Bangalore District Court
M.Puttappa vs L.Venkatesh on 23 April, 2021
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 23rd day of April - 2021
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.34592/2018
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : M.Puttappa,
S/o.Late.Munimarappa,
Aged about 59 years,
R/at No.43, 1st Cross,
2nd Main, Venkateshwara Layout,
Near BCC Layout, Vijayanagar,
Bengaluru-40.
(Rep. by Sri.Rajaram D Bhat, Adv.)
V/S
Accused : L.Venkatesh,
S/o.Lakshminarayanappa,
Abed about 50 years,
R/at. No.22, 2nd Floor,
"Shreyas Apartment",
18th Cross, Malleshwaram,
Bengaluru-03.
(Rep.by Sri.T.R.Jayakeerthi, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 23.04.2021.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.34592/2018
JUDGMENT
The complainant has presented the instant complaint against the accused on 01.12.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.10 lakhs.
2. Earlier, on account of accused not cross-examined the PW.1 and not defend the matter, hence, by way of passing judgment on 12.06.2019 the accused was convicted. The accused was challenged the said judgment by preferring the criminal appeal No.1973/2019 before the Hon'ble LXVIII Addl. City Civil and Sessions Judge, Bengaluru City (CCH-69), wherein, the judgment of this court came to be set-aside and remanded the matter with direction to dispose of the matter within 3 months, accordingly by giving necessary opportunity to the accused to cross-examine the PW.1 and to lead his evidence. Accordingly, the said direction is complied by this court and taken the matter for judgment after giving sufficient opportunities to both side as per law.
3. The facts given raised to this private complaint are as follows:
The complainant has pleaded that, the accused had availed hand loan of Rs.10 lakhs from him during June, 2016 for meet out Judgment 3 C.C.No.34592/2018 his urgent needs to perform his son's marriage. Being known persons and had good faith, the complainant paid the said loan amount to the accused by way of cash.
The complainant has further alleged that, while availing the hand loan, the accused had agreed to repay the same within one year with interest, but failed to return the same, even after lapse of 2 years. On repeated requests and demand made by the complainant, finally the accused got issued cheque bearing No.855655 dated:11.10.2018, for Rs.10 lakhs drawn on State Bank of India, Jayamahal Road, Jayamahal Extension, Bengaluru, towards discharge of his loan liability and assured prompt encashment on its presentation.
The complainant has further contended that, on the instruction of the accused, he presented the said cheque for encashment through his banker viz., Janatha Seva Co-operative Bank Ltd., Vijayanagar Branch, Bengaluru. But the same came to be dishonoured as per bank endorsement dated:12.10.2018 for the reasons "Exceeds Arrangement". Thereafter, he try to contact the accused, but all the efforts made by him went in vain. Hence, he got issued legal notice to the accused on 24.10.2018 sent on 25.10.2018 by way of R.P.A.D., the same came to be served on Judgment 4 C.C.No.34592/2018 the accused on 30.10.2018, but he failed to pay the amount covered under the cheque. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
4. After receipt of the private complaint, this court took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
5. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
6. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P7. The PW.1 was subjected for cross-examination by the advocate for the accused. In the cross-examination of PW.1, accused counsel got confronted one document and same is marked as Ex.D1.
7. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the Judgment 5 C.C.No.34592/2018 accused denied the same and answer given by him was recorded. In support of the defence, the accused himself was examined as DW.1 and also subjected for cross-examination by the advocate for the complainant.
8. I have heard the arguments of complainant counsel. The accused counsel has submitted his detailed written arguments.
9. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, he paid sum of Rs.10,00,000/- during June, 2016 as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.855655, dated:11.10.2018 for sum of Rs.10,00,000/- drawn on State Bank of India, Jayamahal Road, Jayamahal Extension, Bengaluru?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
10. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Judgment 6 C.C.No.34592/2018 Point No.3 : As per final order, for the following:
REASONS
-: UNDISPUTED FACTS:-
11. The following undisputed facts do not required proof in view of clear admissions made by both parties.
The fact that, the knowingness of the complainant and accused as well as their addresses made mentioned in the cause title is not in dispute. The fact that, the accused is working as Engineer in Television is not in dispute. The questioned cheque at Ex.P1 and signature found therein is of the accused is not in dispute. The fact that, as per Ex.P2 the bank endorsement, the said cheque came to be dishonoured for the reasons exceeds arrangement is not in dispute. The fact that, the issuance and service of legal notice as per Ex.P3 and P5 to the accused is not in dispute. The fact that, as per the Ex.D1 accused borrowed the loan from LIC Housing Finance Ltd., is not in dispute.
12. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
Judgment 7 C.C.No.34592/2018 The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P7, they are:
a) Ex.P1 is the cheque bearing No.855655 issued by the accused for sum of Rs.10 lakhs dated:11.10.2018, drawn on State Bank of India, Jaymahal Road, Jaymahal Extension, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:12.10.2018.
d) Ex.P3 is the Legal Notice dated:24.10.2018.
e) Ex.P4 is the Postal receipt.
f) Ex.P5 is the postal acknowledgment card.
g) Ex.P6 is the reply notice dated:06.12.2018 issued by accused through his counsel to the complainant counsel.
h) Ex.P7 is the bank challan counter foil.
13. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of his case, the complainant through his counsel has produced the judgment;
a) Cri.A.No.271 of 2020
14. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed his side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to him as required under Judgment 8 C.C.No.34592/2018 Section 313 of Cr.P.C., wherein, he denied the same and gave his statement that:
"ಪರರದಗ ನನನ ದದರದ ಸಸಬಸಧ, ಪರರದಯಸದ ಸಲ ಪಡದಲಲ. ದದರನ ಸಲ ಮರರಪವತಗಗ ನಪ-1 ರ ಚಕಕನರ ನ ನನಡಲಲ.
ಪರರದ ನನಗ ಬನರ ಕಡ ಸಲ ತಗಸಕದಡಲರ ಭದದತಗಗ
ನನನಸದ ನಪ-1 ರ ಚಕಕನರ ದ , ರವದನ ಸಲ ತಗಸಕದಡಲಲಲ.
ನ ಪಡದದರ
ಬದಲಗ, ಸದರ ಖಲ ಚಕಕನರ
ನ ದರರರಪಯಗಪಡಸ ಸರಳರ
ಳ ಪದಕರಶ
ದಖಲಸದರ. ಚಕನ ಮತತ ನನಡಲರ ನನರ ಭದದನಲಲ."
15. In order to prove the defence of the accused, the accused himself choosen to entered into witness box and orally examined as DW.1 on oath. Wherein he deposed that, he knew the complainant, but he not borrowed the alleged loan of Rs.10 lakhs as alleged in the complaint and not issued the questioned cheque to him. More categorically he deposes, the legal notice at Ex.P3 was served on him and he got issued reply. He also further deposes that, his son's Harish marriage was fixed in the year 2016 for that, complainant was assured him to arrange the loan of Rs.10 lakhs, for that reason he took 3 signed blank cheques, but as he assured not provide or arrange the loan to the accused either by him or through any financial institutions or anybody. Therefore, as found in Ex.D1 he took loan of Rs.10 lakhs from LIC Judgment 9 C.C.No.34592/2018 Housing Finance Ltd. The complainant without return his 2 signed blank cheques, misusing one, filed the false case, hence, is not liable to pay the amount covered under the cheque. Hence, prayed for his acquittal.
16. Apart from, in the cross-examination of PW.1, accused counsel got confronted one document and same is marked as Ex.D1, it is:
a) Ex.D1 is the xerox copy of loan sanction letter issued by LIC Housing Finance Ltd., to the accused herein.
The DW.1 was subjected to the cross-examination by the advocate for the complainant. With that, the accused got closed his side.
17. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
18. On going through the rival contentions of the parties, it made clear that, the accused in this case has seriously attack on the claim put forth by the complainant. On going through the materials it discloses, the complainant has brought the present case against the accused based on the questioned cheque at Ex.P1. Therefore, it is needs to draw the initial statutory Judgment 10 C.C.No.34592/2018 presumption as per Sections 118 and 139 of Negotiable Instruments Act. As per Section 118(g), it shall be presume that, unless the contrary is prove, the holder of the cheque, the complainant received the cheque for discharge of legal liability. This presumption is rebuttable. Accordingly, Sections 139 and 138 of Negotiable Instruments Act, it also requires to presume that, cheque was drawn for discharge of liability of drawer, it is presumption under law. Therefore, it made clear that, by virtue of the above said sections stated, it made clear that, it requires to draw statutory presumption in favour of complainant that, in respect of discharge of existence of legally recoverable debt, the accused got issued the Ex.P1-cheque, unless and until contrary prove. Therefore, as per those sections, it made clear that, it is the initial onus on the accused to prove his case based on the principles of 'Preponderance of Probabilities'.
It is require to cite the decision reported in AIR 2010 SCC 1898, in a case between Rangappa V/s Mohan. Wherein, the Hon'ble Apex Court pleased to observe that, the obligation on the prosecution may be discharged with the help of presumption of law or facts unless the accused adduce evidence showing the reasonable probability of non-existence or presumed fact. Wherein also it was pleased to observed that, the accused can Judgment 11 C.C.No.34592/2018 prove the non-existence of consideration by raising probable defence. If accused is able to discharge the initial onus of proof of showing that, the existing of consideration was improbably or adverse or the same was illegal, the onus would shift to the complainant, who will be obliged to prove it as a matter of fact, and upon its failure to prove would dis-entitle his to grant the relief on the basis of Negotiable Instruments Act. The burden on the accused of proving the non-existence of consideration can either direct or by bringing on record the preponderance of probabilities by referring to the circumstances upon which, he relies could bare denial of passing consideration apparently does not appears to be any defence. Something which is probable has to be brought on record for getting benefit of shifting the onus of proving to the complainant. To disprove the presumption, the accused has to bring on record such facts and circumstances upon the consideration of which the court may either believe that, consideration did not exist or its non-existence was so probable that, a prudent man would, under the circumstances of the case, act upon that, it did not exist. Therefore, it made clear that, the accused need to take the probable defence mere denial is not enough.
Judgment 12 C.C.No.34592/2018 That apart, in a decision reported in ILR 2006 KAR 4672, in a case between J.Ramaraj V/s Hiyaz Khan. Wherein, it was pleased to observed that, mere denial of issuing cheque, whether is sufficient to discharge the initial burden is to be looked into. In that dictum, it was pleased to held that, mere denial of issuing cheques would not be sufficient as it is time and again noted that, once the cheque issued duly signed by the accused, the presumption goes against him as per Section 139 of Negotiable Instruments Act.
19. On going through the provisions referred supra, it made clear that, whereas the presumption must prove that, guilt of accused beyond the reasonable doubt. The standard or proof so as to prove a defence on the part of the accused is 'Preponderance of Probabilities'. Inference of 'Preponderance of Probabilities' can be drawn, not only from the materials brought on record by parties, but also by reference to the circumstances upon which he relies.
20. On going through the above authorities as well as dictums, it made clear that, the complainant based on Ex.P1-cheque has filed the present case by contending that, for discharge of loan of Rs.10 lakhs borrowed by the accused he got issued the cheque, Judgment 13 C.C.No.34592/2018 despite he got issued legal notice after dishonour of cheque the accused has not paid the amount and thereby committed the offence. Hence, the initial statutory presumption favours in the complainant that, for discharge of existence of legally recoverable debt, the accused got issued the Ex.P1-cheque unless and until contrary prove. From which, it made clear that, it is the initial burden on the accused to prove his probable defence under the theory of preponderance of probabilities. Mere taking plausible defence would not defeat the claim of complainant. Therefore, it requires to appreciate the defence of the accused in order to ascertain the liability of accused is very much necessary.
21. In this case, the complainant has produced the Ex.P6 reply notice issued by the accused through his advocate through his advocate Sri.T.R.Jayakeerthi on 06.12.2018. During the course of cross of PW.1, against the said issuance of reply notice by the accused, there is no suggestion is made to PW.1 with regard to denial of any reply notice to the complainant. While record 313 of Cr.P.C. statement the accused clearly admitted, the receipt of legal notice, but not stated about issuance of reply as per Ex.P6. But in his oral evidence he specifically deposed that, he got received legal notice as per Ex.P3 and he specifically deposing, Judgment 14 C.C.No.34592/2018 he got issued reply to the same. Contrary to the same, in his cross-examination he deposed that:
"ಪರರದ ನನಡದ ಚಕ ಬನನ ನದನಟಸಗ ನನನ ಪದತದ ರತತರ ನನಡಲಲ.
ನಪ.6 ರ ಪ ದ ಕರ ಶದನ.ಟ.ಆರ.ಜಯ ಎಸಬ ವಕನಲರಸದ ನನರ
ಪರರದಗ ಪದತದ ರತತರ ಕದಡಸಲಲ."
22. As per the said testimony of DW.1, though he got issued reply as per Ex.P6 even he deposed caused reply in his chief- examination, for the reasons better known to him, he took contrary contention and denial of issuance of reply at Ex.P6 through his counsel. When the Ex.P6 itself is very much the reply given by the accused, why the accused gone to extent to denial of same itself creates doubt as to the bonafidness of the accused. On the one hand, in his chief-examination clearly admitted, the cause of reply, contrary to the same in his cross-examination he denies the same which creates doubtfulness as to the trustworthiness of the accused.
23. On going through the reply at Ex.P6, wherein he denied the legal notice contents as per Ex.P3, but placed his defence at the earliest point of time that, the complainant was running several unregistered chits, the wife of accused by name Smt.Uma was one of the customer and subscriber for one of the chit for Rs.5 Judgment 15 C.C.No.34592/2018 lakhs and duration was 25 months, she was bid the chit in auction in the month of May, 2016, and took the amount, but handing over the auction amount, complainant was demanded 3 blank cheques drawn on State Bank of India, Jaymahal Extension, Bengaluru, as a security for repayment of the chit from the wife of accused, accordingly, the wife of accused gave cheques includes questioned cheque bearing No.855655 out of the other 2 cheques. Wherein also contended that, after clear the entire chit amount, which took by the wife of accused in the bid it was cleared in the month of December, 2017. When she requested the complainant for return the said security cheques, the complainant went on dodge to return by misusing one of the cheque filed the present case against the accused herein, hence, he is not liable to pay the said amount. On going through the said defence taken by the accused, he projected his defence, the complainant was run the chit, wherein, accused wife was member and she joined the chit in the year May, 2016, while she bid the chit for repayment of security the complainant took 3 blank cheques of the accused through his wife, despite, she got cleared the chit amount during December, 2017 without returning filed the false case.
Judgment 16 C.C.No.34592/2018
24. On close perusal of the said defence narrated in the reply notice is not been seen while cross-examining the PW.1 by way of suggestion or gave statement, when the incriminating evidence was read over and explained to the accused, so also in the chief evidence of DW.1. Since the said defence appears to be different, perhaps the DW.1 ventured to denied the issuance of reply notice. Therefore, no significance can be attached to the defence taken by the accused. Therefore, the accused himself admitted, whatever the defence narrated in his reply notice is not true. Hence, he got twisted the same and projected the different defence during the cross of PW.1 as well as in the evidence of DW.1, so also in the statement. Therefore, it made clear that, the accused without any base, projected the chit transaction as contended in his reply notice, but failed to demonstrate the same it goes against the very probable defence, which is baseless and bald contention.
25. During the course of cross of PW.1, the accused altogether taken different defence by contending that:
"ಆರದನಪಗ ತನರ ಪದಭವ ವದಕತ, ಸಲವನರ ನ ಬನರ ಕಡಯಸದ ಕದಡಸರತತನನ ಎಸದರ ನಸಬಸ, ಆತನಸದ ಸಹ ಮಡದ ಖಲ ಚಕಕನರ ನ ಪಡದರಕದಸಡದ ಎಸದರ ಸರಯಲಲ. ಸಕ ಆರದನಪ ಸಹ ಮಡ ಭತರ Judgment 17 C.C.No.34592/2018 ಮಡಕದಟಟದದರರ ಎಸದರ ನರಡಯರತತರ. ನಪ.1 ಚಕಕನಲ ಇರರವಸತಹ ಆರದನಪಯ ಸಹ ಹಗದ ಭತರ ಮಡದ ಬರಹಗಳರ, ಮತರತ ಬನರ ಬನರ ಹಸತಕರ ಮತರತಇಸಕನಸದ ಕದಡದ ಎಸದರ ಸರಯಲಲ .
ಸಕಯರ ಸಸತತ ಮರಸದರವರದರ ಆರದನಪಯನ ಸಸತತ
ಬರದರಕದಟಟದರ ಎಸದರ ನರಡಯರತತರ. ನನರ ಆರದನಪಗ
ಬನರಯವರಸದ ಸಲ ಕದಡಸರವದಗ ಭರವಸ ನನಡ ನಪ.1 ರ ಸಹ
ಮಡದ ಖಲ ಚಕಕನರ
ನ ಪಡದರಕದಸಡರ, ಆತನಗ ರವದನ
ಸಲವನರ
ನ ಕದಡಸಲಲ ಎಸದರ ಸರಯಲಲ. ಆತನಸದ ಸಲದ
ಭರವಸಗಗ ಪಡದ ಖಲ ಚಕಕನರ
ನ ನನರ ನಪ.1 ನರ
ನ ಭತರ
ಮಡಸಕದಸಡರ ಸರಳರ ನ ಸಸಷಟಸ, ಆರದನಪಯ ವರರದದ
ಳ ದಖಲಗಳನರ
ಳ ಪದಕರಣ ದಖಲಸದನ ಎಸದರ ಸರಯಲಲ."
ಸರಳರ
26. On going through the said defence of the accused suggested to PW.1, it appears that, in order to get loan to the accused from someone else, on the assurance of the complainant, he gave signed blank cheques, but the said suggestion is denied by the PW.1. On going through the said suggestion it appears that, as projected by the complainant, accused was in need of loan is to be believe and by way of making such suggestion, the accused has admitted, he was in need of money, therefore got issued the questioned cheque to the complainant in the anticipation of loan amount. It is equally important to note that, unless, pass the the loan amount, question Judgment 18 C.C.No.34592/2018 of issue cheque to the complainant does not arise. If at all, as suggested to PW.1, it was assured by the complainant, then it was him to suggest, when, where and from whom the alleged loan is to be arranged by the complainant from the other influenced financial person to the accused nothing has been suggested. The accused being working in Dooradarshini channel, has taken up such defence, without receiving any money got issued the questioned cheque in blank itself creates doubt, as to his bonafidness. However, the said suggestion made it clear that, by that time as projected by the complainant, the accused was in need of loan is stands proved. Even the factum of handed over the questioned cheque with his signature to the complainant in connection to the loan transaction is also been proved by the complainant. The said suggestion also reflected the PW.1 gave his explanation, the accused himself got filled and affixed his signature to the said signature and denied that, whatever the hand writing and ink, with regard to the admitted signature and other hand writings found in the cheque are different is been denied by the PW.1. It was also suggested to PW.1 that, as assured by the complainant, he not arranged the loan, but misused the questioned cheque and filed the false case is been denied by the PW.1. The PW.1 has specifically denied, whatever Judgment 19 C.C.No.34592/2018 the defence suggested, thereby, the probable defence is not been proved through the mouth of PW.1.
27. That apart, on going through the Ex.P1-cheque, the accused failed to demonstrate as to, how the hand writing and ink got different is not been proved through the mouth of PW.1. During the course of cross of DW.1, the advocate for complainant specifically denied his defence and extracted certain admissions from the mouth of DW.1. In that regard, the DW.1 has clearly admitted that, he knew that, unsigned cheque should not be given to others. Even he admitted that, without maintaining sufficient money should not issue cheque to others. Thereby, it made clear that, the accused knowing the consequences of chance of misusing of his cheque or without maintaining sufficient money should not handed over the cheque is already within the knowledge of accused. Therefore, it is him to initiate necessary action, if the complainant got misused the cheque. In that regard, in the cross of DW.1, he deposes after got receipt of legal notice at Ex.P3, he came to know about the misuse of cheque by the complainant. But in that regard, he not initiated any complaint nor intimated to his banker. No doubt, if any person misused the cheque definitely, the educated person like accused should not kept mum, but maintain silence without take any action it Judgment 20 C.C.No.34592/2018 primafacie appears, the accused wontenly taken up baseless contention, against the true transaction projected by the complainant. It was suggested to DW.1 that, with regard to repayment of loan of Rs.10 lakhs, the accused got issued the cheque to the complainant, despite, the same came to be dishonoured and though accused caused reply for avoid the repayment of cheque amount, the accused got issued false reply, even he denied the same. The DW.1 though denied the said suggestion, it reflects the bonafidness of the DW.1 time and again he denied his own act of cause reply as per Ex.P6 and his own earlier defence, which no way creates any doubtful circumstances as to the claim put forth by the complainant. Thereby, the accused has utterly failed to prove his probable defence, which suspect the claim of complainant. The accused as discussed above, though protested the matter with bald and baseless defence, he utterly failed to prove the same and to rebut the statutory presumption as well as the claim put forth by the complainant. Though, accused not created reverse burden, the PW.1 in his pleading as well as cross-examination has specifically deposes that, the accused being a relative took loan of Rs.10 lakhs from him out of the leased amount. Though, accused has projected as per Ex.D1 he took loan from LIC Housing Finance Judgment 21 C.C.No.34592/2018 Ltd., for the tune of Rs.10 lakhs as per Ex.D1, the suggestion since he borrowed loan as such, no need to again borrow loan from the complainant does not require, cannot be accepted, as it was his probable defence suggested to PW.1 as well as in the evidence of DW.1 that, he approached the complainant seeking for loan and himself got issued cheque to the complainant. Against his own self suggested defence made to PW.1, the borrowing of loan as per Ex.D1 would not damage the case of complainant. If at all, he borrowed the loan as per Ex.D1, what was the necessity to the accused to issue signed blank cheques to the complainant for the purpose of obtaining loan itself creates doubt. It is not the contention of the accused that, the marriage was solemnized of his son during 2016. But he stated, engagement was made in the year 2016.
28. The complainant has projected in the present case that, for the purpose of attend the marriage of the son of accused, he took loan during June, 2016. When the marriage of the son of accused was solemnized, how much expenses he borne, nothing has been disclosed by the accused. For conduct the marriage of the son of accused, was it need that much huge amount, obtained either by way of Ex.D1 as well as the borrowing of loan from the complainant itself creates doubt. The purpose of borrowing loan Judgment 22 C.C.No.34592/2018 from the complainant might be different, but borrowing stands proved by the complainant. However, to suspect the genuineness of loan transaction put forth by the complainant, as to alleged lent of loan during June, 2016 and for its repayment the accused got issued Ex.P1-cheque itself is not been disproved by the accused by way of any suggestion. In order to question the trustworthy of evidence of PW.1, the accused himself not approached this court with clean hands. It is the accused, time and again with inconsistence baseless plea, resisted the claim of complainant. Against his reply notice, he deposed falsely in his cross- examination, therefore, it is not safe to rely upon the evidence of accused, as he failed to rebut the case of complainant. The complainant being a PW.1 has successfully withstood his contention by way of reasserted in his cross-examination. Whatever the suggestion made to him, is been denied and withstood his contention. The complainant in order to establish his case, the accused borrowed the loan during June, 2016, for its repayment got issued Ex.P1-cheque got produced the same. Through the PW.1 and DW.1 in the cross-examination, accused failed to demonstrate, he not executed or issued the questioned cheque.
Judgment 23 C.C.No.34592/2018
29. On close perusal of the Ex.P1-cheque, it does not creates any doubt as to, due execution and issuance of cheque at Ex.P1, When cheque was issued by the accused for the reasons made mentioned in the complaint, it is him to maintain sufficient funds, but the said cheque as per Ex.P2 came to be dishonoured as the amount made mentioned in the cheque exceeds of arrangement. Though the complainant gave legal notice under the statute, he took difference defence and gave reply, but the said defence not been seen through out the trial, thereby, he gone to an extent of against his own defence as per Ex.P6. Though, PW.1 is very much available for cross-examination, nothing has elicited from his mouth to disprove the case of complainant and denied or disprove the liability of the accused. Though, DW.1 himself examined, his evidence itself is shaky and not trustworthy, therefore, to prove his defence nothing has elicited from the mouth of PW.1 to prove his defence. Thereby, the complainant by orally as well as documentary evidence has proved his case, despite, gave legal notice calling upon the accused to pay the amount covered under the cheque, accused till the date not paid the money, thereby, he continued the offence punishable under Section 138 of Negotiable Instruments Act.
Judgment 24 C.C.No.34592/2018
30. As discussed above by way of furnishing clear, convincing, corroborative, oral as well as documentary evidence has proved that, the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, looking into the transaction, it is the considered opinion of this court that, the accused has taken bald, inconsistence defence without any base and failed to prove his improbable defence. Contrary, the PW.1 has established his case beyond the reasonable doubt through oral as well as documentary evidence. Thereby, unnecessarily cause the complainant to approach this court of law, therefore, the accused is liable to be punished by way of imposing fine sentence. Therefore, the accused is to be convicted by imposing the cheque amount. Out of the said fine amount, sum of Rs.9,90,000/- shall be payable to the complainant as compensation and remaining amount of Rs.10,000/- shall be payable to the state as fine amount. Accordingly, if the accused fails to pay the whole fine amount, the accused shall undergo simple imprisonment for 12 months. Thereby, one more opportunity has provided to the accused to comply the order. Otherwise, the very purpose of filing complaint will be defeated. As discussed above, the complainant has proved his case beyond reasonable doubt. In the result, the accused shall sentence to Judgment 25 C.C.No.34592/2018 pay the fine amount as detailed in the order portion. Accordingly, Point Nos.1 and 2 are answered in the Affirmative.
31. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.10,00,000/-.
Out of the said fine amount, sum of Rs.9,90,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.10,000/- shall be payable to the state as fine amount.
In default of pay the fine amount, the accused shall under go simple imprisonment for 12 (Twelve) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
Judgment 26 C.C.No.34592/2018 (Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 23 rd day of April - 2021) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : M.Puttappa List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Ex.P4 : Postal receipt Ex.P5 : Postal Acknowledgment card Ex.P6 : Reply notice Ex.P7 : Bank challan counter foil
List of Witnesses examined on behalf of the defence:
DW.1 : L.Venkatesh List of Exhibits marked on behalf of defence:
Ex.D1 : Xerox copy of house loan intimation letter XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 27 C.C.No.34592/2018 23.04.2021. Comp - Accd - For Judgment
Judgment pronounced in the open court vide separate order.
***** ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.10,00,000/-.
Out of the said fine amount, sum of Rs.9,90,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.10,000/- shall be payable to the state as fine amount.
Judgment 28 C.C.No.34592/2018 In default of pay the fine amount, the accused shall under go simple imprisonment for 12 (Twelve) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.