Bangalore District Court
Sriramulu K vs Abhishek R P on 14 October, 2024
KABC020132142022
IN THE COURT OF THE XII ADDL. JUDGE, COURT OF
SMALL CAUSES & ADDL. CHIEF JUDICIAL MAGISTRATE,
BENGALURU (SCCH-08)
DATED THIS THE 14th DAY OF OCTOBER - 2024
PRESENT: Smt. Kannika M.S.
M.A., LL.B.
XII ADDL. SCJ & ACJM
MEMBER - MACT, BENGALURU.
C.C. No.6341/2022
Complainant : Sri. Sriramulu K.,
S/o. Sri. Kannaiah,
Aged about 35 years,
R/at No.441, 2nd Main,
2nd Cross, Vidyapeeta,
Bengaluru - 560 028.
(By Sri. S.R., Advocate)
:Vs:
Accused : Sri. Abhishek R.P.,
S/o. Sri. Puttegowda R.,
Aged about 26 years,
R/at No.103, 1st Floor,
B/H Watertank,
Manchegowdana Koppal,
Mysore - 570017.
SCCH-8 2 C.C.No.6341/2022
And also at:
Deepthi Mobiles,
No.24, D Devaraja Urs Road,
Devaraja Mohalla,
CFTRI Campus,
Yadavagiri, Mysore - 570001.
(By Sri. J.P., Advocate)
Date of complaint : 29.03.2022
Date of commencement of
Evidence : 13.03.2023
Offence charged : Sec.138 of Negotiable
Instruments Act
Date of Judgment : 14.10.2024
Opinion of the Judge : Accused found
guilty
JUDGEMENT
This is a private complaint filed U/Sec.200 of Cr.P.C. against the accused for the alleged offence punishable U/Sec.138 of Negotiable Instrument Act.
SCCH-8 3 C.C.No.6341/2022
2. The brief facts of the case of the complainant is that:
The accused and complainant were known to each other for several years and on the basis of the said acquaintance, the accused had borrowed the hand loan of Rs.15,00,000/- on in the 2nd week of October 2021 from the complainant and agreed to repay the same within two months. But the accused has failed to repay the amount to the complainant. When the complainant demanded to repayment of the amount, the accused has issued the a cheque bearing No.000124 dated 08.02.2022 for a sum of Rs.15,00,000/-, drawn on HDFC Bank, K.R.Mohalla Branch, Bengaluru. As per the instruction of the accused, complainant has presented the said cheque for encashment through his banker Karur Vysya Bank, Banashankari branch, Bengaluru, but the said cheque came to be dishonored and returned with shara "Payment stopped".
Thereafter he has issued the legal notice on 19.02.2022 through RPAD to the accused address and the same was served SCCH-8 4 C.C.No.6341/2022 to the accused. The accused has not paid the amount, and hence, the complainant has filed the present complaint before this Court.
3. Cognizance was taken and sworn statement of the complainant was recorded. Since there were sufficient materials to proceed against the accused, the summons was issued to accused. Accused appeared through his counsel and got enlarged on bail. Substance of accusation was framed, read over and explained to the accused in the language known to him, he denied the same and claimed to be tried. Hence, the case was posted for complainant's evidence.
4. In order to prove his case, the complainant got examined himself as PW-1 and got marked the 7 documents at Ex.P1 to Ex.P7 and closed his evidence. After closure of complainant's side evidence, the statement U/Sec.313 of Cr.P.C was prepared and read over to accused, he has denied the same. The accused has not led his defence evidence. But, through confront to PW.1 got marked Ex.D1 to D3 documents. SCCH-8 5 C.C.No.6341/2022 Thereafter, case was posted for arguments.
5. I have heard the arguments of learned counsel for complainant. Inspite of giving sufficient opportunity accused has failed to address his arguments. Perused the entire records in this case.
6. The following points arise for my consideration:
1. Whether the complainant proves that, the accused has issued the cheque bearing No. 000124 dated 08.02.2022 for a sum of Rs.15,00,000/- drawn on HDFC Bank, K.R.Mohalla Branch, Bengaluru and the complainant presented the said cheque for encashment, but the said cheque returned on 09.02.2022 with an endorsement as "Payment stopped by drawer" ?
2. Whether the complainant further proves that he has got issued the legal notice dated: 19.02.2022 to the Accused demanding the cheque amount from the Accused within 15 days from the date of receipt of the notice, the said legal notice is duly served on the accused, but the accused has failed to make the payment of the cheque amount well within the prescribed time and there by committed an offence punishable under section 138 of Negotiable Instrument Act?
3. What order?SCCH-8 6 C.C.No.6341/2022
7. The finding of this court on the above points is as under:
Point No.1 : In Affirmative
Point No.2 : In Affirmative
Point No.3 : As per final order,
for the following;
REASONS
POINTS NO.1 & 2:
8. Since these points are interconnected, they are taken up together to avoid repetition of facts.
9. According the complaint, the accused is known to the complainant and on the basis of said acquaintance borrowed handloan of Rs.15,00,000/- from the complainant. Thereafter when the complainant demanded to repay the amount, the accused issued the post dated cheque bearing No.000124 dated 08.02.2022 for a sum of Rs.15,00,000/- drawn on HDFC Bank, K.R.Mohalla Branch, Bengaluru, and when he has presented the said cheque for collection and for realization, the said cheque dishonored and returned with SCCH-8 7 C.C.No.6341/2022 shara "Payment stopped by drawer" on 09.02.2022, hence he issued the legal notice to the accused on 19.02.2022 through RPAD and the same was served. The accused has not paid the amount, hence the complaint.
10. In support of his contention complainant has filed affidavit in lieu of examination in chief wherein reiterated the averments of the complaint and examined as PW.1 and got marked EX P1 to P7. Ex.P1 is the cheque bearing No.000124 dated 08.02.2022 for Rs.15,00,000/- issued by the accused in favour of the Complainant. EX.P2 is the endorsement dated:
09.02.2022 issued by the Bank with respect to the cheque bearing No.000124 for a sum of Rs.15,00,000/-. It is shows that cheque are dishonored for the reason Payment stopped by drawer with memo. Ex.P3 is the legal notice dated 19.02.2022 issued by the complainant through his counsel to the accused for the repayment of the said loan amount. Ex.P4 and 5 are the postal receipts, Ex.P6 is the Postal cover and Ex.P7 is the postal track consignment. These documents goes to show that SCCH-8 8 C.C.No.6341/2022 the legal notice sent to the accused was served on him on 22.02.2022. Even after service of notice, the accused has not repaid the amount. Thereafter complainant has filed this case against the accused. Hence, complainant has complied the mandatory requirements of Sec.138 of N.I. Act.
11. On the other hand, the Accused has not examined himself but confronted the xerox copies of the Whatsapp chats as Ex.D1 to D3, Ex.D1 and D3 are one and the same. In the cross-examination the counsel of the accused has taken defence that notice not served upon the accused person. On perusal of the Ex.P6 and 7 which are the unserved postal cover and track consignment. As per Shara in Ex.P6 notice returned as unclaimed and another notice was served. As per Section 27 of General Clauses Act, the sender is required to send the notice and what the sendee does is irrelevant. Even under Section 138 of N.I. Act, the complainant is required to send the notice to the accused, but what the accused does is irrelevant. Now in order to escape from the criminal liability he took SCCH-8 9 C.C.No.6341/2022 defence that notice is not served on him though he received the notice.
12. Further defence of the accused is that complainant do not have financial capacity to lend the amount mentioned in the complaint, but the accused has not given the reply notice to complainant after service of the notice. When he has kept quiet without taking any legal steps at the earlier stage, he has no right to question the capacity of the complainant to lend the money. At this stage this court has relied upon the ratio laid down by the Hon'ble High Court of Karnataka which is reported in 2021(2) KCCR SN 134 between Muniraju V/s G Gangaraju, wherein it is held that, "Negotiable Instruments Act, 1881- Sections 138 and 139- Acquital - Whether justified - Allegations of stealing of cheque - accused not complaining neither to police nor bank-Not replying to demand notice though received it - Not disputing issuance of cheque towards hand loan obtained from complainant - Also in the habit of dishonouring cheques - Acquittal not justified".
SCCH-8 10 C.C.No.6341/2022
13. He further relied upon the decision of the Hon'ble High Court of Karnataka which is reported in 2021(2) KCCR SN 136 between Murulidar Rao Vs. P. Nagesh Rao, wherein it is held that, "Negotiable instruments Act, 1881-Sections 138 and 139- dishonour of cheque - Accused issuing cheque towards loan borrowed from complainant - Not disputing fact of his issuing cheque - Not replying to demand notice- No complaint lodged in regard to alleged misuse of cheque - No material to show that cheque in question was issued as security - Trial Court ought to have raised presumption that cheque was issued towards discharge of legally enforceable debt - Acquittal of accused not proper - Accused directed to pay amount quantified to complainant".
The facts and circumstances of the case where the said ratios are laid down by Hon'ble High Court of Karnataka are aptly applicable to the case in hand.
14. Further, the accused has not denied the signature on Ex.P1, but only contended that he had issued blank cheque leaf in favour of Harsha who is their relative and the complainant has filled up the said cheque colluding with Harsha and filed SCCH-8 11 C.C.No.6341/2022 this case. At this stage, I have also gone through the ruling reported in; AIR 2000 Karnataka Page 169 (H. Marigouda Vs Tippamma & others), which reads is as follows;
" As per Sec. 20 of N.I. Act, even if a blank cheque is given, the holder has authority to make or complete the instrument as a negotiable one. It means the accused has impliedly given permission to the holder of the cheque to fill up blanks in the cheque. Once all these things are established, Sec. 139 of N.I. Act states that the cheque has been issued for the discharge of debt or liability unless the contrary is proved".
15. After going through the above said ruling of the Hon'ble High Court of Karnataka, it is very clear that as per Sec. 20 of the N.I. Act, even if the blank cheque is given, the holder of the cheque has authority to make or complete the instrument as a negotiable one. The authority implied by a signature to a blank instrument is so wide that the party so signing is bound to be a holder in due course. Even though the holder was authorized to fill a certain amount as he feels and inserts a greater amount.
SCCH-8 12 C.C.No.6341/2022
16. The accused has not proved his contentions, only bare allegations made against the complainant. Mere taking contention is not enough, in order to prove his defence he has to place cogent and convincing evidence. Therefore, I hold that accused has failed to prove his defence. Hence, the entire defence as stated above taken by the accused is not believable to any stretch. Thus I hold that the accused has failed to rebut the presumption as provided U/S. 139 of N.I.Act.
17. Per contra the complainant is examined as P.W.1 and he categorically deposed that accused had issued Ex.P1 cheque to pay the balance amount. In the cross-examination of P.W.1 nothing has been extracted so as to deny the contention of complainant. Even otherwise it is already stated in foregoing paras accused has failed to rebut the presumption as U/S. 139 of N.I. Act, since he failed to prove the very defence.
18. It has been held in decision AIR 2010 S.C. 1898 between Rangappa V/s Mohan, SCCH-8 13 C.C.No.6341/2022 B) N.I. Act Section 138 existence of legal recoverable debt or liability - is matter of presumption U/S. 139. The presumption mandates by Section139 of the act does indeed include the existence of legally enforceable debt or liability. This is of course in nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the act is example of reverse onus, class that has been included in furtherance of legislative objections of him credibility of the Negotiable Instrument. While Section 139 of the Act specifies the strong criminal remedy dishonor of cheques, the rebuttal presumption U/S 139 is devise to prevent undue delay in the course of litigation. However, it must to be remembered that the offence made punishable by Sec. 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in nature of civil wrong whose impact is SCCH-8 14 C.C.No.6341/2022 usually confined to the private parties involved in commercial transactions. In such a scenario the test of proportionately should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be accepted to discharge a unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view it is a settled position that when an accused has to be rebut the presumption U/S. 139, the standard proof for doing so is that of 'preponderance probabilities'. Therefore, if the accused is able to raise probable defence, which creates doubts about the existence of alleged debt or liability. The prosecution can fail. The accused can rely on the material 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 adduced evidence of his/her own.
19. As per the said authority it is crystal clear that when the accused admits issuance of cheque he has to rebut the SCCH-8 15 C.C.No.6341/2022 presumption U/S 139 of N.I. Act. As already discussed above that the accused failed to prove that he has issued cheque leaf as a security at the time of obtaining the loan and also he stood silent without taking any action, if his cheque is misused by the complainant. The same is not believable to any stretch. Under such circumstances, it is crystal clear that the accused has failed to rebut the presumption U/S. 139 of N.I. Act. Hence, a valid presumption can be drawn in favour of complainant. Thus I hold that, towards the discharge of liability, accused issued Ex.P1 cheque. Hence, this court has answered Points No.1 and 2 in Affirmative.
POINT No.3:-
20. Therefore, considering the facts and circumstance involved in the case, I am of the opinion that, the complainant is entitled for the compensation as per section 80 of the Negotiable Instrument Act. Accordingly, in the light of above detailed discussion, I proceed to pass the following: SCCH-8 16 C.C.No.6341/2022
ORDER Acting U/Sec.255(2) of Cr.P.C. the accused is hereby convicted for the offence punishable U/Sec.138 of N.I. Act and he is sentenced to pay fine of Rs. 15,10,000/-(Fifteen lakhs Ten thousand Rupees only).
In default of payment of the fine, the accused shall undergo simple imprisonment for a period of one year.
Out of the fine amount collected from the accused, Rs.15,00,000/- shall be paid to the complainant as compensation U/s.357(1) of Cr.P.C, remaining Rs.10,000/- shall be forfeited to State towards expenses of the case.
Bail bond and surety bond of the accused stands cancelled.
Office is directed to supply a free copy of the judgment to the accused.
(Dictated to the Stenographer directly on computer, typed by her, corrected and then pronounced by me, in the open Court on this the 14 th day of October 2024) (Kannika M.S.) XII Addl. Small Causes Judge & ACJM, Bengaluru.SCCH-8 17 C.C.No.6341/2022
ANNEXURE List of witnesses examined for complainant :-
P.W.1 : Sriramulu K. List of documents marked for complainant:-
Exhibits Particulars of the Document Ex.P1 Cheque Ex.P1(a) Signature of Accused Ex.P2 Bank Endorsement Ex.P3 Legal notice Ex.P4 & 5 Postal receipts Ex.P6 Postal cover Ex.P7 Postal track consignment
List of witnesses examined for accused:
None List of documents marked for accused:- Ex.D1 to D3 - Xerox copies of the Whatsapp chats (Kannika M.S.) XII Addl. Small Causes Judge & ACJM, Bengaluru.