Bangalore District Court
M/S. Manappuram Finance Ltd vs Jaga Narayan Choudhury on 20 February, 2025
1 CC.NO.17857/2021
KABC030512452021
Presented on : 03-08-2021
Registered on : 03-08-2021
Decided on : 20-02-2025
Duration : 3 years, 6 months, 17 days
IN THE COURT OF THE XXVIII ADDL.CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
Present:
Soubhagya.B.Bhusher,
B.A.,LL.B.,LL.M,
XXVIII A.C.J.M, Bengaluru City.
DATED; THIS THE 20th DAY OF FEBRUARY-2025
C.C.NO.17857/2021
Complainant: M/s.Manappuram Finance Ltd.,
Having its branch O/at No.21/1,
4th Floor, Jelita Tower, Mission Road,
Bengaluru-560027.
R/by its Assistant Manager
and Authorized Signatory,
Mr.Harisha.S S/o Siddappa,
Age: 31 years.
(By Sri.P.V.Raghupathi.,Adv.,)
V/s
Accused: Jaga Narayan Choudhury.
Bldg.No.6, Plat No.201,
Agarwal Life Style Building,
Avenue B1, Global City,
Kirarplaghar, Khane,
Maharashtra-401303.
(By Sri.K.L.Ravi.,Adv.,)
2 CC.NO.17857/2021
JUDGMENT
This case arises out of the complaint filed by the complainant against the accused under section 200 of Cr.P.C., for an offence punishable under section 138 of Negotiable Instruments Act.
2. The case of the complainant's in brief is as under:
It is the case of the complainant is that the complainant is a company incorporated under provisions of the Companies Act and licensed by the Reserve Bank of India. The complainant is involved in the business of providing finance facilities to the needy persons for purchasing commercial vehicles as per the terms and conditions of the loan agreement. The accused being had approached the complainant for financial assistance for purchase of commercial vehicle for a sum of Rs.6,58,911/- in pursuant to the loan agreement entered between the complainant with the accused and thereafter the accused took delivery of the vehicle Reg.No.MH48F1588 from Force Motors Limited, agreeing to repay the said loan, as per the terms and conditions of the sanction advise of the bank. Further stated that the accused being a defaulter had not paid the EMIs in time and as such the complainant's officers have visited the accused several times requesting him to make the payments. The accused towards repayment of due amount had issued the cheque No.137865 on 17.12.2020 for Rs.6,58,911/- drawn on IDBI 3 CC.NO.17857/2021 Bank. As per the instructions of the accused the complainant had presented the said cheque on 01.01.2021 for encashment through its banker the Axis Bank, Cunningham Road, Bengaluru. But the said cheque was dishonored on 02.01.2021 as "Funds Insufficient".
Thereafter, on 29.01.2021 the complainant got issued a demand notice to the accused through its counsel calling upon him to pay the cheque amount within 15 days from the date of receipt of the said notice. The said notice was duly served to the accused on 12.02.2021. Inspite of service of the notice, the accused neither reply to the notice nor paid the cheque amount. As such, the accused have committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court on 26.03.2021.
3. After the complaint was filed, the cognizance of the offence cited therein was taken and it was registered as P.C.R.No.14129/2021. Sworn statement of the complainant was recorded. Since there were sufficient materials to proceed against the accused, an order was passed on 03.08.2021 to register the case in Register No.III.
4. Thereafter, summons was issued to the accused and he appeared before the court through advocate and secured bail. He was furnished its necessary papers as complied under section 208 of Cr.P.C. Thereafter, the plea 4 CC.NO.17857/2021 of the accused was recorded by the court. He has pleaded not guilty and claimed to be tried.
5. The complainant in support of its case, have examined its Assistant Manager as PW.1 and got marked 10 documents at Ex.P.1 to 10 and closed its side. PW.1 was fully cross examined by the counsel for the accused.
6. After closer of the evidence of the complainant, the statement under section 313 of Cr.P.C. was recorded. He has denied the incriminating evidence appearing against him. In his defence, the accused was examined as DW.1 and 03 documents were marked at Ex.D.1, 1(a) and
2.
7. I have heard the arguments on both the sides and perused the written argument filed by the learned counsel for the complainant and also perused the material placed on record.
8. Upon hearing the arguments and on perusal of the material placed on record, the following points arise for my consideration:
1.Whether the complainant proves the existence of legally enforceable debt/liability.?
2.Whether the complainant further proves that the accused had issued the cheque-Ex.P.1, towards the discharge of the said legally enforceable debt/liability.?
3.Whether the complainant further proves that the cheque-Ex.P.1 was dishonored for the reasons "Funds Insufficient" and thereafter the 5 CC.NO.17857/2021 accused had failed to repay the same within the statutory period, inspite of receipt of the legal notice.?
4.Whether the accused have thus committed an offence punishable under section 138 of N.I.Act.?
5.What order?
9. My answers to the above points are as under:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: In the Affirmative Point No.4: In the Affirmative Point No.5: As per final order, for the following;
:REASONS:
10. POINT NO.1 AND 2: These two points are inter-related to each other and finding given on any one point will bearing on the another. Hence, in order to avoid repetition of facts, I have taken these two points together for common discussion. The case of the complainant is that he was acquainted with the accused. Further the complainant is involved in the business of providing finance facilities to the needy persons for purchasing commercial vehicles as per the terms and conditions of the loan agreement. The accused had approached the complainant for financial assistance for purchase of commercial vehicle for a sum of Rs.6,58,911/-, in pursuant to the loan agreement entered between the complainant with the accused and thereafter the accused took delivery of the said vehicle Force Motors 6 CC.NO.17857/2021 Limited, agreeing to repay the said loan, as per the terms and conditions of the sanction advise of the bank. Further the accused being a defaulter had not paid the EMIs in time and as such the complainant's officers have visited the accused several times requesting him to make the payments. The accused towards repayment of due amount had issued the cheque in question. As per the instructions of the accused the complainant had presented the said cheque for encashment through its banker. But the said cheque was dishonored as "Funds Insufficient". Thereafter, the complainant got issued a demand notice to the accused through its counsel calling upon him to pay the cheque amount. Inspite of service of the notice, the accused neither reply to the notice nor paid the cheque amount. As such, the accused have committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court.
11. At this juncture, it is necessary to go through the provisions of N.I.Act before proceeding further. The provisions under section 118(a) and 139 of the Act, 1881 are extracted and they reads thus;
"118. Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made:-
(a). of consideration-that every negotiable instrument was made or drawn for consideration, 7 CC.NO.17857/2021 and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
(b). as to date: that every Negotiable Instrument bearing date was made or drawn on such date;
"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. On plain perusal of the provisions under section 118(a) and 139 of the N.I.Act., as extracted herein above, it can be seen that initially the presumptions constituted under these two provisions favour the complainant. However, it is open to an accused to raise a defence to rebut the statutory presumptions. An accused can raise a defence, wherein the existence of legally enforceable debt or liability can be contested.
13. It is also well established that an accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused have constitutional rights to maintain 8 CC.NO.17857/2021 silence. Standard of proof on part of the accused and that of the prosecution in a Criminal case is different. The prosecution must prove the guilt of an accused beyond all reasonable doubts, the standard of proof so as to prove a defence on the part of an accused is "Preponderance of probabilities".
14. Under the light of above extracted provisions of the Act, I have perused the oral and documentary evidence placed on record. In support of the case, the complainant have examined its Assistant Manager as P.W.1 and 10 documents were marked at Ex.P.1 to 10. In the chief examination P.W.1 has repeated the contents taken by the complainant in the complaint. Ex.P.1 is the cheque issued by the accused in favour of the complainant dated:17.12.2020 for Rs.6,58,911/-. Ex.P.1(a) is the signature of the accused. Ex.P.2 is the bank memo dated:02.01.2021 informing the dishonor of the cheque as "Funds Insufficient". Ex.P.3 is the office copy of legal notice dated: 29.01.2021. Ex.P.4 is the postal receipt. Ex.P.5 is the postal acknowledgment. Ex.P.6 is the complaint. Ex.P.7 is the certified copy of the Hypothecation Agreement. Ex.P.8 is the certified copy of the loan application. Ex.P.9 is the loan account statement. Ex.P.10 is the certified copy of the minutes of meeting extract.
15. I have perused the exhibits on which the complainant have placed their reliance. On perusal of the 9 CC.NO.17857/2021 exhibits, it is clear that the cheque in question was presented for encashment within its validity. The bank endorsement with a shara "Funds Insufficient". The complainant issued the legal notice within one month from the date of receipt of memo. The notice was duly served to the accused on 11.02.2021. The complaint was filed on 26.03.2021, which is within limitation. The transaction with the complainant is not seriously disputed. Therefore, the documents on record clearly show that the complainant have complied the ingredients of section 138(a) to (c) of the N.I.Act. Therefore, the presumptions under section 118 and 139 of the N.I.Act, arise in favour of the complainant. The presumptions are rebuttable and the burden is on the accused to rebut the presumptions. The presumption is that the cheque was issued for legally enforceable debt/liability. However, actual existence debt/liability can be contested. The accused can rebut the presumptions by raising probable defences and proving it relying on the evidence of the complainant or by leading his direct evidence.
16. The case was seriously contested by the accused and the service of notice was disputed. The notice was duly served to the accused. The counsel for the accused cross-examined PW.1 in respect of non service of notice. But PW.1 has denied the same. Further contended that the notice sent to the accused not served'; that the accused has no knowledge of the notice as it was 10 CC.NO.17857/2021 not served on him; that the accused did not give reply notice as the notice was not served on him; that he did not produce any documents to show that the accused was not residing at the said address, the notice was not served on him and that the accused did not issue reply notice as he was not residing at the said address. The counsel for the accused argued that no legal presumption can be raised as the notice was sent to the wrong address. When the notice at Ex.P.3, wherein the name of the accused is appearing, was confronted.
17. On perusal of Ex.P.3, it is clear that the name of the accused is appearing in the notice. The same notice was sent to the accused and the said notice was duly served to the accused. But the accused not given any reply. There is no evidence on record to show that the accused was residing at some other address other than the address mentioned in the notice-Ex.P.3. On the other hand, it is clear that the accused was residing at the said address. The above discussion clearly shows that the address mentioned in the notice is the correct address of the accused. As the notice was given to the accused and the same notice was sent to him through RPAD, an inference can be drawn that the notice was served on the accused. Further the address mentioned in the notice being the correct address of the accused, the presumption as per Section 27 of General Clauses Act can be drawn. It states that the notice sent through post shall be deemed 11 CC.NO.17857/2021 to be served, if it is properly addressed to a person to whom it is sent. Therefore, even though the notice sent to the accused through RPAD duly served.
18. In a nutshell it can be said that the statutory notice is an opportunity given to the accused to make payment and avoid the consequences of 138 of N.I.Act. In the case on hand, summons was duly served to the accused and he appeared through his counsel and contested the case by taking all probable defences. Therefore he cannot take the shelter of statutory requirement of service of notice to avoid the consequences of section 138 of N.I.Act. The complaint was filed on 26.03.2021, which is within limitation. The accused has denied the issuance of the cheque for repayment of the dues. It is his defence that the said cheque was not issued to the complainant for repayment of the amount. Further defence of the accused is that he kept his bank cheque book in his INNOVA car and same was misused by the complainant in colluded with Mr.Girish. Therefore, the documents on record clearly shows that the complainant have complied the ingredients of section 138(a) to (c) of the N.I.Act. Therefore, the presumptions under 118 and 139 of the N.I.Act, arise in favour of the complainant. The presumptions are rebuttable and the burden is on the accused to rebut the presumptions. Once the issuance of cheque and signature are proved, the presumption arises in respect of the fact 12 CC.NO.17857/2021 that the cheque was issued for legally enforceable debt/liability. The accused can rebut the presumption by raising probable defence and proving it relying on the evidence of the complainant or by leading his direct evidence.
19. In order to prove his defence, the accused examined himself as DW.1 and 03 documents were marked on his behalf at Ex.D.1, 1(a) and 2. In his chief examination he has deposed that he has one Innova car bearing No.MH48F1588. Mr.Girish has decided to buy the said Innova Car from him and amount was fixed at Rs.8,00,000/-. At that time Mr.Girish has given him the amount of Rs.5,97,000/- by way of online. Further deposed that Mr.Girish was promised to pay the remaining amount within 3-4 months. Further deposed that in this way having faith on him he gave his Innova car and original RC book. Thereafter, he demanded the remaining amount. But he failed to pay the same. Further deposed that he kept his bank cheque book in his Innova car, but which he didn't remember to take while giving the car to Girish. Thereafter Girish has took out his cheque book from car and gave the same to the Manappuram Finance. In this regard he lodged a complaint against him. Further deposed that he has not executed any agreement in favour of the complainant. Further the complainant company not transferred any amount to his account. The complainant company misused the alleged cheque in 13 CC.NO.17857/2021 collusion with Girish and filed a false complaint. Ex.D.1 is the complaint in Marathi language. Ex.D.1(a) is the English translated copy of Ex.D1. Ex.D.2 is the Bank statement. Therefore, he prays to dismiss the complaint and acquit him.
20. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of legally enforceable debt/liability, for which the cheque came to be issued. The learned counsel for the complainant has argued that from the evidence placed on record, the fact that the accused had approached the complainant for financial assistance of Rs.6,58,911/- for purchase of commercial vehicle. Accordingly, the complainant and the accused entered into a loan agreement as per Ex.P.7. Thereafter the accused took delivery of the vehicle from Force Motors Limited. The accused agreeing to repay the said loan as per terms and conditions of the sanction advise of the bank. Thereafter, the accused defaulted in payment of EMIs in time and as such the officials of the complainant had approached the accused on several times requesting him to repay the loan amount. Further argued that inspite of repeated request the accused failed to repay the same. Thereafter, the accused towards the discharge of the said amount, he had issued the cheque-Ex.P.1 in favour of the complainant. He further argued that the accused has not denied Ex.P.1 being his cheque drawn on his account and 14 CC.NO.17857/2021 signature on the said cheque. When the signature is not disputed, the presumption under section 139 N.I.Act is to be drawn in favour of the complainant. The accused has failed to elicit anything in the cross examination of P.W.1 to disbelieve the case of the complainant. The defence have failed to rebut the presumption under section 139 N.I.Act. He further argued that the accused has failed to produce any believable evidence that he kept the blank cheque book in his car and same was misused by the complainant in collusion with Girish and also why he has not returned back the same is not clear.
21. He further argued that the accused has failed to produce any documentary evidence except Ex.D.1, 1(a) & 2 and further he has failed to prove that he is not a borrower/co-borrower. Further argued that to prove under section 139 of N.I.Act, there is a presumption that the cheque have been issued for discharge of legally enforceable debt/liability. In the present case, the accused has not disputed Ex.P.1 being his cheque drawn on his account. The said presumption is available to the complainant. It is further argued that the accused had failed to prove the very fact that the blank cheque was kept in his car and same was misused by the complainant in collusion with Girish. Moreover, under section 118 of N.I.Act, there is a presumption that the Negotiable Instruments is drawn on the date, for the amount and in favour of the person as shown in it. It is for the accused to 15 CC.NO.17857/2021 rebut the said presumption. But, in the case on hand no such evidence forthcoming. It was also argued by him that as per the defence by the accused that he had kept the blank cheque book in his car. As such, very defence of the accused is not believable. Upon careful perusal of the entire evidence of records both the oral as well as documentary evidence the complainant have proved their case. It was further argued that the accused seriously disputed that the complainant company collected the blank cheque from the Girish and misused same. However, the accused has miserable failed to prove the said fact. The learned counsel for the complainant has filed detail written arguments. In his written argument he has relied upon the citations reported in 1999 Cri.L.J 4608, (K.Bhaskaran V/s Sankaran Vaidhyan Balan and Another), 2010 AIR SCO 296 (Rangappa V/s Mohan), 2018 (8) SCC 469 (T.P.Murugan (Dead) Through legal Representatives V/s. Bojan) and Bir Singh V/s Mukesh Kumar. Hence, he prays to convict the accused.
22. The accused has argued that there was no legally enforceable debt/liability from the accused for which the cheque-Ex.P.1 was issued. Further argued that the accused has one Innova car bearing No.MH48F1588. One Mr.Girish has decided to buy the said Innova Car from the accused and amount was fixed at Rs.8,00,000/-. At that time Mr.Girish has given him the amount of Rs.5,97,000/- through online. Further argued that 16 CC.NO.17857/2021 Mr.Girish was promised to pay the remaining amount within 3-4 months. Further argued that in this way having faith on him the accused has gave his Innova car and original RC book. Thereafter, the accused demanded the amount from him. But he failed to pay the same. Further argued that the accused kept his blank bank cheque book in his Innova car, but which the accused didn't remember to take while giving the car to Girish. Thereafter Girish has took out his cheque book from car and gave the same to the complainant. In this regard the accused has lodge complaint against him as per Ex.D.1. Further argued that the accused has not executed agreement as per Ex.P.7 in favour of the complainant. Further the complainant company not transferred any amount to the account of the accused. But the complainant company misused the alleged cheque in collusion with Girish and filed a false complaint. Further argued that in order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of a legally enforceable debt/liability, for which the cheque came to be issued. It is further argued that the blank cheque was collected from the Girish, as was misused by the complainant. The complainant created all the documents and filed this false case against the accused. Further argued that when there is no due from the accused and he has not taken any loan from the complainant, then question of issuance of the cheque 17 CC.NO.17857/2021 does not arise at all. It is further argued that the complainant in order to prove their case not produced any documents before this court. Therefore, from the evidence placed on record, the very due amount of Rs.6,58,911/- from the accused is not clearly made out whereas the accused is succeeded in rebutting the presumption available under section 139 of N.I.Act, regarding existence of legally enforceable debt. Hence, he prays to dismiss the case and acquit the accused.
23. In the case on hand the complainant and the accused having some transaction has not been seriously disputed by the accused. Further the accused has not seriously disputed that the cheque is belongs to his account. It is not disputed that the complainant is a limited finance company and the accused is a borrower/Co- borrower and he had issued the cheque in favour of the complainant. Whereas, the accused has contended that he kept his bank cheque book in his innova car and the complainant have misused the same in collusion with one Girish. When he had kept the cheque in his car, which was blank. The accused has specifically denied having debt/liability had issued the cheque-Ex.P.1 on 17.12.2020 in favour of the complainant. He contends that the blank cheque kept by him in his car as was misused by the complainant in collusion with Girish and a false complaint was filed.
18 CC.NO.17857/202124. In order to attract the offence of the section 138 of N.I.Act, the main ingredients of the existence of the legally enforceable debt/liability, for which the cheque drawn on the account of the accused was given for discharge of the same, are to be proved. The complainant in order to prove its case, have examined its Assistant Manager as PW.1 and 10 documents were marked at Ex.P.1 to 10. In chief examination, P.W.1 has repeated the averments made by the complainant in the complaint. In the present case, the accused has not disputed Ex.P.1 being his cheque drawn on the account of the accused. The said presumption is available to the complainant.
25. As per the section 139 of N.I.Act, there is a presumption regarding the existence of legally enforceable debt/liability. Such presumption is a rebuttable presumption and it is opinion to the accused to raise defence discharging the existence of a legally enforceable debt/liability. In the case on hand also the accused has disputed the existence of legally enforceable debt/liability, for which cheque-Ex.P.1 was issued. In order to prove his defence, the accused has failed to produce any documentary evidence before this court except Ex.D.1, 1(a) and 2. PW.1 during his cross-examination has specifically denied the suggestions made to him that the blank cheque was misused by the complainant in collusion with Girish. Further he has denied the suggestions there is 19 CC.NO.17857/2021 no dues from the accused and the accused not availed any vehicle loan from the complainant.
26. Since, the presumption under section 139 of N.I.Act is a rebuttable presumption the accused is firstly required to produce some probable evidence to rebut the same. Though in the criminal cases, the standard of the proof required for the accused is not so strict as required for the complainant to prove the case. Further the accused has to produced some probable evidence, which creates doubt about the existence of legally enforceable debt/liability. In the present case, as per the defence taken by the accused is that he had kept the blank cheque in his car. Further he has not availed any loan from the complainant for purchase of aforesaid vehicle. Further the complainant have misused the alleged cheque in collusion with the Girish and he is not a borrower/Co-borrower. Except, the said defence, he has not produced any materials to prove such defence. If he had kept the blank cheque in his car, what prevented the accused to file the complaint immediately after the alleged illegal act made by the complainant. Further what prevented the accused to file the complaint against the complainant for misusing of the alleged cheque. On which date he came to knew about the alleged illegal act of the complainant, he did not whisper about on what date he came to know the alleged cheque illegally misused by the complainant in collusion with Girish. Admittedly the accused is having knowledge 20 CC.NO.17857/2021 of the financial transaction, why he has kept the blank cheque in his car without anticipating the consequence is not explained by him. So also, he has not stated anything as to what steps he took to receive back the blank cheque. Moreover, immediately after the alleged blank cheque misused by the complainant the accused has not lodge any complaint before concerned police station or any other court. No steps have been taken to receive back the blank cheque, after he came to know about the same. Further the accused has produced the complaint lodge against the Girish as per Ex.D.1 and 1(a). On perusal of the same it reveals that on 18.10.2024 the accused has lodge complaint against Girish. It shows that the accused to escape from his legal liability after lapse of four years he lodged a complaint against Girish. But the accused not filed any case against the complainant for misusing of the alleged cheque.
27. Once issuance of cheque and signature are admitted, the statutory presumptions would arise under sections 118 and 139 of the N.I.Act that the cheque was issued by the drawer for legally payable debt/liability and for valid consideration. The Hon'ble Supreme Court has held in the case of Rangappa V/s Mohan, reported in 2010 AIR SCW 296, the presumption that the cheque was drawn in discharge of legally recoverable debt is a presumption of law that ought to be raised in every case, though, it is a rebuttable presumption. Of course, the 21 CC.NO.17857/2021 presumption under section 139 and 118 of the N.I.Act are rebuttal presumption. Further it is also held that mere plausible explanation by the drawer is not sufficient and proof of that explanation is necessary. The principle of law laid down in the above decision is applicable to the facts of this case. In the instant case, since the complainant is in possession of the cheque-Ex.P.1 the court has to draw the initial presumption that he is the payee of that cheque. Once the initial burden is discharged by the complainant, the onus shifts on the accused to rebut the complainant's case.
28. In the case of K.S.Ranganatha V/s Vittal Shetty, reported in 2021 SCC Online SC 1191, the Hon'ble Supreme Court held that once the cheque is admitted to be that of the accused, the presumption envisaged in section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability. It is further held that the position of law makes it crystal clear that when a cheque is drawn out and is relied upon by drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount; such presumption of course, is rebuttable by proving to the contrary. The onus is on the accused to raise a 22 CC.NO.17857/2021 probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities.
29. In the case of M/s Kalemani Tex V/s P. Balansubramanian, reported in (2021) 5 SCC 283, the Hon'ble Apex Court has observed that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under section 139 of the Negotiable instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
30. Applying the above said principles to the present case and before considering the point whether the accused succeeded to rebut the presumptions and to establish his defence to the extent of probabilities, it is just and necessary to accumulate undisputed facts in this case.
31. It is not in dispute that bounced cheque belongs to the bank account of the accused. It is also not in dispute that signature appearing on the bounced cheque is the signature of the accused. It is also not in dispute that the cheque presented by the complainant came to be dishonored by the banker of the accused for the reason stated in the dishonor memo. To consider whether the accused succeeded to rebut the presumption and established the defence to the extent of probabilities, the 23 CC.NO.17857/2021 accused has not produced any documents in this regard. It was also contended by the accused that he had kept the blank cheque in his car. The said blank cheque was misused by the complainant in collusion with Girish. In this regard the accused has failed to produce any believable evidence before this court. Hence, the defence of the accused cannot be accepted that the blank cheque was misused by the complainant in collusion with Girish.
32. In the defence there is no ill-will between the complainant and the accused. Hence, question of misuse of the cheque and filing the false case is not possible. The accused admittedly having knowledge of business. It is implies, he is conversant with financial transaction. If the complainant misused the said cheque in collusion with Girish and had not returned the same, inspite of collecting cheque leaves from him, as a prudent man, the accused should have inquired with the complainant or Girish and demanded to return that cheque. No ordinary prudent man would keep quite in such circumstances, without taking any steps. The conduct of the accused is very unusual, because he did not take any legal action against the complainant, even after filing of the complaint based on Ex.P.1. Further he could have issued a notice to his banker to stop payment or legal notice to the complainant or he could have given complaint to the police station or court immediately. No such steps were taken by the accused. He simply makes a bald allegation of misuse of 24 CC.NO.17857/2021 blank cheque against the complainant. It appears, just to escape from his legal liability, he has taken such contentions without any valid basis.
33. Moreover, the complainant have got issued a legal notice to the accused through their counsel by registered post calling upon him to make repayment of the cheque amount to the complainant within 15 days from the date of service of the notice. Before a person is held to be guilty of an offence punishable under section 138 of N.I.Act, the complainant have to prove the compliance of the requirement under section 138 of N.I.Act. It is not in dispute that Ex.P.1 being his cheque drawn on account of the accused. In view of the above discussions, it is also held to be proved that it was drawn for discharge of legally enforceable debt/liability. From the evidence of P.W.1 and also cheque return memo-Ex.P.2 it is established that the cheque was dishonored as "Insufficient Funds''. A legal notice being issued as per Ex.P.3 within one month from the date of dishonor of the cheque is also not in dispute. In the case on hand the accused has not seriously disputed regarding notice send by the complainant on his address. But the accused has not given reply to the said notice. Thereby, he could have asserted his defence at an earliest available opportunity. In the case on hand the notice is sent to the accused at his address. When the accused has not seriously disputed the address, the notice sent to the correct address is sufficient compliance 25 CC.NO.17857/2021 under section 138 of N.I.Act. Therefore, there is sufficient proof of due service of the legal notice.
34. It is not the contention of the accused that thereafter he has repaid the cheque amount within stipulated time of 15 days on receiving the notice. Therefore, in the case on hand on perusal of the evidence placed on record, all the essential ingredients under section 138 N.I.Act, have been complied with. As the accused has not paid the cheque amount within stipulated period, as such the accused have committed an offence punishable under section 138 of Negotiable Instruments Act. The present complaint is filed before this court within one month after the accused failed to repay the cheque amount. Even the accused did not whisper anything about the defence while his plea was recorded under section 251 of Cr.P.C. In the judgment of the Hon'ble Supreme Court in the case of Indian Bank Association V/s Union of India and others, reported in 2010(5) SCC 590, it is clear that while recording the plea under section 251 of Cr.P.C., it becomes the duty of the accused to state whether he has any defence to make or he pleads guilty. Thus, unlike under section 240 of Cr.P.C., the accused has no option under section 251 of Cr.P.C., just to deny the allegations made against him. If he is not willing to plead guilty, he must explain what are the defences he wants to take. As such it has to be considered, whatever defence raised by 26 CC.NO.17857/2021 the accused during the trial are all after thought, just to get ride of statutory burden cast on him.
35. In addition to this in the case of T.P.Murugan (Dead) through legal representatives V/s Bojan, reported in 2018 (8) SCC 469, the Hon'ble Apex Court held that once the cheque has been signed and issued in favour of the holder of the cheque, there is statutory presumption that the cheque is issued in respect of legally enforceable debt/liability: rebuttal of such presumption must be by adducing credible evidence. Mere raising a doubt without cogent evidence with respect to the circumstances, presumption under section 139 of N.I.Act cannot be discharged. The principle of law laid down in the above decisions are applicable to the facts of this case. Except some bald contentions, the accused has not been able to make out a probable case on his behalf.
36. The Hon'ble Apex Court in K.Bhaskaran V/s Sankaran Vaidhyan Balan and another, reported in 1999 Cri.L.J page 4608, held that if the accused denies issuance of cheque although owned his signature therein, the presumption arises that the cheque was made or drawn for consideration on the date mentioned in cheque. The holder of cheque presumed to have received it for discharge of liability of the drawer.
37. As per the version of the accused he has nowhere denied transaction. The accused himself has 27 CC.NO.17857/2021 admitted that he is the holder of alleged cheque. It is sufficient hold that the accused had issued the cheque and even after he has not repaid the cheque amount the getting of receipt of notice. However, in any manner as the complainant have complied all the terms of ingredients of the provisions of section 138 of N.I.Act. The accused is liable for dishonor of cheque. In case of dishonor of the cheque, once the execution of the cheque is admitted by the accused, then it for him to first rebut presumption arising out of section 139 of N.I.Act. Accordingly, P.W.1 has established the case of the complainant that the accused had issued the cheque in question in order to repay the legally recoverable amount. Therefore, the accused has failed to probables the defence taken by him that Ex.P.1 was the blank cheque kept in his car and the complainant have misused the same in collusion with Girish. Therefore, the accused has failed to rebut the presumption under section 139 of N.I.Act. In the said circumstances, the complainant is not at all required to produce any material as to the financial transaction between the complainant and the accused, since the initial presumption is still available, when there is no rebuttal evidence.
38. PW.1 in his evidence has specifically deposed that the accused being a borrower/co-borrower had approached the complainant for financial assistance for purchase of commercial vehicle for Rs.6,58,911/- in 28 CC.NO.17857/2021 pursuant to the loan agreement entered between the complainant with the accused and thereafter the accused took delivery of the vehicle from the Force Motors Limited, agreeing to repay the said loan, as per the terms and conditions of the sanction advise of the bank. Further deposed that thereafter the accused being a constant defaulter had not paid the EMIs in time and as such the complainant's officers had visited the accused several times requesting the accused to make the payment and thereafter he he had issued the cheque in question in favour of the complainant for repayment of the loan. So also it is not in disputed that the complainant and the accused are known to each other, some point of period. When the cheque was presented to the bank same was returned for the reasons "funds insufficient", this is also not seriously disputed by the accused. The accused has failed to rebut the presumption under section 139 of N.I.Act, non furnishing of details of financial transaction no consequences to disbelieve the case of the complainant. The accused has failed to probables his defence. With these reasons, I answer point No.1 and 2 in the Affirmative.
39. POINT NO.3 AND 4: These two points are inter- related to each other and finding given on any one point will bearing on the another. Hence, in order to avoid repetition of facts, I have taken these two points together for common discussion. Before a person is held to have 29 CC.NO.17857/2021 committed an offence punishable under section 138 of N.I.Act, the complainant have to prove all the requirements of section 138 of N.I.Act. Ex.P.1 being his cheque drawn on the account of the accused is not in dispute. The said cheque having been dishonored, when it was presented by the complainant before the bank for encashment is also not seriously disputed by the accused. The accused has not taken up any contention that thereafter he had paid the cheque amount within stipulated time of 15 days, after service of the notice. As such, in the present case from perusal of documents, the essential requirements of section 138 of N.I.Act, have been complied with. In this case, if the accused had kept the blank cheque in his car why he has not produced any documents. After service of notice he neither reply to the notice nor paid the cheque amount. Hence, the present complaint came to be filed before this court on 26.03.2021 within the period of one month from the date of cause of action. While discussing the point No.1 and 2, this court has already observed that the complainant have proved that the cheque was issued for discharge of legally enforceable liability/debt and in view of the mandatory requirements under section 138 of N.I.Act, being complied with. The accused is found to have committed an offence punishable under section 138 of N.I.Act. With these reasons, I answer point No.3 and 4 in the Affirmative.
30 CC.NO.17857/202140.POINT NO.5: The accused is held to have committed an offence punishable under section 138 of N.I.Act. The complainant have proved its case. The accused has failed to prove his rebuttal for the reasons mentioned above and in view of the mandatory requirements of section 138 of N.I.Act, being complied with. The accused is found to have committed an offence punishable under section 138 of N.I.Act. Since, the said offence is an economic crime, the accused is not entitled for the beneficial provisions of probation of offenders Act. In view of the above discussions and the findings on point No.1 to 4, I proceed to pass the following:
:ORDER:
Acting under section 255(2) of Cr.P.C., the accused is convicted for an offence punishable under section 138 of N.I.Act.
The bail bond executed by the accused is hereby stands canceled.
The accused is sentence to pay fine of Rs.6,60,000/- (Rupees six lakhs sixty thousand only) to the complainant.
It is further ordered that out of the said fine amount an amount of Rs.6,50,000/- (Rupees six lakhs fifty thousand only) shall be paid to the complainant as compensation as per Section 357(1)(b) of Cr.P.C., and remaining amount of Rs.10,000/- (Rupees ten thousand only) shall be remitted to the State.
31 CC.NO.17857/2021In default of the payment of fine amount, the accused shall undergo simple imprisonment of six months.
(Dictated to the stenographer directly on computer typed by her, corrected by me and then judgment pronounced in the open court on 20 th day of February 2025) (Soubhagya.B.Bhusher) XXVIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 : Mr.Harisha.S. List of documents marked on behalf of Complainant:
Ex.P.1 : Cheque. Ex.P.1(a) : Signature of the accused. Ex.P.2 : Bank endorsement. Ex.P.3 : Office copy of the legal notice. Ex.P.4 : Postal receipts. Ex.P.5 : Postal acknowledgment. Ex.P.6 : Complaint. Ex.P.7 : C.C copy of Loan cum Hypothication agreement. Ex.P.8 : C.C copy of Loan application. Ex.P.9 : Loan account statement. Ex.P.10 : Certified copy of Minutes of Extract.
List of witnesses examined on behalf of accused:
DW.1 : Sri.Jagan Naryan Choudry.
List of documents marked on behalf of accused:
Ex.D.1 : Complaint in Marathi Language. Ex.D.1(a) : Translated copy of Ex.D.1.
Ex.D.2 : Bank statement.
(Soubhagya.B.Bhusher) XXVIII Addl. Chief Judicial Magistrate, Bengaluru City.32 CC.NO.17857/2021
20.02.2025 (Judgment pronounced in the open court vide separate order sheet) ORDER Acting under section 255(2) of Cr.P.C., the accused is convicted for an offence punishable under section 138 of N.I.Act.
The bail bond executed by the accused is hereby stands canceled.
The accused is sentence to pay fine of Rs.6,60,000/- (Rupees six lakhs sixty thousand only) to the complainant.
It is further ordered that out of the
said fine amount an amount of
Rs.6,50,000/- (Rupees six lakhs fifty
thousand only) shall be paid to the
complainant as compensation as per
Section 357(1)(b) of Cr.P.C., and remaining amount of Rs.10,000/- (Rupees ten thousand only) shall be remitted to the State.
In default of the payment of fine amount, the accused shall undergo simple imprisonment of six months.
XXVIII A.C.J.M, Bengaluru City.