Bangalore District Court
K. Anand vs Nitin Kailas Bagal on 7 February, 2025
KABC020037022021
IN THE COURT OF ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY.
(SCCH-6)
Present: Smt. Chetana S.F.
B.A., L.L.B.,
IV Addl., Small Cause Judge & ACJM,
Court of Small Causes, Bengaluru.
CC. No.933/2021
DATED THIS THE 7th DAY OF FEBRUARY, 2025
COMPLAINANT/S Sri. K. Anand,
S/o. S. Krishna Murthy,
Aged about 38 years,
No.149/150, 2nd Floor,
2nd Stage, 1st Cross,
Okalipuram,
Bengaluru-560021.
(By Sri. C. Shankar Reddy, Advocate)
-Vs-
ACCUSED Sri. Nitin Kailas Bagal,
S/o. Kailas Shankar Bagal,
Aged about 44 years,
Residing at No.38/2, 3rd Floor,
Mallikarjunappa Lane,
K.R.Shettypet, J.M.Road Cross,
Bengaluru 560 002.
Also available for service at:
Shamburaje Refinery
Gold and Silver,
No.9/3, M.C. Lane, 29th Cross,
Kilari Road, Bengaluru-560053.
(Sri. Thushanath C.V., Advocate)
SCCH-6 2 CC No.933/2021
-: J U D G M E N T :-
This is a complaint filed by the complainant U/Sec.200 of
Cr.P.C. for the offence punishable under Sec.138 of the N.I. Act
as against the accused praying to punish the accused for the
said offence.
2. The case of the complainant is that, the accused is
known to the family of the complainant for the last several
years. The accused is the owner of Shamburaje Refinery dealing
with Gold and Silver materials and is a seller of raw gold. It is
further submits that accused has purchased 1 Kg. 200 Grams
of raw gold from the complainant through bill No.131 on
05.04.2017 for a total value of Rs.36,98,850/-. On the day of
purchase of the said gold, the accused has paid a sum of
Rs.6,98,850/- by way of cash and for the balance amount of
Rs.30 lakhs, the accused has issued 3 post dated cheques
bearing No.134631, 134632 and 134635 for a sum of Rs.10
lakhs each drawn on ICICI Bank, Avenue Road Branch,
Bengaluru. At the time of issuing the said cheques, the accused
had informed the complainant that the said cheques can be
SCCH-6 3 CC No.933/2021
presented on the dates mentioned on each of the said cheques
or the accused would offer money in cash and take back the
cheques once the payment is made in advance. On the dates
mentioned in the 2 cheques, the accused came over to the
complainant and paid the said amount of Rs.20 lakhs in cash
and took back 2 of the said cheques, which were issued by the
accused. The cheque retained by the complainant is bearing
No.134632 dated 22.09.2020 drawn on ICICI Bank, Avenue
Road Branch, Bengaluru for a sum of Rs.10 lakhs. When the
accused paid Rs.20 lakhs, there was a written memorandum of
understanding that accused had admitted that he is liable to
pay a sum of Rs.10 lakhs and for that he has issued the above
said cheque. The said agreement was got prepared by the
accused and handed over to the complainant as an assurance.
One month prior to 22.09.2020, complainant contacted the
accused several times and informed the accused above said
cheque would be presented for encashment. For that accused
assured the complainant that said cheque would be honoured
without fail. Believing the assurance of the complainant, the
SCCH-6 4 CC No.933/2021
complainant presented the aforesaid cheque through his banker
Karur Vysya Bank for encashment and same has been
dishonored and returned with endorsement "Funds Insufficient"
on 23.09.2020. The Complainant got issued legal notice dated
09.10.2020 through RPAD . The accused neither replied to the
notice nor cleared the cheque amount and as such, accused has
failed and neglected to discharge debt to the complainant.
Accordingly, the accused has committed an offence punishable
under Sec.138 of N.I Act. Hence, this complaint.
3. After recording the sworn statement of the
complainant by way of affidavit and also verifying the
documents, cognizance was taken against the accused for the
offence punishable under Sec.138 of N.I. Act. The accused
appeared before this Court through his counsel and enlarged on
bail and his plea was recorded. The accused pleaded not guilty
and claimed to be tried. Hence, the case was posted for evidence
of the complainant.
4. The complainant got examined himself as PW.1 and
SCCH-6 5 CC No.933/2021
got marked 16 documents as Exs.P.1 to P.16. Thereafter, the
case was posted for recording the statement of accused under
Sec.313 of Cr.P.C. In the statement U/s. 313 Cr.P.C., the
accused has denied all the incriminating evidence appearing
against him and claimed to be tried and examined himself as
DW.1 and got marked 6 documents as Exs.D.1 to D.6.
5. Heard the arguments of both side and Perused the
records.
6. The following points arise for my consideration:
1. Whether the complainant proves that the
cheque No.134632 dated 22.09.2020
amounting to Rs.10 lakhs drawn on ICICI
Bank, Avenue Road Branch, Bengaluru-
560009, issued by the accused has been
dishonored on the ground of 'Funds
Insufficient' on 23.09.2020 and even after
receiving the intimation regarding the
dishonor of cheque failed to pay the cheque
amount within the stipulated period and
thereby the accused has committed an
offence punishable under Sec.138 of N.I. Act?
2. What order?
7. My findings on the above points are as under
SCCH-6 6 CC No.933/2021
Point No.1: In the Negative,
Point No.2: As per final order for the
following:
-: R E A S O N S :-
8. POINT NO.1:- In view of the present legal position as
held by our Hon'ble High Court as well as Apex Court of
India in a catena of decisions as well as relevant provisions
of the Act, this court has to see whether the complainant
has complied all the requirements as contained in Sec.138
of NI Act so as to bring home the guilt of the accused for
the alleged offence. If so, whether the accused is able to
rebut the legal presumption available to the complainant
under Sec.139 of the Act by adducing probable defense or
not. However, it is held by the full bench of our Apex Court
in the case of Rangappa Vs. Mohan reported in 2010 (1)
DCR 706 that;
"The Statutory presumption mandated
by sec.139 of the Act, does indeed in-
clude the existence of a legally en-
forceable debt or liability. However,
the presumption U/S 139 of the Act is
in the nature of a rebuttable presump-
SCCH-6 7 CC No.933/2021
tion and it is open for the accused to
raise a defence wherein the existence
of a legally enforceable debt or liability
can be contested".
9. Therefore, in view of the above decision, once the
cheque is admitted, the statutory presumption would
automatically fall in favour of the complainant that, the alleged
cheque was issued for discharge of an existing legally
enforceable debt or liability against the accused and the burden
will shift on to the accused to rebut the same.
INGREDIENTS OF OFFENCE AND DISCUSSION:-
10. Before dwelling into the facts of the present case, it
would be apposite to discuss the legal standards required to be
met by both sides. In order to establish the offence under
Section 138 of NI Act, the prosecution must fulfill all the
essential ingredients of the offence. Perusal of the bare provision
reveals the following necessary ingredients of the offence:-
First Ingredient: The cheques were
drawn by a person on an account
maintained by him for payment of
SCCH-6 8 CC No.933/2021
money and the same is presented for
payment within a period of 3 months
from the date on which it is drawn or
within the period of its validity;
Second Ingredient: The cheques were
drawn by the drawer for discharge of
any legally enforceable debt or other
liability;
Third Ingredient: The cheques were
returned unpaid by the bank due to
either insufficiency of funds in the
account to honour the cheque or that
it exceeds the amount arranged to be
paid from that account on an
agreement made with that bank;
Fourth Ingredient: A demand of the
said amount has been made by the
payee or holder in due course of the
cheque by a notice in writing given to
the drawer within thirty days of the
receipt of information of the dishonour
of cheque from the bank;
SCCH-6 9 CC No.933/2021
Fifth Ingredient: The drawer fails to
make payment of the said amount of
money within fifteen days from the
date of receipt of notice.
APPRECIATION OF EVIDENCE-
11. The accused can only be held guilty of the offence
under Section 138 NI Act if the above-mentioned ingredients are
proved by the complainant co-extensively. Additionally, the
conditions stipulated under Section 142 NI Act have to be
fulfilled. Notably, there is no dispute at bar about the proof of
only first, third, and fifth ingredient. The complainant had
proved the original cheque vide Ex.P.1 which the accused
person had not disputed as being drawn on the account of the
accused. It was not disputed that the cheque in question was
presented within its validity period. The cheque in question was
returned unpaid vide return memo dated 23.09.2020 vide
Ex.P.2 due to the reason, "Payment stopped by drawer". The
complainant had proved the service of legal demand notice
dated 09.10.2020 vide Ex.P.3 by bringing on record the postal
SCCH-6 10 CC No.933/2021
receipts vide Ex.P.4 & 5 and postal acknowledgment vide Ex.P.6
and courier receipts vide Exs.P.7 & 8. Thus, there is a dispute
only with regard to the second ingredient to the offence. As
such, the 1st,3rd,4th& 5th ingredient of the offence under section
138 of the NI Act stands proved.
12. As far as the proof of second ingredient is concerned,
the complainant has to prove that the cheque in question was
drawn by the drawer for discharging a legally enforceable debtor
any liability. In the present case, the issuance of the cheque in
question is not denied. As per the scheme of the NI Act, once
the accused admits signature on the cheque in question, certain
presumption are drawn, which result in shifting of onus.
Section 118(a) of the NI Act lays down the presumption that
every negotiable instrument was made or drawn for
consideration. Another presumption is enumerated in Section
139 of NI Act. The provision lays down the presumption that the
holder of the cheque received it for the discharge, in whole or
part, of any debt or other liability.
SCCH-6 11 CC No.933/2021
13. The combined effect of these two provisions is a
presumption that the cheque is drawn for consideration and
given by the accused for the discharge of debt or other liability.
Both the sections use the expression "shall", which makes it
imperative for the court to raise the presumptions once the
foundational facts required for the same are proved. Reliance is
placed upon the judgment of the Hon'ble Supreme Court, Hiten
P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.
14. Further, it has been held by a three-judge bench of the
Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan
(2010) 11 SCC 441 that the presumption contemplated under
Section 139 of NI Act includes the presumption of existence of a
legally enforceable debt. Once the presumption is raised, it is for
the accused to rebut the same by establishing a probable
defence.
15. The presumptions raised under Section 118(b) and
Section 139 NI Act are rebuttable presumptions. A reverse onus
is cast on the accused, who has to establish a probable defence
SCCH-6 12 CC No.933/2021
on the standard of preponderance of probabilities to prove that
either there was no legally enforceable debt or other liability. In
this case, the arguments raised by the Ld. counsel for the
accused to rebut the presumption are discussed below:
First defence: Notice not served
16. With regard to the issuance of the notice accused has
taken the specific defence that notice has not been served to
him and in this regard accused has deposed that he was
running the shop by name Preethi Gold Polish from 2010-14
and in the year 2015, he has left the shop and went to his
native Katarkatav village at Maharashtra and started residing
there in only. When the police came to his house on
07.12.2023, he came to know about the cheque bounce case
filed by the complainant. In support of his contention, accused
has produced residential certificate Ex.D.1 and Aadhaar card
Ex.D.2, Voter I.D. card Ex.D.3. On perusal of Ex.D.1, it is a
residential certificate issued by the Sarpanch Grama Sevak
stating that he is the residents of the Katarkatav Village and the
SCCH-6 13 CC No.933/2021
said certificate has been issued on 10.03.2014 on the request of
the applicant. Ex.D.2 & D.3 Voter I.D. card and election identity
card reflects that accused is the resident of Katarkatav Village of
Maharashtra. As per Ex.D.1 to 3 accused is the resident of
Katarkatav Village, as accused is the native of the Katarkatav
village. Aadhaar card and voter I.D. card will be issued in the
permanent address of the person and accordingly Ex.D.2 & 3
Voter I.D. and Aadhaar card are in the permanent address.
Merely on the basis of the Ex.D.1 to 3 it cannot be said that
accused was not at all residing in Bengaluru as on the date of
the issuance of the notice. On the other hand Ex.P.3 notice has
been served to the shop address Shambureje Refinery Gold and
Silver and also the residential address of the accused. Ex.P.4 &
5 are the postal receipts show that the notice has been issued
and Ex.P.6 postal acknowledgment clearly shows that the notice
has been duly served to the accused though accused has denied
Ex.P.6 but, has not made any attempt to prove that he has not
received the said notice. Even has not made any attempt to
examine the postman to prove that Ex.P.6 was not served to
SCCH-6 14 CC No.933/2021
him. Even accused has not disputed that at no point of time he
was not residing in said address mentioned in notice. Thus, it is
clear that it is last known address of accused.
17. Moreover, in this regard, it has been held by the
Hon'ble Apex Court in the case of M/S Indo Automobiles Vs.
M/S. Jaidurga Enterprises reported in 2008 (2) DCR 499 and
also as provided under Sec.27 of the Mysore general clauses
Act, 1897. When a notice is sent to the correct address of the
addressee, even if the same is returned unserved due absence
or non-claiming or refusal of the addressee, the same amounts
to deemed service. Moreover, the very purpose of giving
statutory notice to provide an opportunity to the
accused/drawer to make payment of the cheque amount and
escape from the criminal prosecution. The non-service of the
notice would be ground only in the case of the accused
admitting the liability under the cheque and pleading only
exemption from the criminal prosecution for non payment of the
cheque amount. Thus this defence of the accused is of no
consequence in the present case as he is totally denying the
SCCH-6 15 CC No.933/2021
liability under the said cheque.
Second defence: No legally recoverable debt existed
and no Financial capacity
18. It was argued by the learned counsel for the accused
that at any point of time, there was no transaction between the
complainant and accused. Accused had never purchased any
gold worth of Rs.36,98,850/- from the complainant. Further it
was argued that complainant has no financial capacity to
purchase gold of 1 Kg. 200 Grams. Even the complainant has
not produced any document to show that he was in possession
of 1 Kg. 200 Grams of raw gold and has not produced any
document to show that accused has purchased 1 Kg. 200
Grams of gold from the complainant. Further it was argued by
the learned counsel for the accused that there is lot of
contradiction in the version of the complainant with regard to
the date of issuance of the cheque. Further it was argued that
complainant has not approached this court with clean hands,
complainant has produced the fake bills, which does not tally
with the original bills produced by him. Even the complainant
SCCH-6 16 CC No.933/2021
has not produced any agreement and the MOU as stated by
him. Further it was argued that accused has stopped the
business in the year 2014 and he went to his native at
Katarkhatav Village at Maharashtra and as such notice has not
been served to the accused and as such, there is no cause of
action arosed for the complainant to lodge this complaint.
Further it was argued by the learned counsel for the
complainant that complainant being friend of the accused used
to come to the shop of the accused in between 2010-14 and he
used to sit in the cash counter and complainant might have
stolen the cheque from the middle of the cheque book. Further
accused has taken the contention that he never used to keep
the signed blank cheques in his cash box since the present
cheque in question has been cut off from the middle of the
cheque book, accused was not able to identify the same, only
when the police arrested the accused in execution of the NBW
issued by this court at his native, accused came to know about
all these facts. Even accused has completely denied that the
signatures in the Ex.P.1 cheque is not his signature. Further
SCCH-6 17 CC No.933/2021
argued that cheque in question belongs to the joint account of
him and his wife and the cheque does not contain the
signatures of accused and also his wife and as such, the
complaint is not maintainable.
19. With regard to defence that complainant has no
financial capacity to sell the gold of 1 Kg 200 Grams worth of
about Rs.36 lakhs. Further it was argued that complainant has
not produced any document to show the transaction i.e.,
purchase of the gold. In this regard on perusal of the evidence of
the PW.1, PW.1 stated that since from 15 years, he was doing
the gold and silver business and PW.1 stated that he has
purchased the gold from the other businessman and also from
the bank. Further PW.1 stated that he used to sell raw gold and
gold ornaments and the name of his shop is 'Sai Krish
Jewellers'. Further PW.1 has stated that he has document to
show that accused has purchased 1 Kg. 200 Grams of gold from
him. Thereafter on further date of hearing, complainant has
produced the notarized copy of the bill. But, as original bill was
not produced, said notarized copy of the bill was not marked.
SCCH-6 18 CC No.933/2021
Thereafter complainant has produced one carbon copy of the
bill of Krish Jewellers, which was marked as Ex.P.16. The
learned counsel for the accused objected on the ground that
Ex.P.16 is not clearly legible and on the said bill 2 crossed lines
have been drawn. But, in notarized copy of bill, which the
complainant has produced earlier does not tally with Ex.P.16-
carbon copy of the bill. Hence, complainant has not approached
this court with the clean hands and created and produced the
notarized copy earlier and also thereafter, created the said bill
and produced the same. In this regard on perusal of Ex.P.16
and also notarized copy of Ex.P.16 produced by the
complainant, there are lot of variations in the notarized copy
produced by the complainant and it is clear that it is not the
xerox copy of Ex.P.16. Thus, it clearly shows that complainant
has not approached this court with the clean hands. When
complainant was in possession of bills, why he has not
produced original bill or carbon copy of bill earlier. When
accused counsel has seriously objected and the court refused,
thereafter only complainant produced the carbon copy of the bill
SCCH-6 19 CC No.933/2021
which was marked as Ex.P.16 but, the said bill Ex.P.16 does
not match with the notarized copy produced earlier. Further
PW.1 in the cross-examination stated that he has sent the
original copy of the Ex.P.16 to the department. Apart from this
PW.1 clearly stated that in Ex.P.16 that To transaction
mentioned as Pundalik Refineries, PW.1 has not explained as to
who is the Pundalik Refineries and to whom he has issued the
said bill. It was argued by the learned counsel for the accused
that in Ex.P.16, the cheque number is not mentioned and also
the mode of the payment and also amount paid and the balance
amount is not written. Apart from this PW.1 has not explained
who is the Pundalik Refineries. Further counsel for the accused
contended that signature of the accused in Ex.P.16 is forged by
the complainant and produced the same. On perusal of Ex.P.16,
'To' address is written as Pundalik Refineries C/o. Nithin Bagal.
Even PW.1 has not explained that what is the connection
between Pundalik Refineries and accused and who is running
the Pundalik Refineries, when accused has completely denied
and disputed Ex.P.16. Moreover, there are lot of variations in
SCCH-6 20 CC No.933/2021
Ex.P.16 and the notarized copy of the bill produced by the
complainant, which creates doubt about the approach of the
complainant in the minds of the court. Complainant has not
tried to produce the original bill from the department to which
he has submitted. Atleast PW.1 has not tried to call for the said
original bill from the document.
20. Apart from this admittedly PW.1 carrying Silver and
Gold business since 15 years, certainly he would have maintain
the account book and ledger book which reflects the
transactions of their business. PW.1 would have produced the
ledger statement or his account statement of his business to
prove that he has sold the gold of 1 Kg. 200 Grams worth Rs.36
lakhs and also to show that he has purchased gold from bank
and other businessman. Admittedly the transaction of selling
gold of 1 Kg. 200 Grams worth of about Rs.36 lakhs is a big
transaction and admittedly as per PW.1, it was on credit basis
then, certainly PW.1 would have kept the account statement or
maintained the ledger statement with regard to the transaction
on credit basis. Ordinarily in the normal course of business
SCCH-6 21 CC No.933/2021
conduct when any goods are sold on credit basis, certainly each
and every businessman will keep the account of the same and
would maintain the accounts. PW.1 has not produced any such
account statements and as such an adverse inference can be
drawn against the PW.1 for not producing relevant document to
show the purchase of gold worth of about Rs.36 lakhs by the
accused on credit basis and as such, the present transaction as
alleged by the complainant appears to be doubtful.
Third defence: Signature in cheque is not his
signature
21. Accused has taken the specific defence that the
signature in the cheque is not his signature and the cheque in
question was not issued by him to the complainant and he
would not keep the signed blank cheques with him. According
to the accused, complainant being well known to him and a
friend would come oftenly to his shop and accused has kept the
cheque book in his cash box at his shop and complainant might
have stolen the cheques from the said cash box without his
knowledge. Accused came to know about theft of his cheques
SCCH-6 22 CC No.933/2021
only when the warrant has been served to him. When accused
has seriously disputed the signature in the cheque, the burden
is on the complainant to prove that signature in the cheque is of
the accused. But, the complainant has not made any attempt to
prove the signature in the cheque. Apart from this Ex.P.1
cheque belongs to the joint account of the accused and his wife
Seema Bagal but, Ex.P.1 bears only the signature of the
accused only. In this regard, in the cross-examination of the
PW.1, when it was suggested to that PW.1 being a businessman
how could he take the cheque of the joint account of the
accused and his wife without obtaining the signature of the wife
of the accused, for which PW.1 stated he do not know. Even
PW.1 has not given any explanation in this regard. PW.1 simply
stated that he do not know about the joint account of the
Ex.P.1.
22. In this regard, this court relied on the decision
Criminal Petition No.3667/2019, wherein it is held as follows:
14. This Court also noticed a judgment of
Telangana High Court in Kodam Danalakshmi
SCCH-6 23 CC No.933/2021
Vs. State of Telangana 3, wherein it is held, "In
Mrs. Aparna A. Shah's case, cited by the
learned counsel for petitioner/A.2, the Hon'ble
Apex Court took the view that under Section
138 of the N.I.Act, it is only the drawer of the
cheque who can be proceeded. In the said case,
the husband had drawn the cheque on the
account, which was being jointly maintained
by him and his wife. The Hon'ble Supreme
Court held that in case of issuance of a cheque
from joint account, a joint account holder
cannot be prosecuted unless the cheque has
been signed by each and every person who
has a joint account holder.
In the instant case, it is evident from the
entire material placed on record, particularly,
the complaints filed by the respondent
No.2/complainant under Section 138 of N.I.Act r/w Sec.200 Cr.P.C., the petitioner/A.2 is merely a joint account holder and she is not the signatory to the subject cheques. On the other hand, it is culled out from the record that though the account relating to the disputed cheques is a joint account, only one signature, which appears to be of A.1, are seen on those SCCH-6 24 CC No.933/2021 disputed cheques. Penal provisions should be construed strictly, but not in a routine/casual manner. The words used in Section 138 of N.I.Act that "such person shall be deemed to have committed an offence" refers to a person who has drawn the cheque, but not any other person, except the contingencies mentioned under Section 141 of the N.I.Act. In view of the same, the submission made by the learned counsel for the petitioner/A.2 that the petitioner/A.2, who is mere joint account holder but not a signatory to the subject cheque, cannot be proceeded under Section 138 of N.I.Act, merits consideration, in as much as a joint account holder cannot be prosecuted, unless and until he/she is a signatory to the subject 15 cheque.
23. Though Ex.P.2 bank return memo has been returned for the reason 'Funds insufficient'. When accused has specifically denied the signature, PW.1 would have made attempt to prove the signature. Thus, complainant has failed to prove that the signature in the cheque is that of the accused. SCCH-6 25 CC No.933/2021
24. Apart from this complainant has produced Ex.P.9 MOU dated 12.01.2018 alleged to be executed by the accused in favour of the complainant alleging that accused has purchased gold of 1 Kg. 200 Grams from the complainant through bill No.131 on 05.04.2017 for the total value of Rs.36,98,850/- and accused has paid Rs.6,98,850/- by way of cash on 05.04.2017 and for remaining balance of Rs.30 lakhs, accused has issued 3 post dated cheques bearing No.134631, 134632 and 134635 each for Rs.10 lakhs. Thereafter, accused has paid payment of Rs.20 lakhs to the complainant by way of cash and has obtained one cheque from the complainant. But, accused has seriously disputed the said MOU Ex.P.3. Accused contended that the signature in Ex.P.9 is also not his signature. It was argued by the learned counsel for the accused that ordinarily an agreement or MOU will be made at the time of the purchase but, in the present case complainant has alleged to have entered MOU after one year of the transaction and this fact itself clearly shows that complainant has created said document for the purpose of this case. Further it was argued that ordinarily any SCCH-6 26 CC No.933/2021 agreement or MOU shall be executed in the presence of witness but, in the present case, MOU Ex.P.9 is not signed by any of the witnesses and hence, said document cannot be believable and the complainant has failed to prove the execution of Ex.P.9.
25. In this regard on perusal of Ex.P.9 certainly as rightly argued by the learned counsel for the accused it was not executed in the presence of any witness and even PW.1 has not given any reason for the same. When accused has entirely denied the signature in Ex.P.9. The burden is on the complainant to prove the execution of Ex.P.9 but, complainant has not made any attempt to prove the signature in Ex.P.9 is affixed by the signature of the accused. This fact also create doubt about the case of the complainant and the execution of Ex.P.9. Hence, complainant has failed to prove the execution of Ex.P.9 and as such, this court is not inclined to rely on Ex.P.9.
26. Accused has successfully rebut the presumptions available in favour of the complainant and proved his defence of preponderance of probabilities.
SCCH-6 27 CC No.933/2021Conclusion:
27. In view of all the above discussion, it can be concluded that the complainant has failed to establish through cogent and convincing evidence, the fact of issuance of the cheque for discharge of legally enforceable debt or any liability, which is dishonored for want of sufficient funds. On the other hand, the accused has successfully rebutted the presumption available to the complainant through probable evidences, that would preponderate upon the evidence led by the complainant. Therefore, the accused is held to have not committed an offence punishable under sec. 138 of N.I. Act. Accordingly, Point No.1 is answered in the NEGATIVE.
28. POINT NO.2:- In view of my answer to point No.1, I proceed to pass the following:-
-: O R D E R :-
Acting under Section 278(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, accused is acquitted for the SCCH-6 28 CC No.933/2021 offence punishable under Section 138 of NI Act.
The bail and surety bond of the
accused and surety shall stand
canceled.
(Dictated to the Stenographer, transcribed and computerized by her. After her typing, corrected, signed and then pronounced by me in open Court this the 7 th day of February, 2025).
(CHETANA S.F.) IV Addl., Small Cause Judge & ACJM, Court of Small Causes, Bengaluru.
ANNEXURE List of witnesses examined for the Complainant:
PW.1 :- K. Anand List of witnesses examined for the accused:-
DW.1 :- Nithin List of documents marked for the Complainant:-
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of accused
Ex.P.2 : Bank Endorsement
Ex.P.3 : Legal Notice
Ex.P.4 & 5 : Postal Receipts
Ex.P.6 : Postal acknowledgment
Ex.P.7 & 8 : Courier receipts
Ex.P.9 : MOU dated 12.01.2018
Ex.P.10 : CC of judgment in
C.C.No.2047/2021
SCCH-6 29 CC No.933/2021
Ex.P.11 & 12 : CC of GST Certificate along with
Form No.4 and cancellation of GST
(It was marked subject to dispute by the learned counsel for the accused) Ex.P.13 : Copy of VAT Certificate (It was marked subject to dispute by the learned counsel for the accused) Ex.P.13(a) : Original copy of VAT Certificate Ex.P.14 : CC of rental agreement (It was marked subject to dispute by the learned counsel for the accused) Ex.P.14(a) : Original copy of rental agreement Ex.P.15 : Visiting card of accused shop Ex.P.16 : Cash receipt List of documents marked for the accused:-
Ex.D.1 : Residence Certificate
Ex.D.2 : Notarized copy of Identity card
Ex.D.3 : Notarized copy of Aadhaar card
Ex.D.4 : Requisition to the bank Manager
Ex.D.5 & 6 : CC of complaint and affidavit in PCR
No.6545/2020
(CHETANA S.F.)
IV Addl., Small Cause Judge &
ACJM, Court of Small Causes,
BENGALURU.
SCCH-6 30 CC No.933/2021