Bangalore District Court
Ex.P2 Is The Bank Memo Dated 15.02.2022 ... vs To Rebut The Presumptions. The ... on 19 December, 2022
1 C.C.No.12281/2022
KABC030320792022
Presented on : 22-04-2022
Registered on : 22-04-2022
Decided on : 19-12-2022
Duration : 0 years, 7 months, 27 days
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 19th day of December 2022
Present: Lokesh Dhanapal Havale, B.A.LL.B
XV Addl.C.M.M., Bengaluru.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case C.C.No.12281/2022
2.Name of the Complainant: Sri. Kaluram Choudary,
S/o Roopa Ram Choudhary,
Aged about 54 years,
M/s Sangam Hardware and
Electricals, R/at No.47,
Singasandra,
Hosur Main Road,
Opp E.S.I Building,
Bangaluru560068.
3.Name of the accused: Sri. Vishwanath
Father' name not known
R/at 1st Floor, Manju Distributors
Building, Next to Government Urdu
2 C.C.No.12281/2022
Higher Primary School,
Manipal County Road,
Subhash Nagar "B" block,
Begur Hobli, Bengaluru South Taluk,
Bengaluru 560068.
4.The offence complained of : U/s.138 of Negotiable Instruments
Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(1) Cr.P.C., accused is
Convicted
7.Date of final Order 19th day of December 2022
***
This complaint is filed U/Sec.200 of Cr.P.C. against the accused for
the offence punishable U/Sec.138 of the Negotiable Instruments Act,
1881.
2. The facts of the complaint in brief are as under:
The complainant is a proprietorship concern carrying on business
in supply of Hardware and Electricals and other allied materials in the
name of M/s Sangam Hardware and Electricals from past several years.
The accused and the complainant are well known to each other. The
accused is doing the painting business and he is one among the regular
customers of the complainant. He used to place orders for supply of
required materials (painting) and the complainant dispatched the
paints and other materials on credit basis worth Rs.60,500/ under the
invoices as per the statement of ledger accounts maintained during the
3 C.C.No.12281/2022
ordinary and usual course of his business. In order to pay the said
amount, the accused issued a cheque bearing No.000003 dated
14.02.2022 for Rs.60,500/ drawn on Bank of Baroda, 60 feet main
road, Singasandra branch, Bangalore in his favour. On presentation of
cheque for encashment, it was returned dishonored with an
endorsement "Funds Insufficient" vide endorsement dated 15.02.2022.
He issued legal notice dated 02.03.2022 to the accused calling upon
him to repay the cheque amount. The notice sent through RPAD was
served on the accused on 05.03.2022. The accused failed to repay the
amount within 15 days from the said date and thereby committed an
offence punishable U/s.138 of the N.I.Act.
3. After the institution of the complaint, the cognizance was
taken and it has been registered as PCR No.7328/2022. The sworn
statement of the complainant has been recorded and on the basis of
sworn statement and other materials on hand, the criminal case has
been registered against the accused and summons was issued to him. In
response to the service of summons, the accused appeared through his
learned counsel and got enlarged on bail. The prosecution papers were
supplied to the accused and the substance of the accusation was read
over and explained to the accused in Kannada. He pleaded not guilty
and claimed to be tried.
4. During trial the complainant examined himself as PW1
and got marked Ex.P1 to P10. The statement of the accused U/s.313 of
Cr.P.C. is not recorded. The accused did not lead defence evidence.
5. Heard the counsel for the complainant and the arguments
on the side of the accused are taken as nil. On perusal of the entire
4 C.C.No.12281/2022
materials on record, the points that arise for my consideration are as
under;
1. Whether the complainant proves that the
accused issued cheque bearing No.000003 dated
14.02.2022 for Rs.60,500/ drawn on Bank of
Baroda, 60 feet main road, A block AECS Layout,
Singasandra branch, Bengaluru towards the
discharge of legally enforceable debt/ liability
and on its presentation for encashment, it was
dishonored with an endorsement "Funds
Insufficient" and the accused has not paid the
amount even after 15 days from the date of
service of legal notice sent through RPAD and
thereby accused committed an offence
punishable U/Sec.138 of N.I. Act, 1881?
2. Whether the accused rebuts the presumption
U/s.139 of the N.I.Act?
3. What order?
6. My answers on the above points for consideration are as under.
Point No.1 : In the Affirmative
Point No.2 : In the Negative
Point No.3 : As per final order for the following;
REASONS
7. Point No.1and 2 : The points are taken together for the
common discussion to avoid repetition of facts and evidence. It is
5 C.C.No.12281/2022
necessary to discus the provisions U/s. 118(a) and 139 of the Act.,
1881 at this stage.
"118. Presumptions as to negotiable
instruments. - Until the contrary is proved,
the following presumptions shall be made:
(a) of consideration - that every
negotiable instrument was made or drawn
for consideration, and that every such
instrument, when it has been accepted,
indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or
transferred for consideration;"
"139. Presumption in favour of holder.
It shall be presumed, unless the contrary is
proved, that the holder of a cheque received
the cheque of the nature referred to in
section 138 for the discharge, in whole or in
part, of any debt or other liability."
8. On plain perusal of the provision U/s. 118(a) and 139 of
the N.I.Act., it can be seen that initially the presumptions constituted
under these two provisions are in favour of the complainant. However
the presumptions are rebuttable and it is open to an accused to raise a
defence to rebut the statutory presumptions. An accused can raise a
defence, wherein the existence of legally enforceable debt or liability
can be contested.
6 C.C.No.12281/2022
9. It is also well established that an accused need not
examine himself for discharging the burden of proof placed upon him
under a statute. He may discharge his burden on the basis of the
materials already brought on record. An accused has constitutional
rights to remain silent. Standard of proof on part of the accused and
that of the prosecution in a Criminal Case is different. The prosecution
must prove the guilt of an accused beyond all reasonable doubts, the
standard of proof so as to prove a defence on the part of an accused is
preponderance of probabilities.
10. Under the light of position of the law, I have perused the
complaint and the evidence placed on record. The complainant in
support of his claim made in the complaint has adduced evidence by
examining himself as PW1 and he got marked Ex.P1 to P10. PW1
filed his evidence affidavit on oath and reiterated the complaint
averments. Ex.P1 is the cheque bearing No.000003 dated 14.02.2022
for Rs.60,500/ drawn on Bank of Baroda, 60 feet Main Road, A block
AECS Layout, Singasandra, Bangalore issued in favour of the
complainant. Ex.P2 is the Bank Memo dated 15.02.2022 with shara
"Funds Insufficient". Ex.P3 is the office copy of Legal Notice dated
02.03.2022 issued by the complainant to the accused demanding
repayment of the cheque amount. Ex.P4 is the postal receipt for having
sent the legal notice to the accused. Ex.P 5 is the track consignment for
having served the notice on the accused 05.03.2022. Ex.P6 is the reply
notice dated 21.03.2022. Ex.P6(a) is the postal envelope in which reply
notice is received. Ex.P7 is the GST certificate. Ex.P8 to 10 are the
credit invoices for total amount of Rs. 60,500/.
7 C.C.No.12281/2022
11. On perusal of the documents, it is clear that the cheque at
Ex.P1 bearing No.000003 dated 14.02.2022 for Rs.60,500/ drawn on
Bank of Baroda, 60 feet Main Road, A block AECS Layout, Singasandra
branch, Bengaluru issued in favour of the complainant was presented
for encashment within the validity. The Bank Memo at Ex.P2 was
issued with shara "Funds Insufficient" on 15.02.2022. The complainant
issued statutory legal notice to the accused on 02.03.2022 as per Ex.P3,
which is well within the time from the date of receipt of dishonor
memo. The notice was issued by the complainant through RPAD and it
was served on 05.03.2022. The complaint was filed on 16.04.2022,
which is within limitation. The issuance of the cheque and the
signature on the cheque at ExP.1 are not disputed. Therefore, the
documents on record clearly show that the complainant has complied
the ingredients of Section 138(a) to (c) of the N.I.Act. Therefore the
presumptions U/s.118 and 139 of the N.I.Act arise in favour of the
complainant. The presumptions are rebuttable and the burden is on the
accused to rebut the presumptions. The presumption is that the cheque
was issued for legally enforceable debt/ liability. However actual
existence debt or liability can be contested. The accused can rebut the
presumptions by raising probable defences and proving it relying on the
evidence of the complainant or by leading her direct evidence.
12. The plea of the accused was recorded on 02.09.2022. The
the case was posted for cross examination of PW1 on 28.09.2022,
20.10.2022 and 14.11.2022. The case was also referred to Lok Adalath
as the cheque amount is only Rs.60,500/ and it is commercial
transaction. However the accused did not appear and the matter was
not settled. The accused remained absent. The order sheet shows that
even after sufficient opportunities have been given to the accused to
8 C.C.No.12281/2022
crossexamine PW1, the accused failed to cross examine PW.1.
Therefore the crossexamination of PW1 was taken as nil on
14.11.2022. The accused did not appear before the Court to proceed
with the case. Hence the statement of the accused U/s.313 of Cr.P.C
could not be recorded. As per the Hon'ble High Court of Karnataka in
Crl. Revision Petition No.437/2010 in the case of R.V.Kulkarni Vs.
Dakshina Murthy vide Judgment dated 28.06.2012, wherein it was
held that it was for the accused to appear before the Court and to have
defended himself effectively and to make himself available for the Court to
record the statement U/s.313 of Cr.PC. In the said case the complainant
preferred the revision before the Hon'ble High Court challenging the
order of the First Appellate Court in remanding the matter for fresh
trial for non recording of the statement of the accused U/s.313 of
Cr.P.C. The Hon'ble High Court of Karnataka observed that there is no
justification of the Appellate Court for having held that there is failure
of justice on account of statement of the accused not having been
recorded U/s.313 of Cr.P.C. The Hon'ble High Court of Karnataka also
discussed settled law in respect of statement of accused U/s.313 of
Cr.P.C by referring to the decision of three judge bench of Hon'ble
Supreme Court in the case of Basavaraj R.Patil Vs.State of Karnataka
reported in (2000) 8 SCC 740. It is clear from the above decision that
it is the duty of the accused to appear before the Court and make
available himself for recording of statement U/s.313 of Cr.P.C. and to
lead defence evidence. The accused failed to utilize the opportunity by
remaining absent. Therefore the statement of the accused U/s.313 of
Cr.PC was not recorded and the defence evidence is taken as nil. The
order sheet shows the conduct of the accused in delaying the
proceedings. Further the Hon'ble Supreme Court of India in the case
of Sumeti v/s M/s Paramount Tech Fab Industries in Crl.Appeal
9 C.C.No.12281/2022
No.292/2021 arising out of SLP(Crl) No.8498 of 2019 decided on
9.3.2021 held that a statement of the accused recorded u/sec.313 of
Cr.P.C is not a substantive evidence of defence but only on opportunity to
the accused to explain the incriminating circumstances appearing in the
prosecution case of the accused. It was also observed that if there is no
evidence in support of his defence either to disprove or to rebut the
presumption under sec.139 of the Act, the statement recorded under
sec.313 of Cr.P.C pleading false implication and innocence does not come
to the aid of the accused as it is not a substantive evidence. Further it is
settled principle that the accused must show prejudice caused to him
due to the non recording of statement u/sec.313 of Cr.P.C. If no
prejudice is pleaded and proved to the satisfaction of Court for non
recording of statement u/sec.313 of Cr.P.C there would be no violation
of salutary principle of natural justice as enshrined in the maxim "audi
alteram partem". No doubt it is well settled that a circumstance about
which the accused was not asked to explain can not be used against
him. But certainly it can be distinguished under the peculiar facts and
circumstances of a particular case. In the case on hand, it is clear that
the accused attempted to misuse the process of the Court and
abandoned the proceedings. Though the matter is pertaining to the
year 2022, the delaying tactics have been practiced by the accused. If
the same are entertained, it would defeat the proceedings instituted by
the complainant. Therefore in the opinion of this Court, the non
recording of the statement u/sec.313 of Cr.P.C would not vitiate the
proceedings unless prejudice is shown by the accused. The scope and
object of Sec.313 of Cr.P.C is explained in catena of decisions and in
view of that no injustice caused to the accused for not having recorded
his statement u/sec.313 of Cr.PC.
10 C.C.No.12281/2022
13. Further as per the judgment of the Hon'ble Supreme
Court of India in the case of Md. Sukur Ali v/s State of Assam in
Crl. Appeal No.546/2011 dated 24.2.2011, wherein it was held that
if the criminal case whether a trial or appeal or revision is decided against
accused in the absence of counsel there will be violation of Article 21 of
the Constitution. However this Court is of the opinion that as the
accused has the right to fair trial, he is also under the duty or
obligation to promptly appear before the Court and contest the case. As
per the law of jurisprudence, there is always duty or obligation
corresponding to the right. The accused remaining absent for the years
together at his peril and therefore he can not be expected to claim the
right. Further the judgment in the case of Md. Sukur Ali (supra) can be
distinguished on the basis of the facts of the present case. The facts of
the said case are that the Crl. Appeal No.137 of 2003 was decided by
the Hon'ble Gauhati High Court on 1.6.2010 in the absence of the
counsel for the Appellantaccused and the conviction was upheld. The
question before the Hon'ble Supreme Court was that whether in a
criminal case, if the counsel for the accused does not appear, for
whatever reason, should the case be decided in the absence of the
counsel against the accused, or the Court should appoint an amicus
curie to defend the accused. Usually in appeal or revision, there is no
question of recoding of evidence of the parties. The counsels appearing
for the parties canvass the arguments on behalf of their parties assisting
the Court about the correct position of law and the error committed by
the Trial Court or Appellate Court as the case may be. However that is
not the case when it comes to a trial. The parties have to personally
appear before the Court and lead evidence and the complainant has
only benefit of recording the evidence through GPA/SPA holder. In a
case where the accused himself is not appearing and because of
11 C.C.No.12281/2022
instructions being not given or for any other reason, the counsel is also
not appearing, if the Amicus Curie is appointed by the Court to defend
the accused, he could not proceed with the case without there being
any instructions of the accused and knowledge of the facts/the defence
of the accused. If the Amicus Curie is unaware of the defence of the
accused under the facts of a particular case, he is unable to proceed
with the case in effective manner. If the accused himself is not
appearing, there is no question of leading the defence evidence. Further
at a later stage, the accused may appear and if at all something went
against him in his absence, he might challenge it. If the counsel for the
accused appear at a later stage, he might also challenge it. Therefore
with due respect to the judgment of the Hon'ble Supreme Court in the
case of Md. Sukur Ali (supra) this Court is of the opinion that under the
circumstances as elaborated herein above the appointment of Amicus
Curie in trial is not feasible. Further the proceedings under the N.I Act
are quasi civil in nature and the object of the N.I Act is to bring back
the credibility of Negotiable Instrument which were loosing their
credibility because of lack of responsibility on the part of the drawer
and to inculcate faith in the efficacy of banking operations in
transacting business on Negotiable Instrument in general to bring the
erring drawer to book, so that such irresponsibility is not perpetuated,
to protect the honest drawer and to safeguard the payee who is almost
a looser. Such being the case, if the accused is allowed to abuse the
process of the Court, the object of the Act would be defeated. Further in
the case of K.S Panduranga v/s State of Karnataka, reported in
2013(3) SCC 721 the Hon'ble Supreme Court held that, "regard
being had to the principles pertaining to binding precedent, there is no
trace of doubt that the principle laid down in Md. Sukar Ali (Supra) by
the learned judges that the Court should not decide a criminal case in the
12 C.C.No.12281/2022
absence of counsel of the accused as an accused in a criminal case should
not suffered for the fault of his counsel and the Court should, in such a
situation must appoint another counsel as amicus curie to defend the
accused and further if the counsel does no appear deliberately, even then
the Court should not decide the appeal on merit is not in accordance with
the pronouncement by larger bench in Bani Singh." The Hon'ble Court
further held that in view of the aforesaid annunciation of law, it can
safely be concluded that the dictum in Md. Sukur Ali (Supra) to the effect
that the Court can not decide a criminal appeal in the absence of counsel
for the accused and that too if the counsel does not appear deliberately or
shows negligence in appearing, being contrary to the ratio laid down by
the larger bench in Bani Singh (Supra) is per in curium. Furthermore the
transaction alleged in the case is purely a commercial transaction
between the parties and the accused is not in judicial custody. Under
such circumstances the question of appointing counsel for the accused
at the cost of state may not arise at all. Hence, in view of the law laid
down in the case of K.S Panduranga (Supra), the case is proceeded on
merits.
14. The accused failed to cross examine PW1 and he did not lead
any defence evidence. Further the order sheet shows the conduct of the
accused in delaying the proceedings. The accused has been given
sufficient opportunities for cross examination of PW1 but the accused
failed to cross examine PW1. Therefore, the cross examination of PW1
was taken as nil. The accused did not lead the defence evidence.
Therefore the defence evidence was also taken as nil. The case was
posted for arguments. The conduct of the accused itself shows that he
is postponing the liability. If at all the accused had no liability towards
the complainant as alleged in the complaint and if at all he had not
13 C.C.No.12281/2022
issued the cheque in question for the said liability, he would have
promptly proceeded with the case and also he would have lead defence
evidence in respect of the probable defences taken by him in the reply
notice and proving the same by leading cogent evidence. The same has
not been done. He had not taken any action against the complainant
for misuse of cheque. Therefore there is nothing on record to disbelieve
the case of complainant.
15. The cheque and signature on the cheque at ExP.1 are not
disputed. The admission regarding drawer's signature on the cheque,
attracts the ratio laid down by the Hon'ble Supreme Court of India in
its decisions reported in 2011 (11) SCC - 441 - Rangappa
V/s.Sri.Mohan and SCC 2015 (8) Page No.378 - T.Vasanthakumar
V/s.Vijayakumari and the recent Judgment delivered in Crl. Appeal
No.508/2019 - Rohit Bhai Jeevanlal Patel V/s.State of Gujarath and
another. The ratio is that the cheque shall be presumed to be for
consideration unless and until the court forms a belief that the
consideration does not exist or considers the nonexistence of
consideration was tenable that a prudent man would under no
circumstances act upon the plea that the consideration does not exist.
On perusal of Ex.P1, it clearly show that the signature and the contents
are written in different ink. Further as per Section 20 of the N.I.Act, if
the person signs and delivers Negotiable Instrument and it is left
incomplete and thereby he authorizes the holder to complete the
Negotiable Instrument and thereby he is liable for the amount
mentioned in the Negotiable Instrument. In the Judgment rendered by
the Hon'ble Supreme Court of India in Bir Singh V/s.Mukesh
Kumar reported in AIR 2019 SC 2446, it was held by the Hon'ble
Apex Court that "If a signed blank cheque is voluntarily presented to a
14 C.C.No.12281/2022
payee, towards some payment, the payee may fill up the amount and
other particulars. This in itself would not invalidate the cheque. The onus
would still be on the accused to prove that the cheque was not in
discharge of a debt or liability by adducing evidence. Even a blank cheque
leaf, voluntarily singed and handed over by the accused, which is towards
some payment, would attract presumption under Section 139 of the
Negotiable Instruments Act, in the absence of any cogent evidence to show
that the cheques was not issued in discharge of a debt." Therefore there is
nothing on record to disbelieve the case of the complainant.
16. The counsel for the complainant relied on the following
Judgments:
1. The Judgment of Hon'ble High Court of Karnataka in the case of
Kempanarasimhaiah v/s T. Rangaraju and Another reported in 2008
(5) KCCR 3371 wherein it was held that once the presumption
u/sec.139 of N.I Act is raised, the burden is on the accused to prove his
defence and rebut the presumption. The accused was not supposed to
prove his defence beyond all reasonable doubts but he has to prove the
defence by preponderance of probabilities to rebut the presumption.
2. The Judgment of Hon'ble High Court of Karnataka in the case
of Umaswamy v/s K.N Ramanath reported in 2006 Crl.J.3706 wherein
it was held that even if the cheque is issued for security for payment it is a
Negotiable Instrument and encashable security at the hands of payee.
Merely because it is issued as security is no ground to exonerate the penal
liability u/sec.138 of N.I Act.
15 C.C.No.12281/2022
17. The Hon'ble Supreme Court of India in the case of
Rangappa Vs. Mohan reported in 2011 (11) SCC 441 held as under;
The presumption mandated by Section 139 of N.I.Act does
indeed include the existence of legally enforceable debt or
liability. It is rebuttable presumption and it is open to the
accused to raise a defence wherein the existence of legally
enforceable debt or liability can be contested. However there
can be no doubt that there is an initial presumption which
favours the complainant. Section 139 of the Act is an
example of reverse onus clause that has been included in
furtherance of the legislative objective of improving the
credibility of negotiable instruments.
Therefore the as per the presumption U/s139 of N.I.Act, if
the cheque and signature are admitted then it shall be presumed
that there is legally enforceable debt.
18. The Hon'ble Supreme Court of India in its latest case of
M/s. Kalamani Tex v. P. Balasubramanian reported in 2021 SCC
OnLine SC 75 observed at para No.14 to 16 as under:
14. Adverting to the case in hand, we find on a plain
reading of its Judgment that the trial Court completely
overlooked the provisions and failed to appreciate the
statutory presumption drawn under Section 118 and Section
139 of NIA. The Statute mandates that once the signature(s)
of an accused on the cheque/negotiable instrument are
established, then these 'reverse onus' clauses become
operative. In such a situation, the obligation shifts upon the
16 C.C.No.12281/2022
accused to discharge the presumption imposed upon him.
This point of law has been crystalized by this Court in
Rohitbhai Jivanlal Patel Vs. State of Gujarat, (2019) 18 SCC
106 in the following words:
"In the case at hand, even after purportedly drawing
the presumption under Section 139 of the NI Act, the trial
Court proceeded to question the want of evidence on the part
of the complainant as regards the source of funds for
advancing loan to the accused and want of examination of
relevant witnesses who allegedly extended him money for
advancing it to the accused. This approach of the Trial Court
had been at variance with the principles of presumption in
law. After such presumption, the onus shifted to the accused
and unless the accused had discharged the onus by bringing
on record such facts and circumstances as to show the
preponderance of probabilities tilting in his favour, any
doubt on the complainant's case could not have been raised
for want of evidence regarding the source of funds for
advancing loan to the appellantaccused....."
15. Once the 2nd Appellant had admitted his
signatures on the cheque and the Deed, the trial Court
ought to have presumed that the cheque was issued as
consideration for a legally enforceable debt. The trial Court
fell in error when it called upon the Complainant
Respondent to explain the circumstances under which the
appellants were liable to pay. Such approach of the Trial
Court was directly in the teeth of the established legal
17 C.C.No.12281/2022
position as discussed above, and amounts to a patent error
of law.
16. No doubt, and as correctly argued by senior
Counsel for the appellants, the presumptions raised under
Section 118 and Section 139 are rebuttable in nature. As
held in M.S.Narayana Menon Vs. State of Kerala, (2006) 6
SCC 39, which was relied upon in Basalingappa (supra), a
probable defence needs to be raised, which must meet the
standard of "preponderance of probability", and not mere
possibility. These principles were also affirmed in the case
of Kumar Exports (supra), wherein it was further held that
a bare denial of passing of consideration would not aid the
case of accused.
Therefore it is clear from the above judgments that the accused
has to raise a probable defence and prove it by adducing evidence,
which must meet the standard of preponderance of probabilities.
Unless the same has been done, doubt can not be raised on the case of
the complainant.
19. On perusal of the evidence, the Court has raised
presumption U/s.139 of N.I.Act in favour of the complainant as the
complainant has complied all the ingredients of 138 of N.I.Act. The
presumption would operate in favour of the complainant unless the
contrary is proved. The onus is on the accused to prove his defence and
rebut the presumption. The accused has taken specific defence in the
reply notice but he failed to lead evidence. If at all the cheque in
question was misused by the complainant, then the accused would
18 C.C.No.12281/2022
have taken legal action against the complainant which has not been
done. The accused appeared before the court and he is having the
knowledge of the proceedings at all times. Therefore the overall
evidence on record gave the impression that the accused issued the
cheque in favour of the complainant in respect of the transaction as
averred in the complaint.
20. For the reasons mentioned herein above, it is crystallized
that the accused has utterly failed to prove that there was no existence
of legally enforceable debt/liability between him and the complainant
and he has not at all issued the instant cheques towards the discharge
of legally enforceable debt. On the other hand, the complainant has
proved that the accused issued the cheques for the legally enforceable
debt; the cheque is dishonored due to the reason 'Funds Insufficient'
and the notice issued by him was served on the accused. The
complainant proved his case beyond reasonable doubt. The accused
failed to rebut the statutory presumptions U/s.118(a) & (b) and 139 of
the N.I.Act. Accordingly the accused is found guilty for the offence
punishable U/s.138 of the N.I.Act. Hence, I proceed to answer the
Point No.1 in Affirmative and Point No.2 in the Negative.
21. Point No.3 : In view of the reasons assigned in Point No.1
and 2, I proceed to pass the following:
ORDER
As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby convicted for the offence punishable u/s.138 of NI Act, 1881 and sentenced to pay fine 19 C.C.No.12281/2022 Rs.70,000/ (Rupees Seventy Thousand Only). On deposit of fine amount, the complainant is entitled for compensation of Rs.65,000/ (Rupees Sixty Five Thousand Only). The remaining balance amount of Rs.5,000/ is to be forfeited to the State.
In default of payment of the fine amount accused shall undergo simple imprisonment for one month.
The personal bond executed by the accused and surety bond are hereby stand cancelled.
The copy of the judgment shall be furnished to the a at free of cost.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by him, is verified and then pronounced by me in Open Court on this the 19th day of December2022.) (Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.
20 C.C.No.12281/2022ANNEXURE Witnesses examined for the Complainant: PW.1 : Sri. Kaluram Choudary Documents marked for the Complainant: Ex.P1 : Original cheque Ex.P1(a) : Signature of the accused Ex.P2 : Bank Memo Ex.P3 : Legal notice Ex.P4 : Postal receipt Ex.P5 : Track Consignment Ex.P6 : Reply notice Ex.P6(a) : Postal envelope Ex.P7 : GST Certificate Ex.P8 to 10 : 3 credit invoices Witnesses examined For Defence: NIL Documents marked for Defence: NIL (Lokesh Dhanapal Havale), XV Addl.CMM., Bengaluru.
21 C.C.No.12281/202219.12.2022 (Judgment Pronounced in the Open Court Vide Separate Order sheet) ORDER As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby convicted for the offence punishable u/s.138 of NI Act, 1881 and sentenced to pay fine Rs.70,000/ (Rupees Seventy Thousand Only). On deposit of fine amount, the complainant is entitled for compensation of Rs.65,000/ (Rupees Sixty Five Thousand Only). The remaining balance amount of Rs.5,000/ is to be forfeited to the State.
In default of payment of the fine amount accused shall undergo simple imprisonment for one month.
The personal bond executed by the accused and surety bond are hereby stand cancelled.
The copy of the judgment shall be furnished to the a at free of cost.
XV Addl.CMM., Bengaluru.