C No.20166/2024
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for a sum of Rs.4,96,359/- towards discharge of his liability in part. When the said cheque was presented by the complainant for encashment, the same was returned with an endorsement as 'Exceeds Arrangement'. For which the complainant issued a demand notice to accused on 30/04/2024. The said notice was served on the accused on 02/05/2024. In-spite of the same, accused has not come forward to make payment. The accused have intentionally issued the cheque without sufficient balance in his bank account and thereby committed an offence U/S.138 of N.I.Act. Hence, the present complaint.
3. On presentation of the complaint, this Court has taken cognizance for the offence punishable U/sec. 138 of N.I. Act. The summons was issued to the accused. In pursuance to the service of summons, the accused has entered his appearance through his Counsel and was enlarged on bail. The accused also filed application U/S.145(2) of Cr.P..C to enter into defence against the case of the complainant. KABC030353712024 Judgment C.C No.20166/2024
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4. The complaint copies were furnished to the accused as per Sec. 207 of Cr. P. C. The plea was recorded under Sec. 251 of Cr.P.C. The accusation was read over to the accused and to which he has pleaded not guilty and claimed to be tried.
5. To substantiate the case, the Power of Attorney holder of the complainant is examined as PW.1 and has filed Affidavit in lieu of sworn statement and got marked documents as Ex.P.1 to P.8. After completion of the evidence of complainant, the statement of the accused U/Sec. 313 of Cr.P.C. was recorded. He has denied all incriminating circumstances appearing against him. The accused has not cross examined the complainant/PW.1, as a result cross of PW.1 was taken as Nil. The accused has not led the defence evidence on his behalf.
KABC030353712024 Judgment C.C No.20166/2024
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6. Heard the arguments of the learned counsel for the complainant and accused has not advanced any arguments. Meticulously perused the available materials on record.
7. Based upon the above materials the following points for consideration are as follows:
POINTS FOR CONSIDERATION
1) Whether the complainant proves that the accused have issued a cheque bearing No.286539 dated: 4/4/2024 in favour of complainant for sum of Rs.4,96,359/- in discharge of legally enforceable debt and same is dishonored with an endorsement as "Exceeds Arrangement" and thereby committed an offence punishable U/Sec. 138 of N.I. Act?
2) What order ?
8. The above points for consideration are answered as below:
Point No.1: In the AFFIRMATIVE Point No.2: As per final order, for the following:-
KABC030353712024 Judgment C.C No.20166/2024
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::REASONS::
9. On Point No.1: The narration of the entire averments of the complaint, as narrated at the inception, is desisted in order to avoid the repetition.
10. However, it is well settled that whenever complainant alleged that the accused has committed an offence punishable U/Sec.138 of N.I. Act, obviously, the complainant has to establish that there was a legally enforceable debt and to discharge the said legally enforceable debt, the accused has issued the cheque and subsequently the said cheque has been dishonored. Keeping in view of these main and important ingredients of section 138 of N.I. Act, proceed to discuss the evidence available on record.
11. As already been stated above, the complainant has examined its Authorized Signatory as PW.1. He has filed affidavit in lieu of his examination in chief U/Sec.145 of N.I. KABC030353712024 Judgment C.C No.20166/2024
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Act reiterating the entire averments of the complaint and got marked Ex.P.1 to 8.
12. The Ex.P.1 is the power of attorney, Ex.P.2 is the cheque bearing No.286589 dated 04/04/2024 for amount Rs.4,96,359/-, Ex.P.3 is the Bank Endorsement "Exceeds Arrangement", Ex.P.4 is the copy of Legal notice, Ex.P.5 is the postal receipt, Ex.P.6 is track consignment, Ex.P.7 is the account statement and Ex.P.8 is the Sec.65-B Certificate. On perusal of Ex.P.2, makes it clear that it supports the stand taken by the complainant. As per clause (a) of proviso to Sec.138 of N.I. Act the cheque is to be presented for encashment within the period of its validity from the date on which the cheque has been issued. The Ex.P.2 cheque bears the date 4/04/2024 and it was presented on 8/04/2024, which is within the prescribed period.
13. As per clause (b) of proviso to Sec. 138 of N.I. Act, the complainant is required to issue notice, in writing, to the KABC030353712024 Judgment C.C No.20166/2024
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drawer/accused making a demand for repayment of the said cheque amount within 30 days from the date of receipt of information about the dishonor of the cheque. Ex.P.4 is the copy of Legal notice, Ex.P.5 is the postal receipt, Ex.P.6 is track consignment. Thereby, it is found that the complainant has issued legal notice within 30 days from the date of knowledge of dishonor of cheque. Thus, the provisions of clause (a) & (b) of proviso to Sec.138 of N.I. Act have been complied with.
14. As per clause (c) of the proviso to Sec. 138 of N.I. Act, the drawer/accused is entitled to have 15 days time to make the payment of the cheque amount. Even after elapse of 15 days time for making payment the accused has not made payment. Further the clause (b) of Sec. 142 of N.I. Act makes it clear that the complaint has to be filed within 30 days from the date of cause of action arose. The endorsement made by this Court on the complaint reveals that the complainant KABC030353712024 Judgment C.C No.20166/2024
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presented the complaint on 3/06/2024 and as such, this complaint is well within the period of limitation. Therefore, this Court is of the considered opinion that the complainant has complied all the necessary components which attracts section 138 of N.I. Act. Even the accused has not challenged any of the mandatory requirements to be complied by the complainant.
15. As per the Judgment of Hon'ble Supreme in case of APS FOREX SERVICES PRIVATE LTD., vs. SHAKTI INTERNATIONAL FASHION LINKERS AND ORS., reported in [2020] ACR 457 wherein it is held that, once accused has admitted issuance of cheque which bears his signature, there is presumption that there exists legally enforceable debt or liability under Sec.139 of N.I. Act. In the present case the issuance of the cheque and the signature on the cheque is not disputed nor contested by the accused. The said decision is KABC030353712024 Judgment C.C No.20166/2024
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aptly applicable for raising presumption in favour of complainant.
16. Therefore, when once it is proved that the cheque belonged to the accused coupled with proof that the cheque bears the signature of the accused. The presumption must be that the cheque was issued for a legally enforceable debt or liability. As this Court holds that the complainant has proved the execution of Ex.P.2, cheque and the accused failed to rebut the presumption then this Court has to draw a presumption that the cheque has been drawn for lawful consideration. As a result, the presumption U/sec.139 of N.I. Act is drawn in favour of complainant.
17. The accused has not rebutted the presumption raised against him. The accused has not cross-examined the complainant witness nor challenged the documents exhibited by the complainant. Even the accused has not led the defence side evidence. There is nothing on record to doubt the case of KABC030353712024 Judgment C.C No.20166/2024
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the complainant and documents. In view of the same there is absolutely no embargo to consider the case of the complainant to hold that the accused is guilty of the alleged offence.
18. It is now fairly settled by catena of decisions of the Hon'ble Apex Court that the presumption under Section 139 of the N.I. Act extends even to the existence of the debt and it is for the drawer of the said cheque to rebut the said presumption. Of course, it is also fairly well-settled that the accused is not required to prove his defence beyond reasonable doubt. The standard of proof regarding the defence plea is one of preponderance of probabilities. But in the present case the accused has even failed to establish preponderance of probability of defence in his favour nor to create a doubt about the case of the complainant.
19. From the evidence on record, it is clear that the accused has failed to rebut the presumption and complainant has proved the existence of the legally recoverable debt and KABC030353712024 Judgment C.C No.20166/2024
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also issuance of cheque for discharge of the said debt. Admittedly the complainant has complied with all requirements of Section 138 of the N.I. Act. The statutory notice as required by law had been issued. The version of complainant is certain and stands proved. Hence, the above point is answered accordingly.
20. On Point No. 2 : In view of the above findings the accused is found guilty for the offence punishable under Section 138 of N.I. Act. It is just and proper to sentence the accused to pay fine equivalent to the cheque amount along with appropriate penalty. Thereby, proceed to pass the following:
:: ORDER ::
• In exercise of Sec. 264 of Cr.P.C., the accused is convicted for the offence punishable U/Sec. 138 of N.I. Act and sentenced to pay fine of Rs.5,10,000/-, and in default of payment of fine the accused is KABC030353712024 Judgment C.C No.20166/2024
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sentenced to undergo simple imprisonment for a period of one year.
• Out of fine amount of Rs. 5,10,000/- a sum of Rs. 5,00,000/- shall be paid to the complainant as compensation as per Section 357 (3) of Cr.P.C and the remaining amount is defrayed to the state as its expenses.
• Office is directed to supply the copy of this Judgment to the accused, free of cost. (Dictated to the Stenographer on computer, typed by him, same was corrected by me and then pronounced in the Open Court, on this the 1st day of April, 2025.) (VEERESH KUMAR C.K.) XXXVIII ADDL.C.J.M., BENGALURU.
KABC030353712024 Judgment C.C No.20166/2024
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ANNEXURE
1. List of Witnesses examined for Complainant:
PW.1: Mr.Hemanth Kumar.
2. List of Witnesses examined for Defence:
- Nil -
3. List of Documents marked for Complainant:
Ex.P.1 : Power of Attorney Ex.P.2 : Cheque Ex.P.3 : Bank Endorsement. Ex.P.4 : Legal notice Ex.P.5 : Postal receipt. Ex.P.6 : Track consignment Ex.P.7 : Account statement. Ex.P.8 : Sec.65-B Certificate.
4. List of Documents marked for Defence:
- Nil -
(VEERESH KUMAR C.K.) XXXVIII ADDL.C.J.M., BENGALURU.