Bangalore District Court
Sri.E.Udaya Kumar vs Sri.N.R.Chandrashekar on 30 October, 2019
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 30th day of OCTOBER, 2019
i.
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.8831/2017
Complainant : Sri.E.Udaya Kumar,
S/o. Late E.Srihari,
Aged about 49 years,
R/at No.3/1,
Ground Floor,
Sannidhi Road,
Basavanagudi,
Bengaluru -560 004.
(Rep. by Sri.L.G. Associates.,
Adv.,)
- Vs -
Accused : Sri.N.R.Chandrashekar,
Prakash Chitramandira,
Aged about 52 years,
Yalahanka,
Bengaluru - 560 064.
(Rep. by Sri. M.Gangadhara
Shetty., Adv.,)
Case instituted : 15.03.2017
Offence complained : U/s 138 of N.I Act
of
2 C.C.8831/2017 J
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 30.10.2019
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused is known to him and approached and requested him to lend a loan of Rs.2,00,000/- in the first week of August 2016 to clear his personal and other commitments, considering his request he has paid sum of Rs.2,00,000/- by way of cash and the accused acknowledging the receipt of the same and at that time he agreed to repay the said amount within 3 months from the date of borrowal of the said amount, even after completion of the said period of 3 months the accused did not repay the same and the Complainant demanded personally but the accused to repay the said amount has issued a cheque bearing No. 071222 dated: 25/11/2016 for a sum of Rs.2,00,000/- drawn on IDBI Bank, Yelahanka New Town Branch, Bengaluru by agreeing and undertaking to honour the said cheque on its 3 C.C.8831/2017 J presentation. Thereafter, he had presented the said cheque through his banker Sree Thyagaraja Co- Operative Bank, H.O. Branch, Basavanagudi Bengaluru on 24/01/2017 but the said cheque was came to be dishonoured with shara "Insufficient Funds" on 25/01/2017 through the accused banker. Immediately he informed the same to the accused but the accused gave an evasive answer. Thereafter, he got issued legal notice to the accused on 02/02/2017 by way of RPAD and it was duly served on the accused on 14/02/2017. But the accused did not repay the cheque amount, hence the accused had issued a cheque deliberately without their being sufficient funds and to cheat the complainant and committed an offence punishable U/s.138 of N.I. act. Hence he has filed this present complaint against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the averments of the complaint. In support of his oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.C.1 to C.5 i.e, the Original Cheque dated:-25/11/2016 as per Ex.C.1, the 4 C.C.8831/2017 J signature on the said cheque identified by P.W.1 as that of the accused as per Ex.C.1(a), Bank Memo as per Ex.C.2, the copy of Legal Notice as per Ex.C.3, the Postal Receipt as per Ex.C.4, the Postal Acknowledgement as per Ex.C5.
4. Prima-facie case has been made out against the accused and summons was issued against the accused in turn he has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to him, to which he pleaded not guilty and claims to be tried.
5. Thereafter the complainant himself examined as PW.1 by filing his affidavit in lieu of examination in chief and also adopted the documents which were already marked as Ex.C.1 to C.5 at the time of recording of the Sworn statement and closed his side.
6. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence appearing against him and has chosen to lead his rebuttal evidence subsequently the Accused himself examined as DW.1 and closed his side.
7. Heard the arguments of both learned 5 C.C.8831/2017 J counsels for the complainant and the accused and perused materials on record and perused the decisions relied upon by both learned counsels.
8. On the basis of complaint, evidence of complainant and documents and having heard the arguments of both learned counsels for the complainant and the accused, the following points that are arise for consideration are:-
1. Whether the complainant proves that the accused has issued four cheque i.e. cheque bearing No. 0171222 dated:
25/11/2016 for sum of Rs.2 Lakhs drawn on IDBI Bank, Yelahanka New Town Branch, Bengaluru to discharge legally recoverable debt to the complainant and when the complainant has presented the said cheque for encashment through his banker but the said cheque has been dishonoured for the reasons "Funds Insufficient" on 25/01/2017 and the complainant issued legal notice to the accused on 02/02/2017 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
9. The above points are answered as under:
Point No.1: In the Affirmative 6 C.C.8831/2017 J Point No.2:As per final order for the following:
REASONS
10. Point No.1 : Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act pre-supposes conditions for prosecution of an offence which are as under:
1. Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
2. cheque shall be presented for payment within specified time i.e., from the date of 7 C.C.8831/2017 J issue before expiry of its validity. 3 The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and 4 The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer in respect of bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
11. It is also one of the essential ingredient of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e.,U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge 8 C.C.8831/2017 J of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and or rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
12. In the present case the complainant got examined as PW.1 by filing his affidavit evidence wherein the complainant has reiterated the entire averments of the complaint, the complainant/PW.1 in his evidence testified regarding the lending of loan amount of Rs.2,00,000/= to the accused in the 1st week of August 2016 by way of cash to clear his personal and other commitments and accused in turn promised to repay the said amount within 3 months. The PW.1 further testified that, he made request to the accused to repay the amount repeatedly but the accused even after completion of 3 months and did not repay the amount, but the accused issued cheque in question i.e. Ex.C.1. The PW.1 has also testified that, he has presented the cheque issued by accused through his banker but the said cheque has been dishonoured for want of 9 C.C.8831/2017 J sufficient funds, thereafter on 02/02/2017 he got issued legal notice to the accused through his counsel by RPAD and same was served on her on 14/02/2017 but he did not given any reply or paid the cheque amount.
13. In support of the oral evidence of the complainant/PW1 has relied upon the documentary evidence as per Ex.C.1 to C.5 i.e, the Original Cheque dated:-25/11/2016 as per Ex.C.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.C.1(a), Bank Memo as per Ex.C.2, the copy of Legal Notice as per Ex.C.3, the Postal Receipt as per Ex.C.4, the Postal Acknowledgement as per Ex.C5.
14. In the present case, there is no dispute between the parties in respect of their acquaintance. It is also not in dispute by the accused that, the cheque in question presented for encashment and dishonoured for the reason of "Funds Insufficient" as a matter of record, proved by return memo i.e. C.2 issued by the concerned bank dated: 25/01/2017, therefore it is a matter on record and has been proved that, the cheque in question was presented within its validity period and dishonoured as per the bank endorsement issued by the banker of accused.
10 C.C.8831/2017 J It is also not in dispute that, the cheque in question i.e. Ex.C.1 belongs to the account of the accused and has not denied his signature which is appearing at Ex.C1(a).
15. The accused in his defence has specifically denied the service of notice on him, by contending that the signature appearing on Ex.C5 Postal receipt is not of his signature. The complainant in order to prove service of notice on the accused has relied upon the documents i.e. copy of the legal notice dated:-02/02/2017, postal receipt and acknowledgement i.e. Ex.C.3 to C.5. According to the complainant, he got issued legal notice through his counsel to the accused by RPAD on 02/02/2017 and the same was duly served on her on 14/02/2017. In support of his oral evidence has produced Ex.C.3 to C.5. The learned counsel for the accused during the course of cross-examination of the complainant i.e. PW.1 has denied the service of notice by contending that, the signature appearing on Ex.C.5 i.e., Postal acknowledgment is not that of the accused. But in order to substantiate the said suggestions made by the accused during the course of cross-examination of PW.1 nothing has been produced before the court and when the accused has 11 C.C.8831/2017 J denied his signature on the postal acknowledgement by contending that, it is not of his signature, to that extent the burden is on the accused to prove that, the signature appearing on Ex.C.5 is not of his signature. Even the accused has not made any efforts to examine the concerned postal authorities to substantiate his allegations that the complainant has been forged and created his signature on the postal acknowledgement at Ex.C.5 as suggested during the course of cross-examination of PW.1, therefore in the absence of such materials, only on the basis of suggestions to the PW.1 in his cross- examination, it cannot be held that, the signature appearing on Ex.C5 is not of the accused and notice was not served on him.
16. It is important to note here that the accused in the cross-examination of PW.1 suggested that, in the notice copy the designation of the accused has not been mentioned and the correct address of the accused has not been mentioned either in the legal notice or on the postal acknowledgement. But, the Complainant has specifically stated that as per the say of the accused only he has mentioned his address as Prakasha Chitramandira, Yelahanka in the legal notice as well 12 C.C.8831/2017 J as on the Postal receipt and acknowledgment. On entire perusal of the cross examination of PW1 the learned counsel for the accused has even not suggested that, the accused was not working in the address shown in the legal notice as well as on the postal acknowledgement and even it is not the defence of the accused that, the address mentioned in the legal notice as well as on the postal receipt and acknowledgement is not the correct address of the accused, but only accused contended that, the signature appearing on the postal acknowledgement i.e., Ex.C5 is not of his signature and his designation was not mentioned in the legal notice. In addition to that the Accused in his cross examination has specifically admitted that, he is working as a Manager in Prakash Theatre and he has not given any reply to the notice issued by the Complainant, hence it goes to show that the accused has admitted that he is working in Prakash Theatre and has received the notice issued by the Complainant but has not given any reply to the said notice. Therefore, on over all considering the oral and documentary evidence produced by the Complainant makes it clear that the Complainant has issued legal notice i.e., C.3 to the correct address of the accused. If for sake of discussion if it is assumed that the signature 13 C.C.8831/2017 J on appearing that Ex.C5 is not that of the accused but the accused has not disputed the address mentioned by the Complainant in the legal notice and on postal receipt and acknowledgement as is not of his correct address, Therefore the notice issued by the Complainant through RPAD to the accused was to the correct address of the accused. Hence, the legal notice issued by the complainant to the correct address of the accused and same has been served or otherwise it can be presumed U/s. 27 of the General Clauses Act that where notice is sent to the correct address, the same shall be presumed to have been duly served. In this regard, it is relevant here to refer the decision reported in 2008(4) Civil code cases 027 (SC) "M/s. Indo Automobiles Vs., M/s. Jai Durga Enterprises and others." wherein the Hon'ble Apex Court held that, notice sent by registered post with acknowledgement to a correct address-service of notice has to be presumed. Therefore, in view of the principles of law laid down in the above decision, it can safely be held that, the service of notice on accused in this case is presumed to be served on him since in this case also the complainant has issued notice to the accused to his correct address through registered post and the said notice was served on the accused, hence, the notice 14 C.C.8831/2017 J issued by the complainant through registered post is held to be proper service and for the above said reasons, therefore the contentions taken by the learned counsel for the accused that, the notice issued by the complainant was not served on the accused and the complainant has not complied the mandatory requirements of Sec.138(b) of N.I.Act and complaint is not maintainable cannot be acceptable and are not sustainable.
17. The accused in his defense has taken specific contention that he has not borrowed an amount of Rs.2,00,000/- from the Complainant and has not issued cheque in question towards repayment of the said loan. In this regard the learned counsel for the accused has cross examined the Complainant in length, but nothing has been elicited to disbelieve or dis-credit the evidence of the PW1, the Complainant/PW1 has specifically stated that on 06/08/2016 he has lent a loan amount to the accused by way of cash and at that time the accused alone was came to his house and as per his request only he has paid the said amount by way of cash. The Complainant has also specifically stated that after receipt of the loan amount the accused has issued disputed cheque to him and the accused was 15 C.C.8831/2017 J agreed to repay the said amount within 3 to 4 months and he has presented the said cheque in the 3rd week of January 2017 for its encashment and the said cheque has been returned dishonour. It is true that the Complainant/PW1 in his cross examination admitted that, he does not know who has filled up the contents of the cheque but he has specifically made statement that in his presence only the accused had put his signature on the cheque. The Complainant has denied a suggestion made to him that the contents of the cheque have been filled up by him only. Hence, the perusal of the cross examination of PW1 makes it clear that the accused has not elicited anything material to believe his defense that he has not issued the cheque in dispute towards the discharge of loan amount and the cheque in dispute was issued by him was blank signed and it was filled up by the Complainant as alleged in his defense.
18. It is true that some discrepancies have been elicited in the cross-examination of PW.1 i.e., non- mentioning of date of loan amount given to the accused either in the legal notice, affidavit and also in the complaint, but that itself is not fatal to the case of the complainant as statute does not mandate that, the notice and complaint should narrate the details of 16 C.C.8831/2017 J the loan amount lend by the complainant or nature of debt or liability, hence omission or error in notice and complaint to mention nature of debt or liability does not render the notice as invalid or the transaction in question itself invalidates. It is also important to note here that, no requirement that, the complainant must specifically alleged in the complaint that, there was subsisting liability and there is no need to make such specific averment in the complaint, this preposition of law finds support from the decision of Hon'ble High Court of Kerala reported in 2019 (2) KLT 895 in the case of B. Surendra Das Vs. State of Kerala, therefore in view of the principles of law laid down by the Hon'ble High court of Kerala and for the above said reasons the arguments canvassed by the learned counsel for the Accused cannot be acceptable one.
19. In addition to the above, as it is already held above while discussing the oral and documentary evidence adduced by the complainant that, the complainant has discharged his initial burden by adducing oral and documentary evidence that, the cheque in question was issued by the accused and signature on the cheque in question is also that of the accused, under such circumstances 17 C.C.8831/2017 J it is for the Accused to prove that, there was no legally enforceable debt or liability and the cheque in question was not issued towards any debt or liability. In this regard it is relevant here to refer the decisions reported in 2001 AIR Karnataka HCR 2154 between 'M/s.Devi Tyres V/s.Navab Jan' and in 2011 ACD 1521 (KAR) between 'Smt. Usha Suresh V/s. Shashidharn', in 2010 SC 1898 between 'Rangappa Vs. Mohan' and 2011 ACD 1412 (KAR) between 'N.Hasainar Vs. M.Hasainar, S/o. Ibrahim'. The Hon'ble High Court of Karnataka in the above decision i.e., 2001 AIR Karnataka HCR 2154 at para No.6 was pleased to hold that issuance of cheque itself was adequate proof of existence of debt or liability. The Hon'ble Apex Court has also held in the decision referred above, the Hon'ble Apex Court in 2010 SC 1898 in case of 'Rangappa Vs. Mohan' that, presumptions U/sec.118(a) and 139 of N.I. Act indeed does extend to the existence of legally recoverable debt, of course the said presumption is rebuttable one, the accused has to rebut the presumption by taking probable defence. In another decision of Hon'ble Apex court of India reported in CRIMINAL APPEAL NO. 508 OF 2018 DT 15-03-2018 between ROHITBHAI JIVANLAL PATEL Vs STATE OF GUJARAT AND ANR held that 18 C.C.8831/2017 J "Negotiable Instruments Act facts like source of funds are not relevant if the Accused has not been able to rebut the presumption. It is further held that "When such a presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the Accused has been able to rebut the presumption or not". In another decision of Hon'ble High Court of Karntaka reported in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption mandated by Sec.139 of N.I Act includes the presumption that, there existed a legally enforceable debt or liability, however such presumption is rebuttable in nature".
Hence the above principles of law laid down by the Hon'ble Apex Court of India and High Court of Karnataka in the above referred decisions are aptly applicable to the case on hand, since in the present case the complainant has proved that, the cheque in question i.e. Ex.C.1 is belonging to the Accused and signature appearing on the cheque i.e. Ex.C.1(a) 19 C.C.8831/2017 J is also that of the Accused, hence a presumption can be drawn about existence of legally enforceable debt against the Accused as per Sec. 139 of N.I. Act. Therefore, under these circumstances the arguments canvassed by the learned counsel for the defence i.e., the complainant has not produced any documents to show that he had sufficient source of income to lend the amount to the accused and complainant has failed to produce any document to prove his source of income to lend the amount and the complainant has failed to prove that, the cheque in question was issued by the accused towards discharge of loan amount are not sustainable and acceptable one.
20. In this case, the accused in order to rebut the presumption available U/s. 118 and 139 of N.I. Act in favour of the Complainant, himself examined as DW1. The accused/DW1 in his evidence stated that in the year 2014 there was a Chit transaction with the Complainant for sum of Rs.2,00,000/- and he had bid the said Chit for Rs.43,000/- and agreed to repay the said Chit amount on monthly installment of Rs.10,000/- and out of the said Chit amount the Complainant was paid an amount of Rs.1,57,000/- to him, at that time Complainant had collected his blank signed cheque i.e., disputed 20 C.C.8831/2017 J cheque from him, but except his signature he has not written the rest of the contents in the disputed cheque. The accused/DW1 further stated that he has paid the entire installment amount of the Chit amount, except last two installments i.e., Rs.20,000/- as he heard from his friends that the Complainant was not conducting the Chit properly. Thereafter, the complainant was agreed to settle the said amount due by him, but later he demanded additional interest @ the rate of 5% to the said amount but he denied to pay the said interest, hence the Complainant has presented the cheque and filed this complaint against him and he is only a due of Rs.20,000/- to the Complainant.
21. In order to substantiate the defense of the accused, has not produced any documents to show that, the complainant was running the chit business in the year 2014 and he was also one of the subscriber of the chit transaction for Rs.2,00,000/- and he bid the said chit amount and the complainant has paid an amount of Rs.1,57,000/- towards the chit amount to him and at that time the Complainant was collected a blank signed cheque from him towards the chit amount and he has repaid the said installments except the two installments of 21 C.C.8831/2017 J Rs.20,000/- towards the Chit amount as stated by him in his evidence. It is an admitted fact that the accused has not made any efforts or taken any action against the complainant though the Complainant had collected the cheque in question in the year 2014 towards the Chit bid amount, hence the very conduct of the accused in non taking of action against the complainant itself sufficient to draw an adverse inference against him that, in order to avoid liability the accused has taken such a defence in his evidence. The Accused except his self serving statement nothing has been produced to believe his version that, the complainant was running chit business in the year 2014 and he was bid the chit for Rs.43,000/- and complainant was paid an amount of Rs.1,57,000/- to him and at that time the complainant was collected his blank signed cheque and he has paid entire chit amount to the complainant except last two installments of Rs.20,000/- and the said cheque has been misused by the complainant by filing this complaint.
22. It is also necessary here to refer a decision of Hon'ble Madras High Court reported in AIR 2009 (NOC) 726 MAD in the case of P. Armugam Vs. P. Veluswamy, wherein the Hon'ble High Court held as 22 C.C.8831/2017 J under:-
" Negotiable Instruments Act (26 of 1881) S.138 - Dishonour of cheque - Accused admits to have signed cheque and handed it over to complainant - Defence raised by accused that said cheque was issued as a blank cheque intended to be a collateral security for an unregistered chit conducted by complainant - However, no evidence has been adduced by Accused to prove that complainant was running an unregistered chit in which Accused joined as a subscribing member - there is no evidence to prove amount of chit or that Accused was a priced subscriber and the blank cheque had been issued to ensure proper payment of future subscriptions - can be held that, cheque was issued for payment of loan obtained by accused from complainant - Accused guilty of offence.
23. In another decision of Hon'ble High Court of Karnataka reported in 2012 (4) KCCR 2634 in 23 C.C.8831/2017 J the case of Sri. Prakash @ Jnana Prakash Vs. Ms. T.S. Susheela wherein the Hon'ble High Court held as under:-
NEGOTIABLE ISNTRUCTMETS
ACT, 1881 - Section 138 - Complaint
under - Cheque dishonoured for
"insufficient funds" - Plea of accused as to non -receipt of demand notice, absence of legal liability, misuse of documents given as security in an independent chit transaction -
Convicted by Trial Court- Confirmed by Appellate Court - Revision against- The plea as to misuse of documents would not be believed due to in action of the accused.
Hence in view of the principles of law laid down in the above decisions, in the present case also the Accused has not proved that, the cheque in question or the complainant has collected his blank signed cheque in the year 2014 at the time of paying the chit amount of Rs.1,57,000/- and the complainant has misused the said cheque even after repayment of the chit amount by the accused and has filed the present complaint, in such circumstances, the 24 C.C.8831/2017 J cheque in dispute was issued by the Accused not in connection with the alleged chit transactions as contended by the accused in his defence.
24. In another decision of Hon'ble High Court of Karnataka reported in 2015 (1) KCCR 235 in the case of Lale Patel Vs. Sharanabasappa., wherein the Hon'ble High Court held as under:-
NEGOTIABLE ISNTRUCEMTNS ACT,
1881- section 138 - Dishonour of
cheque for insufficiency of funds - Plea of accused that he had given a blank cheque signed as security for a transaction and complainant filled up the contents and denied existence of any debt or loan - Conviction by Trial court - Affirmed by Appellate Court - Revision against.
Hence the Hon'ble High Court of Karnataka in the above decision clearly held that, if the Accused has taken defence that, the a blank signed cheque has been issued as a security for transaction and the complainant filled up the contents and the accused denied the existence of debt or loan in such circumstances it is for the accused to prove his 25 C.C.8831/2017 J defence by producing cogent and convincible evidence, if the Accused has not proved the same in such circumstances, it cannot be held that, the cheque in question was issued for the purpose of security in connection with the transaction. In the present case also the Accused has failed to establish his defence to show that, the cheque in question was issued toward security of the chit transaction, under such circumstances the cheque so issued cannot be considered as the one issued as a security and the defence taken by the Accused is untenable one.
25. It is relevant here to mention that, according to the defence of the Accused that, the complainant has collected his blank signed cheque in the year 2014 while he was receiving the chit amount of Rs.1,57,000/= and he had repaid the said chit amount and asked to return the said blank signed cheque but the complainant refused to return the same. the Accused except his oral say he has not made any efforts or take any legal action against the complainant in respect of non returning of cheque though he has allegedly given signed blank cheque towards security of the chit amount since in the year 2014 and even as per his say he had repaid the entire amount and till filing of the complaint by 26 C.C.8831/2017 J the complainant there are no efforts made by him in getting return of the signed blank cheque which was alleged to have been given to the complainant. If really the complainant has collected blank signed cheque form the accused towards security of the chit amount, the accused would have made efforts to get return of the said blank cheque from the complainant. Admittedly he has not produced any document to show that, the complainant was running chit business and he has paid an amount to the Accused towards the chit amount and collected the signed blank cheque from the accused. In this regard, it is relevant here to refer the decision of Hon'ble Apex Court of India reported in AIR 2018 SC 3601 in a case of T.P.Murugan(dead) Thr. Lrs.V. Bhojan Vs. Posa Nandi, rep. Thr. Lrs. PA holder, T.P. Murugan V. Bhojan, wherein the Hon'ble apex Court held as under:-
Negotiable Instruments Act (26 of 1881) Ss.118, 138, 139 - Dishonour of cheque - Presumption as to enforceable debt- cheques allegedly issued by accused towards repayment of debt- Defence of accused that 10 cheques issued towards repayment of loan back in 1995 -
behavior of accused in allegedly issuing 27 C.C.8831/2017 J 10 blank cheques back in 1995 and never asking their return for 7 years, unnatural
- Accused admitting his signature on cheques and pronote, presumption under S.139 would operate against him -
Complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt-
Conviction, Proper.
Hence by applying the above principles of law to the present facts of the case in the present case also the accused has not made any efforts to get return of the cheque in question alleged to have been given to the complainant during the year 2014 for security of the amount given by the complainant in respect of chit business, under such circumstances, the said unnatural conduct of the accused in non taking of action, an adverse inference can be drawn against the accused that, the cheque in question issued by the accused towards discharge of the liability and presumption U/s.139 of N.I. Act would operate against her, as he has admitted the signatures and cheques in questions are belongs to him.
28 C.C.8831/2017 J
26. It is a relevant here to refer the decision of Hon'ble Apex Court of India reported in AIR 2019 SC 2446 in the case of Birsingh Vs. Mukesh Kumar., wherein the Hon'ble apex Court held that, presumption U/s.139 is presumption of law, distinguished from presumption of facts and also held that, presumptions are rules of evidence and do not conflict with presumption of innocence which requires prosecution to prove case against the Accused and also held that obligation on the prosecution may discharged with the help of presumptions of law and presumption of fact unless the accused adduces evidence showing reasonable plausibility of non existence of presumed fact. In the present case though the Accused has adduced oral evidence but the accused has not produced any documents or satisfactory evidence to rebut the presumptions as available U/s.139 of the N.I. Act, under such circumstances in view of the above principles of law It can be presumed even on fact also that the complainant has proved his case by discharging his burden and complying the mandatory provisions. In the said decision the Hon'ble Apex court has also held that, presumption as to legally enforceable debt is rebuttable, the signed blank cheque if voluntarily presented to payee 29 C.C.8831/2017 J towards payment payee may fill up amount and other particulars and it in itself would not invalidate cheque and onus would still be on the accused to prove that, cheque was not issued or discharge of debt or liability by adducing evidence. In the present case though the accused has taken specific defence that, the cheque in question was not issued towards repayment of the loan in transaction but the same was given to the complainant towards security of chit bid amount but as it is already held in the above that, the accused has not proved the said fact in such circumstances even for sake of discussion if it is assumed that the contents of cheque in question was filled up by the complainant in view of the principles of law laid down in the above decision that itself would not invalidates the cheque in question and it can be presumed that, the cheque was filled in by complainant in presence of the Accused at his request and the said cheque has been issued towards discharge of legally recoverable debt.
27. In another decision reported in 2015 (4) KCCR 2881 (SC) in the case of T. Vasanthakumar Vs. Vijayakumari wherein the Hon'ble Apex court held as under;-
NEGOTIABLE ISNTRUCEMTNS Act,
30 C.C.8831/2017 J
1881- Section s138 and 139 - acquittal - If justified- Accused not disputing issuance of cheque and his signature eon it- Plea that it was issued long back as security and that loan amount was repaid- Not supported by any evidence - Fact that date was printed, would not lend any evidence to case of accused- Acquittal not proper.
Hence in the present case also it is the main defence of the Accused that the cheque in dispute was alleged to have been issued in the year 2014 for security of the chit transaction infavour of the complainant and the complainant by misusing the said cheque has filed this complaint but the Accused has admitted the issuance of cheque and his signature on the said cheque and also taken defence that, the alleged chit amount was repaid to the complainant but no documents or proof given by the Accused to prove his defence in such circumstances by applying the principles of law laid down in the above decision the defence of the Accused cannot be acceptable one.
28. Therefore considering all these aspects of 31 C.C.8831/2017 J the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant and accused the complainant has successfully established beyond all reasonable doubt that, he has lent a sum of Rs.2,00,000/= to the accused as a hand loan to clear his personal and other commitments and the accused in turn issued cheque in question to the complainant towards repayment of the hand loan, thereafter the complainant has presented the said cheque through his banker and same was returned dishonoured with an endorsement of "Funds Insufficient" and thereafter he got issued legal notice to the accused and inspite of service of the said notice, the Accused did not repaid loan amount borrowed by him, hence the complainant filed the present complaint against the accused. On the other hand, the accused has failed to rebut the presumption available infavour of the complainant with regard to the existence of legally recoverable debt under Ex.C.1 Cheque. Therefore accused has committed an offence punishable U/s.138 of N.I. Act, accordingly for the above said reasons this point is answered in the Affirmative.
29. Point No.2: Negotiable Instrument Act 32 C.C.8831/2017 J was enacted to bring credibility to the cheque and the very purpose of enactment is to promote the use of negotiable instrument, while to discourage the issuance of cheque without having sufficient funds in their accounts. Such being the case the intention of the legislature is that, complainant be suitable compensated while accused be punished for her act. Hence while awarding the compensation the said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly it will not cause injustice to the accused, accordingly the complainant is entitled for the compensation as ordered by the court and for the said reasons, it is just and proper to pass the following :-
ORDER Acting U/sec.255 (2) of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.2,15,000/= (Rupees Two Lakhs and Fifteen Thousand only) within one month from the date of order, in default she shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of 33 C.C.8831/2017 J Cr.P.C. out of the fine amount on recovery, a sum of Rs.2,10,000/= (Rupees Two Lakhs and Ten Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357 (1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/-
(Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
The Bail bond and surety bond of accused stands cancelled.
Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 30th day of October 2019) (SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri. E.Udaya Kumar
2. List of documents exhibited on behalf of the Complainant:-
Ex.C1 : Original Cheque
Ex.C1(a) : Signature of the Accused;
34 C.C.8831/2017 J
Ex.C2 : Bank Memo
Ex.C3 : Office copy of the Legal Notice;
Ex.C4 : Postal Receipt;
Ex.C5 : Postal Acknowledgement;
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Sri. Chandrashekar N.R
4. List of documents exhibited on behalf of the Accused:-
-Nil-
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.