Bangalore District Court
Sri.Kondappa.K.V vs Sri. G. Rajanna on 5 February, 2020
1 C.C.No.29208/2015 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 5th day of February, 2020
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.29208/2015
Complainant : Sri.Kondappa.K.V,
S/o.Venkataramanappa,
Aged about 42 years,
Occupation : Tailor,
Residing at Kuppahalli Village,
Nandi Hobli,
Chikkaballapura Taluk and
District,
(Rep.by Sri. Shankar Prasad, B.V
Adv.,)
- Vs -
Accused : Sri. G. Rajanna,
S/o.Gundachari,
Aged about 59 years,
Occupation : KSRTC Employee
No.13, 2nd Main,
Near Railway Station,
Nayandahalli,
Mysore Road,
Bengaluru -560 039.
(By Sri. V.Krishnan., Adv.,)
2 C.C.No.29208/2015 J
Case instituted : 10.6.2013
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 5.2.2020
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, Accused is known to him as such in the month of August 2012 he approached and sought for hand loan of Rs.3 Lakhs stating that, he had to get the revenue documents in respect of his lands situated at Bengaluru and also was in need of funds, however at that time he was not having such huge amount and requested the Accused to come in the first week of September 2012, so that, he could arrange the funds accordingly during the first week of September the Accused approached him along with his children R. Lepakshi and R. Raviraj and issued a sum of Rs.3 Lakhs from him and assured to 3 C.C.No.29208/2015 J repay the said amount within five months and in that regard the Accused and his children have executed an agreement in his favour and also handed over original title deed in respect of his property as security by assuring to repay the said amount within five months along with interest at the rate of 3% p.m, thereafter expiry of the said time, he approached the Accused and his children but the Accused stated that, amount is ready and asked him to return the agreement and release deed and accordingly he return the original agreement and release deed to the Accused and in turn the Accused issued a cheque bearing No. 395024 dated: 1.3.2013 drawn on Syndicate Bank, Kengeri Satellite town branch, Bengaluru for sum of Rs.3 Lakhs in his favour and promised to honour the said cheque on its presentation and requested some time to pay the interest amount. It is further contended by the complainant that, as per the instructions of the Accused he has presented the said cheque through his bankers i.e Canara Bank, but the said cheque came to be returned with a shara "Payment stopped by Drawer" on 5.3.2013 immediately he has intimated the status of the cheque and demanded 4 C.C.No.29208/2015 J the Accused and his children to pay the amount but they went on postponing the same by one pretext or the other, hence he got issued legal notice dated:
13.3.2013 to the Accused through RPAD which was duly served on him for which the Accused neither replied nor repaid the said amount. Hence he has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the averments of the complaint and has produced original documents.
4. Prima-facie case has been made out against the accused and summons was issued against the accused in turn he has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to him, to which he pleaded not guilty and claims to be tried.
5. Thereafter the complainant himself examined as PW.1 by filing his affidavit in lieu of 5 C.C.No.29208/2015 J examination in chief and in support of his oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.5 i.e, the Original Cheque dated: 1.3.2013 as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank Memo as per Ex.P.2, the copy of Legal Notice as per Ex.P.3, the Postal Receipt as per Ex.P.4 and postal acknowledgement as per Ex.P.5 and closed his side.
6. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence appearing against him and has chosen to lead his rebuttal evidence subsequently the Accused examined himself examined as DW.1 and during the course of cross-examination of PW.1, Accused has got marked the documents i.e. personal bond executed by the Accused and his vakalathnama as per Ex.D.1 and D.2 and the signatures of the Accused are marked as per Ex.D.1(a) and D.2(a) respectively. But inspite of sufficient opportunities given to the Accused he did not turned up for cross- examination, hence on 23.10.2019 it is ordered that, 6 C.C.No.29208/2015 J DW.1 did not offer for his cross-examination and defence evidence taken as closed. In support of his oral evidence, he has produced and marked the documents i.e. true copies of the complaint dated:
13.2.2013, acknowledgement issued by the Chandra Layout Police, Affidavit and copy of the letter of Stop payment instructions issued by her to her bank on 12.2.2013 are marked as per Ex.D.1 to D.4 respectively.
7. Thereafter the case was posted for arguments but both learned counsel for the complainant and Accused have not addressed their arguments and perused the materials on record.
8. On the basis of complaint, evidence of complainant and documents the following points that are arise for consideration are:-
1. Whether the complainant proves that the accused has issued cheque bearing. No.395024 dated:
1.3.2013 for sum of Rs.3 Lakhs drawn on Syndicate Bank, Kengeri Satellite town, Bengaluru, to discharge legally recoverable debt to the complainant and when the complainant has 7 C.C.No.29208/2015 J presented cheque for encashment through her banker but the said cheque has been dishonoured for the reasons "Payment Stopped by Drawer" on 5.3.2013 and the complainant issued legal notice to the accused on 13.3.2013 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
9. The above points are answered as under:
Point No.1: In the Affirmative Point No.2:As per final order for the following:
REASONS
10. Point No.1 : Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to 8 C.C.No.29208/2015 J presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act pre-supposes conditions for prosecution of an offence which are as under:
1. Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
2. Cheque shall be presented for payment within specified time i.e., from the date of issue before expiry of its validity.
3. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
4. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.9 C.C.No.29208/2015 J
If the above said conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer in respect of bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
11. It is also one of the essential ingredient of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e.,U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and or rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena 10 C.C.No.29208/2015 J of decisions.
12. In the present case the complainant got examined as PW.1 by filing her affidavit evidence wherein the complainant has reiterated the entire averments of the complaint, the complainant/PW.1 in her evidence testified regarding the lending of loan amount and in turn the Accused in order to repay the loan amount has issued a bearing cheque bearing. No.395024 dated: 1.3.2013 for sum of Rs.3 Lakhs drawn on Syndicate Bank, Kengeri Satellite town, Bengaluru, The complainant/PW.1 further testified that, he has presented the cheque issued by the Accused through his banker but the same was dishonoured for "Payment stopped by drawer" on 5.3.2013 thereafter he got issued legal notice to the accused on 13.3.2013 but the same was duly served on the Accused inspite of it he did not repaid the amount or complied the terms of the notice.
13. In support of the oral evidence of the complainant, he produced the i.e, the Original Cheque dated: 1.3.2013 as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the 11 C.C.No.29208/2015 J accused as per Ex.P.1(a), the Bank Memo as per Ex.P.2, the copy of Legal Notice as per Ex.P.3, the Postal Receipt as per Ex.P.4 and postal acknowledgement as per Ex.P.5 and closed his side.
14. In the present case, the Accused has disputed his acquaintance with the complainant and has also disputed the signature appearing on the cheque is not of his signature but he admits that, the cheque in question i.e. Ex.P.1 belongs to his account. The Accused has also disputed the loan transaction in question and the issuance of cheque to the complainant towards discharge of debt as claimed by the complainant. The Accused has not disputed the service of notice issued by the complainant on him. The Accused has not disputed the cheque in question presented to the bank by the complainant and same has been dishonoured for the reason of payment stopped by drawer as per the endorsement issued by the banker i.e. Ex.P.2. Hence, by the admitted facts of the Accused it can be held that, there is no dispute by the Accused with regard to cheque in question belongs to his account i.e Ex.P.1 cheque and the said cheque has been 12 C.C.No.29208/2015 J presented by the complainant within its validity period and same has been dishonoured for the reason of payment stopped by drawer" as per Ex.P.2. it is also not in dispute by the Accused that, as per Ex.P.3 the complainant has issued legal notice within 30 days from the date of receipt of endorsement from the bank through RPAD and the said notice was served on the Accused as per postal acknowledgement i.e Ex.P.5 as the Accused has not disputed his signature on Ex.P.5, hence the Accused has received the legal notice caused by the complainant by affixing of his signature on Ex.P.5. The main defence of the Accused is that, the signature appearing on the disputed cheque i.e Ex.P.1(a) is not of his signature and the complainant by misusing his cheque has filed the present complaint against him.
15. Therefore the initial burden is on the complainant to discharge his burden by complying the mandatory provisions of the sec.138 of N.I. Act and to show that, the presumption envisaged U/s.118 and 139 are available in his favour, consequently it is for the accused to rebut the 13 C.C.No.29208/2015 J presumption available in favour of the complainant by producing cogent and convincible evidence but not by mere suggestion or even by plausible explanation. In order to prove the signature of the Accused on the cheque in dispute i.e Ex.P.1(a) the complainant in his evidence has stated that, the accused in order to get the revenue documents and he was in need of funds has availed a loan of Rs.3 Lakhs from him and towards discharge of said liability the Accused had issued a cheque in question i.e. Ex.P.1 for Rs.3,00,000/= in his favour and the said cheque was presented for encashment through his banker, but it was returned dishonoured with an endorsement of "payment stopped by drawer". In order to substantiate his oral evidence, the complainant has produced original cheque in dispute and memo issued by the Accused' s banker which are at Ex.P.1 and P.2. On careful perusal of the Ex.P.2 i.e. the return memo issued by the banker of the Accused, as the cheque in dispute got dishonoured for the reason of Payment stopped by drawer".
16. The Accused in his defence has taken 14 C.C.No.29208/2015 J specific contention that, he has not issued the cheque in question to the complainant i.e. Ex.P.1 and signature appearing on the Ex.P.1 i.e., Ex.P.1(a) is not of the Accused, therefore the Accused has not signed on the cheque in question and has not issued the cheque to the accused towards discharge of alleged recoverable debt or liability. It is also the defence of the Accused that, the complainant has miserably failed to prove that, the signature appearing on the cheque in dispute is that of the accused and the cheque was issued towards legally recoverable debt. In this regard, the Accused has filed an application U/s.45 of Indian Evidence Act for referring the signature appearing on Ex.P.1 i.e. Ex.P.1(a), his bail bond, his signatures found on his evidence and on his vakalathnama and specimen signatures of the Accused to the expert opinion i.e., to the FSL and call for the report of the expert and the said application was came to be allowed by this court and the signature appearing on the cheque and admitted signatures of the Accused as referred in the application and signatures of the Accused on contemporary documents were referred to the Truth Labs Forensic Science Laboratory, Bengaluru for 15 C.C.No.29208/2015 J getting opinion from hand writing expert by comparison of the signatures i.e., admitted and disputed signatures. Thereafter examination of the admitted and disputed signatures by expert namely Sri. Shankarappa Mural, Expert, Truth Labs Forensic Services, Bengaluru submitted a report along with his opinion to the court. The handwriting expert in his opinion submitted that, the person who wrote the enclosed standard signatures which are marked as Ex.D.29, S.1 to S.18 (i.e. admitted signatures of the Accused on vakalathnama, plea, Accused statements, and specimen signatures) did not write the enclosed questioned signature marked as Ex.P.1(a). Therefore according to the handwriting expert submitted his opinion that, the person who wrote the admitted signatures of the Accused i.e. marked as Ex.D.29, S.1 to S.18 did not write the disputed signature which is marked as Ex.P.1(a).
17. It is relevant here to mention that, before considering the defence of the Accused in respect of opinion of the hand writing expert it is just and proper to consider as to whether the opinion of hand writing expert is conclusive or it is binding on the 16 C.C.No.29208/2015 J court. It is settled law that, opinion of hand writing expert neither conclusive nor is binding on the court and the court is required to approach the opinion of hand writing expert cautiously and investigate the reasons for expert's opinion and further to consider all other relevant evidence along with the expert's opinion and there upon either to accept or reject the opinion of the hand writing expert. This principles of law is laid down by Hon'ble Apex court of India in several decisions mainly in a decision reported in AIR 1963 SC 1728 in the case of Ishwari Prasad Vs. Mohammod ISA., wherein the Hon'ble Apex Court held that "Evidence given by experts of hand writing can never be conclusive, because it is after all opinion evidence. Since we have come to the conclusion that, the evidence given by the attesting witnesses and the scribe and the appellant is wholly satisfactory that evidence proves the execution of the document by the respondent and the said evidence does not really need to corroborated by the opinion of expert." Hence the ratio laid down by the Hon'ble Apex court of India in the decision is clear that, before accepting or rejection of the opinion of hand 17 C.C.No.29208/2015 J writing expert, the court has to consider the other relevant evidence produced by the parties and the opinion of the expert is not conclusive or binding on the court, therefore the court can either accept or reject the opinion of expert by considering the entire evidence and material available before the court.
18. It is also relevant here to mention that, whether the finger print or hand writing expert is required special study of subject or shall acquire special experience on the subject or an expert must be skilled and has adequate knowledge of the subject to give opinion on particular subject or not, this principles of law laid down by Hon'ble Apex Court in a decisions reported in AIR 1977 SC 1694 in the case of Laxmichand Khajuria and others Vs. Smt. Ishroo Devi and in AIR 1999 SC 3138 in the case of State of Himachala Pradesh Vs. Jailal and others. Hence in view of principles of law laid down by the Hon'ble Apex Court in the said decisions, it is settled law that, in order to rely on the evidence of expert, the court must be fully satisfied that, he/she truthful witness and reliable witness fully adopted in the art of identification of 18 C.C.No.29208/2015 J hand writing in order to opine the disputed hand writing has been made by a particular person or not., this proposition of law held by Hon'ble Apex Court of India in a decision reported AIR 1979 SC 1011 in Kanchinsing's case. it is also relevant here to refer the decision of Hon'ble Apex court of India decided in Civil Apepal No.7818-7819/2009 in the case Chennadi Jalapathi Reddy Vs. Baddampratap Reddy (Dead) Thr Lrs., and Anr.,dated: 27.8.2019 wherein in the Hon'ble Apex court held that " It is the duty of the court to approach opinion evidence cautiously while determining its reliability and that, the court may seek independent corroboration of such evidence as a general rule of prudency, clearly, these observations in Murari Lal (Supra) and Alamgir (Supra) do not go against the proposition stated in Shashikumar Banerjee (Supra) that, the evidence of a hand writing expert should rarely be given precedence over substantiation evidence". Therefore while accepting the opinion of the expert the court must always be received with care and caution and it is unsafe to base a judgment purely on the expert 19 C.C.No.29208/2015 J opinion without corroboration and in order to rely the evidence of expert the court must be satisfied that the witness is experienced in the art of comparison of hand writing.
19. In the present case admittedly the Accused has not examine the expert who has submitted the report and it is also true that, the complainant has not filed objections to the report submitted by the expert. It is true that, the report submitted by the expert discloses that, the expert on examination of admitted signatures i.e. Ex.D.29 and S.1 to S.18 and disputed signature on the cheque i.e. P1(a) had given opinion that, the person who wrote the standard signatures marked as Ex.D.29 and S.1 to S.18 did not write the questioned signature marked as Ex.P.1(a) i.e. signature on the disputed cheque. But in order to accept the report submitted by the expert, the examination of expert is necessary, as already stated in the above referred decisions of Hon'ble Apex Court that in order to rely on the evidence of an expert, the court must be fully satisfied that, expert is truthful witness and reliable witness fully adopted in the art of identification of 20 C.C.No.29208/2015 J hand writing in order to opine the disputed hand writing has been made by the particular person or not. In the present case that, the report submitted by the expert is very much necessary as the Accused has taken specific defence that, the signature appearing on the disputed cheque i.e. Ex.P.1(a) is not of his signature, hence in order to prove the said defence, the expert's report who has conducted the investigation and come to the conclusion that, the questioned signature did not wrote by the person who had wrote the admitted signatures is necessary, unless and until the expert examined, the court cannot accept the report submitted by an expert, as entire defence of the Accused is rests on the report of the expert.
20. On perusal of the report submitted by the expert it appears that, the expert before coming to the conclusion and giving opinion has mentioned reasons at page No.3 to 5 of the report and also mentioned the factual aspects regarding examination of the disputed and admitted signatures by using scientific aids, hence the said factual aspects need to be explained by the expert. It is already stated in the 21 C.C.No.29208/2015 J above decision of Hon'ble Apex court of India i.e. in AIR 1999 SC 318 State of Himachal Pradesh Vs. Jailal and others., wherein Hon'ble Apex court held that " an expert is not a witness of fact and his/her evidence is really of an advisory and the duty of expert witness is to furnish the information to the judge to form his independent judgment. It is also held that, the report submitted by an expert does not go in evidence automatically; he is to be examined as a witness in the court and has to face cross examination". Hence, in the present case also the evidence of expert is very much necessary to accept his opinion given in the report. But admittedly the Accused in this case has not been examined the expert to prove the fact that, the expert who has submitted the report is skilled one and had adequate knowledge of subject and while examining the disputed and admitted signatures referred by the court fully adopted in the art of identification of hand writing in order to give his opinion about disputed hand writing has been made by Accused or not. Therefore, the accused has miserably failed to establish that, the court can rely the report submitted by the expert 22 C.C.No.29208/2015 J as it was prepared by the expert by adopting art of comparison of hand writing and the expert is having special knowledge in respect of identification of handwriting and had special study or scientific study of forensic science by examining the expert, hence for the said reasons the defence taken by the Accused cannot be acceptable one and without examining the expert who has submitted the report in this case straightaway the opinion formed by the expert cannot be accepted by the court.
21. It is relevant here to mention that, the accused during the cross examination of complainant has specifically denied his signature on the cheque in dispute. But in his evidence he has stated that, he has not borrowed any loan from the complainant and has not issued disputed cheque for repayment of alleged loan and as on the date of alleged issuance of cheque in question he was not at all in possession of his cheques, since he had lost his pass book, ration card and cheque book, voter I.D. and stamp paper which were kept in his bag in the month of February 2013 and to that effect he had lodged the complaint before the Kengeri and 23 C.C.No.29208/2015 J Chandra layout police station.
22. It is relevant here to mention that, though the Accused has denied his signature on the cheque in dispute and also issuance of the cheque to the complainant but in his evidence he nowhere denied the cheque belongs to his account and he lost signed blank cheque and which is the subject cheque and also not stated how the cheque in question came in to the hands of complainant, in such circumstances it is relevant here to refer the decisions of Hon'ble Apex Court of India reported in 1999(3) SCC 376 in the case of "L.C. Goyal Vs. Suresh Joshi(Mrs) and Ors" wherein Hon'ble Apex Court held that, "drawer denied his signature on the cheque and pleaded that, he could not be held responsible unless opinion of hand writing expert was obtained, but when cheque bounced for want of funds, the plea of forged signature cannot be accepted". In another decision reported in ILR 2006 KAR 2958 in a case of "Rajendraprasad Vs. M.Shivaraj" wherein the Hon'ble High Court held that B. Negotiable Instrument Act, 1881 - Sections 138, 139 - signature of the accused on 24 C.C.No.29208/2015 J cheque denied - No discrepancy of the signature with the specimen signature. In the banks intimation- Whether mere denial of the signature of the accused on the cheque sufficient for acquittal- competency of persons to speak about the signature of the accused- HELD - The banker of the accused is more competent person to say whether it is the signature of the accused or not with reference to the specimen signature. In the banks intimation, the discrepancy of the signature with the specimen signature is not the ground for dishonour. In the instant case, the banker does not mention that, the signature is discrepancy of the signature with the specimen signature is not the ground for dishonour. In the instant case, the banker does not mention that, the signature is discrepant and does not tally with the specimen signature. Therefore, the self- serving denial of signature in the cheque cannot be a good evidence to come to the conclusion that, the signature on the cheque is not that of the accused. The bankers no objection for the signature in the cheque is one of the strongest 25 C.C.No.29208/2015 J circumstances to corroborate that, the signature on the cheque is that of the accused. The possession of the lose cheque with the complainant suggests an inference of endorsement and delivery of inchoate instrument which impliedly admit the issuance of cheque in favour of the complainant. Hence on careful reading of principles of law laid down by the Hon'ble High court of Karnataka in the above referred decisions, it is clear that, when the accused disputed his signature on the cheque, then the court can consider the endorsement issued by the banker on the Memo and if in the bank's intimation, the discrepancy of the signature with the specimen signature is not the ground for dishonour, then the signature appearing on the cheque is one of the strongest circumstances to corroborate that, the signature on the cheque is that of accused and it is also held that, the possession of the cheque with complainant suggest an inference of endorsement and delivery of inchoate instrument which impliedly admits the issuance of cheque in favour of the complainant.
26 C.C.No.29208/2015 J23. In the present case also though the accused has denied his signature and issuance of the cheque infavour of the complainant, but nothing has been produced by him to show that, how the cheque in question was come in possession of the complainant and bank intimation which is at Ex.P.2 discloses the fact that, the cheque in question was dishonoured for the reason of "Payment stopped by Drawer" but not "signature differs" therefore in view of the principles of law laid down by the Hon'ble Apex Court and High Court of Karnataka in the above referred decisions, it can be safely held that, the denial of signature by the accused is only self serving denial of his signature that, cannot be a good evidence to come to a conclusion that, the signature on Ex.P1(a) is not that of the accused. In view of the principles of law laid down in the decisions, even it is not necessary for the complainant to examine the bank manager as a witness to prove the fact that, the signature appearing on the cheque is that of the accused, since the accused during the cross examination of PW.1 has not denied the endorsement issued by banker as per Ex.P.2. Therefore the complainant has 27 C.C.No.29208/2015 J discharged his initial burden that, the signature appearing at Ex.P.1(a) is that of the accused.
24. It is also relevant here to mention that, the accused in his defence except denial of the claim of the complainant has not stated how the disputed the disputed cheque entered into the hands of complainant. If the accused has failed to explain the circumstances, under which the Ex.P.1 i.e., disputed cheque came in possession of the complainant, hence failure to do so also entitles in drawing adverse inference against the accused. This proposition of law finds support from the decisions of Hon'ble High Court of Karnataka reported in 2010(1) KCCR 176 in the case of "Siddappa Vs. Manjappa". In another decision of Hon'ble Apex court of India decided in Crl.A.No.664 of 2012 dated: 19.9.2019 in the case of "M.Abbas Haji Vs. T.M.Chennakeshava" held that, " the Accused has to explain how the cheque entered into the hands of complainant". Hence in the present case also the Accused has failed to explain how the cheque in question was entered into the hands of complainant.
28 C.C.No.29208/2015 J25. It is also relevant here to mention that, as already held in the above that, the complainant has proved tht, the cheque in question i.e. Ex.P.1 was issued by the accused and signature appearing on cheque i.e. Ex.P.1(a) is that of the accused and the complainant was presented the said cheque and it was returned with an endorsement of "Payment stopped by Drawer, thereafter the complainant got issued legal notice to the Accused and the said notice was served on the Accused but the Accused has not given any reply to the notice and thereafter the complainant has filed the complaint against the Accused. It is also important to note that, the accused has specifically denied the financial capacity of the complainant to lend the loan to the accused either by producing the document or by disclosing the alleged loan transaction. The learned counsel for the Accused has cross examined the complainant/ PW.1 in length but nothing has been elicited to discard or disbelieve his evidence. The complainant/ Pw.1 has specifically stated that, the Accused approached him in the 1st week of September 2012 seeking loan and he has lent the amount to the Accused in the month of September 2012. It is also 29 C.C.No.29208/2015 J stated by the complainant that, at the time of lending the loan amount the Accused has executed an agreement in respect of lending of loan amount but he has not produced the said agreement before the court as the original agreement is with the Accused and he has taken back the said agreement by issuing the cheque to him, hence the explanation offered by the complainant for non production of the agreement executed by the Accused at the time of receiving the loan amount from the complainant can be acceptable one as he has produced the cheque in question. It is true that, the complainant has admitted that, he has not produced the document to show that, he had the loan amount lent to the Accused but he volunteers that, he had the amount by way of selling his land and he has not produced the said document before the court. But as it is held in the above that, the complainant has proved that the cheque in question was issued by the accused to him and the signature appearing on the cheque is that of the accused, therefore, the complainant has discharged his initial burden that was casted upon him and a presumption can be drawn in favour of the complainant as required U/s.118(a) and 139 of 30 C.C.No.29208/2015 J the N.I. Act. Now it is for the accused to rebut the presumptions as available infavour of the complainant by producing cogent and convincible evidence not by mere suggestions or plausible explanation. In this regard it is relevant here to refer the decisions reported in 2001 AIR Karnataka HCR 2154 between 'M/s.Devi Tyres V/s.Navab Jan' and in 2011 ACD 1521 (KAR) between 'Smt. Usha Suresh V/s. Shashidharn', in 2010 SC 1898 between 'Rangappa Vs. Mohan' and 2011 ACD 1412 (KAR) between 'N.Hasainar Vs. M.Hasainar, S/o. Ibrahim'. The Hon'ble High Court of Karnataka in the above decision i.e., 2001 AIR Karnataka HCR 2154 at para No.6 was pleased to hold that issuance of cheque itself was adequate proof of existence of debt or liability. The Hon'ble Apex Court has also held in the decision referred above, the Hon'ble Apex Court in 2010 SC 1898 in case of 'Rangappa Vs. Mohan' that, presumptions U/sec.118(a) and 139 of N.I. Act indeed does extend to the existence of legally recoverable debt, of course the said presumption is rebuttable one, the accused has to rebut the presumption by taking probable defence. In another decision of Hon'ble Apex Court 31 C.C.No.29208/2015 J of India, reported in CRIMINAL APPEAL NO. 508 OF 2018 DT 15-03-2018 between ROHITBHAI JIVANLAL PATEL Vs STATE OF GUJARAT AND ANR held that "Negotiable Instruments Act facts like source of funds are not relevant if the Accused has not been able to rebut the presumption. It is further held that " When such a presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the Accused has been able to rebut the presumption or not". In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, " Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is 32 C.C.No.29208/2015 J duly signed by the drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. It is also held that, " the accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the Trial Court and High Court. Both courts not only erred in law but also committed perversity when the due amount is said to be disputed only on the account of discrepancy in the cartons, packing materials or the rate to determine the total liability as if the appellant was proving his debt before the civil court. Therefore it is presumed that, the cheque in question were drawn for consideration and the holder of the cheques received the same in existing debt". It is also held that, " the Trial court and the High Court proceeded as if, the appellant is to prove a debt before civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for 33 C.C.No.29208/2015 J the recovery of the amount due. A dishonour of cheque carries statutory presumption of consideration. The holder of cheque in due course is required to prove that, the cheque was issued by the Accused and that when the same presented , it was not honoured Since there is a statutory presumption of consideration, the burden is on the Accused to rebut the presumption that, the cheque was issued not for any debt or other liability ". It is also relevant here to refer the decision of Hon'ble High Court of Karnataka reported in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption mandated by Sec.139 of N.I Act includes the presumption that, there existed a legally enforceable debt or liability, however such presumption is rebuttable in nature". In another decision of Hon'ble High Court of Karnataka in the case of Shri.V.R.Shresti Vs. Shri. Bhaskara.P. in Crl. Appeal No. 2109/2017 dated: 15.10.2019 wherein the Hon'ble High Court of Karnataka held that "the Accused has not given any reply to the notice and also in the cross-
34 C.C.No.29208/2015 Jexamination, he categorically admits that, the cheque has bounced on account of no sufficient fund in the bank account of the Accused. Mere non producing of the document before the court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The Accused ought to have rebutted the contention of the complainant by producing cogent evidence before the court and mere denial is not enough".
26. Therefore on careful reading of the principles of law laid down by the Hon'ble Apex Court of India and High Court of Karnataka in the above referred decisions makes it very clear that, once the holder in due course i.e. the complainant proved that, the cheque in question belongs to the drawer and signature appearing on the cheque is that of the drawer i.e., Accused and complied the mandatory requirements as required U/s.138 of N.I.Act, a presumptions U/s.118a and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt and when such presumption is drawn the facts relating to the want of documentary 35 C.C.No.29208/2015 J evidence in the form of receipts or accounts or want of evidence regarding source of funds were not of relevant unless the Accused rebutted the presumption available to the complainant as held by the Hon'ble Apex Court and High Court of Karnataka in the above decisions. In the present case also the complainant has complied mandatory requirements and has proved that, the Accused has issued the cheque in question in his favour and the Accused has admitted the cheque belongs to him and even after service of the notice, the Accused has not given any reply or complied the terms of the notice, in such circumstances, presumptions have to be drawn towards existence of legally enforceable debt as per Sec.139 of N.I.Act. Therefore for the above said reasons the defence of the Accused that, the complainant has not produced any document to prove his source of income and has lent loan amount in question to the Accused and in turn the Accused has issued cheque in question to the complainant towards discharge of debt in question cannot eb acceptable one.
27. The Accused in order to rebut the 36 C.C.No.29208/2015 J presumption available to the complainant U/s.118 and 139 of N.I. Act himself examined as DW.1. The Accused in his evidence deposed that, he do not know the complainant and has not sought for any loan amount from the complainant and has not issued any cheque in his favour, as on the date of alleged issuance of the cheque he was not at all in possession of his cheques, since he had lost his pass books, ration card, cheque book, voter I.D. card and stamp paper which he had kept in a bag and the said documents were lost in February 2013 while boarding the train near his house and in this regard he lodged the complaint before the Kengeri and Chandra Layout Police station. In support of his oral evidence has produced the true copies of the complaint dated: 13.2.2013, acknowledgement issued by Chandra Layout police, affidavit and copy of the stop payment issued by him to his bank on 12.2.2013 which are marked as Ex.D.1 to D.4 respectively.
28. It is relevant here to mention that, the Accused after his examination in chief when the case was posted for his cross-examination he did not 37 C.C.No.29208/2015 J turned up before the court , accordingly the court on 23.10.2019 ordered that, the Accused /DW.1 did not offer for cross-examination and evidence of defence taken as closed , hence it goes to show that, the Accused did not tender for his cross-examination, in such circumstances the entire evidence given by the Accused by way of examination -in-chief has to be eschewed. Under these circumstances now it is to be considered whether the evidence of the Accused can be taken into consideration for proving of his defence against the complainant and whether it becomes evidence against the complainant. On careful reading of the Sec.137 and 138 of Indian Evidence Act, makes it clear that, the testimony of witness includes his examination-in-chief and cross-examination by the opposite party and re- examination by the party on whose behalf the witness appeared. Therefore examination of a witness is become complete unless the witness tendered for cross-examination by the opposite party who may forgo its right if it so desires, but failure to cross-examination leads to the presumption that, the witnesses account is correct. The truth and falsehood can extracted only by cross examining the 38 C.C.No.29208/2015 J witness, therefore a statement which is made by witness is not tendered for cross-examination, such evidence should not be considered as evidence in the eye of law.
29. In this regard it is relevant here to refer the decisions of Hon'ble High Court of Karnataka at Bengaluru in Crl.Appeal No.376/2007 decided on 25.2.2012 the Hon'ble High Court held that, "When the complainant has given evidence on affidavit, if the Accused applied to the court, then the court has no discretion but to summon the deponent in the affidavit to appear for examination as to the facts contained in the affidavit. Despite the court's direction, if the person giving evidence in examination in chief on affidavit fails to appear and tender himself tobe examined, then the deposition in the affidavit will not translate into legal evidence. This requirement is in line with the provisions of the evidence Act (C) subsection (1) of Sec.145 envisages 'not withstanding anything contained in the code of criminal procedure and may, subject to all exceptions be read in evidence in any enquiry, trial or other proceedings under the said court'. It no doubt permits evidence of the 39 C.C.No.29208/2015 J complainant may be given by him on affidavit, it is subject to all exceptions and is not without any riders - Every statement by a witness even given on oath before the court is not evidence in law unless the court admits such evidence- the statement of witness to be called evidence must be capable of being tested in cross-examination, otherwise it will certainly not to be legal evidence. Further it is held that, the resultant effect of the statement of PW.1 in examination in chief was not tested in cross- examination due to his own default, it remained nearly a statement and had not transferred into legally acceptable evidence. In another decision reported in ILR 1990 KAR 1205 in the case of Sannaveerappa Bharamajappa Kalal Vs. State of Karnataka, wherein the Hon'ble High Court of Karnataka held that "Complete evidence calls for cross-examination not examination-in-chief alone if witness does not submit to cross-examination after examination in chief court precluded from acting on such incomplete evidence". Hence by applying the principles of law laid down by the Hon'ble High Court of Karnataka in the above referred decision to the facts of the present case, it is also an admitted fact that, the Accused after his examination-in-
40 C.C.No.29208/2015 Jchief, he remained absent inspite of court's direction for tendering of his cross-examination, but the Accused did not turned up to tender his cross- examination, thus the statement of DW.1 made in examination-in-chief was not tested in cross- examination due to his own default, it remain as merely a statement and not transformed into legal acceptable evidence, therefore the evidence of the Accused who entered into the witness box being only part of the record of his deposition and such deposition is not legal evidence, under such circumstances, it has to be eschewed.
30. In addition to that, it is also relevant here to mention that, the Accused though he has stated in his evidence that, he had lost his pass book, ration card, cheque book, voter I.D card, stamp paper which he had kept in a bag and the said documents were lost in the month of February 2013 while he was boarding the train near his house and to that effect he has filed a complaint before the Kengeri and Chandra Layout police station. The Accused has also produced copy of the complainant and endorsement issued by the Chandra layout 41 C.C.No.29208/2015 J police station which are at Ex.D.1 and D.2. On careful perusal of the Ex.D.1 complaint averments makes it clear that, the Accused in the said complaint has alleged that, he has got SB account in syndicate Bank Satellite Kengeri and has got cheque faculties from the said bank and out of the cheques with him, two cheques bearing No. 395023 and 395024 along with two empty stamp papers have been lost at the time of shifting of his house, hence he requested to investigate the missing of the said cheques and bond papers and also filed the complaint in order to avoid misusing of his cheques, hence it goes to show that, as per Ex.D.1 the Accused has filed the complaint before the police alleging that, his two cheques including the subject cheque and two empty stamp papers were misplaced at the time of shifting of his house but, whereas the Accused in his evidence stated that, he has lost his cheque book, pass book, voter I.D. etc., in the month of February 2013 while he was boarding train near his house, it goes to show that, the Accused is falsely deposing before the court for his convenient to defend his defence and the document produced by the Accused i.e Ex.D.1 itself falsify the defence of the 42 C.C.No.29208/2015 J Accused i.e., the cheque lost theory setup by the Accused in his defence, in such circumstances, the Accused in order to avoid liability to pay the cheque amount has taken such a false defence in his evidence and in order to substantiate his defence has not produced any documents and the documents which are produced by the Accused i.e. Ex.D.1 and D.2 are inconsistent to his own defence and cannot be acceptable one. It is also relevant here to mention that, the Accused has given intimation to the bank authority as per Ex.D.4 stating that, the cheques bearing No. 395023 and 395024 were misplaced at the time of shifting of his house and requested to stop the payment if they were produced for encashment but as per the defence evidence it is not the defence of the Accused that, the cheques were misplaced at the time of shifting of his house accordingly he has issued the stop payment to his banker but as per the defence he has lost his cheque book at the time of boarding the train near his house, in such circumstances also an adverse inference can be drawn against the Accused that, though he has issued stop payment instructions to his banker but the reasons stated by him in Ex.D.4 43 C.C.No.29208/2015 J and in his defence evidence are not acceptable one, on the contrary it can be held that, in order to avoid liability to pay the cheque amount and with an intention to hold for honoring the cheque in question, the Accused has issued stop payment instructions to his bank . Even it is not the case of the Accused that, the complainant has secured the cheque in question which was lost by him and has misused the cheque in question, in such circumstances also it can be held that, the Accused has issued the cheque in question to the complainant towards discharge of the debt in question. Therefore for the above said reasons the defence of the Accused cannot be acceptable one and Accused has not produced cogent and convincible evidence to rebut the presumption available infavour of the complainant U/s.118 and 139 of N.I. Act.
31. Therefore considering all these aspects of the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant and accused the complainant has successfully established beyond all reasonable doubt that, he has lent a sum 44 C.C.No.29208/2015 J of Rs.3,00,000/= to the accused as a hand loan to get the revenue documents in respect of his land and also Accused was in need of funds and thereafter the accused in turn has issued cheque in question to the complainant towards repayment of the hand loan, thereafter the complainant has presented the said cheque through his banker and same was returned dishonoured with an endorsement of "payment stopped by Drawer" and thereafter he got issued legal notice to the accused and inspite of service of the said notice, the Accused did not repaid loan amount borrowed by him, hence the complainant filed the present complaint against the accused. On the other hand, the accused has failed to rebut the presumption available infavour of the complainant with regard to the existence of legally recoverable debt under Ex.P.1 i.e. cheque. Therefore accused has committed an offence punishable U/s.138 of N.I. Act, accordingly for the above said reasons this point is answered in the Affirmative.
32. Point No.2: Negotiable Instrument Act was enacted to bring credibility to the cheque and the very purpose of enactment is to promote the use 45 C.C.No.29208/2015 J of negotiable instrument, while to discourage the issuance of cheque without having sufficient funds in their accounts. Such being the case the intention of the legislature is that, complainant be suitable compensated while accused be punished for his act. Hence while awarding the compensation the said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly it will not cause injustice to the accused, accordingly the complainant is entitled for the compensation as ordered by the court and for the said reasons, it is just and proper to pass the following :-
ORDER Acting U/sec.255(2) of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.3,15,000/= (Rupees Three Lakhs and Fifteen Thousand only) within one month from the date of order, in default she shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.46 C.C.No.29208/2015 J
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.3,10,000/= (Rupees Three Lakhs and Ten Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
His Bail bond stands cancelled. . Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 5th day of February 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri. Kondappa.K.V 47 C.C.No.29208/2015 J
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 : Original Cheque; Ex.P-1(a) : Signature of the Accused; Ex.P-2 : Bank Memo; Ex.P-3 : Office copy of the Legal Notice; Ex.P-4 : postal Receipt; Ex.P-5 : postal acknowledgement;
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Sri. G.Rajanna;
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 : Personal bond executed by the Accused (Marked through PW.1) Ex.D.2 : Vakalathnama;
(Marked through PW.1) Ex.D.1(a) & : Signatures of the Accused ;
D.2(a) (Marked through PW.1)
Ex.D.1 : True copy of the complaint dated:
13.2.2013;
(Marked through DW.1)
Ex.D.2 : True copy of the acknowledgement
issued by the Chandra Layout Police;
(Marked through DW.1)
Ex.D.3 : True copy of the Affidavit;
(Marked through DW.1)
48 C.C.No.29208/2015 J
Ex.D.4 : copy of the letter of Stop payment instructions issued by her to her bank on 12.2.2013;
(Marked through DW.1) .
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.49 C.C.No.29208/2015 J
5.2.2020 Judgment pronounced in the open court vide separate order.
ORDER Acting U/sec.255(2) of Cr.P.C.
the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.3,15,000/= (Rupees Three Lakhs and Fifteen Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.3,10,000/= (Rupees Three Lakhs and Ten Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
His Bail bond stands cancelled.
. Office is directed to furnish free certified copy of this judgment to the 50 C.C.No.29208/2015 J Accused incompliance of Sec.363(1) of Cr.P.C.
XVI ACMM, B'luru.