Bangalore District Court
Sri Shivanand. B.H vs K.M. Chandra on 14 July, 2016
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
Dated this the 14th day of July, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M., BENGALURU
Case No: CC No.10926/2014
Complainant: Sri Shivanand. B.H.
S/o. Bheemshappa,
Aged about 40 years,
R/at No.16/13,
Venkatareddy Layout,
4th Cross, 80 Feet Road Cross,
6th Block, Koramangala,
Bengaluru -560 095.
Accused: K.M. Chandra
S/o. Late Munireddy,
Aged about 55 years,
R/at No.410, Unnathi,
28th Main Road, 7th Cross Road,
1st Sector, HSR Layout,
Ward No.174,
Bengaluru -560 102.
Also R/at
No.18, 17th Main Road,
1st Sector HSR Layout,
Ward No.174,
Bengaluru 560 102.
Offence complained of: U/s.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found guilty
Date of order: 14th July 2016
2 C.C.No.10926/2014
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act.
2. The brief facts of the complaint that;
The Complainant stated that the accused is well acquainted to him from past five years and in the 1st week of February 2013, the accused approached him for the hand loan of Rs.1,75,000/- for his legal necessities and to improve his Real Estate Business. The Complainant by considering the request of the accused, had advanced a hand loan of Rs.1,75,000/- on 20.02.2013 by way of cash on a condition to repay the loan amount within three months from the date of date of receipt of the same and the accused has agreed and undertaken to repay the said loan amount within three months. He further stated that on the same day i.e., on 20.2.2013 the accused had issued post-dated Account Payee filled-up cheque bearing No.341875 dtd.19.7.2013 for a sum of Rs.1,75,000/- drawn on Karnataka Bank Ltd., HSR layout branch, Bengaluru - 34 in his favour and also had executed a "Letter of undertaking" in his favour by mentioning the receipt and acknowledging the loan amount of Rs.1,75,000/- from him.
3. It is further submitted by the Complainant that the accused sought for another two months time to repay the loan amount and 3 C.C.No.10926/2014 further suggested him to present the cheque for encashment. As per the assurance and promise made by the accused, the Complainant waited further two months and on 19.7.2013 he presented the said cheque before his banker M/s. Vijaya Bank, Koramangala branch, Bengaluru for encashment but the said cheque returned dishonoured with an endorsement "Payment stopped by the drawer" on 20.7.2013 and the was informed to this Accused. As the Accused has failed to make payment of the cheque amount, the Complainant got issued the Legal Notice on 29.7.2013 through RPAD calling upon the Accused to pay the cheque amount within 15 days from the date of receipt of notice and the said notice was duly served on the accused on 30.7.2013 and 31.7.2013. The Accused in spite of receipt of the notice neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. The accused with an intention to cheat this Complainant, had made stop payment of the cheque and thereby the Accused has committed an offence punishable u/Sec.138 of N.I. Act.
4. After recording of sworn statement of the complainant the Private Complaint lodged by the Complainant was registered as a Criminal Case, summons was issued as against the accused. The accused appeared through his counsel and he was enlarged on bail. Plea of 4 C.C.No.10926/2014 accusation was read over to the accused. The accused pleaded not guilty and claims to be tried.
5. The complainant himself got examined as PW1 and he got produced 6 documents marked as Ex.P1 to Ex.P6 and closed his side of evidence.
6. After closure of the complainant side evidence, accused Statement u/Sec.313 Cr.P.C. recorded and read over to the accused. The accused denied the incriminating evidence in toto and he intended to lead his evidence. He got examined himself as DW1 and he got produced 12 documents marked as Ex.D1 to Ex.D12 and closed his side of evidence.
7. I have heard the arguments appearing for both the parties. I have perused the entire records.
8. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
9. My findings to the above point are as under:
Point No.1 : In the Affirmative
Point No.2 : As per final order
for the following:
REASONS:
10. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, 5 C.C.No.10926/2014 the complainant stepped into the witness box, got examined as PW-1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
11. PW1 deposed that the accused is well acquainted to him and out of acquaintance, the accused had borrowed the hand loan of Rs.1,75,000/- on 20.02.2013 by way of cash on a condition that he will repay the loan amount within three months from the date of date of receipt of the same and the accused has agreed and undertaken to repay the said loan amount within three months. He further deposed that on the same day i.e., on 20.2.2013 the accused had issued the post-dated Account Payee filled-up cheque bearing No.341875 dtd.19.7.2013 for a sum of Rs.1,75,000/- drawn on Karnataka Bank Ltd., HSR layout branch, Bengaluru -34 in his favour and also had executed a Letter of Undertaking in his favour by mentioning the receipt and acknowledging the loan amount of Rs.1,75,000/- from him. He further deposed that subsequently, the accused sought for further extension of two months time to repay the loan amount and further suggested him to present the cheque for encashment.
12. He deposed that as per the assurance and promise made by the accused, he waited further two months and on 19.7.2013 he presented 6 C.C.No.10926/2014 the said cheque before his banker for encashment but the said cheque returned dishonoured with an endorsement "Payment stopped by the drawer" on 20.7.2013 and the was informed to this Accused. He deposed that as the Accused has failed to make payment of the cheque amount, he got issued the Legal Notice on 29.7.2013 through RPAD calling upon the Accused to pay the cheque amount and the said notice was duly served on the accused on 30.7.2013 and 31.7.2013. He deposed that the Accused in spite of receipt of the notice neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. He deposed that the accused with an intention to cheat him, had made stop payment of the cheque and thereby he has committed an offence.
13. PW1 in order to prove his case got produced the original cheque issued by this accused marked as Ex.P1. He deposed that the signature found on Ex.P1 is that of this accused and he got identified the signature found on the cheque marked as Ex.P1 (a). He got produced the bank endorsement marked as Ex.P2. He got produced copy of the legal notice along with two RPAD receipts marked as Ex.P3, Ex.P3(a) & Ex.P3(b)respectively. He got produced two Postal Acknowledgement Due Cards for having served the notice to this accused marked as Ex.P.4 7 C.C.No.10926/2014 & Ex.P5. He deposed that the accused after receipt of the loan amount, written a letter to him by acknowledging his liability to repay the loan amount and he got produced the said letter marked as Ex.P.6.
14. The accused has denied the entire case of the Complainant and denied the very fact that he had borrowed the hand loan of Rs.1,75,000/- from this Complainant and he in order to repay the said loan amount, had issued his Ex.P1 - Cheque and the same was bounced. The learned Counsel for the accused submitted PW1 for cross-examination and he extensively cross-examined PW1.
15. The PW1 in his cross-examination stated that he is doing Real Estate Business and also doing Printing Press work, from which he is earning more than Rs.30,000/- to Rs.40,000/- per month and after his household expenses, he is saving some amount. PW1 stated that this accused is acquainted to him from last five years. However, he denied the suggestion that this accused is earning lakhs of rupees income from the rents and as such he has no difficulty to borrow a sum of Rs.1,75,000/- from him. He admitted the suggestion that he along with one Sri. Venkataramanappa and Sri. Jaipal negotiated with this accused to sell one of their site situated at Koramangala to this accused and with respect to the said site there was a dispute and therefore, he along with 8 C.C.No.10926/2014 Sri. Venkataramanappa and Sri. Jaipal undertakes to solve the dispute with the original owner who is residing at Mumbai. He further admitted that even inspite of his best efforts he could not able to solve the said dispute. However, he denied the suggestion that as he along with Sri. Venkataramanappa and Sri. Jaipal have spent a huge to resolve the site dispute they insisted this accused to pay a sum of Rs.75,000/-.
16. He further denied the suggestion that this accused has taken some time to pay the said amount of Rs.75,000/- and in that connection he has taken the duly signed Ex.P1 blank cheque of this accused for the security of the said amount of Rs.75,000/-. Though PW1 admitted the suggestion that the accused had paid a sum of Rs.75,000/- in his favour through his cheque and the said cheque was encashed by him. On the contrary, he has categorically denied the suggestion that the amount received by him is related to Ex.P1 cheque and even inspite of receipt of Rs.75,000/- towards the brokerage charges of a site, he instead of returning the duly signed blank cheque of this accused, collected towards the security of the loan amount, misused the same and filed this false complaint by creating and concocting the cheque for Rs.1,75,000/-. He further denied the suggestion that the accused is not liable to pay the cheque amount.
9 C.C.No.10926/2014
17. PW1 stated that out of the savings saved by him, he advanced a sum of Rs.1,75,000/- to this accused on his request. PW1 has further stated he is having bank account at Vijaya Bank, Koramangala branch. The accused has taken up the specific defence that he had taken the assistance of this Complainant along with one Sri. Venkataramanappa and Sri. Jaipal with an intention to purchase a site at Koramangala and in that connection the Complainant and Sri. Venkataramanappa and Sri. Jaipal insisted them to pay brokerage charges and accordingly, he has agreed to pay a sum of Rs.75,000/- and in that connection towards the security of the said amount, he had given his duly signed blank cheque to this Complainant and subsequently, even after he paid the entire amount of Rs.75,000/- to this Complainant, he instead of returning the cheque, misused the same and filed this false complaint. Though the defence was put to PW1 during his cross-examination by suggesting that this accused was already paid the brokerage charges of Rs.75,000/- payable by him by way of cheque and even after receipt of the said amount, he instead of returning the Ex.P1 duly signed blank cheque, misused the same and filed this false complaint. However, PW1 in his cross-examination categorically denied the entire suggestions put to him and denied that he by misusing the duly signed blank cheque of this accused, filed this false complaint by creating and concocting the cheque for Rs.1,75,000/-. 10 C.C.No.10926/2014
18. PW1 further denied the suggestion that this accused has already repaid a sum of Rs.75,000/- payable by him and except the said transaction there was no any other loan transaction in between him with this accused. He denied the suggestion that the accused is not liable to pay the cheque amount as disclosed in Ex.P1. He denied the suggestion that he himself has written the contents of the cheque for his convenience and presented the same for encashment.
19. Likewise, PW1 in his cross-examination categorically denied the suggestion that there was no any loan transaction in between him with this accused and even he had not advanced any kind of amount to this accused for any purpose. He denied the suggestion that the accused has not issued Ex.P1 cheque towards repayment of the loan amount in his favour.
20. Though the accused has denied the very fact that he had borrowed a hand loan of Rs.1,75,000/- from this Complainant and towards repayment of the loan amount, he had issued his Ex.P1 - Cheque and the same was bounced. On the contrary, PW1 during his cross- examination denied the entire suggestions put to him and denied the very fact that this accused is not liable to pay the cheque amount and even denied the suggestion that the accused has not issued Ex.P1 - 11 C.C.No.10926/2014 Cheque towards repayment of the legal debt. The accused except putting some suggestions to PW1 that he is not liable to pay cheque amount, nothing has been elicited from his mouth to disbelieve his testimony or to discard his evidence.
21. The accused has not chosen to deny a fact that Ex.P1 is belong to him. The accused even admitted his signature found on Ex.P1 - Cheque marked as Ex.P.1(a). The accused even did not chosen to deny a fact that his Ex.P1 - cheque was bounced with a specific reason "Payment stopped by the drawer." It is not the defence of the accused that he had sufficient funds in his bank account and therefore, he made stop payment of the cheque. Admittedly, no suggestion was put to PW1 by suggesting that he had sufficient funds in his bank account and therefore, he made stop payment of the cheque.
22. No doubt, the accused during the cross-examination of PW1 put a suggestion that he has given his duly signed blank cheque in favour of this accused as a security towards the site dealing transaction wherein the Complainant was acted as a broker and towards the commission fee of Rs.75,000/- he had given his duly signed Ex.P1 blank cheque and subsequently ,the Complainant even after receipt of Rs.75,000/- from this accused, instead of returning the cheque, misused the same and created 12 C.C.No.10926/2014 the same as Ex.P1. However, the defence of the accused was categorically denied by PW1 in his cross-examination.
23. However, the accused has not chosen to deny the documentary evidence adduced by the PW1 before this court marked as Ex.P.1 to Ex.P6. The accused has not chosen to deny a fact that immediately after the receipt of Ex.P2 bank endorsement, the Complainant got issued Ex.P3 notice and the same duly served upon him as per Ex.P4 &Ex.P5. However, PW1 has categorically deposed that immediately after receipt of the Bank Endorsement marked as Ex.P.2, he has sent notice as per Ex.P3 to the correct address of the accused, calling upon the accused to pay the cheque amount and also by intimating the dishonour of the cheque and the same was duly served upon this accused as per Ex.P4 & Ex.P5. These facts remained unchallenged from the accused. No suggestion was put to PW1 either by denying he issuance of Ex.P3 notice nor he denied the service of notice as per Ex.P4 & Ex.P5. The Ex.P3 to Ex.P5 documents clearly proves that the PW1 well within the period of limitation, got issued Ex.P3 notice u/sec138 (b) of N.I. Act and the same was duly served upon this accused and even after receipt of Legal Notice, the accused neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction.
13 C.C.No.10926/2014
24. Admittedly, the accused after receipt of Ex.P3 notice, neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. In such situation, an adverse inference has to be drawn against this accused that the accused after receipt of the Legal Notice by admitting the notice and also by admitting his liability to pay the cheque amount, did not resisted the claim of the Complainant.
25. As I have discussed supra, the accused except denying the transaction and also by denying the issuance of cheque towards the repayment of the loan amount in favour of PW1, has failed to convince the court what is impediment on him to send his reply by denying the contents of the Ex.P3 notice.
26. The oral and documentary evidence adduced before this court by the Complainant clearly proves that the accused even inspite of receipt of Legal Notice, has failed to make payment of the cheque amount. Admittedly, the entire burden is on this accused to rebut the case of the Complainant and also to rebut the presumption available to this Complainant u/Sec.139 of N.I Act.
27. The accused in order to prove his defence and to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act, stepped 14 C.C.No.10926/2014 into the witness-box and got examined as DW1. He deposed that since in the year 2012 he was getting more than Rs.3,00,000/- per month from the rents of the properties let out by him in favour of the tenants and now he is getting Rs.7,00,000/- to Rs.8,00,000/- per month from the rents. He deposed that since from the year 1995 he is paying income tax as such he has no difficulty to borrow loan of Rs.1,75,000/- from this Complainant. He deposed that he met this Complainant through one of his friend Sri. Venkataramanappa as this Complainant was doing Real Estate Business.
28. He deposed that in the year 2010 the Complainant had borrowed a sum of Rs.50,000/- as a loan from him and towards the security of the loan amount he had given his cheque and till this day, he has not paid the said amount. During the year 2010 the Complainant along with Sri. Venkataramanappa and Sri Jaipal informed him that there was a land bearing Sy.No.14, 16 & 17 situated at Ejipura Village measuring to an extent to 1 acre 6 guntas for immediate sale and they assist him to get the said land, for which, they have to be paid commission. He deposed the towards the commission fee he had given his 3 duly signed blank cheques in favour of all the three persons separately and even inspite of his best efforts to purchase the said 15 C.C.No.10926/2014 property, the transaction was not completed and even the Complainant has not returned his duly signed blank cheque received towards the security of the land transaction. He deposed that the Complainant insisted him to pay him amount and this Complainant himself on his own, misused the cheque by creating the same for Rs.50,00,000/- and get it dishonoured.
29. He further deposed that apart from this, the Complainant had also lodged a police complaint against him and after receipt of the complaint, the police instructed them to dissolve their dispute before the Civil court. He deposed that after his enquiry to the Complainant why he has misused the cheque for Rs.50,00,000/-, the Complainant informed him that by mistakenly he has written the amount on the cheque as Rs.50,00,000/- but he will close the transaction and he need not pay any amount. He deposed that towards the land transaction, he had also given a duly signed blank cheque to this Complainant along with he has also given a duly signed blank paper in favour of this Complainant. He deposed that the Complainant also demanded Rs.75,000/- to which he paid the said amount by way of his cheque and the same was encashed by this Complainant.
16 C.C.No.10926/2014
30. He further deposed that he has not borrowed loan amount of Rs.175,000/- from this Complainant and even he has not issued his Ex.P1 towards the repayment of the loan amount. He deposed that with respect to the loan amount of this Complainant amounting to Rs.50,000/- the Complainant taken his cheque and in his presence tearred the cheque and given back to him by saying that the amount should be adjusted towards the brokerage charges payable to him.
31. He got produced the tearred cheque of this Complainant marked as Ex.D.1. He got produced the opinion given by his advocate with respect to Ejipura land marked as Ex.D2 along with the bill amount paid by him towards the legal remuneration marked as Ex.D.2(a). He got produced the copy of the Letter of undertaking given by him after the receipt of the loan amount of Rs.1,75,000/- from the Complainant by agreeing to repay the loan amount on or before 20.5.2013 and towards the loan amount he had given his cheque bearing No.873163 to this Complainant and the same was received by him marked as Ex.D.3. He got produced his passbook pertaining to Canara Bank Ltd., marked as Ex.D.4. He got produced his income tax returns submissions form pertaining to the year 2012-2015 marked as Ex.D.5 to Ex.D8 respectively. He got produced his statement given before HSR Layout Police Station 17 C.C.No.10926/2014 regarding Ex.P1 cheque marked as Ex.D.9. He got produced copy of the complaint given by the Complainant marked as Ex.D.10 along with notice issued by the Station House Officer of the HSR Layout Police Station summoning him to give his statement marked as Ex.D.11. He further deposed that in the month of February 2013 he has not at all borrowed a sum of Rs.1,75,000/- as a loan for any of his purpose from this Complainant and even he has not issued his Ex.P1 cheque towards repayment of the loan amount. He deposed that he is not able to pay the cheque amount. Hence, prays to dismiss the complaint.
32. The Complainant has denied the testimony of DW1 and his learned Counsel subjected DW1 for cross-examination. DW1 in his cross- examination categorically admitted that even inspite of receipt of Ex.P3 notice he has not sent his reply to the Complainant. He further admitted that till this day, he has not initiated any legal proceedings against this Complainant based on Ex.D1 cheque and even he has not filed any proceedings to recover the loan amount of Rs.50,000/- from this Complainant. Though he denied the suggestion that there was no loan transaction in-between him with this Complainant amounting to Rs.50,000/- and even this Complainant has not issued Ex.D1 cheque towards repayment of the loan amount of Rs.50,000/-, he has not 18 C.C.No.10926/2014 initiated any legal action against the Complainant for the recovery of the said amount.
33. However, admittedly, till this day, the DW1 has not initiated any legal proceedings to recover the loan amount of Rs.50,000/- from this Complainant. In such situation, the testimony of DW1 that the Complainant himself borrowed a sum of Rs.50,000/- from him and towards the said amount, he had given him Ex.D1 cheque, cannot be believable and acceptable. The DW1 himself got produced Ex.D3 document before this court which is one and the same of Ex.P6 document. The Ex.D3 and Ex.P6 documents clearly proves that the DW1 after receipt of hand loan of Rs.1,75,000/- from this Complainant and towards the said loan amount, had issued his cheque. The Ex.D3 document is an admitted document of the DW1. He unable to explain before this court when there is no loan transaction amounting to Rs.1,75,000/- then why did he given an undertaking as per Ex.D3 to this Complainant by acknowledging the debt of Rs.1,75,000/- and also by agreeing to repay the said loan amount on or before 20.5.2013 and also by stating that he had given his cheque as a security of the said loan amount. Moreover, it is not the defence of DW1 that this Complainant by restricting his claim to Rs.75,000/-, received the cheque disclosed in Ex.D3. Admittedly, no such defence was taken by this DW1. 19 C.C.No.10926/2014
34. Admittedly, the DW1 is unable to give an explanation to the contents of the Ex.D3 and Ex.P6 documents. No doubt, he got produced Ex.D4 document before this court to prove that the cheque disclosed in Ex.D3 document was encashed by this Complainant amounting to Rs.75,000/- on 31.5.2013. However, admittedly, the cheque bearing No.873163 is not with respect to an amount of Rs.1,75,000/-. Even according to DW1 the contents of Ex.D3 he had borrowed a sum of Rs.1,75,000/- from this Complainant and subsequently, he had given his Undertaking Letter as per Ex.D3. In such situation, the testimony of DW1 that the cheque bearing No. 873163 is with respect to the loan amount of Rs.1,75,000/- and the said amount was already received by this Complainant by way of cheque, cannot be believable and acceptable. Merely because, the DW1 is an Income Tax Assessee and he has submitted his income tax returns for the Assessment year 2012-13 to 2015-16 as per Ex.D5 to Ex.D8, it does not become automatic that the accused has no any financial difficulty to borrow loan from this Complainant and he has not at all borrowed loan amounting to Rs.1,75,000/- from this Complainant. The Ex.D9 to Ex.D12 documents are neither related to this case nor it is relevant documents before this court nor it is related to the Ex.P1 cheque.
20 C.C.No.10926/2014
35. DW1 has categorically admitted that suggestion that even inspite of receipt of Ex.P3 notice he has not sent his reply by denying the transaction. Admittedly, the DW1 even after receipt of Ex.P3 notice , has neither resisted the claim of the Complainant by denying the contents of Ex.P3 notice by sending his reply nor he has complied the notice by paying the cheque amount.
36. The DW1 except adducing the oral evidence that he was liable to pay only Rs.75,000/- to this Complainant and he had already paid the said amount by way of cheque and the same was encashed by this Complainant, has utterly failed to prove that except the said transaction, there was no any other transaction in-between them as disclosed in Ex.D3 and Ex.P6 documents by adducing documentary evidence before this court.
37. Admittedly, the accused has not initiated any legal action against this Complainant for misusing his duly signed blank cheque issued towards the security of land dealing transaction and created the same for Rs.1,75,000/- even after the receipt of Legal Notice issued as per Ex.P3 or even after service of summons to him from this court. The accused has failed to convince this court what is impediment on him to initiate a legal action against the Complainant for misusing his duly 21 C.C.No.10926/2014 signed blank cheque to a higher amount of Rs.1,75,000/-. Admittedly, there is no explanation or reason from the side of this accused with respect to the same and to believe his defence that the Ex.P1 is a blank cheque issued by this accused towards the security of the land dealing transaction as a commission amount.
38. Admittedly, the DW1 except adducing the oral evidence that he had given his duly signed blank cheques in favour of the Complainant as a commission fee towards the land dealing, has utterly failed to prove the same to prove the same to the satisfaction of the court. There is nothing on record to believe that this Complainant by misusing the cheque issued by this accused towards the security of the land dealing transaction for the commission amount, filed this false complaint, only with an intention to make an unlawful gain for himself and to cause monetary loss to this accused. Admittedly, the accused has not produced any piece of document before this court to believe his defence and to believe his testimony. The oral and documentary evidence adduced by DW1, itself is not sufficient and convincing to believe his defence and to discard the case of the Complainant.
39. As I have discussed supra, the DW1 has utterly failed to prove his defence that he has given his duly signed blank cheque in favour of 22 C.C.No.10926/2014 the Complainant as a security towards the commission amount of a land dealing. The Ex.D1 to Ex.D12 documents does not prove the defence taken by the DW1 and it is not convincing this court about the testimony of DW1.
40. The entire burden is on this accused to prove that his duly signed cheque was misused by the Complainant and created this same as Ex.P1 for Rs.1,75,000/-. The accused has utterly failed to prove his defence to the satisfaction of the court by adducing cogent and convincing evidence before this court.
41. The oral evidence adduced before this court by the accused is not convinced this court and it will not rebut the case of the Complainant and also his oral and documentary evidence as well as it will not rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. The accused has utterly failed to prove that there was no any loan transaction in between him with this Complainant much less amounting to Rs.1,75,000/- and he has not issued the Ex.P1 cheque towards repayment of the debt or other liability. In such situation, the defence taken by the accused during the course of trial, cannot be believable and acceptable. Even when this accused was questioned u/Sec. 313 of Cr.P.C. by this court, accused except denying incriminating evidence deposed 23 C.C.No.10926/2014 against him by PW1, has not chosen to put forth any defence from his side. Likewise, the Accused has utterly failed to rebut the presumption available to this Complainant u/Sec.118 and also u/Sec.139 of N.I. Act it reads thus respectively.
42. As per the provisions of Sec.118, which reads thus:
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; b. As to date - that every negotiable instrument bearing a date was made or drawn on such date;
c. As to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
d. As to time of transfer - that every transfer of a negotiable instrument was made before its maturity;
e. As to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
f. As to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped;
g. That holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course;
43. Likewise, the accused also failed to rebut the presumption available to this Complainant u/s.139 of N.I. Act which reads: 24 C.C.No.10926/2014
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.
44. The arguments of the learned Counsel for the accused is that the Complainant by misusing the duly signed blank cheque of this accused and created the same as Ex.P1 and filed this false complaint and this accused by adducing evidence before this court, has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act and by considering all these facts and evidence available on record by giving the benefit of doubt in favour of this accused, accused has to acquitted, is also not convinced this court and it cannot be acceptable. The arguments of the learned Counsel for the accused is that the accused has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act by adducing oral and documentary evidence before this court and by considering the evidence adduced before this court by the accused, the accused has to be acquitted, is also not convinced this court and it holds no merit. His arguments that there is no burden on this accused to prove his defence beyond all reasonable doubts and this accused can very well discharge his burden by preponderance of probabilities and even by cross-examining PW1, without leading his evidence and this accused by cross-examining PW1 and also by leading 25 C.C.No.10926/2014 his oral and documentary evidence, has successfully proved his defence and rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act is also not convinced this court and it holds no merit.
45. His further arguments that the Complainant has utterly failed to prove his financial capacity to advance the loan amount of Rs.1,75,000/- by adducing documentary evidence before this court and this Complainant has no financial capacity to advance a sum of Rs.1,75,000/-, is also not convinced this court and it cannot be acceptable, when the DW1 himself got produced Ex.D3 document before this court. The learned Counsel for the accused in support of his arguments also relied upon the judgements reported in 2015 AIR SCW 64 between K. Subramani Vs. K. Damodara Naidu wherein it is held that;
"Negotiable Instruments Act (26 of 1881), S.138 - Dishonour of cheque - Complainant - Finding by trial court on consideration of entire oral and documentary evidence - That Complainant had no source of income to lend sum ofRs.14 Lakhs to accused - he failed to prove that there is legally recoverable debt payable by accused to him - Acquittal of accused, was proper 0 Order of High Court remanding case for retrial - Liable to be set aside."
2008 AIR SCW 738 between Krishna Janardhan Bhat Vs. Datttraya G. Hegde wherein it is held that;
"Accused not required to step into witness-box to prove his defence. He may discharge his burden on the basis of 26 C.C.No.10926/2014 materials already brought on record - Question whether statutory presumption rebutted or not - Must be determined in view of other evidences on record."
AIR 2009 Supreme Court 568 between P. Venugopal. Vs. Madan P. Sarathi wherein it is held that;
(A) Negotiable Instruments Act (26 of 1881), Ss. 118, 139 - Presumption that cheque was issued in discharge of debt - Scope - Does not absolve Complainant of burden to prove existence of debt or liability.
ILR 2009 KAR 172 between A. Viswanatha Pai Vs. Sri Vivekananda S. Bhat wherein it is held that;
"Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act; as, Section 139 merely raises a presumption in favour of the Complainant that the Accused has issued for discharge of any debt and other liability."
The law laid in these judgements are not applicable to the facts of the present case on hand and it will not helpful to the defence taken by the accused during the course of trial.
46. On the contrary, the learned Counsel for the Complainant has vehemently argued that the Complainant before filing of this complaint, has followed all the procedures prescribed u/Sec.138 of N.I. Act and this Accused even after receipt of the Legal Notice, has neither chosen to make payment of the cheque amount nor he has sent 27 C.C.No.10926/2014 his reply by denying the transaction and by drawing an adverse inference against this Accused, the Accused has to be convicted in accordance with law, is fully convinced this court. Likewise, his arguments that the accused only with an intention to ran away from his liability to make payment of the cheque amount, has taken up the false defence during his evidence, is also convinced this court and therefore, it is accepted.
47. The complainant by adducing oral and documentary evidence before this court has proved the guilt of the accused beyond all reasonable doubt. There is no whatsoever doubt in the mind of court about the case of the complainant. The oral and documentary evidence adduced before this court by the complainant is fully corroborating with each other and convinced this court about this case. The complainant by adducing oral and documentary evidence before this court bring home the guilt of the accused beyond all reasonable doubt. Therefore, by taking into consideration the facts and circumstances and evidence available on record, I answer this Point No.1 in affirmative.
28 C.C.No.10926/2014
48. Point No.2. In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255 (2) of Cr.P.C. the accused is hereby convicted for the offence punishable u/Sec.138 of N.I. Act.
The accused is sentenced to pay a fine of Rs.2,30,000/- (Rupees Two Lakhs and Thirty thousand only). In any default to pay fine amount shall undergo simple imprisonment for 6 months.
Out of fine amount recovered under Section 357 of Cr.P.C. a sum of Rs.2,25,000/- (Rupees Two Lakhs and Twenty-five Thousand only) shall be paid to the complainant which includes the cheque amount and also cost of the proceedings. Remaining fine amount of Rs.5,000/- shall be forfeited to State.
The bail bond and surety bonds of the accused stands cancelled.
Office to furnish free copy of the judgement to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 14th day of July, 2016) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bengaluru ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. Shivanand B.H 29 C.C.No.10926/2014 Witnesses examined on behalf of the Accused: D.W.1 Mr. K.M. Chandra Documents marked on behalf of the Complainant: Ex.P.1 Cheque Ex.P.1(a) Signature of the accused Ex.P.2 Bank endorsement Ex.P.3 Copy of the legal notice Ex.P.3(a) & Ex.P3(b) RPAD Receipts Ex.P.4 & Ex.P5 Postal Acknowledgement Due Cards Ex.P.6 Letter Documents marked on behalf of the Accused: Ex.D1 Cheque bearing No.185667 Ex.D2 Opinion given by his advocate with respect to Ejipura land Ex.D2(a) Bill Ex.D3 Copy of the Letter of undertaking Ex.D4 Passbook Ex.D5 to Ex.D8 Income tax returns submissions forms pertaining to the year 2012-2015 Ex.D9 Statement given before HSR Layout Police Station Ex.D10 Copy of the complaint given by the Complainant Ex.D11 Notice issued by the Station House Officer Ex.D12 Endorsement issued by the HSR Layout Police XIX ACMM, B'lore. 30 C.C.No.10926/2014