Bangalore District Court
Sree Gokulum Chit And Finance Co. Pvt. ... vs Balu. T on 20 November, 2024
C.C.NO.29787/2022
0
KABC030746452022
Presented on : 16-09-2022
Registered on : 16-09-2022
Decided on : 20-11-2024
Duration : 2 years, 2 months, 4 days
IN THE COURT OF THE XXVIII ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
Present:
Soubhagya.B.Bhusher,
B.A.,LL.B.,LL.M
XXVIII A.C.J.M, Bengaluru City.
DATED; THIS THE 20th DAY OF NOVEMBER-2024
C.C.NO.29787/2022
Complainant: M/s. Gokulam Chit & Finance Co.,Pvt.,Ltd.,
Having its registered O/at Chennai and
Having branch office D/No.205, 1st Floor,
7th Cross, 6th Block BGK, 3rd stage,
Banashankari, Bangalore-560085.
R/by its Legal Clerk and GPA holder,
Sri.Darshan.K.M.
As per the order dated: 05.08.2022
Complainant company R/by its GPA holder,
Sri.Somaiah.I.B.
As per the order dated: 07.07.2023
Complainant company R/by its GPA holder,
Sri.Ranjith.K.S S/o Sathya Prakash.K.R,
Age:27 years.
(By Sri.B.N.Ravishankar.,Adv.,)
V/s
Accused: Balu.T, No.2844, 6th Cross,
C.C.NO.29787/2022
1
Bhuvaneshwari Nagar,
B.S.K. 3rd Stage, Bengaluru-560085.
(By Sri.Jagadeesha.N.,Adv,)
:JUDGMENT:
This case arises out of the private complaint filed by the complainant against the accused under section 200 of Cr.P.C., for an offence punishable under section 138 of Negotiable Instruments Act.
2. The case of the complainant's in brief is as under:
It is the case of the complainant is that the complainant is a company registered under company's act and is engaged in chits and finance business. Further stated that one Shekar.A is a chit subscriber in the chit No.G2G/593/MSR ticket No.03 and the accused is a surety/guarantor to the above said subscriber. The subscriber became a successful bidder and received the prize amount from the complainant. Thereafter the subscriber became a chronic defaulter. The subscriber and surety holder both have to pay the monthly installments to the complainant company. Inspite of repeated demands and requests by the complainant both have failed to pay the monthly installments to the complainant. Further stated that at last in the month of November 2019, after the verification of the account the accused had issued the cheque No.103455 dated: 22.11.2019 for Rs.1,58,300/-
C.C.NO.29787/2022 2 drawn on the Central Bank of India, Katriguppa branch, Bangalore. As per the assurance of the accused the complainant had presented the said cheque for realization through its banker the Axis Bank, Banashankari branch, Bangaluru. But the said cheque was dishonored on 25.11.2019 as "Funds Insufficient", which came to the complainant on 26.11.2020. Thereafter, on 23.12.2020 the complainant got issued a demand notice to the accused through its counsel calling upon him to pay the cheque amount. The said RPAD notice was returned on 30.12.2019 and ordinary post is duly served to the accused. Inspite of service of the notice the accused neither reply to the notice nor paid the cheque amount. As such, the accused have committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court on 03.02.2020.
3. After the complaint was filed, the cognizance of the offence cited therein was taken and it was registered as P.C.R No.3610/2020. Sworn statement of the complainant was recorded. Since there were sufficient materials to proceed against the accused, an order was passed on 16.09.2022 to register the case in Register No.III.
4. Thereafter, summons was issued to the accused and he has appeared before the court through counsel and secured bail. He was furnished its C.C.NO.29787/2022 3 necessary papers as complied under section 208 of Cr.P.C. Thereafter, the plea of the accused was recorded by the court. He has pleaded not guilty and claimed to be tried.
5. The complainant in support of its case, have examined its GPA holder/Legal clerk as PW.1 and got marked 10 documents at Ex.P.1 to 10.
6. During the pendency of the case, the learned counsel for the complainant has filed an application for the substitution of the representative of the company contending that the complainant originally represented by its GPA holder Sri.Somaiah.I.B, due to change of circumstances he would like to substitute GPA holder Sri.Ranjith.K.S during the course of trial. Accordingly on 07.07.2023 the said application was allowed and the complainant have examined the said GPA holder as PW.2 and got marked 03 documents at Ex.P.11 to 13 and closed its side.
7. After closer of the evidence of the complainant, the statement under section 313 of Cr.P.C., was recorded. He has denied the incriminating evidence appearing against him. Inspite of sufficient opportunity the accused not lead defence side. Hence, the defence evidence taken as nil.
8. I have heard the arguments on both the sides and also perused the material placed on record.
C.C.NO.29787/2022 4
9. The learned counsel for the complainant has relied upon the citations reported in 2022 Crl.A.No.1233-1235/2022 SC, 2022 SC 714, (2002) 1 SCC 234, AIR 2009 SC 422, AIR 2015 SC 2240, AIR 2002 SC 985, AIR 2001 SC 676, (2007) 6 SCC 5655, 2012 (4) AIR KAR.R 119, 2007 (2) Kar.L.J 19, 2001 (4) KAR.L.J 122 and ILR 2006 KAR 1730.
10. The learned counsel for the accused has relied upon the citations reported in 2010(1) DCR 67, 2008 (2) DCR 443, 2010 (2) DCR 63 and (2007) 6 SCC
555.
11. Upon hearing the arguments and on perusal of the material placed on record, the following points arise for my consideration:
1. Whether the complainant proves that the cheque-Ex.P.1 was issued by the accused towards discharge of a legally enforceable debt/liability?
2. Whether the complainant further proves that the complainant have complied with all the mandatory provisions of section 138 of N.I.Act?
3.Whether the complainant proves beyond reasonable doubt that the accused inspite of not having sufficient funds he had issued the cheque-Ex.P.1 and thereafter failed to repay the amount within stipulated period inspite of receipt of the notice-Ex.P.3 and thus have committed offence punishable under section 138 of N.I.Act?
4. What order?
C.C.NO.29787/2022 5
12. My answers to the above points are as under:
Point No.1: In the Negative.
Point No.2: In the Negative.
Point No.3: In the Negative.
Point No.4:As per final order, for the following;
:REASONS:
13.POINT NO.1: The case of the complainant is that he was acquainted with the accused. Further the complainant is a company registered under company's act and is engaged in chits and finance business. Further one Shekar.A is a member of chit bearing No.G2G/593/MSR, ticket No.03 and the accused is a surety/guarantor to the above said subscriber. The subscriber became a successful bidder and received the prize amount from the complainant. Thereafter the subscriber became a chronic defaulter. The subscriber and surety holder both have to pay the monthly installments to the complainant company. But inspite of repeated demands both have failed to repay the monthly installments to the complainant. Further at last in the month of November 2019, after the verification of the account the accused had issued the cheque in question. As per the assurance of the accused the complainant had presented the said cheque for realization through its banker. But the said cheque was dishonored as "Funds Insufficient". Thereafter the complainant got issued a demand notice to the C.C.NO.29787/2022 6 accused through its counsel calling upon him to pay the cheque amount. Inspite of service of the notice, the accused neither reply to the notice nor paid the cheque amount. As such, the accused have committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court.
14. In support of the case, the complainant have examined its GPA holders/Legal clerk as P.W.1 and 2 and 13 documents were marked at Ex.P.1 to 13. In the chief examinations P.W.1 and 2 have repeated the contents taken by the complainant in the complaint. Ex.P.1 is the cheque issued by the accused in favour of the complainant dated: 22.11.2019 for Rs.1,58,300/-. Ex.P.1(a) is the signature of the accused. Ex.P.2 is the bank memo dated:26.11.2020 informing the dishonor of the cheque as "Funds Insufficient". Ex.P.3 is the office copy of legal notice dated: 23.12.2020. Ex.P.4 is the postal receipt. Ex.P.5 is the returned postal cover. Ex.P.5(a) is the returned legal notice. Ex.P.6 is the ledger extract. Ex.P.7 is the certified copy of Incorporation certificate of the complainant company. Ex.P.8 is the certified copy of the GPA executed by the complainant in favour of PW.1. Ex.P.9 is the certified copy of the minutes of extract. Ex.P.10 is the complainant. Ex.P.11 is the certified copy of the GPA executed by the complainant in favour of PW.2. Ex.P.12 C.C.NO.29787/2022 7 is the certified copy of the minutes of extract. Ex.P.13 is the amended complaint.
15. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of legally enforceable debt/liability, for which the cheque came to be issued. The learned counsel for the complainant has argued that from the evidence placed on record, the fact that one Shekar.A is subscribed in chit group No.G2G/593/MSR, ticket No.03 conducted by the complainant's. In an auction he has successful bidder and he has received the prize amount. In this context several documents were executed in favour of the complainant, in the said context the accused is one of the surety. Further argued that after receiving the prized amount the subscriber as well as his guarantor became a chronicle defaulter and inspite of repeated request and demands by the complainant they have failed to pay the amount. Further argued that at last in the month of November 2019 after verification of the account the accused in order to repayment of the dues he had issued the cheque-Ex.P.1 in favour of the complainant. He further argued that the accused has not denied Ex.P.1 being his cheque drawn on his account. When the signature is not seriously disputed, the presumption under section 139 N.I.Act is to be drawn in favour of the complainant. The accused has C.C.NO.29787/2022 8 failed to elicit anything in the cross examination of P.W.2 to disbelieve the evidence of the said witness. The defence have failed to rebut the presumption under section 139 N.I.Act. He further argued that the accused has failed to produce any believable evidence that the cheque in question was issued for the purpose of security. As such, very defence of the accused is not believable.
16. He further argued that under section 139 of N.I.Act, there is a presumption that the cheque has been issued for discharge of legally enforceable debt/liability. In the present case, the accused has not disputed Ex.P.1 being his cheque drawn on his account. The said presumption is available to the complainant. Further argued that the accused has failed to prove the very fact that the cheque was issued for the purpose of security and the complainant was misused the same and filed this false case against him. Moreover, under section 118 of N.I.Act, there is a presumption that the Negotiable Instruments is drawn on the date, for the amount and in favour of the person as shown in it. It is for the accused to rebut the said presumption. But in the case on hand no such evidence forthcoming. It was also argued by him that as per the defence by the accused that he has issued two blank cheques for the purpose of security. As such, very defence of the accused is not believable. He further C.C.NO.29787/2022 9 argued that the accused had failed to prove the very fact that cheque was given to the complainant company for the purpose of security and it was blank when it was given to the complainant. Moreover, under section 118 of N.I.Act, there is a presumption that the Negotiable Instruments is drawn on the date, for the amount and in favour of the person as shown in it. It is for the accused to rebut the said presumption. But, in the case on hand no such evidence forthcoming.
17. He further argued that the accused has not produced any documentary evidence to prove his defence. Upon careful perusal of the entire evidence of records both the oral as well as documentary evidence the complainant have proved their case. He further argued that PW.1 and 2 have adduced their evidence and Ex.P.1 to 13 documents were marked and on behalf of the accused he has not adduced any cogent evidence. Further argued that in the cross examination of PW.2 the defence taken by the accused is that he had issued two blank cheques as a matter of security. Hence, the accused has admitted the issuance of cheque and thus the presumption under section 139 of N.I.Act, comes in favour of the complainant. Now what has to be seen is whether any credible defence is taken by the accused and whether cogent evidence has been led by the accused. The primary defence taken by the accused during cross examination of PW.2 is that the C.C.NO.29787/2022 10 cheque was issued as security. Now the point whether the cheque issued a security or not is nowhere concerned to acquit the accused. The Hon'ble Supreme Court has clearly held that even the cheque is issued for security it attracts the ambit of section 138 of N.I.Act. Further argued that the accused was surety to Shekar.A is not disputed by the accused. Further argued that the accused has not taken any legal actions against the complainant for misusing of alleged cheque. Further on perusal of the entire documents placed by the complainant clearly goes to show that the accused is liable to pay the cheque amount. Hence, he prays to convict the accused.
18. The learned counsel for the accused argued that the accused had issued two blank cheques to the complainant for the purpose of security. Further the complainant have misused the one of the cheque and filed a false complaint against the accused. Further argued that the accused never admitted regarding repayment of the said amount and there is no transaction between the complainant and the accused as alleged by the complainant. The accused has specifically denied having agree to repay the amount of Rs.1,58,300/- to the complainant. He further argued that PW.1 and 2 in their chief examinations reiterated the above narrated averments of the legal notice and complaint. The accused denied entire averments of the C.C.NO.29787/2022 11 complaint. The accused took up contention that the complainant had collected the blank cheques from the accused for the security purpose. Further argued that the subscriber has paid the entire installments amount, hence the accused is not liable to pay the amount covered under the cheque. Further argued that the complainant miserably failed to prove the complaint averments. The complainant unable to prove that the subject cheque was issued in discharge of duly enforceable debt/liability. The complainant has not come with a clean hands before this court. Indubitably, Ex.P.6, the document relied by the complainant would indicate that the subscriber was due of arrears of Rs.1,30,800/- and the subject dishonored cheque presented on 25.11.2019. As on the date of the presentation of the cheque subscriber and the accused is not in due of Rs.1,58,300/- to the complainant. The complainant in order to harass to the accused fill up the cheque and presented to the bank. Hence, the accused is not liable to pay the cheque amount.
19. It is further argued that the evidence placed before this court clearly shows that the complainant in order to make illegal monetary gain has presented the blank cheque given as security, by filing up the cheque, and for the purpose of this case the complainant has created documents and no transaction has been carried out between the complainant and the accused C.C.NO.29787/2022 12 as alleged in the complaint. Hence, the accused proves that the cheque was issued as security and not to discharge any legally enforceable debt/liability. Also the accused has successfully managed to rebut the evidence of the complainant with detailed cross examination and thereby rebutting the presumption under section 139. On the date of presentation of the cheque, the accused and subscriber was not in due of Rs.1,58,300/-. Further argued that the complainant has not produced any material to show that when the subscriber defaulted monthly installment before presentation of the cheque. Thus the complainant failed to prove that the accused had issued the subject cheque for a sum of Rs.1,58,300/-. Therefore, the complaint averments are concocted and the accused issuing the subject cheque for repayment of the due is far away from truth. Further argued that the complainant unable to prove the case beyond reasonable doubt. Further the accused created doubt against the story putforth by the complainant in the complaint. The pharse "debt or other liability" means a legally enforceable debt or other liability. There was no convincing evidence from the complainant's side as to existence of any existing debt or liability to be discharged by the accused. The accused has discharged the onus that the subject cheque was not issued for any existing debt/liability. The accused entitled to acquittal. The complainant having received C.C.NO.29787/2022 13 the subject cheque as security and it has misused by filing huge amount. The actual amount payable is less than the dishonored of the cheque amount. The alleged balance amount remains unexplained. The complainant has miserably failed to prove the liability to the tune of the amount covered by the cheque. The offence is deemed to be committed if amount covered by cheque is either in discharge of the liability incurred by the accused either full or in part. It cannot be any way in excess of the liability incurred. Therefore, the section 138 of N.I.Act cannot be said to be applicable. Hence, he prays to acquit the accused.
20. In the proceedings for dishonor of cheque under section 139 of N.I.Act a presumption can be raised that when a cheque is issued, it was drawn for discharge of legally enforceable debt/liability. The presumption under section 139 of the act does include the existence of legally enforceable debt/liability. This is in the nature of a rebuttable presumption and it is opened to the accused to raise a defence wherein the existence of a legally enforceable debt/liability can be contested. However, there is initial presumption which favours the complainant. The test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused cannot be excepted to discharge an unduly high standard of proof. In the absence of the compelling justifications, C.C.NO.29787/2022 14 revers onus clauses usually impose an evidentiary burden and not a persuasive burden. It is settled position that when an accused has to rebut the presumption under section 139 of the Act, 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/liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence on his own.
21. In the case on hand the very liability of the accused to pay an amount to the complainant is seriously disputed. The accused has contended that he had issued two blank cheques in favour of the complainant for the purpose of security. Further he has contended that the complainant have misused the one of the security cheque and filed this false case. He denies any amount being due by him as well as the subscriber. He also denies issuance of the cheque dated: 22.11.2019 for repayment of the amount.
22. To prove the factum of the case the complainant produced oral evidence of PW.1 and 2 and produced Ex.P.1 to 13 only. The documents produced by the complainant does not disclose that the C.C.NO.29787/2022 15 subscriber and the accused is due of Rs.1,58,300/- as on the date of issuance of the cheque. In the said circumstances the complainant required to prove the very due amount by the subscriber and how an amount of Rs.1,58,300/- is still due. The complainant's have examined its Legal clerk/GPA holder as PW.1 and 2. In their evidence, they have repeated the contentions taken by the complainant in the complaint. In all 13 documents are produced at Ex.P.1 to 13. The accused has denied issuance of the cheque-Ex.P.1 in favour of the complainant for discharge any legally enforceable debt/due. Therefore, it is necessary to discuss the evidence regarding the amount due by the accused/subscriber to the complainant and the said amount still due from the accused/subscriber. Since the complainant claims that the accused in order to repayment of debt/due had issued the cheque-Ex.P.1 on 22.11.2019, in this regard the complainant is firstly required to produce evidence. But as above discussed no material is placed on record to established the said facts by producing the books of account, statement of payment and other related documents. So also though the company maintained record regarding the amount due by the accused/subscriber no such material is produced in this case. How the amount of Rs.1,58,300/- is due from the accused/subscriber as on the date of issuance of the cheque has not been properly explained. Because the complainant have not C.C.NO.29787/2022 16 shown what was the amount was due from the subscriber and how this figure came to be arrived as still due from the subscriber. In this case the complainant have produced the chit ledger as per Ex.P.6. On perusal of the same it indicate that the subscriber only due of Rs.1,30,800/-. Further as on the date of the presentation of the cheque the subscriber and the accused was not in due as mentioned in the cheque. Further the complainant have not produced any material to show that when the subscriber defaulted monthly installments. When the complainant has not produced any documents, then question of issuance of the cheque-Ex.P.1 dated: 22.11.2019 in favour of the complainant company does not arise at all.
23. The complainant is a private limited chits company maintaining account of all its transaction, it was required to produce some documents with regard to due/debt of the accused or subscriber. Further the complainant not produced books of account to prove that facts. The failure to produce these materials creates doubt regarding existence of legally enforceable debt. As observed in the judgment reported in 2012 Crl.L.J NOC 568, between Ashok Leyland Finance Limited V/s State of Rajasthan and another, the Hon'ble Rajasthan High Court held that on the failure of the complainant to produce the loan papers C.C.NO.29787/2022 17 and account statement which are in their possession it amounts to the presumption available under section 139 of N.I.Act, being rebutted by the accused.
24. It is pertinent to note that the complainant have not produced documents relating to the actual amount is due by the subscriber/accused at the time of issuance of disputed cheque. Here, undisputedly the complainant is a private limited chits company. It has to carry on the business in accordance with law. In these circumstances it is quite reasonable to expect the books of account maintained by the complainant company which throw light on the account of the subscriber and due of any amount by the subscriber/accused during the year 2019 as on the date of issuance of subject cheque. PW.1 and 2 have establishes the case of the complainant that the accused issued the disputed cheque towards legally enforceable debt. The said documents is withheld by the complainant without offering any plausible explanation. Since the complainant withheld the relevant documents, the production of which directly establishes its case results in drawing adverse inference against the complainant and the said omission to produce relevant documents fortifies the defence version of issuing cheque for the purpose of security. Further the complainant have not explained how this amount is due by the accused/subscriber. It C.C.NO.29787/2022 18 shows that the cheque in question was issued by the accused for the purpose of security.
25. Moreover the contention by the complainant and their case it is reveals that the accused is one of the surety to Shekar.A, the said subscriber is a member in chit No.G2G/593/MSR, ticket No.03. The subscriber has successful bidder and he had received the prize amount from the complainant. Further the accused is a surety to the subscriber. Further the accused is well know to the complainant. Further the subscriber and the accused had became a defaulter in repayment of the said amount. The accused had issued the cheque in question in favour of the complainant and assured that the said cheque would be honored on it presentation. Further from the evidence produced by the complainant the very fact that the accused is a surety. But the complainant have not proved by any reliable evidence the exact amount still due by the accused/subscriber and the accused had issued the cheque for repayment of the dues is not clearly forthcoming. Further the complainant have failed to produce any documents regarding due from the accused. So also the cheque being issued for the amount due by the accused/subscriber has not been established. Though there is an initial presumption under section 139 of N.I.Act, if the accused from the C.C.NO.29787/2022 19 cross examination raise some reasonable doubt, the said presumption can be held to have been rebutted.
26. In proceedings under section 138 of N.I.Act the standard of proof required by the accused to rebut the presumption is not so high. It is sufficient, if the accused by way of preponderance of probabilities creates doubt regarding very existence legally enforceable debt/liability. The learned counsel for the accused has argued that when the cheque is issued for uncertain liabilities the offence under section 138 of N.I.Act, is not attracted. Further the accused if reasonably produces evidence to probables his defence, it is sufficient to discharge presumption. Then the burden is on the complainant to produce probables evidence. But in the case on hand as already above discussed except producing some documents and oral evidence of PW.1 and 2 no material is produced by the complainant to prove the issuance of the cheque in order to discharge of liability. While on the other hand the accused has show that the cheque was given to the complainant for security purpose.
27. In the case of Bhalla Automobiles V/s Rajesh S/o Rambhau Maurya, reported in 2011 ALL MR (Crl) 1922, the Hon'ble court has discussed that the complainant has to take all grounds available to him at the filing of the complaint and he cannot be permitted to change his stand at different times. In such C.C.NO.29787/2022 20 circumstances the accused is entitled for benefit of doubt.
28. In the case of Krishna Janardhan Bhat V/s Dattareya.G.Hegde, reported in 2008 ALL MR (Crl) 1164, the Hon'ble Court has observed that the accused is need not entered the witness box to prove his defence. He can rely on the materials already on record. It was further observed that the standard of proof to prove the defence is preponderance of probabilities. Thus from the above discussion and placing reliance on the judgments noted above this court is of the opinion that the accused has succeeded in rebutting the initial presumption available to the complainant under section 139 of N.I.Act. When there is no other material produced by the complainant to support its contention for repayment of amount the accused had issued Ex.P.1-cheque, the complainant has failed to prove the material ingredients of legally enforceable debt.
29. If the accused succeeds in rebutting the presumption, the onus of proving the existence of legally enforceable debt for which the cheque was issued will be on the complainant. But in the case on hand the complainant's have failed to produce any evidence in order to prove that the cheque-Ex.P.1 was issued for discharge any legally enforceable debt. Whereas the accused has succeeded, in rebutting the C.C.NO.29787/2022 21 initial presumption available in favour of the complainant. In the said circumstances the defence have succeeded in discharging his burden of rebutting the said presumption. Thus from the above discussion this court of the opinion that the accused has succeeded in rebutting the presumption available to the complainant under section 139 of N.I.Act. When there is no other material produced by the complainant to support of their contention that the accused not cleared the due amount in respect of this case. The evidence of PW.1 and 2 is not consistent enough in order to prove these materials aspects. In the said circumstances the defence have succeeded in discharging his burden of rebutting the said presumption. The accused has taken up the plea that he had issued two blank cheques in favour of the complainant for the purpose of security and the complainant have misused one of the security cheque. However, the complainant as already above discussed has not produced any evidence to prove the due amount by the accused/subscriber and the issuance of the cheque for discharge of the debt. The complainant's have failed to prove the material ingredients of existence of legally enforceable debt. Therefore, I answer point No.1 in the Negative.
30.POINT NO.2: According to the complainant the cheque-Ex.P.1 when it was presented to the bank for encashment same was dishonored for the reasons C.C.NO.29787/2022 22 "Funds Insufficient" in the account of the accused. To prove this fact the complainant's have produced the cheque-Ex.P.1, the bank memo-Ex.P.2 and also notice- Ex.P.3. On perusal of the bank memo-Ex.P.2 it is disclosed that the cheque-Ex.P.1 was dishonored for the reasons "Funds Insufficient" in the account of the drawer namely the accused. These facts are also stated in the legal notice-Ex.P.3 and the oral evidence of PW.1 and 2. The accused has not seriously disputed the dishonor of the cheque for the reasons "Funds Insufficient". What has been disputed is the fact that the cheque-Ex.P.1 was not issued for discharge of any legally enforceable debt/liability. Further he had issued two cheques for the purpose of security. When the accused demanded the complainant to the cheque and repayment of the amount of Rs.1,00,000/-, but the complainant's have not returned the said cheque and not repaid the said amount. But the complainant have misused the cheque and filed this false case. On perusal of the documents clearly shows that the accused had not issued the subject cheque for repayment of the dues. Therefore, from the evidence of PW.1 and 2 and also the documents placed on record, the fact that the cheque-Ex.P.1 came to be dishonored for the reasons "Funds Insufficient" has been proved by the complainant.
C.C.NO.29787/2022 23
31. In order to attract the offence under section 138 of N.I.Act the cheque has to be issued by the accused which was drawn on an account maintained by his for discharge, in whole or in part of any debt or other liability. Further it is required that the said cheque when presented by the complainant was returned unpaid by the bank for any of the reasons enumerated in section 138 of N.I.Act. Thereafter the accused had failed to repay the cheque amount inspite of having received a notice demanding such payment within a period of 15 days on receipt of the legal notice. In the present case it is the case of the complainant that the cheque-Ex.P.1 was issued to them on 22.11.2019 for clearance of the due amount. The said cheque was presented on 25.11.2019 for encashment through its banker the Axis Bank Limited, Banashankari Branch, Bangalore. Thereafter, the complainant have received the bank memo as per Ex.P.2 on 26.11.2019 informing them that the cheque was dishonored for the reasons that there was no sufficient funds in the account of the accused/drawer. Thereafter within statutory period of receipt the said information the complainant has got issued the legal notice as per Ex.P.3 calling upon the accused to make payment of the cheque amount. The said notice is shown to have been returned addressee left as per Ex.P.5. But the accused has failed to reply to the notice.
C.C.NO.29787/2022 24
32. The accused has nowhere seriously denied the service of notice. However, he does not dispute the address shown on the notice. In the case on hand the notice is sent to the accused at his address. When the accused has not seriously disputed the service of the notice, the notice sent to the correct address is sufficient compliance under section 138 of N.I.Act. Therefore, there is sufficient proof of due service of the legal notice. In the present case the first essential requirement of the existence of legally enforceable debt/liability to the complainant by the accused has not been proved. Hence, the complainant have failed to comply the required mandatory provision of section 138 of N.I.Act. The basic requirement is not established. Accordingly, I answer point No.2 in the Negative.
33. POINT NO.3: In view of the findings of this court, the essential requirements to attract the offence of section 138 of N.I.Act has not been proved by the complainant and also as there is no sufficient evidence to hold the accused liable for any offence in the present case. Hence, I answer point No.3 in the Negative.
34. POINT NO.4: The complainant has been held to have failed to prove the very transaction with the accused. Hence, the accused is found to be not guilty of the offence charged. In the said circumstances, the accused cannot be directed to pay any compensation.
C.C.NO.29787/2022 25 In view of the above discussion, I proceed to pass the following;
:ORDER:
Acting under section 255(1) of Cr.P.C., the accused is acquitted for an offence punishable under section 138 of N.I.Act.
The bail bond executed by the accused hereby stands canceled. (Dictated to the stenographer directly on computer typed by her, corrected by me and then judgment pronounced in the open court on 20 th day of November-2024) Digitally signed by SOUBHAGYA B SOUBHAGYA BHUSHER B BHUSHER Date:
2024.11.21 17:44:34 +0530 (Soubhagya.B.Bhusher) XXVIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE List of witness examined on behalf of the complainant:
PW.1 : Mr.Somaiah.I.B PW.2 : Mr.Ranjith.K.S.
List of documents marked on behalf of the complainant:
Ex.P.1 : Cheque.
Ex.P.1(a) : Signature of the accused.
Ex.P.2 : Bank memo.
Ex.P.3 : Office copy of legal notice.
Ex.P.4 : Postal Receipt.
Ex.P.5 : Returned postal cover.
Ex.P.5(a) : Returned legal notice
Ex.P.6 : Ledger extract.
Ex.P.7 : Certified copy of incorporation certificate.
Ex.P.8 : Certified copy of G.P.A.
C.C.NO.29787/2022
26
Ex.P.9 : Certified copy of Minutes of extract.
Ex.P.10 : Complaint.
Ex.P.11 : Certified copy of G.P.A.
Ex.P.12 : Certified copy of Minutes of extract.
Ex.P.13 : Amended complaint.
List of witnesses examined on behalf of the accused:
-Nil-
List of documents marked on behalf of the accused:
-Nil-Digitally signed by SOUBHAGYA B
SOUBHAGYA BHUSHER B BHUSHER Date:
2024.11.21 17:44:52 +0530 XXVIII Addl. Chief Judicial Magistrate, Bengaluru City.
C.C.NO.29787/2022 27 20.11.2024 (Judgment pronounced in the Open Court Vide Separate Sheet) :ORDER:
Acting under section 255(1) of Cr.P.C., the accused is acquitted for an offence punishable under section 138 of N.I.Act.
The bail bond executed by the accused hereby stands canceled.
XXVIII Addl. Chief Judicial Magistrate, Bengaluru City.