Bangalore District Court
Sri. Mahesh. B.S vs Sri. Singari Gowda on 17 March, 2018
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
:: PRESENT ::
SMT. C.G. VISHALAKSHI, B.A.L., L.L.B.,
XIII A.C.M.M. Bengaluru.
C.C. NO.18465/2016
Dated: This the 17th day of MARCH-2018
COMPLAINANT/S: Sri. Mahesh. B.S.
S/o. Late. H.M. Sreekanthaiah,
Aged about 45 years,
R/at. No.507, 2nd Main,
RHCS Laaccusedt,
Annapurneshwari Nagar,
Bangalore-91.
ACCUSED: Sri. Singari Gowda,
Aged about 30 years,
R/at. No.49/1, (Next to House No.85),
14th Cross, Meenakshinagara,
Kamakshipalya,
Bangalore - 79.
OFFENCE Under Section.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Convicted
**
JUDGEMENT 2 C.C.18465/2016
JUDGEMENT
This complaint is filed against the accused under Section.200 of Cr.P.C. for the offence punishable under Section.138 Negotiable Instruments Act.
2. The gist of the complaint is as follows:
The complainant and the accused are known to each other from past several years and there was a good and cordial relationship in between them. On such acquaintance, during the 2nd week of January-2015, the accused had approached the complainant for hand loan of Rs.2,00,000/- by pleading his necessities. Hence the complainant had advanced the loan of Rs.1,50,000/- infavour of the accused on 15-07-2015. The accused had promised to return the entire amount within December- 2015. The complainant has waited till the end of December-2015. But the accused has not shown any interest to repay the loan amount. Hence, he personally approached the accused on 03-01-2016 requesting him to repay the loan amount, then the accused by stating that he JUDGEMENT 3 C.C.18465/2016 would settle the amount, had issued the post dated cheque bearing No.729575, dated: 28-03-2016 for Rs.1,50,000/- drawn on Post Office Saving Bank Chief Post Master Bangalore GPO, infavour of the complainant towards discharge of the loan amount and assured about its honour. As per the assurance, when the complainant has presented the said cheque for encashment through his banker i.e., HDFC Bank Ltd., Malleshwaram Branch, Bangalore. The cheque was returned dishonored for the reason 'Account Closed' vide memo on 05-04-2016. This fact was brought to the notice of the accused by the complainant and asked the accused to settle the matter amicably, but inspite of his best efforts, the accused did not come forward to settle the amount covered under the cheques. Hence, the complainant caused demand notice against the accused on 18-04-2016 through RPAD demanding him to pay the amount covered under the cheque. The notice was duly served on the accused on 25- 04-2016. Despite of service of notice the accused not settled the amount covered under the cheque but gave reply on 29-04-2016 denying the transaction. Hence, JUDGEMENT 4 C.C.18465/2016 having no other go, the complainant maintained this complaint against the accused, alleging that the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and prays to deal the accused as per law.
3. On presentation of the complaint, this court has taken cognizance of the offence; sworn statement of the complainant was recorded. On perusal of the documents and on hearing the complainant, process was issued against the accused. In pursuance of the process, the accused appeared before this court and enlarged on bail. Copies of the complaint papers supplied to him. Substance of the accusation was read over and explained to the accused. The accused did not plead guilty and claims to be tried. Hence, the matter was posted for the evidence of the complainant.
4. In order to prove the case of the complainant, he got examined himself as PW.1 and got marked documents as Ex.P1 to P8 and closed his side evidence. After completion JUDGEMENT 5 C.C.18465/2016 of the complainant's evidence, the accused was examined under Section.313 of Cr.P.C. and his statement was recorded. To substantiate his defence, the accused examined himself as DW.1, but not produced any documents on his side.
5. Heard arguments.
To support of his case, the counsel for the accused has submitted citations as follows:
2015 AIR SCW 64 K. Subramani V/s. K. Damodara Naidu ** ILR 2014 KAR 6572 Sri. H. Manjunath V/s. Sri. A.M. Basavaraju **
6. Upon reading the entire materials on record and on hearing the arguments the following points that arise for my consideration:
POINTS
1. Whether the complainant proves beyond all shadow of doubt that, the accused has committed an offence JUDGEMENT 6 C.C.18465/2016 punishable under Section.138 Negotiable Instruments Act?
2. What order?
7. My answers to the above points are as follows:
Point No.1: In the Affirmative
Point No.2: As per the final order,
for the following.
:: REASONS ::
8. POINT NO.1: As the accused did not pleaded
guilty, the complainant has chosen to examine himself as PW.1 and got marked documents as Ex.P1 to P8.
As per the decision reported in ILR 2008 KAR PAGE- 4629 between Shivamurthy V/s Amruthraj and in another decision rendered by the Hon'ble Apex court in AIR-2008 SC-1325 between Krishna Janardhan Bhat V/s Dattatreya G. Hegde, in order to attract Sec.138 of Negotiable Instruments Act, the complainant has to satisfy 3 essential ingredients like, 1) there is legally enforceable debt, 2) that the cheque was drawn from the account of the JUDGEMENT 7 C.C.18465/2016 Bank of the accused for discharge of whole or part of any debt or other liability which pre-supposes to be legally enforceable debt, 3) cheque so issued returned unpaid due to Insufficient of funds.
9. Keeping in view the ingredients of Section.138 of Negotiable Instruments Act, I proceed to discuss the documents of this case.
(a) Ex.P1 is the No.729575, dated: 28-03-2016 for Rs.1,50,000/- drawn on Post Office Savings Bank, Chief Pos Master, Baganlore-560010. As per the say of the complainant, Ex.P1(a) is the signature of the accused.
(b) Ex.P2 is the Bank endorsements issued by the Bank authorities, dated: 05-04-2016 for having dishonour of the cheques for the reason 'Account Closed'.
(c) It must be noted as per Clause (b) proviso to Section.138 of Negotiable Instruments Act, the complainant was required to make a demand for payment JUDGEMENT 8 C.C.18465/2016 of the said amount within 30 days from the date of receipt of cheque as un-paid.
(d) Ex.P3 is copy of the legal notice dated: 18-04-2016 which shows that the complainant made demand in writing calling upon the accused to make repayment of the said cheques amount by issuing notice against him which is within 30 days.
(e) Ex.P4 is the postal receipt and Ex.P5 is the postal acknowledgment card, it shows that notice was sent against the accused under RPAD was duly served. Ex.P6 is the reply notice. Ex.P8 is the statement of account.
As per Clause (C) proviso to Section.138 of Negotiable Instruments Act, the accused is entitled 15 days time to make payment of money covered under cheque. Further, as per Section.142(b) of Negotiable Instruments Act, complaint has to be filed within 30 days from the date of which the cause of action arose. Therefore, the complainant has filed this complaint well within time. JUDGEMENT 9 C.C.18465/2016
10. Thus, the complainant has fulfilled all the ingredients, which were required for the completion of the offence punishable under Section.138 of Negotiable Instruments Act.
11. On perusal of the entire materials on record, it shows that the complainant has maintained this case against the accused alleging that the accused being his close friend and well known person, having good and cordial relationship with him, had borrowed a sum of Rs.1,50,000/- from complainant on 15-07-2015 and towards discharge of the said debt, the accused has issued this disputed cheque infavour of the complainant towards discharge of the alleged loan of Rs.1,50,000/- and assured that the said cheque would be honoured. As per the assurance, when the complainant has presented the cheque for encashment through his banker, it was dishonoured for the reason 'Account Closed'. Though complainant has brought the said fact to the knowledge of the accused, but the accused did not come forward to pay the cheque amount. Hence, the complainant got issued JUDGEMENT 10 C.C.18465/2016 demand notice against the accused by RPAD and its due service on him, the accused did not come forward to pay the amount covered under the cheque, but gave reply by denying the claim of the complainant. Hence, the complainant maintained this complaint in time.
12. Per-contra, on reading the line of cross-examination and the defence setup by the accused, it shows that he has denied the acquaintance in between himself and the complainant contending that he does not know the complainant and he also denied with regard to the alleged loan transaction in between himself and the complainant and denied about the issuance of this disputed cheque infavour of the complainant towards discharge of any debt or liability. But he has taken up the defence that he had borrowed loan of Rs.25,000/- only from the mother of the complainant, on that time the mother of the complainant had obtained his signed blank cheque. Thereafter though the accused had repaid the loan amount infavour of the mother of the complainant and had insisted to return his signed blank cheque allegedly given as security. But the JUDGEMENT 11 C.C.18465/2016 mother of the complainant without returning his signed blank cheque, but by misusing the same, has filed this false complaints against him, though there exists no loan transaction in between himself and the complainant.
13. Thus, there is no dispute so as to the fact that Ex.P1 cheque is belongs to the bank account of the accused and Ex.P1(a) is his signature.
14. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR-1981 PAGE- 2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the execution of Negotiable Instruments (cheque in question) is admitted as well as proved.
15. In view of the decision reported in 2010 SC 1898 between Rangappa V/s Mohan, once the execution of Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption under JUDGEMENT 12 C.C.18465/2016 Section.139 of Negotiable Instruments Act, in favour of the complainant to that effect that the said Negotiable Instrument i.e., the disputed cheque has been drawn for valid consideration and it is towards legally recoverable debt and it is drawn for valuable consideration.
16. Having admitted the fact that Ex.P1 cheque is belongs to the bank account of the accused and Ex.P1(a) is his signature, presumption arose infavour of the complainant under Section.139 of Negotiable Instruments Act. Hence, the burden is on the accused to rebut the same with probable evidence.
17. To substantiate his defence, he cross-examined PW.1 and also led his evidence as DW.1. Wherein he deposed that he does not know the complainant, but stated that he never borrowed any loan from the complainant to the tune of Rs.1,50,000/- nor issued this disputed cheque infavour of the complainant towards discharge of any debt or liability. On the other hand he had borrowed a sum of Rs.25,000/- only from the mother of the complainant at JUDGEMENT 13 C.C.18465/2016 about six years back on furnishing this disputed cheque in blank i.e., signed blank cheque as security, though he had repaid the loan amount infavour of the mother of the complainant, but the mother of the complainant without returning his signed blank cheque, but by misusing the same has filed this false complaint against him etc., though there exists no debt or liability.
18. But having admitted the fact that Ex.P1 cheque is belongs to the bank account of the accused and Ex.P1(a) is his signature, presumption is available infavour of the complainant under Section.139 of Negotiable Instruments Act, that the Ex.P1 cheque was issued towards discharge of the legally enforceable debt or liability. Presumption under Section.139 of Negotiable Instruments Act is a presumption of law and it is not presumption of fact. The presumption has to be raised by the court in all the cases once the accused admitted the fact that the cheque is drawn from his bank account and signature is that of the accused. Hence, the burden of proof to rebut the presumption lies on the accused. The standard of such JUDGEMENT 14 C.C.18465/2016 rebuttable evidence depends on the facts and circumstance of each cases and such evidence must be sufficient cogent and convincing. Therefore mere explanation is not sufficient to rebut the presumption of law.
19. The accused has taken very specific stand that he does not know the complainant. But on careful reading the evidence of the accused, it shows that in the chief-evidence of the accused, he himself has stated that he had borrowed the loan from the mother of the complainant. This clearly goes to show that the accused knows the complainant. Inspite of the same, the accused has stated that he does not know the complainant.
20. Further it is defence of the accused that he had borrowed loan of Rs.25,000/- only from the mother of the complainant at about six years back on furnishing this disputed cheque as security. But to substantiate the said defence the accused not produced any iota of evidence before this court except his oral assertion and denial. If the defence of the accused was true that he had borrowed loan JUDGEMENT 15 C.C.18465/2016 of Rs.25,000/- only at about six years back on furnishing this disputed cheque in blank as security etc., then he would have proved the same by placing any evidence before this court, but he did not produced any evidence before this court.
21. If the defence of the accused was true, then he would have proved the same by examining the mother of the complainant before this court by calling her as his witness. But he did not made any attempt in this regard. Because, it is the specific defence of the accused that he had borrowed loan of Rs.25,000/- from the mother of the complainant at about six years back on furnishing the disputed cheque as security. When such being the case, mother of the complainant would be the proper person to say before this court with regard to either lending loan of Rs.25,000/- infavour of the accused at about six years back or about obtaining the signed blank cheque of the accused as security. But no such attempt made by the accused. Hence, non-examination of material witness is fatal to the defence of the accused.
JUDGEMENT 16 C.C.18465/2016
22. Further if the defence of the accused was true that he had borrowed loan of Rs.25,000/- from the mother of the complainant at about six years back on furnishing this disputed cheque as security and thereafter he had cleared the said loan amount, if that was true then certainly he would have obtained back his signed blank cheque from the mother of the complainant. Though accused at one stretch stated that after discharging the said loan amount inspite of his demand, the mother of the complainant had not returned his signed blank cheque etc. If that was true, then what was the impediment for the accused to take necessary legal steps against the complainant to collect back his signed blank cheque.
23. If really he had borrowed loan of Rs.25,000/- from the mother of the complainant on furnishing this disputed cheque as security and he had discharged the said debt and inspite of demand to return his cheque, if the mother of the complainant not returned his signed blank cheque, then he would have written any letter to the mother of the complainant requesting her to return his blank cheque i.e., JUDGEMENT 17 C.C.18465/2016 signed blank cheque allegedly given as security in her favour in connection to the loan transaction in between the mother of the complainant and himself, by narrating the fact of clearance of the alleged debt of Rs.25,000/-.
24. In case, if the mother of the complainant had not obliged for the request of the accused, then the accused would have caused legal notice against the mother of the complainant demanding him to return back his security cheque by narrating the circumstance in which he had given this cheque infavour of the mother of the complainant. In case, if the mother of the complainant not complied with demands of notice, then certainly he would have lodged police complaint against the mother of the complainant for non-return of his security cheque inspite of clearance of the debt. But no such overtact is forth coming on the conduct of the accused.
25. Unless the accused has proved that he has acted as normal prudent man, he could not rebut the presumption which arose in favour of the complainant under JUDGEMENT 18 C.C.18465/2016 Section.139 of Negotiable Instruments Act. Because, no prudent man would remain silent without taking any legal steps to collect his security documents like signed blank cheques, if really he had given any of his cheque infavour of any person as security in connection to any transaction even after completion of the same.
26. Even otherwise, he did not proved the said defence of furnishing his signed blank cheque as security infavour of the mother of the complainant in connection to the loan transaction in between mother of the complainant by placing any material evidence. Hence, the defence of the accused in explaining the circumstance in which the disputed cheque went to the hands of the complainant is not convincing and acceptable one and it is not probable defence to dispel the burden which arose infavour of the complainant under Section.139 of Negotiable Instruments Act.
27. Further if really he had given his cheque i.e., signed blank cheque including the disputed cheque as security JUDGEMENT 19 C.C.18465/2016 infavour of the brother of the complainant for loan transaction in between the mother of the complainant and despite of the fact of clearance of the debt and the mother of the complainant not returned his signed blank cheque, then certainly he would have given necessary stop payment instruction pertaining to the cheque allegedly given as security by requesting the bank authorities or postal authorities not to honour the cheque in case of its presentation for encashment. But no such steps have been taken by the accused. Because, the disputed cheque was returned dishonoured not for the reason 'Stop Payment' but for the reason 'Account Closed'. This also creates doubt.
28. Further if the defence of the accused was true that he never borrowed any loan from the complainant and he never issued this disputed cheque infavour of the complainant for discharge of any debt or liability and on the other hand, he had given his signed blank cheque as security infavour of the mother of the complainant for the loan transaction in between the mother of the complainant JUDGEMENT 20 C.C.18465/2016 and himself and the mother of the complainant has misused his cheque in collusion with this complainant etc., then would have taken any legal action against the both complainant and his mother. But no such steps have been taken by the accused. This creates doubt.
29. No doubt the accused has given the reply for the demand notice of the complainant by taking his defence of furnishing this disputed cheque infavour of the complainant's mother with respect to the alleged loan transaction of Rs.25,000/- at about six years back, but mere that fact, it cannot be said that the accused has proved his defence unless he proves the same with necessary convincing evidence. Thus, the defence taken by the accused in explaining the circumstance in which the disputed cheque went to the hands of the complainant is not acceptable and convincing one.
30. In the case on hand the amount involved in the cheque is of rs.1,30,000/-. The complainant during his evidence deposed about lending loan of Rs.1,50,000/- JUDGEMENT 21 C.C.18465/2016 infavour of the accused. Though accused has questioned the source of income to lent loan infavour of the accused for which the complainant during his cross-examination clearly stated that he has Rs.4 to 5 lakhs through his business and he also getting income through salary. To substantiate the said fact, he produced documents like income tax returns and also copy of his bank statement. On perusal of the same, it shows that the complainant has monthly salary approximately Rs.34 to 35 thousand. Apart from this, he has doing business also. This evidence is not falsified by the accused as there is no any single suggestion to the PW.1 denying his source of income and so also his monitory capacity to lend such quantum of loan infavour of the accused.
31. The learned advocate for the accused has placed authority reported in (2015) 1 Supreme Court 99 K. Subramani V/s. K. Damodara Naidu, wherein the Hon'ble Supreme Court of India held that legally recoverable debt not proved as the complainant could not proved the source of income from which alleged loan was made to the JUDGEMENT 22 C.C.18465/2016 accused persons, presumption infavour of the cheque held stood rebutted.
32. But with due respect I beg to submit that the facts and circumstance of the above said case is not applicable to the facts and circumstance in the case on hand. Because in the above said decision both the complainant and the accused were Government Officials. Wherefore when there is financial transaction, they have to keep proper account for the same and they had to obtain necessary permission from their higher authority with respect of lending money or for borrowing loan etc. The said condition was not fulfilled in the above transaction. Hence, the Hon'ble Supreme Court of India was pleased to hold that the complainant has to prove the source of income. But the fact and circumstance in the case on hand is entirely different. Here in the case on hand, the complainant and accused are private employees. The complainant is an employee of private firm. Hence, the fact and circumstance not applicable to the case on hand. JUDGEMENT 23 C.C.18465/2016
33. Further the amount involved in the cheque is of Rs.1,50,000/-. It is not huge amount. The complainant has income of Rs.34 to 35 thousands p.m. through his salary p.m. The annual income approximately Rs.4 to 5 lakhs, the amount is not huge amount, the person who has salary of Rs.34 to 35 thousand p.m. might have saved the amount and out of such source of income, the accused might have lent loan infavour of the accused. Hence, this court is of the opinion that the complainant has every capacity to lend money to the accused to the tune of Rs.1,50,000/-. Mere the fact that the complainant has not placed any documents to show about the fact of lending amount to the accused, it cannot be said that there was no any loan transaction at all. On the other hand, as per the version of the complainant the accused not stranger, on the other hand he is well known person and by considering the good relationship in between them, he had advanced loan infavour of the accused. Hence, mere the fact that the complainant not obtained any documents from the accused for having lent loan, it cannot be a ground to suspect the JUDGEMENT 24 C.C.18465/2016 entire case of the complainant. Hence, the argument of the accused in this regard holds no water.
34. Further the advocate for the accused during their arguments argued that the as per the version of the complainant that the accused had approached him for loan during January-2015, but he had advanced the loan of Rs.1,50,000/- in favour of the accused during the month of July-2015 i.e., on 15-07-2015. With this, the accused counsel argued that usually loan would be borrowed by any persons for their urgency and if at all the complainant had lent any loan infavour of the accused on the necessity of the accused by pleading his urgency, then the complainant would have advanced loan infavour of the accused on the time when the accused has approached for loan. But as per the version of the complainant though accused had approached him for loan in the month of January-2015, but he had paid the loan to the accused in the month of July-2015 i.e., 15-07-2015 and hence argued that there was no any loan transaction at all in between the complainant and the accused. But PW1 clearly stated JUDGEMENT 25 C.C.18465/2016 that though accused had approached him for loan during the month of January-2015, but on that time he did not advanced any loan infavour of the accused, but thereafter 3-4 months when he had been to the house of his mother, the accused again approached him for loan and was insisting him for the loan over telephone and hence he had advanced loan of Rs.1,50,000/- infavour of the accused in the month of July-2015. The explanation given by the complainant is proper.
35. The counsel for the accused argued that how the accused could anticipate the fact that the complainant would come to his mother's house to approach the complainant for loan etc. But, as per the version of the complainant, the accused though approached him for loan in the month of January-2015, on that time he did not advance the loan, but thereafter when he had been to his mother's house, the accused approached him for loan and was insisting for the loan over the telephone also. Hence, he had advanced loan infavour of the accused in the month of July-2015. Further, the mother of the complainant also JUDGEMENT 26 C.C.18465/2016 is residing at Bangalore itself and as such the complainant might have been to his mother's house. As the accused knows the mother of the accused, he might have been went to the house of the mother of the complainant and approached the complainant for loan as he was there at the house of the mother of the complainant. Hence, mere the fact that the accused had approached the complainant for loan at the house of the mother of the complainant cannot be a ground to suspect the entire case of the complainant. Hence the argument of the accused in this regard holds no water.
36. Further, it is the defense of the accused that he never borrowed any loan from the complainant and he never issued this disputed cheque infavour of the complainant, on the other hand he had issued this disputed cheque in blank infavour of the mother of the complainant as security in relation to the loan transaction in between himself and the mother of the complainant and contended that the said cheque has been created by the complainant by inserting the No, '1' on the back of the amount JUDGEMENT 27 C.C.18465/2016 Rs.50,000/- i.e., by writing the amount column as Rs.1,50,000/- by adding No. 1 without leaving any space after the full stop after the word "Rs." and made it as 1,50,000/-. Further argued that the accused never issued this disputed cheque infavour of the complainant, on the other hand his signed blank cheque allegedly given as security has been misused etc.,
37. To prove the same though accused counsel has elicited some evidence that there is difference in the handwriting in the writing of Ex.P1 cheque and Ex.P1(a) signature. But mere the fact that there is some difference in the handwritings in the writings of the cheque and the signature it cannot be said that the said cheque has been created and misused by the complainant. Because it is the evidence of the complainant that when he had been to the house of the accused seeking repayment of the loan amount then the accused has given duly filled the cheque and he do not know who had filled the said cheque and the accused had not filled the said cheque in his presence. JUDGEMENT 28 C.C.18465/2016 When such being the case naturally there will be difference in the writings in the cheque and the signature.
38. Further it is not the defence of the accused that he had given this disputed cheque for Rs.50,000/- and it was made as Rs,1,50,000/- by inserting No'1' on the back of the amount 50,000/-. Things would have been different if it is the defence of the accused that his cheque issued for Rs.50,000/- has been created for Rs.1,50,000/- . But it is not the defence of the accused. Hence with due respect I beg to submit that the decision placed by the accused reported in ILR-2014 KAR 6572 between H. Manjunath V/s. Sri. A.M. Basavaraju, as the facts and circumstances of the said case is not applicable to the case on hand.
39. Further, the accused contended that he had given blank cheque as security. The effect of issuance of blank cheque has to be considered at this stage, when the cheques are signed leaving blank all other particulars and handed over to the payee authorizing him to fill up the blanks as agreed upon is valid in law. In this regard, JUDGEMENT 29 C.C.18465/2016 Section.20 of Negotiable Instruments is very clear. Hence, the defence of the accused that he had given the disputed cheque in blank as security infavour of the mother of the complainant and it was misused by this complainant etc., holds no water.
40. Even otherwise, as aforesaid discussion, the accused failed to prove the defence of furnishing his disputed cheque in blank to the mother of the complainant as security in relation to the alleged loan transaction in between the brother of the complainant and his clients by placing any material evidence before this court.
41. Further the position of law is clear that once execution of pro-note is admitted, presumption under Section.118(a) of Negotiable Instruments Act would raise that it is supported by considered and rebuttable one. The accused can prove the non-existence of consideration by raising probable defence. If the accused is proved to have discharged the initial onus or proof showing that the existence of consideration was improbable or doubtful or JUDGEMENT 30 C.C.18465/2016 the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to grant of relief on the basis of Negotiable Instruments. The bare denial of passing of consideration apparently does not appears to be any defence, something which is probable has to be brought on record for getting benefit of shifting the onus of proving to the complainant.
42. But in the case on hand, the accused except denying the case of complainant not made any attempt to prove the fact that there was no existence of debt or liability by placing any material evidence before this court.
43. On the other hand, the complainant has proved the fact that the accused is well known person and he had lent loan of Rs.1,50,000/- infavour of the accused and towards discharge of the said loan only, he had issued this disputed cheque.
44. Further in this case plea of the accused was recorded as per Section.251 of Cr.P.C. The accused not pleaded JUDGEMENT 31 C.C.18465/2016 guilty. As per Section.251 of Cr.P.C. the accused has to state his defence at that stage. Here in the case on hand, the accused except pleading guilty not stated his defence at the time of recording plea. As per decision reported in AIR 2014 SC 2528 in India Bank Association & Ors V/s. Union Of India & Anr, their lordship held that the accused cannot simply say, "I am innocent" or "I plead not guilty'. On the other hand, he has to state his defence with regard to the allegation made by the complainant against him. But no such defence has stated by the accused at the time of recording his plea except pleading not guilt. Despite of the fact this court was allowed him to prove his defence by giving an opportunity. But, though accused made an attempt to rebut the presumption which arose infavour of the complainant under Section.139 of Negotiable Instruments Act by taking the defence of denial of the alleged loan transaction in between himself and the complainant and denied about issuance of disputed cheque by taking the defence of furnishing his signed blank cheque including the disputed cheques infavour of the mother of the complainant as security in respect to the JUDGEMENT 32 C.C.18465/2016 alleged loan transaction in between the mother of the complainant and himself.
45. Hence, onus not shifted on the shoulder of the complainant; on the other hand it rests with the accused only. Despite of the same, the complainant has established the fact that there was existence of debt or liability in between himself and the complainant and the disputed cheque was issued by the accused in his favour towards discharge of the said debt. As per the records, the disputed cheque was bounced back and dishonoured on presentation of the same for encashment by this complainant and despite of issuance of demand notice with regard to the fact of dishonour of the cheque, since the accused did not complied with demand of notice, he maintained this complaint in time.
46. Hence, the complainant has proved all the essential ingredients of Section.138 of Negotiable Instruments Act to bring home the guilt of the accused under Section.138 of JUDGEMENT 33 C.C.18465/2016 Negotiable Instruments Act. Hence, I answered Point No.1 in the Affirmative.
47. POINT NO.2: In view of my discussions on Point No.1 as above, I proceed to pass the following:
ORDER Acting under Section.255(2) Cr.P.C., the accused is convicted for the offence punishable under Section.138 of Negotiable Instruments Act.
The accused shall pay a fine of Rs.2,25,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for six months.
Out of the said amount, accused shall be paid Rs.2,15,000/- to the complainant as compensation as provided under Section.357 of Cr.P.C. and Rs.10,000/- shall remitted to the state as fine.
(Dictated to the stenographer on online, corrected and then pronounced in open court by me on this the 17th day of March-2018.) (C.G. Vishalakshi) XIII A.C.M.M., Bengaluru.JUDGEMENT 34 C.C.18465/2016
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : Mahesh. B.S. Documents marked on behalf of the complainant:
Ex.P1 : Cheque Ex.P2 : Endorsement Ex.P3 : Legal Notice Ex.P4 : Postal Receipt Ex.P5 : Acknowledgements Card Ex.P6 : Reply notice Ex.P7 : Complaint Ex.P8 : Statement of account
Witnesses examined on behalf of the accused:
DW.1 : Singari Gowda Documents marked on behalf of the accused:
- Nil -
(C.G. Vishalakshi) XIII A.C.M.M., Bengaluru. * Accused copy furnished.