Bangalore District Court
Dinesh Kumar M.K vs R Jagadish on 21 October, 2024
SCCH-2 1 C.C.No.1688/2020
KABC020062592020
IN THE COURT OF THE VI ADDL. JUDGE, COURT OF SMALL
CAUSES AND ADDL. CHIEF JUDICIAL MAGISTRATE,
BENGALURU CITY (SCCH-2).
C.C.NO.1688/2020
Present : Sri. H.P. Mohan Kumar, B.Sc.,LL.B.,
6th Addl. Judge, Court of Small
Causes and ACJM, Bengaluru.
Dated: On this the 21st day of October, 2024.
Complainant : Sri. Dinesh Kumar M.K.,
S/o Mr. Krishnamurthy M.,
Aged about 46 years,
Residing at No.1577-19/2,
5th "A" Cross, Mysore Bank Colony,
Bangalore-560050.
(By Sri. I. Gopalakrishna, Advocate)
- Vs. -
Accused : Sri. R. Jagadish,
S/o Late Mr. S. Rajashekaraiah,
Aged about 46 years,
No.10, Hosakerehalli,
SCCH-2 2 C.C.No.1688/2020
Behind Basavana Temple,
Banashankari 3rd Stage,
Bangalore-560085.
(By Sri. A.N. Narayanaswamy, Advocate)
:: J U D G M E N T ::
The complainant has filed the present complaint U/Sec.200 of Cr.P.C., alleging that the accused has committed the offence punishable U/Sec.138 of Negotiable Instruments Act (herein after referred as N.I.Act).
2. The case of the complainant in brief is as follows:-
On 28.08.2012, the accused has borrowed the hand loan of Rs.5,00,000/- from the complainant to meet his family necessities and for business purpose as per registered mortgage deed by way of deposit of Title Deeds dated:28.08.2012.
Further, the accused has borrowed additional hand loan of Rs.5,00,000/- from the complainant to meet his family necessities and for business purpose as per registered mortgage deed by way of deposit of Title Deeds dated:02.09.2016.
Further, while receiving the loan amount, the accused has agreed to repay the loan amount with interest at the rate of 18% per annum including other incidental charges within 24 months from the date of registered mortgage deeds. The said mortgage deeds are with respect to the SCCH-2 3 C.C.No.1688/2020 property No.10, Katha No.20, situated at Hosakerehalli Village, Uttarahalli Hobli, Bangalore South Taluk, now coming under the purview of Bruhat Bangalore Mahanagara Palike, Bangalore measuring East to West 40 feet and North to South 34 ½ feet in total 1,380 square feet along with the building thereon.
Further, the accused has also executed an On demand promissory note with consideration receipt dated:02.09.2018 with an assurance to pay principal amount of Rs.10,00,000/- with an interest at the rate of 18% per annum. During the 1st week of November-2019, the complainant demanded for repayment of loan amount, the accused has issued the cheque bearing No.308053, dated:12.11.2019, towards the repayment of principal amount of Rs.10,00,000/- and another cheque bearing No.893070 dated:12.11.2019, for Rs.3,60,000/- towards payment of part interest as on 02.09.2018 and both the cheques were drawn on Karnataka Bank Limited, Banashankari III Stage, Bangalore in favour of the complainant.
As per the assurance of accused, on 17.01.2020 the complainant has presented both cheques for encashment through the Accused Banker viz., Karnataka Bank Limited, Banashankari III Stage, Bangalore to his banker i.e., The State Bank of India. However, the aforesaid cheques were dishonored and returned unpaid on 17.01.2020 with an endorsement stating as "Account Closed on 16.01.2020".SCCH-2 4 C.C.No.1688/2020
Thereafter, the complainant has issued the legal notice dated:18.01.2020 through RPAD and DTDC Courier and same were served to accused. The accused has given untenable reply and failed to repay the loan amount. Hence, cause of action arose to file the complaint.
3. The cognizance was taken for the offence punishable U/Sec.138 of N.I.Act. After filing of the complaint, the sworn statement of the complainant was recorded and it prima-facie found that the accused committed the offence punishable U/Sec.138 of N.I.Act. Hence, criminal case was registered and the summons was issued to the accused.
4. In response to the summons, the accused appeared through his counsel and thereafter plea was recorded. The accused was denied the accusation leveled against him, claimed to be tried and stated that he has defence to make. Further, the statement of the accused as contemplated U/Sec.313 of Cr.P.C., was recorded. The accused has denied the incriminating evidence appeared against him in the evidence of complainant and submitted that he has defence evidence.
5. The Hon'ble Apex Court of India in Indian Bank Association and Others vs Union Bank of India and Another reported in AIR 2014 SC 2528, held that "Sworn Statement of the complainant has to be treated SCCH-2 5 C.C.No.1688/2020 as examination in chief". In the instant case, the complainant examined himself as P.W.1 and marked Ex.P.1 to Ex.P.15, Ex.P.5(a) and Ex.P.5(b). Thereafter, P.W.1 was subject to the process of cross-examination from the side of accused. Ex.D.1 to Ex.D.7 were marked by way of confrontation during the course of cross- examination of P.W.1. The accused has examined himself as D.W.1.
6. Heard the arguments from both side. The counsel for the complainant has submitted the written arguments. Perused the materials available on record.
7. Now the points that arise for consideration of this Court are as hereunder:
1. Whether the complainant has proved that the accused has committed the offence punishable U/Sec.138 of N.I.Act?
2. What Order?
8. The findings of this Court to the above-referred points are as follows:
Point No.1: In the Affirmative.
Point No.2: As per final order, for the following:-SCCH-2 6 C.C.No.1688/2020
REASONS
9. POINT No.1: In order to prove the case of the complainant, the complainant examined himself as P.W.1 by filing affidavit in support of his oral examination-in- chief. In the affidavit P.W.1 has reiterated the complaint averments in verbatim. Hence, this Court need not to recapitulate the same once again at this juncture. In support of his oral testimony, P.W.1 has marked documents at Ex.P.1 to Ex.P.15, Ex.P.5(a) and Ex.P.5(b). Ex.D.1 to Ex.D.7 were marked by way of confrontation during the cross-examination of P.W.1. The accused examined himself as D.W.1.
10. Now itself it is appropriate to see the documents marked at Ex.P. Series and Ex.D.Series.
Ex.P-Series Ex.P.1 and Ex.P.2 are the cheques in question. Ex.P.1(a) and Ex.P.2(a) are the signatures. Ex.P.3 and Ex.P.4 are the endorsements. Ex.P.5 is the office copy of the legal notice dated:18.01.2020. Ex.P.5(a) is the Courier Receipt. Ex.P.5(b) is the RPAD receipt. Ex.P.6 is the Acknowledgment due card. Ex.P.7 is the reply notice dated:01.02.2020. Ex.P.8 is the On Demand Promissory Note. Ex.P.8(a) and Ex.P.8(b) are the signatures of the accused. Ex.P.9 is the Bank Voucher pertaining to State Bank of India. Ex.P.10 and Ex.P.11 are the Bank Vouchers pertaining to Karnataka Bank Ltd. Ex.P.12 and SCCH-2 7 C.C.No.1688/2020 Ex.P.13 are the Return Memo Reports. Ex.P.14 and Ex.P.15 are the true copy of bank endorsements.
Ex.D-Series.
Ex.D.1 is the certified copy of plaint filed in O.S.No.730/2020. Ex.D.2 is the notice dated:12.12.2020 issued by the counsel for the complainant to accused. Ex.D.3 is the reply dated:20.12.2019 to the notice issued by the counsel for the accused to counsel for the complainant. Ex.D.4 is the copy of Mortgage Deed by Deposit of Title Deeds dated:28.08.2012. Ex.D.5 is the copy of Mortgage deed by Deposit of Title Deeds dated:02.09.2016. Ex.D.6 is the Certificate under Sec.65(B) of Indian Evidence Act. Ex.P.7 is the Blank Application for NEFT/RTGS pertaining to Karnataka Bank Ltd.
11. Before going to discuss the main aspect, it is worth to reproduce the provisions of Sec.138 and 139 of N.I.Act, the same as hereunder:
138. Dishonour of cheque for insufficiency, etc., of funds in the account: -
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the SCCH-2 8 C.C.No.1688/2020 bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of Six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(The period of 6 months has been reduced to 3 months, vide R.B.I. notification No.RBI/2011- 12/251,DBOD.AMLBC No.47/14.01.001/2011-12, dated:4th November 2011 (w.e.f. 01.04.2012))
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to SCCH-2 9 C.C.No.1688/2020 the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation: - For the purposes of the section, "debt or other liability" means a legally enforceable debt or other liability.
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.
12. Learned counsel for complainant submitted the following decisions:
1. 2003(2) Kar.L.J 120 between Smt. Gayathri Vs. Clement Mary
2. 2022 Live Law (SC) 714 between Oriental Bank of Commerce Vs. Prabodh Kumar Tewari SCCH-2 10 C.C.No.1688/2020
3. (2012)13 Supreme Court Cases 375 between Laxmi Dyechem Vs. State of Gujarat and Others
4. (2001)8 Supreme Court Cases 458 between K.N. Beena Vs. Muniyappan and Another
5. (2001) 6 Supreme Court Cases 16 between Hiten P. Dalal Vs. Bratindranath Banerjee
6. 2007 CRL.L.J 2643 between K.P. Rathikumar Vs. N.K. Santhamma and Another
7. AIR 2023 SC 5018 between Rajesh Jain Vs. Ajay Singh Learned Counsel for the accused has submitted the following decisions and Judgment passed in O.S.No.730/2020:
1. (2009) 14 Supreme Court Cases 683, between Jugesh Sehgal Vs. Shamsher Singh Gogi.
2. 2005 1 ALD (Cri) 634; 2005 2 ALT 118, between Chairman, Jawahar Co-Op. Urban Bank Ltd., Vs. Sri. Ramanjaneya Enterprises.
3. Judgment passed in O.S.No.730/2020.
I have carefully gone through the decisions relied from the side of complainant and accused and applied the principles to the case on hand. I also perused the judgment passed in O.S.No.730/2020.
13. At this juncture it is worth to refer the decision of the Hon'ble Apex Court reported in AIR 2010 S.C. 1898, SCCH-2 11 C.C.No.1688/2020 between Rangappa V/s Mohan wherein their lordships have observed at para 26 as hereunder:
"No doubt that there is a initial
presumption which favours the
complainant".
14. It is germane to note that the proceedings U/Sec.138 of N.I. Act is an exception to the general principle that the accused is presumed to be innocent until the charge leveled against him is proved beyond reasonable doubt. In the proceedings initiated U/Sec.138 of the N.I. Act proof of beyond reasonable doubt is subject to the presumption envisaged under Sec.139 of the N.I. Act. Once the requirement of Sec.138 of the N.I. Act is fulfilled, then it has to be presumed that the cheque was issued in discharge of legally recoverable debt or liability. The presumption envisaged under Sec.139 of N.I. Act is mandatory presumption and it has to be raised in every cheque bounce cases.
15. Now the important question before this Court is whether the complainant has complied the ingredients of Sec.138 of N.I.Act or not? In order to answer this aspect, Ex.P.1 to Ex.P.7, Ex.P.5(a) and Ex.P.5(b) are relevant. Ex.P.1 and Ex.P.2 are the cheques in question dated:12.11.2019. Ex.P.3 and Ex.P.4 are the endorsements dated:17.01.2020. On careful perusal of SCCH-2 12 C.C.No.1688/2020 Ex.P.3 and Ex.P.4, it appears to this Court that, the complainant has presented the cheques in question for encashment well within the statutory period. Ex.P.5 is the legal notice dated:18.01.2020 Ex.P.5(a) is the Courier receipt and Ex.P.5(b) is the RPAD Receipt. This document reveals that, the complainant has posted the notice on 18.01.2020 itself. Ex.P.6 is the Acknowledgment due card. This document reveals that, the accused has received the notice. Ex.P.7 is the reply notice dated:01.02.2020.
16. As per Sec.138(b) of N.I. Act, the complainant has to issue notice to the accused in writing within 30 days from the date of receiving of endorsement. As per Ex.P.3 and Ex.P.4, the endorsements were received on 17.01.2020. However, the same was posted on 18.01.2020. As per Ex.P.7 the accused has issued reply notice. Apart from that, the accused examined himself as D.W.1. During the course of cross-examination, he has admitted his signatures found in Ex.P.1 and Ex.P.2. Similarly, the accused admitted the service of legal notice. At this juncture it is worth to reproduce the cross-examination of D.W.1. "ನಿ.ಪಿ.1 ರಲ್ಲಿರುವ ಸಹಿ ನನ್ನದೇ ಆಗಿರುತ್ತದೆ. ನಿ.ಪಿ.2 ರಲ್ಲಿರುವ ಸಹಿ ನನ್ನದೇ. ನಿ.ಪಿ.1 ಮತ್ತು 2 ಚೆಕ್ಕು ಗಳು ಬೌನ್ಸ್ ಆದ ನಂತರದಲ್ಲಿ ಪಿರ್ಯಾದುದಾರರು ನಿ.ಪಿ.5ರಂತೆ ಕಳುಹಿಸಿದ ತಿಳುವಳಿಕೆ ಪತ್ರ ನಿಮಗೆ ಜಾರಿಯಾಗಿರುತ್ತದೆ ಎಂದರೆ ಸರಿ, ಸಾಕ್ಷಿ ನಾನು ಜವಾಬು ಸಹ ನೀಡಿರುತ್ತೇನೆ ಎನ್ನು ತ್ತಾ ರೆ".
SCCH-2 13 C.C.No.1688/202017. Now the important question before this court is whether the endorsement "payment stopped" attracts the offence punishable under section 138 of N.I.Act or not?. In this regard it is appropriate to rely on the decision of the Hon'ble Apex Court reported in 2012(13) SCC 375 between Laxmi Dyechem V/s State of Gujarath, wherein the Hon'ble Apex Court held at para 16 as hereunder:
"the expression 'amount of money...... is insufficient' appearing in Sec.138 of the Act is a genus and dishonour for reasons such as "Account Closed", "Payment stopped", "referred to the drawer", are only species of that genus". Therefore, with the help of the above referred decision of the Hon'ble Apex Court it is crystal clear that, if the endorsement issued by the bank as "Account Closed" also attracts an offence punishable under section 138 of N.I Act. It is pivotal to note that, the presumption under Sec.118 and 139 of Negotiable Instruments Act favours the complainant. Therefore, it is of the considered opinion of this Court that, the complainant has complied the ingredients of Sec.138 of N.I.Act.
18. Now, it is worth to refer the decision of the Hon'ble Apex Court between Hiten P Dalal V/s Brathindranath Manarji reported in 2001(6) SCC 16, wherein the Hon'ble Apex Court observed that, "under Sec.138 of Negotiable Instruments Act, the complainant is not required to SCCH-2 14 C.C.No.1688/2020 establish either the legality or enforceability of the debt or liability since he can avail the benefit of presumption U/Sec.118 and Sec.139 of N.I. Act in his favour".
19. It is also settled position of law that, the presumption available U/Sec. 138 of N.I Act is a rebuttable presumption. Further, to rebut the said presumption the accused need not to enter into the witness box. However, the accused can establish his probable defence by creating a doubt about the existence of legally enforceable debt or liability.
20. Further, it is also settled position of law that, the standard of proof of rebutting the presumption is that of preponderance of probabilities. It is also settled position of law that, if the accused succeeded in rebutting the presumption then the burden shifts back to the complainant. At this juncture, again it is worth to refer the decision of the Hon'ble Apex Court reported in AIR 2010 S.C. 1898, between Rangappa Vs. Sri. Mohan, wherein the Hon'ble Apex Court has observed that, "the standard of proof to rebut the presumption is that one of preponderance of probabilities". It is also settled position of law that, "it is immaterial that, the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If SCCH-2 15 C.C.No.1688/2020 the cheque otherwise valid, within the provisions of Sec.138 would be attracted".
21. With these backdrop, it is appropriate to analyze the case on hand. Whether the accused has rebutted the presumption or not?. According to the complainant, the accused borrowed a hand loan of Rs.5,00,000/- by executing mortgage deed by way of deposit of title deeds dated:28.08.2012. Further, the accused borrowed another hand loan of Rs.5,00,000/- by executing mortgage deed by way of deposit of title deed dated:02.09.2016. At that point of time, the accused was agreed to pay interest on the said amount. To discharge the principal and interest, the accused has issued the cheques in question and also on demand promissory note.
22. In the instant case, there is no dispute with regard to execution of mortgage deeds by way of deposit of title deeds and also availment of loan of Rs.10,00,000/-. However, the accused has taken a contention that, he has issued the cheques in question and also on demand promissory note at the time of executing first mortgage deed and the complainant misused the cheques. It is relevant to note that, during the course of examination-in- chief of D.W.1, he has admitted the receiving of Rs.5,00,000/- at the time of first mortgage. Further, he has stated that, the complainant has paid only Rs.2,00,000/- at the time of execution of second mortgage.
SCCH-2 16 C.C.No.1688/2020Therefore, it is crystal clear that, there is a monetary transaction by and between the complainant and accused. Further, there is no dispute with regard to execution of mortgage deeds. As such, this court is of the opinion that, execution of mortgage deed requires no elaborate discussion.
23. As per the evidence of D.W.1, the complainant paid only Rs.2,00,000/- at the time of execution of second mortgage. Per-contra, the complainant has contended that, he has paid Rs.5,00,000/-. At this juncture itself it is worth to take Ex.D.5 for discussion. It is relevant to note that, Ex.D.5 was marked by way of confrontation. A careful perusal of this document, it appears to this Court that, the accused was agreed to repay the total principal sum of Rs.10,00,000/- within a period of 24 months. Apart from that, during the course of cross-examination of D.W.1, he has clearly admitted the execution of Ex.D.5 and also admitted that, after scrutinizing the contents of Ex.D.5, he has affixed his signatures. At this juncture itself it is worth to reproduce the said cross-examination here itself for better understanding: "ನಿ.ಡಿ.5ರಂತೆ ದಿಃ02.09.2016 ರಂದು ನಾನೇ ಪಿರ್ಯಾದುದಾರರಿಗೆ ಬರೆದುಕೊಟ್ಟ ಎರಡನೇ Mortgage by Deposit of Title Deeds ಆಗಿರುತ್ತದೆ ಎಂದರೆ ಸರಿ. ಸದರಿ ದಾಖಲೆ ಪ್ರಕಾರ ನಾನು ರೂ.5 ಲಕ್ಷ ಹಣವನ್ನು ಸಾಲವಾಗಿ ಪಡೆದಿದ್ದೇನೆ. ನಿ.ಡಿ.5 ಅನ್ನು ನಾನು ಓದಿ ಅರ್ಥಮಾಡಿಕೊಂಡು ಸಹಿ ಮಾಡಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿ".
SCCH-2 17 C.C.No.1688/202024. On going through the cross-examination of D.W.1 coupled with Ex.D.5, it is manifest that, the accused was agreed to pay the principal amount of Rs.10,00,000/-. Further, the accused has taken a contention that, there is no recital in the mortgage deed with respect to payment of interest. However, during the course of chief-examination of D.W.1, he has clearly stated that, he has paid interest to the complainant at the rate of 12%. At this juncture, the said evidence of D.W.1 is relevant to reproduce here itself for better understanding: "ಭೋಗ್ಯ ಪತ್ರದಲ್ಲಿ ಬಡ್ಡಿಯ ಕುರಿತು ಯಾವುದೇ ಒಕ್ಕಣೆ ಇರುವುದಿಲ್ಲ. ನಾನು ಪಿರ್ಯಾದುದಾರರಿಗೆ ಶೇ.12ರಂತೆ ಪಾವತಿ ಮಾಡುತ್ತಿದ್ದೇನೆ. ನಾನು ಬಡ್ಡಿಯ ಹಣವನ್ನು ನಗದು ರೂಪದಲ್ಲಿ ನೀಡುತ್ತಿದ್ದೆ, ಅವರು ಯಾವುದೇ ಸ್ವೀಕೃತಿಯನ್ನು ನನಗೆ ನೀಡುತ್ತಿರಲಿಲ್ಲ". Though there is no recital with regard to payment of interest, however on perusal of the evidence of D.W.1, it can be inferred that, the complainant and accused mutually agreed to pay the interest. Hence, the contention of accused regarding the complainant paid only Rs.2,00,000/- at the time of execution of second mortgage deed and also the rate of interest cannot be accepted as true.
25. Learned counsel for accused produced the certified copy of plaint pertaining to O.S.No.730/2020. The said document was marked as Ex.D.1. Apart from that, while submitting the arguments, learned counsel for the accused furnished the copy of judgment passed in the said suit.
SCCH-2 18 C.C.No.1688/2020Further, learned counsel for the accused would submit that, already the Civil Suit filed by the complainant for recovery of money based on the cheques in question had already decreed. Hence, the criminal prosecution is not maintainable. Per-contra, learned counsel for the complainant would submit that, both proceedings are independent. Hence, both proceedings can initiated by the complainant. Hence, the prosecution under Civil Side as well criminal side are maintainable.
26. Now, the important question before this Court is, whether based on cheques in question, Civil Suit and Criminal Prosecution are maintainable or not?. In this connection it is worth to rely on the decision of Hon'ble Apex Court reported in 2008 (8) SCC 505, between D. Purushotama Reddy and Another Vs. K. Sateesh, wherein the Hon'ble Apex Court held at para 9 as hereunder:
"A suit for recovery of money due from a borrower indisputably is maintainable at the instance of the creditor. It is furthermore beyond any doubt or dispute that for the same cause of action a complaint petition under terms of Section 138 of the Act would also be maintainable".
27. In view of the decision of the Hon'ble Apex court there is no room to doubt regarding maintainability of SCCH-2 19 C.C.No.1688/2020 simultaneous Civil Suit for recovery of money and also criminal prosecution based on the same cause of action. The above referred decision of the Hon'ble Apex Court is aptly applicable to the case on hand. Under such circumstances, the submission of counsel for the accused cannot be accepted.
28. Apart from that, the next moot question is whether the accused has complied the decree passed in O.S.No.739/2020. There are no documents forthcoming from the side of accused to show he has complied the decree or he has made part payment in compliance with the decree. Apart from that, according to the accused, Ex.P.1 and Ex.P.2 were given in the year 2012. At this juncture it is worth to take Ex.D.4. A careful perusal of Ex.D.4, there is no recital in Ex.D.4 regarding the accused has issued two cheques and one promissory note. Therefore, the contention of accused cannot be accepted. Hence, the contention of accused regarding Ex.P.1 and Ex.P.2 were issued at the time of execution of first mortgage deed cannot be accepted.
29. At the cost of repetition, the initial presumption favours the complainant. However, the said presumption is rebuttable. If the accused rebutted the presumption then burden shifts back to the complainant. Interestingly, in the instant case, the accused has not put forth plausible defence to rebut the presumption and what are all the SCCH-2 20 C.C.No.1688/2020 defence taken by the accused is amounting to vague defence. Based on the said vague defence the accused cannot rebut the presumption. At this juncture, it is worth to rely on the decision of Hon'ble Apex Court reported in 2018(8) SCC 165 between Kishan Rao V/s Shankar Gouda, Wherein the Hon'ble Apex Court held that, "Mere denial regarding existence of debt shall not serve any purpose".
30. Again at the cost of risk, the versions of the accused failed to inspire the confidence of the Court. In the instant case the accused has not properly explained regarding passing of his cheques to the complainant. Therefore, the defence taken by the accused is not believable. In other words, the accused has not raised plausible defence to rebut the presumption. In the absence of cogent evidence to show that the cheques were not issued in discharge of a debt or other liability, the defence raised by the accused fails to inspire the confidence of this Court to believe his version or to meet the standard of 'Preponderance of Probabilities'. Hence, with the help of presumption and also on appreciation of oral and documentary evidence on record, this Court has has come to the conclusion that, the accused has committed the offence punishable U/Sec. 138 of Negotiable Instruments Act. Accordingly, this Court is answered Point No.1 in the Affirmative.
SCCH-2 21 C.C.No.1688/202031. POINT No.2:- In view of the discussions referred to above, this Court proceeds to pass the following:
ORDER Acting U/Sec.255(2) Cr.P.C, the accused is convicted for the offence punishable U/Sec.138 of Negotiable Instruments Act, 1881.
The accused shall pay fine of Rs.13,60,000/- (Rupees Thirteen Lakhs Sixty Thousand Only) and in default to payment of fine, the accused shall undergo simple imprisonment for a period of 3 months.
However, it is clarified that, mere serving of default sentence by the accused, does not absolve him from the liability of payment of fine amount as ordered by this court.
By exercising the powers conferred U/Sec.357(1) of Cr.P.C, the amount of Rs.13,60,000/- (Rupees Thirteen Lakhs Sixty Thousand Only) is ordered to be paid to the complainant as compensation.
Office is hereby directed to provide free copy of judgment to the accused forthwith.SCCH-2 22 C.C.No.1688/2020
Bail bond of the accused and that of surety shall stand cancelled.
(Dictated to Stenographer directly on computer and typed by her, revised and corrected by me, and then pronounced in the open Court on this the 21 st October, 2024) (H.P. Mohan Kumar) VI Addl. Judge and ACJM., Court of Small Causes, Bengaluru.
:ANNEXURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT:
P.W.1 : Sri. Dinesh Kumar M.K. LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1 : Original Cheque No.308053, dated:12.11.2019. Ex.P.1(a) : Signature of the accused. Ex.P.2 : Original Cheque No.893070, dated:12.11.2019. Ex.P.2(a) : Signature of the accused. Ex.P.3 : Cheque Return Memo dated:17.01.2020. Ex.P.4 : Cheque Return Memo dated:17.01.2020. Ex.P.5 : Office copy of legal notice dated:18.01.2020.
Ex.P.5(a) : Courier receipt.
Ex.P.5(b) : RPAD receipt.
Ex.P.6 : Acknowledgment Due Card.
Ex.P.7 : Reply Notice dated:01.02.2020.
Ex.P.8 : On Demand Promissory Note.
Ex.P.8(a),8(b) : Signatures of accused.
SCCH-2 23 C.C.No.1688/2020
Ex.P.9 : Bank Voucher pertaining to State Bank of India.
Ex.P.10 & : Bank Voucher pertaining to Karnataka Bank Ltd.
Ex.P.11
Ex.P.12 & : Cheque return memo reports.
Ex.P.13
Ex.P.14 & : True copy of bank endorsements.
Ex.P.15
LIST OF WITNESSES EXAMINED BY THE ACCUSED:
D.W.1 : Sri. R. Jagadish.
LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
Ex.D.1 : Certified copy of plaint pertaining to O.S.No.730/2020. Ex.D.2 : Notice dated:12.12.2020 issued by the counsel for the complainant to the accused.
Ex.D.3 : Reply dated:20.12.2019 to the notice issued by the counsel for the accused to the counsel for the complainant.
Ex.D.4 : Copy of Mortgage by Deposit of Title Deeds dated:28.08.2012.
Ex.D.5 : Copy of Mortgage by Deposit of Title Deeds dated:02.09.2016.
Ex.D.6 : Certificate under Sec.65(B) of Indian Evidence Act. Ex.D.7 : Blank Application for NEFT/RTGS pertaining to Karnataka Bank Ltd.Digitally signed by H P
HP MOHANKUMAR
MOHANKUMAR Date:
2024.10.22
10:51:35 +0530
(H.P. Mohan Kumar)
VI Addl. Judge and ACJM.,
Court of Small Causes,
Bengaluru.