Bangalore District Court
However The Presumptions Are ... vs Cannot Be Expected To Discharge An on 12 January, 2023
1 CC.3705/2018( J)
KABC030096102018
Presented on : 06-02-2018
Registered on : 06-02-2018
Decided on : 12-01-2023
Duration : 4 years, 11 months, 6 days
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY.
Dated this the 12th Day of January-2023
Present: Lokesh Dhanapal Havale. B.A.L.L.B.,
XV Addl.C.M.M., Bengaluru.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.3705/2018
2.Name of the Complainant: Sri. Babu.S
S/o Shivamallappa
Aged about 41 years,
R/at No.31, 1st 'H' Cross, 3rd main,
Meenakshinagara,
Sharada Colony,
Basaveshwarnagar,
Bangalore-560079.
3.Name of the accused: Sri. N. Ramesh Kumar
S/o Kalyanappa,
Aged about 52 years,
R/at No.271, 1st Main Road,
Opp. To MMK Mini Hall,
Kasturi Layout,
Kamalanagar,
2 CC.3705/2018( J)
Basaveshwaranagar,
Bangalore-560 079.
Working as Typist,
Office of the Chief Engineer,
Central Mechanical Organisation,
Ananda Rao Circle,
Bangalore- 560 009.
4.The offence complained of : U/s.138 of Negotiable Instruments
Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(2) Cr.P.C., accused
is Convicted.
7.Date of final Order 12.01.2023
* * *
This complaint is filed U/Sec.200 of Cr.P.C. against the
accused for the offence punishable U/Sec.138 of the Negotiable
Instruments Act, 1881.
2. The facts of the complaint in brief are as under:
The complainant and the accused are well known to each
other from past several years and they are friends. The accused
was working at Panchayath Raj Engineering Department as Typist.
The complainant was working at personal section/establishment of
the RDPR, Minister. The accused approached him in the last week
of September 2016 through a common friend Sri. Krishnappa and
requested for hand loan of Rs.10,00,000/- to meet some of his
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domestic and personal financial commitments. The accused assured
to repay hand loan amount within a period of six months. He lent
a hand loan of Rs.10,00,000/- in the first week of October 2016.
He paid the said hand loan amount by way of cash as per the
request of the accused. He paid an amount of Rs.6,00,000/- by
withdrawing from his S.B. Account maintained at Vijaya Bank,
Bramramba Nilaya, Chamarajanagar District branch. He possessed
agricultural lands and he had income from the same. He paid an
amount of Rs.4,00,000/- by way of cash to the accused out of the
income derived from the other sources. After repeated requests,
the accused issued cheque bearing No.777811 for a sum of
Rs.5,00,000/- dated 23.11.2017. He demanded to repay the full
amount and therefore the accused issued another cheque bearing
No.777812 for a sum of Rs.5,00,000/- dated 23.11.2017 drawn on
Corporation Bank, SC road branch, Bangalore in order to discharge
the liability. He presented the cheques for encashment through his
banker State Bank of India, Vidhana Soudha branch, Bangalore but
they were dishonoured for the reason 'Funds Insufficient' on
24.11.2017. He issued legal notice on 21.12.2017 through RPAD
demanding repayment of the cheques amount. The notice sent to
the office address and residential address were served on the
accused on 22.12.2017. The accused did not pay the amount even
after the expiry of 15 days. The accused thereby committed an
offence punishable U/s.138 of the N.I.Act.
3. After the institution of the complaint, the cognizance
was taken and it has been registered as PCR No.1626/2018. The
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sworn statement of the complainant has been recorded and on the
basis of sworn statement and other materials on hand, the criminal
case has been registered against the accused and summons was
issued to accused. In response to the service of summons, the
accused appeared through his learned counsel and got enlarged
on bail. The prosecution papers were supplied to the accused and
the substance of the accusation was read over and explained to
the accused in the language known to him. He pleaded not guilty
and claimed to be tried.
4. During trial the complainant examined himself as PW-1
and got marked Ex.P1 to P10. The statement of the accused U/s.
313 of Cr.P.C. was recorded. The accused did not lead any
evidence.
5. Heard the arguments. On perusal of the entire
materials on record, the points that arise for my consideration are
as under;
1. Whether the complainant proves that the
accused issued two cheques bearing
Nos.777811 dated 23.11.2018 for Rs.5,00,000/-
& cheque bearing No.777812 dated 23.11.2017
for Rs.5,00,000/- both cheques drawn on
Corporation Bank, SC Road branch, Bangalore
towards the discharge of legally enforceable
debt/liability and on its presentation for
encashment, it was dishonored with an
endorsement "Insufficient Funds" and even
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after the service of legal notice, the accused
has not paid the amount within 15 days and
thereby accused committed an offence
punishable U/Sec.138 of N.I. Act, 1881?
2. Whether the accused rebuts the
presumption U/s.139 of the N.I.Act?
3. What order?
6. My answers on the above points for consideration are
as under:
Point No.1 : Affirmative
Point No.2 : Negative
Point No.3 : As per final order for the following;
REASONS
7. Point No.1 and 2 :- The points are taken together for
the common discussion to avoid repetition of facts and evidence. It
is necessary to discus the provisions U/s. 118(a) and 139 of the
Act., 1881 at this stage.
"118. Presumptions as to negotiable
instruments. - Until the contrary is
proved, the following presumptions shall
be made:-
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(a) of consideration - that every
negotiable instrument was made or drawn
for consideration, and that every such
instrument, when it has been accepted,
indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or
transferred for consideration;"
"139. Presumption in favour of
holder.- It shall be presumed, unless the
contrary is proved, that the holder of a
cheque received the cheque of the nature
referred to in section 138 for the
discharge, in whole or in part, of any
debt or other liability."
8. On plain perusal of the provision U/s. 118(a) and 139
of the N.I.Act., it can be seen that initially the presumptions
constituted under these two provisions are in favour of the
complainant. However the presumptions are rebuttable and it is
open to an accused to raise a defence to rebut the statutory
presumptions. An accused can raise a defence, wherein the
existence of legally enforceable debt or liability can be contested.
9. It is also well established that an accused need not
examine himself for discharging the burden of proof placed upon
him under a statute. He may discharge his burden on the basis of
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the materials already brought on record. An accused has
constitutional rights to remain silent. The standard of proof on
part of the accused and that of the prosecution in a Criminal Case
is different. The prosecution must prove the guilt of an accused
beyond all reasonable doubts, the standard of proof so as to prove
a defence on the part of an accused is preponderance of
probabilities.
10. Under the light of position of the law, I have perused
the complaint and the evidence placed on record. The complainant
in support of his claim made in the complaint has adduced
evidence by examining himself as PW-1 and he got marked Ex.P1
to 10. PW-1 filed his evidence affidavit on oath and reiterated the
complaint averments. Ex.P1 & 2 are the cheques bearing
No.777811 and No.777812 dated 23.11.2017 for Rs.5,00,000/-
each drawn on Corporation Bank, SC Road branch, Bangalore.
Ex.P1(a) & 2(a) are the signatures of the accused. Ex.P3 & 4 are
the Bank endorsements with shara "Insufficient Funds" dated
24.11.2017. Ex.P5 is the office copy of Legal Notice dated
21.12.2017 issued by the complainant to the accused demanding
repayment of the cheques amount to the addresses of the accused.
Ex.P6 & 7 are the 2 postal acknowledgment letters for having
served the legal notice on the accused on 22.12.2017. Ex.P9 is the
Letter issued by postal authorities stating that the notice was
served on the accused on 22.12.2017. Ex.P8 is the Bank Pass book
and Ex.P8(a) is the relevant portion. Ex.P8(a) shows that the
complainant withdrawn on amount of Rs.6,00,000/- on 5.10.2016.
8 CC.3705/2018( J)
17 RTCs are produced and they were together marked as Ex.P10.
They disclose that the complainant has more than 10 acres of land
in his name and they also disclose that jowar and watermelon
crops are being grown in the said land. They also disclose that
there is water source i.e., borewell in the Sy No.79/2 and
therefore it can be inferred that some of the lands are irrigated
lands.
11. On perusal of the documents, it is clear that the
cheques at Ex.P1 and 2 bearing No.777811 dated 23.11.2017 for
Rs.5,00,000/- & cheque bearing No.777812 dated 23.11.2017 for
Rs.5,00,000/- drawn on Corporation Bank, SC Road branch,
Bangalore were presented for its validity. Ex.P1(a) & 2(a) are the
signatures of the accused. The Bank endorsements at Ex.P3 & 4
were issued with shara "Insufficient Funds" dated 24.11.2017. The
office copy of Legal Notice dated 21.12.2017 at Ex.P5 disclose that
the legal notice has been sent within time from the date of receipt
of bank memos. Ex.P 6, 7 and 9 clearly disclose that the notice
was served on the accused on 22.12.2017. The accused has not
disputed the service of notice in the cross examination of PW.1.
The accused neither issued reply notice nor lead the defence
evidence. The complaint was filed on 05.02.2018, which is within
limitation. The cheques and the signatures are not disputed.
Therefore, the documents on record clearly show that the
complainant has complied the ingredients of Section 138(a) to (c)
of the N.I.Act. Therefore the presumptions U/s.118 and 139 of the
N.I.Act arise in favour of the complainant. The presumptions are
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rebuttable and the burden is on the accused to rebut the
presumptions. The accused can rebut the presumption by raising
probable defence and proving it relying on the evidence of the
complainant or by leading his direct evidence.
12. In the judgments of the Hon'ble Supreme Court the
aspect of presumptions and burden of proof has been settled.
a) The Hon'ble Supreme Court in Rangappa Vs. Mohan
reported in (2010)11 SCC 441 held as under:
26. In light of these extracts, we are in agreement
with the respondent-claimant that the presumption mandated
by Section 139 of the Act does indeed include the existence
of a legally enforceable debt or liability. To that extent, the
impugned observations in Krishna Janardhan Bhat (supra)
may not be correct. However, this does not in any way cast
doubt on the correctness of the decision in that case since it
was based on the specific facts and circumstances therein.
As noted in the citations, this is of course in the nature of a
rebuttable presumption and it is open to the accused to raise
a defence, wherein the existence of a legally enforceable
debt or liability can be contested. However, there can be no
doubt that there is an initial presumption, which favours the
complainant.
27. Section 139 of the Act is an example of a
reverse onus clause that has been included in furtherance of
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the legislative objective of improving the credibility of
negotiable instruments. While Section 138 of the Act
specifies a strong criminal remedy in relation to the
dishonour of cheques, the rebuttable presumption under
Section 139 is a device to prevent undue delay in the course
of litigation. However, it must be remembered that the
offence made punishable by Section 138 can be better
described as a regulatory offence since the bouncing of a
cheque is largely in the nature of a civil wrong whose
impact is usually confined to the private parties involved in
commercial transactions. In such a scenario, the test of
proportionality should guide the construction and
interpretation of reverse onus clauses and the
accused/defendant cannot be expected to discharge an
unduly high standard or proof.
28. In the absence of compelling justifications,
reverse onus clauses usually impose an evidentiary burden
and not a persuasive burden. Keeping this in view, it is a
settled position that when an accused has to rebut the
presumption under Section 139, the standard of proof for
doing so is that of `preponderance of probabilities'.
Therefore, if the accused is able to raise a probable defence
which creates doubts about the existence of a legally
enforceable debt or liability, the prosecution can fail. As
clarified in the citations, the accused can rely on the
materials submitted by the complainant in order to raise
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such a defence and it is conceivable that in some cases the
accused may not need to adduce evidence of his/her own.
b) The Hon'ble Supreme Court in T. Vasantha Kumar V/s
Vijaya Kumari reported in (2015) 8 SCC 378 held as
under:-
Therefore ,in the present case since the cheque as well
as the signature has been accepted by the
accused/respondent,the presumption under sec.138 would
operate. Thus the burden was on the accused to disprove
the cheque or the existence of any legally recoverable debt
or liability. To this effect, the accused has come up with a
story that the cheque was given to the complainant long
back in 1999 as a security to a loan; the loan was repaid
but the complainant did not, return the security cheque.
According to the accused, it was that very cheque used by
the complainant to implicate the accused. However, if may
be noted that the cheque was dishonoured because the
payment was stopped and not for any other reason. This
implies that the accused had knowledge of the cheque being
presented to the bank, or else how would be accused have
instructed her banker to stop the payment. Thus, the story
brought out by the accused is unworthy of credit, apart
from being unsupported by any evidence.
The Hon'ble Supreme Court of India in the case of
Rohitbhai Jivanlal Patel Vs. State of Gujarat, (2019) 18 SCC
106 held as under:
12 CC.3705/2018( J)
"In the case at hand, even after purportedly drawing
the presumption under Section 139 of the NI Act, the trial
Court proceeded to question the want of evidence on the
part of the complainant as regards the source of funds for
advancing loan to the accused and want of examination of
relevant witnesses who allegedly extended him money for
advancing it to the accused. This approach of the Trial
Court had been at variance with the principles of
presumption in law. After such presumption, the onus
shifted to the accused and unless the accused had discharged
the onus by bringing on record such facts and circumstances
as to show the preponderance of probabilities tilting in his
favour, any doubt on the complainant's case could not have
been raised for want of evidence regarding the source of
funds for advancing loan to the appellant-accused....."
d) The Hon'ble Supreme Court of India in its latest case
of M/s. Kalamani Tex v. P. Balasubramanian reported in
(2021) 5 SCC 283 observed at para No.14 to 18 as under:-
14. Adverting to the case in hand, we find on a
plain reading of its Judgment that the trial Court completely
overlooked the provisions and failed to appreciate the
statutory presumption drawn under Section 118 and Section
139 of NIA. The Statute mandates that once the signature(s)
of an accused on the cheque/negotiable instrument are
established, then these 'reverse onus' clauses become
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operative. In such a situation, the obligation shifts upon the
accused to discharge the presumption imposed upon him.
This point of law has been crystalized by this Court in
Rohitbhai Jivanlal Patel Vs. State of Gujarat, (2019) 18 SCC
106 in the following words:
"In the case at hand, even after purportedly drawing
the presumption under Section 139 of the NI Act, the trial
Court proceeded to question the want of evidence on the
part of the complainant as regards the source of funds for
advancing loan to the accused and want of examination of
relevant witnesses who allegedly extended him money for
advancing it to the accused. This approach of the Trial
Court had been at variance with the principles of
presumption in law. After such presumption, the onus
shifted to the accused and unless the accused had discharged
the onus by bringing on record such facts and circumstances
as to show the preponderance of probabilities tilting in his
favour, any doubt on the complainant's case could not have
been raised for want of evidence regarding the source of
funds for advancing loan to the appellant-accused....."
15. Once the 2nd Appellant had admitted his
signatures on the cheque and the Deed, the trial Court
ought to have presumed that the cheque was issued as
consideration for a legally enforceable debt. The trial Court
fell in error when it called upon the Complainant-
Respondent to explain the circumstances under which the
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appellants were liable to pay. Such approach of the Trial
Court was directly in the teeth of the established legal
position as discussed above, and amounts to a patent error
of law.
16. No doubt, and as correctly argued by senior
Counsel for the appellants, the presumptions raised under
Section 118 and Section 139 are rebuttable in nature. As
held in M.S.Narayana Menon Vs. State of Kerala, (2006) 6
SCC 39, which was relied upon in Basalingappa (supra), a
probable defence needs to be raised, which must meet the
standard of "preponderance of probability", and not mere
possibility. These principles were also affirmed in the case
of Kumar Exports (supra), wherein it was further held that a
bare denial of passing of consideration would not aid the
case of accused.
17. Even if we take the arguments raised by the
appellants at face value that only a blank cheque and signed
blank stamp papers were given to the respondent, yet the
statutory presumption cannot be obliterated. It is useful to
cite Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197, 36
where this court held that:
"Even a blank cheque leaf, voluntarily signed and
handed over by the accused, which is towards
some payment, would attract presumption under
Section 139 of the Negotiable Instruments Act, in
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the absence of any cogent evidence to show that
the cheque was not issued in discharge of a
debt."
18. Considering the fact that there has been an admitted
business relationship between the parties, we are of the
opinion that the defence raised by the appellants does not
inspire confidence or meet the standard of 'preponderance of
probability'. In the absence of any other relevant material, it
appears to us that the High Court did not err in discarding
the appellants' defence and upholding the onus imposed
upon them in terms of Section 118 and Section 139 of the
NIA.
e) The Hon'ble Supreme Court of India in its latest case of
Jain P Jose v/s Santhosh reported in SLP Crl.5241/2016
dated 10.11.2022 observed by referring to its earlier
Judgments in Vasanth Kumar v/s Vijaya Kumari, Rangappa
v/s Mohan and Kalamani Tex and Another v/s P.
Balasubramanian that the complainant is entitled to the
benefit of presumption u/sec.139 of N.I Act that the cheque
was issued for discharge of legally enforceable debt or
liability. It was also observed by the Hon'ble Supreme Court
that the source of income and the purpose for which the
loan is given need not be pleaded in the complaint.
16 CC.3705/2018( J)
13. Therefore on perusal of the Judgments, it is clear that
an accused need not examine himself for discharging the burden of
proof placed upon him under a statute. He may discharge his
burden on the basis of the materials already brought on record.
An accused has constitutional rights to remain silent. The standard
of proof on part of the accused and that of the prosecution in a
Criminal Case is different. The prosecution must prove the guilt of
an accused beyond all reasonable doubt and the standard of proof
so as to prove a defence on the part of an accused is
preponderance of probabilities. If the cheque and signature are
admitted, the presumption arises that the cheque was issued for
legally enforceable debt/liability. The presumption is rebuttable.
The accused has to raise a probable defence and prove it by
adducing evidence, which must meet the standard of
preponderance of probabilities. Unless the same has been done,
doubt can not be raised on the case of the complainant. In the
case on hand the accused failed to prove that the defence taken
by him is probable. He utterly failed to prove the defence. On the
other hand, the presumption raised in favour of the complainant
u/sec.139 of N.I Act operates until rebutted by the accused by
proving probable defence. As per the settled law that unless and
until the accused rebuts the presumption U/sec.139 of N.I Act, the
onus does not shift on the complainant to prove his case. The
defence taken by the accused is not probable defence and he failed
to prove it either through his direct evidence or relying on the
evidence of the complainant. Therefore doubt can not be raised on
the case of the complainant.
17 CC.3705/2018( J)
14. The accused did not lead defence evidence. The
accused need not lead defence evidence as per the above
discussion. He can prove his defence relying on the evidence of
the complainant. The counsel for the accused cross examined PW.1
at length. It is the defence of the accused as set up in the cross
examination of PW.1 that there is no transaction between the
complainant and the accused. The accused has not issued any
cheques to discharge any debt or liability. There are no documents
in respect of the transaction. The complainant has no financial
capacity to lend the amount. The lost cheques of the accused have
been misused by the complainant to make illegal gain. On perusal
of the entire cross examination no specific defence has been
forthcoming. The accused generally denied the entire transaction.
15. The accused did not mark any documents in order to
prove his defence. On perusal of the defence taken in the cross
examination of PW.1, it is clear that the accused took defence that
the lost cheques have been misused by the complainant. PW.1 was
also cross examined in respect of the transaction but nothing
worth was elicited in the cross examination of PW.1. It is
pertinent to note that the accused did not specify the details in
respect of the signed blank cheques having been lost. It is also not
specified as to how the lost cheques came into the possession of
the complainant. During the cross examination of PW1, it was
suggested to PW.1 that he possessed other 4 cheques apart from
the cheques in question. Though PW.1 denied the said suggestion,
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it can be inferred that the cheques went into the hands of the
complainant through the accused. PW.1 was cross examined in
respect of cheques. It was elicited that he did not mention the
date in the notice, complaint and examination in chief on which
he received the cheques. He stated that he received the cheques in
the 3rd week of November 2017. He stated that he did not
remember the place where the cheques were given by the accused.
However as per Sec.118-b of NI Act, which deals with the
presumptions, that it shall be presumed that every Negotiable
Instrument bearing a date was made or drawn on such date until
the contrary is proved. As per Ex.P1 and 2, the cheques are dated
23.11.2017 and it shall be presumed that the cheques were made
or drawn on the said date. The burden is on the accused to prove
the contrary. However the accused except taking bald defence that
the lost cheques have been misused has not taken any specific
defence. It is clear from the evidence that the notice has been
served. The accused failed to give reply notice. If at all it is
considered that the accused lost the signed blank cheques, he
would have taken precaution by issuing stop payment instructions
in respect of the lost cheques. He would have filed police
complaint for having lost the signed blank cheques. Nothing has
been done in order to substantiate the defence of lost cheques.
The accused has not taken any action against the complainant for
mis use of lost signed blank cheques till this day. Therefore the
defence taken by the accused does not appear to be probable and
acceptable.
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16. During the cross examination of PW.1 it was elicited
that the accused has not taken any documents at the time of
lending the loan. It was suggested that the amount would have
been paid through cheque or bank transfer. PW.1 answered that
the accused being Government Servant asked him to pay the
amount by way of cash. It is pertinent to note that the
relationship is not disputed. PW.1 stated that as the accused was
friend he did not obtain any documents. It was also elicited that
there is no document to show that the amount was withdrawn at
Chamarajanagar and it was paid at Bengaluru to the accused by
way of cash. He has no document to show that the amount of
Rs.6,00,000/- withdrawn from the bank as per Ex.P8 was given to
accused. During the cross examination of PW.1, it was also elicited
that he was P.A to sitting MLA and Ex Minister. He is from
Chamarajanagar District. He admitted that Gudlupete comes within
the jurisdiction of Chamarajanagar. It was suggested to PW.1 that
the amount of Rs.6,00,000/- withdrawn during the period of
Legislative Assembly Election in Gundlupete and the amount was
withdrawn for Election purpose and it was not given to accused.
But PW.1 denied the said suggestion. The counsel for the accused
also challenged the financial capacity of the complainant. He cross
examined PW.1 in respect of his source of income. However it is
settled law that once the cheque and signature are admitted, the
presumptions u/sec.118 and 139 of N.I Act arise in favour of the
complainant and the burden is on the accused to take probable
defence and prove the same in order to rebut the said
presumptions. The accused took the defence of lost cheques being
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misused by the complainant but failed to prove the same.
Therefore the accused failed to prove that the defence taken by
him is probable. He failed to prove the defence by preponderance
of probabilities either by leading direct evidence or by relying on
the evidence of the complainant. Nothing worth was elicited in the
cross examination of PW.1 to disbelieve the case of the
complainant. The accused challenged the financial capacity but the
financial capacity can not be questioned and doubt can not be
raised on the complainant unless the presumptions are rebutted.
The onus does not shift on the complainant to prove his financial
capacity unless and until the presumptions are rebutted. Even then
the complainant produced bank pass book as per Ex.P8 and 17
RTCs as per Ex.P10 to show his financial capacity. Ex.P8 shows
the withdrawal of Rs.6,00,000/- during the said period and Ex.P10
shows that the complainant has more than 10 acres of land in his
name. Ex.P8 and 10 clearly establish the financial capacity of the
complainant to pay the said loan amount.
17. It is the defense of the accused that there is no
transaction as alleged in the complaint and the complainant
misused the lost cheques. The counsel for the accused made
several suggestions but the suggestions are denied by the
complainant. Mere suggestions are not sufficient. On perusal of the
entire cross examination of PW.1 nothing was elicited in support
of the defense of the accused. The cheques and signatures on the
cheques at ExP.1 & 2 are not disputed. The drawer's signature on
the cheques attracts the ratio laid down by the Hon'ble Supreme
21 CC.3705/2018( J)
Court of India in its decisions reported in 2011 (11) SCC - 441 -
Rangappa V/s.Sri.Mohan and SCC 2015 (8) Page No.378 -
T.Vasanthakumar V/s.Vijayakumari and the recent Judgment
delivered in Crl. Appeal No.508/2019 - Rohit Bhai Jeevanlal Patel
V/s. State of Gujarath and another. The ratio is that the cheque
shall be presumed to be for consideration unless and until the
court forms a belief that the consideration does not exist or
considers the non-existence of consideration was tenable that a
prudent man would under no circumstances act upon the plea that
the consideration does not exist.
18. It is the defence of the accused that the signed blank
cheques were lost. On perusal of Ex.P1 & 2, it is found that the
signatures and the contents are written with same ink. However
even if the blank signed cheque was given and it was filled up
later, it attracts the ingredients u/sec.138 of N.I Act. As per
Section 20 of the N.I.Act, if the person signs and delivers
Negotiable Instrument and it is left incomplete and thereby he
authorizes the holder to complete the Negotiable Instrument and
thereby he is liable for the amount mentioned in the Negotiable
Instrument. In the Judgment rendered by the Hon'ble Supreme
Court of India in Bir Singh V/s.Mukesh Kumar reported in AIR
2019 SC 2446, it was held by the Hon'ble Apex Court that "If a
signed blank cheque is voluntarily presented to a payee, towards
some payment, the payee may fill up the amount and other
particulars. This in itself would not invalidate the cheque. The
onus would still be on the accused to prove that the cheque was
22 CC.3705/2018( J)
not in discharge of a debt or liability by adducing evidence. Even
a blank cheque leaf, voluntarily singed and handed over by the
accused, which is towards some payment, would attract
presumption under Section 139 of the Negotiable Instruments Act,
in the absence of any cogent evidence to show that the cheque
was not issued in discharge of a debt."
19. For the reasons mentioned herein above, it is
crystallized that the accused has utterly failed to prove that there
was no existence of legally enforceable debt/liability between him
and the complainant and he has not at all issued the instant
cheque towards the discharge of legally enforceable liability of
Rs.10,00,000/-. On the other hand, the complainant has proved
that the accused issued the cheques for the legally enforceable
liability; the cheques were dishonored due to the reason 'Funds
Insufficient' and the notice issued by him was served on the
accused. The complainant proved his case beyond reasonable
doubt. The accused failed to rebut the statutory presumptions
U/s.118(a) & (b) and 139 of the N.I.Act. Accordingly the accused
is found guilty for the offence punishable U/s.138 of the N.I.Act.
Hence, I proceed to answer the Point No.1 in Affirmative and
Point No.2 in the Negative.
20. Point No.3 : In view of the reasons assigned in Point
No.1 and 2 and considering the facts and circumstances of the
case, I proceed to pass the following:-
23 CC.3705/2018( J)
ORDER
As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby convicted for the offence punishable u/s.138 of NI Act, 1881 and sentenced to pay fine Rs.12,10,000/- (Rupees Twelve Lakhs Ten Thousand Only). On deposit of fine amount, the complainant is entitled for compensation of Rs.12,00,000/- (Rupees Twelve Lakhs Only). The remaining balance amount of Rs.10,000/- is to be forfeited to the State.
In default of payment of the fine amount accused shall undergo simple imprisonment for three months.
The personal bond executed by the accused is hereby stands cancelled and cash surety of Rs.5,000/- furnished by the accused shall be refunded to him after expiry of appeal period.
The copy of the judgment shall be furnished to the accused at free of cost.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by him, is verified and then pronounced by me in Open Court on this the 12th day of January-2023.) (Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.
24 CC.3705/2018( J) ANNEXURE Witnesses examined for the Complainant:-
PW.1 : Sri. Babu. S Documents marked for the Complainant:-
Ex.P1 & 2 : 2 Cheques Ex.P1(a) & 2(a) : Signatures of the accused Ex.P3 & 4 : 2 Bank endorsements Ex.P5 : Office copy of the legal notice Ex.P6 & 7 : 2 Postal acknowledgment letters Ex.P8 : Bank pass book Ex.P8(a) : Relevant portion Ex.P9 : Letter issued by postal department Ex.P10 : 17 RTCs Witnesses examined For Defence:-
NIL Documents marked for Defence:-
NIL (Lokesh Dhanapal Havale), XV Addl.CMM., Bengaluru.
25 CC.3705/2018( J) 12/01/2023 (Judgment Pronounced in the Open Court Vide Separate Order sheet) ORDER As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby convicted for the offence punishable u/s.138 of NI Act, 1881 and sentenced to pay fine Rs.12,10,000/- (Rupees Twelve Lakhs Ten Thousand Only). On deposit of fine amount, the complainant is entitled for compensation of Rs.12,00,000/- (Rupees Twelve Lakhs Only). The remaining balance amount of Rs.10,000/- is to be forfeited to the State.
In default of payment of the fine amount accused shall undergo simple imprisonment for three months.
The personal bond executed by the accused is hereby stands cancelled and cash surety of Rs.5,000/- furnished by the accused shall be refunded to him after expiry of appeal period.
The copy of the judgment shall be furnished to the accused at free of cost.
XV Addl.CMM., Bengaluru.