Bangalore District Court
Sri.L.M. Hemanth vs Sri. P.G. Giriyappa on 20 December, 2022
1
C.C.No. 11903/2019
KABC030385832019
Presented on : 30-05-2019
Registered on : 30-05-2019
Decided on : 20-12-2022
Duration : 3 years, 6 months, 21 days
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated : This the 20 th day of December 2022.
Present: Sri.N.M. RAMESHA, B'Com.,L.L.M.
XVI Addl.C.M.M., Bengaluru City.
Case No. C.C.No
: C.C.No.11903/2019
Complainant : Sri.L.M. Hemanth,
S/o. L.K. Mani,
Aged about 29 years,
No.1414, Twenty Third Main,
Banashankari Second Stage,
Bangalore -560 070.
( By Sri.Akki Manjnath Gowda.,, Adv,)
V/s
Accused : Sri. P.G. Giriyappa,
Father ame not known to
complainant,
Major,
No.41, First Floor, "Saptagiri",
Third Cross, Devarajurs Road,
2
C.C.No. 11903/2019
Nagadevanahalli,
Bangalore -560 056.
(By Sri.H.T.Jagannatha., Adv.,)
Case instituted : 20.5.2019
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 20-12-2022
JUDGMENT
The Complainant has filed this complaint against the accused under the provisions of Sec.200 of the Code of Criminal Procedure, for the offence punishable U/Sec.138 of the Negotiable Instruments Act.
2. The case of the Complainant is as under:-
The accused has availed hand loan of Rs.3 lakhs from the complainant by way of cheque bearing No.453820 drawn on Axis Bank Ltd., Banashankari Branch, Bengaluru and the cheque was encahsed on 24.01.2012. The accused has issued a cheque bearing No.831278 dated 06.12.2018 for Rs.3 lakhs drawn on State Bank of Mysore now merged into State Bank of India, Kengeri Satellite Town Branch, Bangalore in favour of complainant towards repayment of loan 3 C.C.No. 11903/2019 amount. The complainant has presented the cheque for encashment on 02.03.2019 through Axis Bank Ltd, Banashankari Branch. But the cheque was dishonoured for want of sufficient fudns in the account of the accused vide bank endorsement dt:4.3.2019. Therefore, complainant got issued a legal notice dt: 30.03.2019 calling upon the accused to pay the cheque amount within the stipulated period from the date of receipt of legal notice. But the accused has not claimed the notice and it was retrned to the sender vide dt: 10.04.2019.
The accused has failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of NI Act. Hence, this complaint.
3. After presentation of complaint, it was ordered to be registered as PCR No.6648/19 vide order dated 24.5.2019.
4. The sworn statement of the complainant has been recorded and the documents were got marked as per Ex.P.1 to P.10.
5. My Learned Predecessor in office having heard the arguments of learned counsel for complainant and on considering the complaint averments, sworn statement of complainant and the documents at Ex.P.1 to P.10 and having satisfied with the prima facie 4 C.C.No. 11903/2019 materials placed on record has taken the cognizance for the offence punishable U/s.138 of N.I.Act and the case was ordered to be registered as CC.No.11903/2019 and process was ordered to be issued agianst the accused vide order dated 29.5.2019.
6. On service of summons, the accused has appeared before the court through his learned counsel and obtained the bail by depositing cash surety of Rs.3,000/- vide Q. No.12759/19 dt: 21.10.2019. The copies of all the prosecution papers were supplied to accused.
7. Plea of accused for the offence punishable U/s.138 of N.I.Act has been recorded and the substance of accusation has been read over and explained to the accused in the language known to him. The accused has pleaded not guilty, but claims to be tried.
8. In order to establish the guilt against the accused, the complainant got himself examined as PW-1 and got the documents marked as Ex.P.1 to P.10. PW.1 was subjected for cross examination by the learned counsel for the accused.
9. The statement of accused as contemplated under the provisions of Section 313 of Cr.P.C has been 5 C.C.No. 11903/2019 recorded and the incriminating evidence as such forthcoming against the accused in the evidence of cpmplainant has been read over and explaned to the accused in the language known to him vide dt:
18.10.2021. The accused has denied the entire evidence of complainant. The accused did choose to enter the defence evidence.
10. Though initially, the accused did choose to enter the defence evidence, but later on inspite of sufficient opportunities were given, the accused did not choose to enter the witness box and failed to adduce evidence.
11. It is pertinent to note here that the proceedings of this nature U/s.138 of NI Act is a summary in nature as per the provisions of Sec.143 of NI Act. As per Sub- Sec.(2) and (3) of Sec.143 of NI Act, the trial of a case of this nature, so far as praticable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the court finds adjournament of the trial beyond the following day to be necessary for reasons to be recorded in writing and every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude 6 C.C.No. 11903/2019 the trial within six months from the date of filing of the complaint.
12. As per the principles and directions issued by the Hon'ble Supreme court in a decison reported in 2014(5) SCC 590 in between Indian Bank Assocaition Vs. Union of of India, the evidence in chief, cross examination and re-examination has to be conducted on the same day and the entire evidence of the proceedings U/s.138 of NI Act has to be concluded within a span of three months. But, in this case, inspite of sufficient opportunities were given for more than 14 dates of hearing from 9.11.2021 to 2.12.2022 for more than 01 year, the accused has failed to enter the witness box and failed to avail opportunities given to him. Under these circumstances, in order to comply the mandates of Sec.143(2) and (3) of NI Act and guidelines of the Hon'ble Apex court, this court has no option but to take the evidence of defence side as Nil and closed and proceed with the case. Accordingly, the defnece evdience was ordered to be taken as Nil and closed vide dt: 2.12.2022 and posted the case for arguments on merits.
13. I have heard the arguments of learned counsel for both sides and perused the oral and documentary evidence placed on record.
7C.C.No. 11903/2019
14. Now, the points that would arise for my consideration are as under:-
1. Whether the complainant proves that the accused has issued a cheque bearing No.831278 dt:6.12.2018 for Rs.3,00,000/-
drawn on State Bank of Mysore now merged into State Bank of India, Kengeri Satellite Town Branch, Bangalore in his favour towards legally recoverable debt or any other liability and on presentation of cheque for encashment before Axis Bank Limtied, Banashankari branch, Bangalore vide dt: 2.3.2019, it was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dt: 4.3.2019 and inspite of issuance of legal notice dated 30.3.2019 and inspite of deemed service of legal notice dt: 10.4.2019, the accused has failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of N.I.Act?
2. What Order?
15. On considering and assessing the oral and documentatry evidence placed on record, now my answers to the above points are as under :
Point No.1: In the Affirmative.
Point No.2: As per final order for the following :-8
C.C.No. 11903/2019 .
REASONS
16. Point No.1 : The provisions of Sec.20 of Negotiable Instrument Act deals about Inchoate Stamped Instruments. As per this provisions of law, where one person signs and delivers to another a paper stamped in accorance with the law relating to negotiable instrements then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima-facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, or any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instruemnt, in the capacity in which he signed the same, to any holder in due course for such amount.
17. The provisions of Sec.118 of Negotiable Instrument Act deals about presumptions as to neogtiable instruments. As per this provisions of law, unit the contrary is proved, the following presumptions shall be made:-(a) of consideration: that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, 9 C.C.No. 11903/2019 indorsed, negotiated or transfered, was accepted, indorsed, negotiated or transferred for considertaion: (b) as to date: that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance- that every accepted bill of exchange was accpted within a reasonable time after its date and before its maturity. (d) as to time of transfer-that every transfer of a negotiable instrument was made before the maturity; (e) as to order of indorsement; that the indorsements appearing upon a negotiable instrument were made in the order in which they apear thereon; (f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped and (g) that holder is a holder indue course- that the holder of a negotiable instrument is a holder in due course.
18. The provisions of Sec.138 of Negotiable Instrument Act deals about dishonour of cheque for insufficiency etc., of funds in the accounts. As per this provisions of law, 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 inpart, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to 10 C.C.No. 11903/2019 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 proviosn 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.
19. As per the proviso attached to the above said provisions of law, nothing contained in this section shall apply unless-(a) the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier. (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 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.
11C.C.No. 11903/2019 [ 20. The provisions of Sec.139 of Negotiable Instrument Act deals about presumption in favour of holder. As per this provisions of law, it shall be presumed, unles 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, or any debt or other liability.
21. The provisions of Section 146 of the Negotiable Instruments Act, 1881 deals about the Bank's slip prima facie evidence of certain facts. As per this provisions of law, the Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.
22 Now keeping the above said provisions of Section 20, 118, 138, 139 and 146 of N.I.Act, in mind, let us consider as to whether the complainant could able to comply the provisions of Section 138 of N.I.Act, so as to raise or to draw the presumption in his favour as per Section 118 and 139 of N.I.Act.
23. It is averred in the complaint and stated by PW-1 in his oral evidence that the accused has availed 12 C.C.No. 11903/2019 hand loan of Rs.3 lakhs by way of cheque bearing No.453820 drawn on Axis Bank Ltd., Banashankari Branch, Bengaluru and the said cheque was encahsed on 24.01.2012 and the accused has issued a cheque bearing No.831278 dated 06.12.2018 for Rs.3 lakhs drawn on State Bank of Mysore now merged into State Bank of India, Kengeri Satellite Town Branch, Bangalore and on presentation of cheque for encashment before Axis Bank Ltd, Banashankari Branch on 2.3.2019, it was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dt:
30.3.2019, the accused has not claimed the notice on 10.4.2019 and therefore, he has presented the complaint before the court on 20.5.2019.
24. The complainant has produced the statement of accounts of Axis Bank, cheque dt: 6.12.2018, bank endorsement dt: 4.3.2019, legal notice dt: 303.2019, postal receipt dt: 30.3.2019, postal acknowledgement, postal cover, postal receipt and they are marked at Ex.P.1 to P.10.
25. The accsued neither disputed the loan transaction of Rs.3 Lakhs nor issuance of cheque or his signature on the cheque or presentation of cheque or dishonour of cheque for want of sufficient funds in his 13 C.C.No. 11903/2019 account or for issuance of legal notice. Infact, there is no suggestions to PW.1 either to deny the loan transaction of Rs.3 lakhs or issuance of cheque or presentation of cheque for encashment or dishonour of cheque for want of sufficeint funds in the account the accused or for issuance of legal notice.
26. But on the other hand, it is suggested to PW.1 that at the time of lending the loan to the accused, except the date on the cheque, he got it filled the other contents of the cheque in the hands of the accused and except the signature he has filled the remaining contents of the cheque. It is also suggested to PW.1 that the accused has issued the cheque vide Ex.P.2 for repayment of loan of Rs.3 Lakhs given by him through Axis Bank cheque. From these material suggestions put to P.W.1, it is crystal clear that the accused by necessary implications has admitted the loan transaction, issuance of cheque, presentation of cheque for encashment, dishonour of cheque for want of sufficient funds in his account and issuance of legal notice.
27. However, on careful perusal of complaint averments, oral evidence of PW.1 and the documentary evidence at Ex.P.1 to P.10, it clearly establishes that the 14 C.C.No. 11903/2019 accused had availed a loan of Rs.3 Lakhs from the complainant by way of cheque bearing No.453820 drawn on Axis Bank Ltd, Banashankari Branch, Bangalore and it was encashed on 24.1.2012 as per Ex.P.1. The materials on record further establishes that the accused has issued a cheque bearing No.831278 vide Ex.P.2 dt:
6.12.2018 drawn on State Bank of Mysore now merged into State Bank of India, Kengeri Satellite Town Branch, Bengaluru for repayment of said loan of Rs.3 lakhs and on presentation of cheque for encashment on 2.3.2019, before Axis Bank ltd., Banashankari Branch, Bengaluru, it was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dt:
4.3.2019. The complainant got issused a legal notice dt: 30.3.2019 calling upon the accused to pay the cheque amount within 15 days from the date of service of legal notice, but the accused has not claimed the notice vide dt:10.4.2019 and therefore, the complainant has presented the complaint before the court on 20.5.2019.
28. It is pertinent to note here that the cheque is dt: 6.12.2018 which has been presented before the bank on 2.3.2019 within its validity ie., within three months from the date of cheque which has been dishonoured for want of sufficient funds in the account of the accused vide bank endorsement at Ex.P.3 dt: 4.3.2019. It is also 15 C.C.No. 11903/2019 pertinent to note here that the complainant got issued a legal notice dt: 30.3.2019 vide Ex.P.4 within the stipulated period from the date of receipt of bank endorsemetn giving 15 days time to the accused to comply the demands made in the notice.
29. As could be seen from the document at Ex.P.8, the accused has refused to receive the notice and has not claimed the notice. The accused has not seriously disputed the address mentioned in Ex.P.4, P.6, P.7 and P.8. It is well settled position of law that if the notice is issued to the proper address and if returned with an endorsement as "Refused" or "not claimed" or "left the address", then it amounts to deemed service. Reference in this regard may be made to a provisions of Sec.27 of the General Clauses Act. But inspite of issuance of legal notice and deemed service of legal notice, the accused has failed to comply the demands made in the notice. Therefore, the complainant without any alternative has presented the complaint before the court on 20.5.2019 which was well within time.
30. So, it is crystal clear that the complainant has complied all the mandates of Sec.138 of NI Act by adducing the oral evidence of PW.1 and also by producing the documentary evidence vide Ex.P.1 to P.10.
16C.C.No. 11903/2019 Under these circumstances, when once the complainant has fulfilled all the mandates of Sec.138 of NI Act, this court has no option but to raise and to draw a presumption in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
31. Admittedly, the presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act are not conclusive proof, but they are rebuttal in nature. Therefore, when once the complainant has fulfilled all the mandates of Sec.118 and 139 of NI Act and when once the court has drawn the presumptions in favour of the complainant U/s.118 and 139 of NI Act, then the onus shifts on the accused to rebut the statutory presumptions available in favour of the complainant under the provision of Sec.118 and 139 of NI Act.
32. The learned counsel for the complainant has argued with force that the complainant has fulfilled all the mandates of Sec.118 and 139 of NI Act by adducing the oral evidence of PW.1 and the documentary evidence vide Ex.P.1 to P.10 which clearly establishes the availment of loan of Rs.3 Lakhs by the accusd, issuance of cheque to the complainant for repayment of loan amount, dishonour of cheque for want of sufficient 17 C.C.No. 11903/2019 funds in the account of the accused and service of legal notice and therefore, the presumptions are in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
33. It is further contended that the accused neither disputed the availment of loan nor issuance of cheque or dishonour of cheque or issuance of legal notice. But the accused has taken a contention that except the signature, all the contents were filled up by the complainant and the cheque which was issued in the year 2012 has been used by the complainant in the year 2019 and the complainant not presented the cheque before bank within three months and also not served the notice. But though the accused has taken this contention, same has not been proved before the court. The accused neither adduced oral evidence nor produced any documentary evidence or elicited any material facts in the evidence of PW.1 and thereby failed to rebut the statutory presumptions and therfore, the accused is liable for conviction and to pay the cheque amount U/s.138 of NI Act.
34. Per contra, the learned counsel for the accused has vehemently contended that the complainant has not presented the cheque vide Ex.P.2 within 90 days 18 C.C.No. 11903/2019 from the date of issuance of cheque and the complainant has misused the cheque which was issued in the year 2012 and has not served the notice on the accused and therefore, the offence U/s.138 of NI ACt does not attract as against the accused.
35. It is further contended that except the signature, the complainant has filled the contents of the cheque and misused the cheque. The accused has raised a probable defence and proved the same before the court by eliciting the material facts in the evidence of PW.1 and the accused is successful in rebutting the presumption and therefore, the accused is not liable to pay the cheque amount as the complainant has failed to establish the case before the court with legal evidence and therefore, the accused is entitled to an order of acquittal.
36. Now keeping the arguments canvassed by the learned counsel for both sides and the provisions of Section 20, 118, 138, 139 and 146 of N.I.Act in mind, let us consider as to whether the accused could able to raise a probable defence and to prove the same before the court and whether the accused could able to rebut the statutory presumptions available in favour of the complainant U/s.118 and 139 of NI Act.
19C.C.No. 11903/2019
37. At the outset, it is necessary to note here that while recording the plea of accused vide dt: 21.10.2019, the accused has pleaded not guilty, but claims to be tried. In other words, the defence of the accused at the time of recording the plea vide dt: 21.10.2019 is as that of total denial. In other words, the accused has not taken specific defence at the time of recording the plea.
38. Be that as it may, even during the time of recording the statement of accused U/s.313 of Cr.P.C. vide dt:18.10.2021, the accused has denied all the incriminating evidence as such forthcoming against him in the evidence of PW.1 and documents on record. In other words, the defence of the accused at the time of recording the statement U/s.313 of Cr.P.C on 18.10.2021 is also as that of total denial. In other words, the accused has not taken any specific even at the time of recording the statement of accused U/s.313 of Cr.P.C. on 18.10.2021.
39. As could be seen from the material suggestions put to PW.1 during the course of cross examination of PW.1, it can be inferred that the accused has raised a defence that except the signature on the cheque, all the contents of the cheque were filled up by the complainant in the year 2019 and that the complainant has not 20 C.C.No. 11903/2019 served the notice on the accused and the complainant has not presented the cheque within the validity of cheque and the complainant has misused the cheque in the year 2019 which was issued in the year 2012 and filed the false case.
40. But though the accused has taken this bald contention during the cross-examination of P.W.1, same has not been amplified before the court in any manner. Because, though initially the accused did choose to enter the defence evidence, but later on, the accused has failed to enter the witness box and thereby failed to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI ACt.
41. No doubt, it is well settled position of law that in a case of this nature where the accused is charged for the offence punishable U/s.138 of NI Act, the accused need not enter into the witness box or need not produce any documetns on his behalf so as to substantiate his defence or to rebut the statutory presumptions available in favour of the complainant under the provision of Sec.118 and 139 of NI Act. But on the other hand, it is also well settled position of law that in order to substantiate his defence and in order to rebut the 21 C.C.No. 11903/2019 staturoy presumptions availabe in favour of the complainant U/s.118 and 139 of NI Act, the accused can definately make use the materials produced by the complainant by eliciting the material facts in the evidence of PW.1. But in this case, the accused not only failed to enter the witness box to adduce oral evidence and to produce the documentary evidence on his behalf, but also failed to elicit material facts in the evidence of PW.1 so as to substantiate his defence or to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
42. No doubt, it is suggested to PW.1 that at the time of lending of loan to the accused, he had got the contents of cheque written by the accused except the date on the cheque; that except the signature on the cheque, the remaining contents of the cheque were filled up by himself; that he has presented the cheque after 90 days of date of cheque; that he has misused the cheque in the year 2019 which was in his possession from 2012 by presenting the same before the bank and filed the false case against the accused.
43. But all these material suggestions have been specifically denied by PW.1. Therefore, it is said that, the 22 C.C.No. 11903/2019 denied suggestions are always remained as suggestions only and not come in the way of accused either to substantiate his probable defence or to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act or to falsify the case made out by the complainant or to falsify the oral evidence of PW.1 or to falsify the documentary evidence at Ex.P.1 to P.10.
44. However, there is no suggestions to P.W.1 to dispute the loan transaction or issuance of cheque or presentation of cheque or dishonour of cheque for want of sufficient funds in the account of the accused or to dispute the address mentioned in the notice. But, on the other hand, at one point of time, it is suggested to PW.1 that except the cheque, all the contents were got written through the accused. But, at another point of time, it is sugggested to P.W.1 that except the signature on the cheque, all the contents of cheque were written by him. But at another point of time, it is suggested to PW.1 that the accused has issued the cheque vide Ex.P.2 in respect of loan paid by him through Axis Bank cheque. From these material suggestions put to PW.1, it is crystal clear that the accused has kept on changing his version from stage to stage and thereby laid on the material facts before the court.
23C.C.No. 11903/2019
45. But on the other hand, it is forthcoming in the evidence of PW.1 that he has issued the notice to the old address of the accused which has not been claimed by the accused. It is also forthcoming in the evidence of PW.1 that he has presented the cheque on 87 th day from the date of cheque and therefore, it was presented within its validity. It is also forthcoming in the evidence of PW.1 that he has paid loan to the accused through cheque, which has been encashed by the accused on 24.1.2012 and the accused has issued the cheque towards repayment of loan and on presentation of cheque for encashment, it was dishonoured for want of sufficient funds in the account of the accused and therefore, he has issued the notice which has been refused by the accused and therefore, he has presented the complaint before the court.
46. On appreciation of entire oral and documentary evidence placed on record, it is found that the complainant has paid loan of Rs.3 Lakhs to the accused by way of cheque bearing No.453820 drawn on Axis Bank Ltd., Banashankari Branch, Bangalore which has been encashed by the accused on 24.1.2012 as per bank endorsement vide Ex.P.1. The accused has issued the cheque vide Ex.P.2 towards the legally recoverable debt of Rs.3 Lakhs in favour of the complainant by 24 C.C.No. 11903/2019 acknowledging the debt and on presentation of cheque for encashment on 2.3.2017, it was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement vide Ex.P.3 and therefore, the complainant got issued a legal notice vide Ex.P.4 giving 15 days time to the accused to comply the demands made in the notice which has not been claimed by the accused and therefore, it was deemed service of ntoice on the accused. Inspite of deemed service of legal notice, the accused has failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of NI Act. The accused has failed to raise a probable defence and also failed to prove the same before the court. Under these circumstances, there are no reasons to disbelieve or to discard the oral evidence of PW.1 and the documentary evidence placed on record.
47. Under these circumstances, the arguments of the learned counsel for the accused that the complainant has not presented the cheque within its validit, but it was presented after expiry of valid time and therefore, it does not attract the penal provisions of Sec.138 of NI ACt and the complainant has misused the cheque in the year 2019 which was in his possession from 2012 and therefore, the evidence on record do not establish the guilt against the accused for the offence 25 C.C.No. 11903/2019 punishable U/s.138 of NI Act and the complainant has also failed to serve the notice on the accused and therefore, the complainant has failed to comply all the mandates of Sec.138 of NI Act and therefore, the accused is entitled to an order of acquittal is not sustainable under law and therefore cannot be accepted.
48. But, on the other hand, there is some legal and considerable force in the submission of learned counsel for the complainant that the complainant has proved the guilt against the accused with legal evidence of PW.1 and also documentary evidence at Ex.P.1 to P.10 which clearly estbalishes the loan transaction of Rs.3 Lakhs and issuance of cheque to the complainant towards legally recoverable debt and the complainant has presented the cheque on 87 th day of date of cheque which was presented within its validity and the complainant has also served the notice on the accused and thereby complied all the mandates of Sec.118 and 139 of NI Act, but the accused has failed to raise a probable defence and also failed to prove the same before the court with legal evidence and infact the accused has failed to enter the witness box and failed to rebut the statutory presumptions and hence the accused is laible to pay the cheque amount as per Sec.138 of NI Act.
26C.C.No. 11903/2019
49. Therefore, for the reasons discussed above, this court is of the considered view that the materials placed on record clearly establishes the guilt against the accused U/s.138 of NI Act. Hence, I hold that the complainant has proved the guilt against the accused for the offence punishable U/s.138 of NI Act. Hence, I answer point No.1 in the 'Affirmative'.
50. POINT. No.2:- The provisions of Section 138 of N.I.Act provides punishment for imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of cheque or with both. In the present case, the accused has availed loan of Rs.3 Lakhs from the complainant through the cheque. The accused has issued the cheque towards legally recoverable debt of Rs.3 Lakhs. Therefore, considering the loan transaction and facts and circumstances of the case including the nature of loan and regard being had to the time taken for disposal of this case, this Court is of the considered view that if the following sentence is awarded, then it would meet the ends of justice. Hence, in view of my findings on point No.1, I proceed to pass the following:-
27C.C.No. 11903/2019 ORD ER The accused is found guilty for the offence punishable U/s.138 of Negotiable Instruments Act.
Hence, acting U/sec.255(2) of Cr.P.C, the accused is convicted and sentenced to pay fine of Rs.4,00,000/-(Rupees Four Lakhs Only), in default of fine amount, he shall undergo simple imprisonment for One year for the offence punishable under section 138 of N.I.Act.
Out of the fine amount collected from the accused, an amount of Rs.3,90,000/- (Rupees Three lakhs and Ninety thousand only) shall be paid to the complainant as compensation U/s.357 of Cr.P.C. and the remaining fine of Rs.10,000/- shall be adjusted towards the cost of state expenses.
The bail bond of the accused shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.
The cash surety of Rs.3,000/-
deposited by the accused vide Q.No.12759/19 dated 21.10.2019 shall be refunded to the accused after the appeal period is over with due identification and also on proper verification.28
C.C.No. 11903/2019 Office to supply the copy of the Judgement to the accused forthwith at free of cost.
(Dictated to the stenographer, transcribed by her, print out taken by her verified, corrected and then pronounced by me in the open Court on this the 20th day of December 2022).
(N.M.RAMESHA) XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : L.M.Hemanth
2. List of documents exhibited on behalf of the Complainant:-
Ex.P.1 ; Certified copy of Axis Bank statement Ex.P.2 : Original Cheque. Ex.P.2(a) : Signature of the Accused.
Ex.P.3 : Bank Memo Ex.P.4 : Copy of Legal Notice. Ex.P.5 : Postal Receipt. Ex.P.6 : postal acknowledgement Ex.P.7 : Returned legal notice Ex.P.8 : Postal cover Ex.P.9 : Postal receipt Ex.P.10 : complaint Ex.P.10(a) : Signature of complainant
3. List of witness/s examined on behalf of the Accused:-
-Nil-29
C.C.No. 11903/2019
4. List of documents exhibited on behalf of the Accused:-
-Nil-
(N.M.RAMESHA) XVI ACMM, Bengaluru City. 30 C.C.No. 11903/2019