Bangalore District Court
Sandeep Kumar K vs Shashi Kumar M on 10 December, 2024
KABC0C0187912021
IN THE COURT OF XXXIV ADDL. CHIEF JUDICIAL MAGISTRATE,
MAYO HALL UNIT, BENGALURU (ACJM-34)
PRESENT: Smt. PARVEEN A BANKAPUR, B.Com.LLB.
XXXIV ADDL. CHIEF JUDICIAL MAGISTRATE,
Dated : This the 10th day of December, 2024
C.C.No.55834/2021
COMPLAINANT : Mr. Sandeep Kumar K.
Aged About 30 Years,
S/o. Kodandan A.
R/at No.17, C No. 4th Street,
Shivaji Road, Shivaji Nagar,
Bengaluru - 560 051.
(By Mr. Hanumantharaju C -
Advocates)
V/s
ACCUSED : Mr. Shashi Kumar M
C/o. M/s. Doorlines,
No. 115, Chik Bazar Road,
Shivaji Nagar,
Bengaluru -560 051.
(By Ms. R. Thean Moli - Advocate)
1 Date of Commencement 22.03.2021
of offence
2 Date of report of offence 08.10.2021
3 Presence of accused
3a. Before the Court 24.03.2022
3b. Released on bail 24.03.2022
4 Name of the Complainant Mr.Sandeep Kumar K.
5 Date of recording of 08.10.2021
evidence
6 Date of closure of evidence 04.07.2024
7 Offences alleged U/s 138 of the Negotiable
Instruments Act.
8 Opinion of Judge Accused is found guilty.
2 C.C.No.55834/2021
JUDGEMENT
The Private Complaint filed by the Complainant under Section 200 of Cr.P.C against the accused alleging that the Accused committed the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as follows:
The complainant submits that, he, Accused and Mr. Ravikumar G., Mrs. Mahalakshmi M. and Sandeep Kumar K. are known to each other for several years and are common friends and by quoting urgent financial requirements, the Accused had sought handloan of Rs.15 lakhs from him and Mr. Ravikumar G., Mrs. Mahalakshmi M. and Sandeep Kumar K. during April 2019 and May 2019 by assuring them that the Accused will repay the same within few months and the Complainant along with Mr. Ravikumar G., Mrs. Mahalakshmi M. and Sandeep Kumar K, together arranged and given an amount of Rs.15 lakhs by believing assurance of Accused during May 2019. The Complainant paid Rs.4 lakhs to the Accused.
It is further submitted by the Complainant that when he demanded the Accused for repayment of the said loan amount, 3 C.C.No.55834/2021 the Accused issued a Cheque on 22.3.2021 with an assurance the same would be honoured on its presentation for encashment.
It is further submitted by the Complainant that as per the instructions and assurance of the Accused, he presented the cheque through his banker i.e., HDFC Bank Ltd., for encashment, however the cheque was dishonoured with an endorsement as "funds insufficient". Thereafter, the Complainant got issued a legal notice by RPAD on 17.4.2021, calling upon the accused to pay the cheque amount and the same was duly served on the Accused on 4.5.2021. Despite receipt of legal notice, the Accused has neither paid the cheque amount nor replied the notice. Accordingly, the Complainant has filed present complaint against the Accused for the offence punishable u/Sec.138 of N.I. Act.
3. Based on the complaint, the sworn statement affidavit, and documents etc., took cognizance of an offence punishable Under Section 138 of N.I. Act by following the guidelines of Apex Court issued in Indian Bank Association case and ordered to be registered a criminal case against the accused for the offence punishable Under Section 138 of N.I. Act. 4 C.C.No.55834/2021
4. After issuance of summons, accused appeared before the court and enlarged himself on bail. Plea was recorded, read over and explained to the accused, who pleads not guilty and claims to be tried. Hence, the case is posted for complainant's evidence.
5. The Complainant got examined himself as PW-1 and got marked documents Ex.P.1 to Ex.P.5.
6. Accused was examined U/S 313 of Cr.P.C.
Incriminating evidence appearing in the complainant's evidence was read over and explained to the accused who denies the same. The Accused got examined himself as DW1 and got marked documents Ex.D.1 to Ex.D.14 and closed his side.
7. Heard defence arguments. After taking sufficient time and opportunity, the learned counsel for Complainant has failed to argue the matter. Hence, the arguments of Complainant taken as nil.
8. Upon hearing the arguments and on perusal of the materials placed on record, the following points arise for my consideration.
5 C.C.No.55834/2021
1) Whether complainant proves beyond all reasonable doubts that accused in discharge of legally recoverable debt has issued a Cheque bearing No.912016 dtd.22.3.2021 for Rs.4,00,000/- drawn on Oriental Bank of Commerce, Mosque Road, Frazer Town branch, Bengaluru in favour of the complainant which came to be dishonoured with an endorsement "funds insufficient" on 18.2.2022 and in spite of receipt of notice accused has not paid the Cheque amount and thereby committed an offence under Section 138 of N.I.Act?
2) What Order?
9. My findings on the above points is:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS
10. Point No.1:- Existence of legally recoverable debt is a sine qua non for prosecuting the case under Section 138 of Negotiable Instruments Act. For convenient purpose the essential ingredients to constitute offence under section 138 of N.I.Act is summarized as below:
(i) That there must be a legally enforceable debt.
(ii) That the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes the legally enforceable debt.
(iii) That the cheque so issued had been returned due to "insufficient funds".6 C.C.No.55834/2021
11. It is the core contention of the complainant that, he, Accused and Mr. Ravikumar G., Mrs. Mahalakshmi M. and Sandeep Kumar K. are known to each other for several years and are common friends and by quoting urgent financial requirements, the Accused had sought handloan of Rs.15 lakhs from him and Mr. Ravikumar G., Mrs. Mahalakshmi M. and Sandeep Kumar K. during April 2019 and May 2019 by assuring them that the Accused will repay the same within few months and the Complainant along with Mr. Ravikumar G., Mrs. Mahalakshmi M. and Sandeep Kumar K, together arranged and given an amount of Rs.15 lakhs by believing assurance of Accused during May 2019. The Complainant paid Rs.4 lakhs to the Accused. When the Complainant demanded the Accused for repayment of the said loan amount, the Accused issued a Cheque on 22.3.2021 with an assurance the same would be honoured on its presentation for encashment., which was dishonoured with an endorsement as "funds insufficient" on its presentation. Thereafter, the Complainant got issued a legal notice by RPAD on 17.4.2021, calling upon the accused to pay the cheque amount and the same was duly served on the Accused on 4.5.2021. Despite receipt of legal 7 C.C.No.55834/2021 notice, the Accused has neither paid the cheque amount nor replied the notice. Accordingly, the Complainant has filed present complaint against the Accused for the offence punishable u/Sec.138 of N.I. Act.
12. In order to bring home the guilt of the accused, Complainant got examined himself as PW1 and reiterated the contents of complaint in his examination-in-chief. He has also placed the original No.912016 dtd.22.3.2021 at Ex.P1, Ex.P2 is bank endorsement, Ex.P3 is office copy of legal notice issued by the Complainant to the Accused on 17.4.2021, Ex.P4 is postal receipt and Ex.P5 is postal acknowledgment.
13. The documents produced by the complainant of course established that complainant meets out the procedural requirements of Section 138 of Negotiable Instrument Act, but it is to be considered whether all these documents establish the offence committed by the accused.
14. The Negotiable Instruments Act raises two presumptions. One contained in Section 118 and the other in Sec. 139 thereof. For the sake of convenience Sec 118(1) of the N.I. Act is extracted here below:
8 C.C.No.55834/2021
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, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
1. To (g) . . . . . . . . . . . .
Provided that where the instrument has been obtained from its lawful owner, or from an person in lawful custody thereof, by means of an offence of fraud, or has been obtained from the maker or accepter thereof by means of an offence of fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him".
15. Further Section 139 of the Negotiable Instruments Act reads as under:
"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."
Scope and ambit and function of the presumption U/s 118(a) and Sec 139 of NI Act came to be considered by the Hon'ble Apex Court of Indian in Krishna 9 C.C.No.55834/2021 Janardhan Bhat Vs Dattatraya G.Hegde (2008 AIAR (Criminal 151) The Supreme Court has laid down the law in the following phraseology.
" D Negotiable Instruments Act 1881, Secs 139, 138--Presumption under-same arises in regard to second aspect of the matter provided under Sec 138-- Existence of legally enforceable debt is not a matter of presumption under Sec 139- It merely raises presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability - Merely an application of presumption contemplated under Section 139 of N.I.Act should not lead to injustice or mistaken conviction."
16. Further, said decision was followed by Hon'ble High Court of Karnataka in Kempanarasimhaiah Vs P.Rangaraju & Others (2008 (5) KCCR 3371). Relevant paragraph of the said judgment reads as under: -
"12. As to the provisions of Sections 138 of N.I.Act, the following principles emerge from the above observations of Hon'ble Supreme Court at para Nos 21, 23, 25, 26 and 34 of its Judgment in the above said case of Krishna Janardhan Bhat Vs Dattatraya G.Hegde, AIR 2008 SC 1325.
(i) Section 139 of the Act merely raises a presumption that the cheque was issued towards discharge in whole 10 C.C.No.55834/2021 or in part in any debt or other liability, which presupposed legally enforceable debt. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability." ( para 21)
(ii) The question as to whether the presumption stood rebutted or not, must be determined keeping in view the other evidences on record. Where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. (para 26)
(iii) 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 records (para 23)
(iv) Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Further more where as prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities'" ( para 23 & 25)
(v) Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies ( para 25)
(vi) Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be deliberately balanced (para 34) 11 C.C.No.55834/2021
17. Thus from the observations extracted above, it is clear that presumption Under Section 139 of the N.I. Act is only to the extent that the cheque was drawn for discharge in full or in part of any debt or other liability and the said presumption do not relate to the existence of legally enforceable debt or liability. Therefore, before drawing the presumption under Section 139 of the N.I.Act, it is the duty of the Court to see whether or not the complainant has discharged his initial burden as to existence of legally enforceable debt. No doubt, as per Section 118(a) of the Act, there is a rebuttable presumption that every negotiable instrument, is accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration."
18. Factual matrix of the case is required to be tested on the anvil of principles emerging from the above-referred decisions.
19. The defence taken by the accused is that he has not borrowed any amount from the Complainant. It is specific defence of the Accused is that, he and his parents were on lease of 2nd floor and 4th floor with uncle of Complainant by name Mr. Sridhar. It is further submitted that, Accused was borrowed 12 C.C.No.55834/2021 money from Mr. Sridhar during he period 2016 to 2018 @ interest 3% per month and all the loan amount were returned periodically and loan was closed in the year 2018 and after clearing the loan amount, Mr. Sridhar started demanding exorbitant interest for the cleared loan and with held certain security cheques issue by the Accused and did not return the cheques which were in the custody of Mr. Sridhar and refused to return and during the month of February 2020 he waived off security deposit of Rs.12 lakhs for settlement of interest and vacated the 2nd floor and had locked the 4th floor and agreed to vacate the same after settlement of security deposit and later Mr. Sridhar has illegally taken possession of all belongings to the Accused including documents and cheques and Accused has filed police complaint against Mr. Sridhar and after merging of bank he obtained new cheque book and after noticing that, loss of cheque and also had came to knowledge of the Accused, Mr.Sridhar was misusing the cheques in his custody by parting the cheques to some third party and Accused has issued legal notice to Mr. Sridhar and warned against misuse of cheques and Complainant on conspiracy presented the present subject matter of the cheque which one lost cheque by him. 13 C.C.No.55834/2021
20. In order to substantiate his claim, the Complainant himself examined as PW1 and deposed that he, Accused, Mr.Ravi Kumar, Mrs. Mahalakshmi and Sandeep Kumar are known to each other and they are common friends. It is further deposed that, Accused is in need of urgent financial requirements and sought Rs.15 lakhs loan from them during April 2019 to May 2019 and Accused assured that he will repay the same within few months. Thereafter, all the common friends of the Accused arranging the amount and Complainant arranged Rs.4 lakhs and paid to the Accused during the May 2019. It is further deposed that, when Complainant demanded repayment of said loan amount, the Accused assured he will repay shortly and dragging the matter for repayment of loan amount. It is further deposed that, the Accused has been neglecting in respect of return of handloan and Complainant have been repeatedly demanding for repayment of loan amount and finally, Accused has issued Ex.P1 cheque in favour of Complainant, which was dishonoured with reason "funds insufficient" as per Ex.P2. It is further deposed that, thereafter, the Complainant issued legal notice to the Accused 14 C.C.No.55834/2021 as per Ex.P3 which was duly served upon the Accused as per Ex.P5.
21. Considering the oral and documentary evidence placed by the Complainant, prima facie presumed that, Ex.P1 Cheque was issued by the Accused towards discharge of legally enforceable debt. To rebut the presumption, the learned Counsel for accused cross-examined the PW1 in full length. In the cross-examination PW1 stated that he is Financial Manager and he holding B.Com and CA Degree. In the cross-examination he stated that the Accused is his family friend and Mr. Sridhar is his uncle. He further stated that, Accused is a tenant of Mr. Sridhar. He further stated that during he 2019-20 he was financial transaction with the Accused Further he stated that, after 2017 -18 he not having any transaction with the Accused He further stated that, he was paid Rs.4 lakhs to the Accused and int the year 2021 Accused issued cheque for repayment of loan amount. He admits that, the dispute arises between his uncle and Accused, but unable to say that what is the reason for the dispute. He further denied that, on the suggestion of the Complainant, his uncle was insisted to vacate the Accused. In the cross-examination he stated that Ex.P1 cheque was issued 15 C.C.No.55834/2021 by the Accused to him. He further stated that, Ex.P1 cheque number was mentioned in the notice issued by his uncle to the Accused and also he stated that, in the confrontation document i.e., dtd.30.1.2021 Accused intimated to the bank for lost of cheque and also admits that, in the said letter Ex.P1 cheque was mentioned. He denied that, there is no any financial transaction between himself and Accused. He further denied that, the lost cheque was misused by the Complainant. He denied that, on the instigation of his uncle, the present complaint was filed against the Accused. In the cross- examination he admit the suggestion made by the learned counsel for Accused that, he was paid Rs.4 lakhs through 3 cheques during the year 2018 to the Accused. The said suggestion is as under;
"ರೂ. 4 ಲಕ್ಷ ಹಣವನ್ನು ನಾನು 3 ಚೆಕ್ಕುಗಳ ಮೂಲಕ 2018 ರಲ್ಲಿ ಆರೋಪಿಗೆ ಕೊಟ್ಟಿರುತ್ತೇನೆಂದರೆ ಸರಿ."
22. To rebut the presumption, the Accused himself examined as DW1. In the examination in chief he deposed that the Complainant is nephew of Mr.Sridhar, Mr.Sridhar was owner of house khatha No.17/18, 2 nd Cross, N.K. Palya, Shivajinagar, Bengaluru, on 2nd Floor for Rs.12 lakhs and his 16 C.C.No.55834/2021 parents were on lease on 4th floor for Rs.10 lakhs on execution of two lease agreements dtd.27.2.2015 and 21.9.2015. It is further deposed that, the Accused had borrowed amount from Mr.Sridhar during 2016 - 2018 at 3% interest per month and all the loan amount was paid by him and loan was closed in 2018 and after clearing all the loans, Mr.Sridhar started demanding exorbitant interest for the cleared loan and with held certain security cheques issued to him and he refused to return the cheque and the same were in the custody of Mr. Sridhar. It is further deposed that, there was a dispute between Mr. Sridhar and Accused and there were police complaints and counter complaints against each other in the police station. It is further deposed that, in February 2020 Accused waived off security deposit of Rs.12 lakhs for settlement of interest and vacated the 2 nd floor and also locked the 4th floor premises and agreed to vacate the same after settlement of security deposit amount and later Mr.Sridhar has illegally taken possession of all belongings to the Accused along with documents and cheques in the 4th floor by break open the lock, which came to know later by the Accused and Accused filed police complaint against Mr. Sridhar. It is further deposed 17 C.C.No.55834/2021 that, in the year 2021 Bank of Commerce was merged to Punjab National Bank and after vacating the 2 nd floor, he found that certain cheques and documents were missing and after Covid Accused approached Punjab National Bank and given complaint for loss of cheque on 30.1.2021, specifying the cheque numbers and Punjab National Bank has issued new cheque book on 30.1.2021 and same is reflected in the bank statement. It is further deposed that, after noticing loss of cheques, Accused came to know that, Mr.Sridhar was misusing the cheques in his custody by parting the cheques to some third party and Accused had issued legal notice on 22.3.2021 to Mr.Sridhar and warned against misuse of any cheque listed in the notice. It is further deposed that, inspite of issuance of legal notice and complaint against Mr. Sridhar he hatched a conspiracy with the Complainant and with his other relative and several others has presented the lost cheque which are in his custody presented and filed false complaints against him. It is further deposed that, there was no financial transaction s between Complainant and him, the Complainant collusive with Mr.Sridhar, Mr.Ravikumar, Mrs.Mahalakshmi, Mr. Satish Chand and other some unknown 18 C.C.No.55834/2021 persons have presented the cheque and filed false complaint against him. It is further deposed that, he has not received any legal notice from the Complainant and address mentioned in the legal notice is not his address. It is further deposed that, at the time of clearing the loan to Mr.Sridhar in 2018, Mr.Sridhar has encashed 3 cheques in the name of Complainant total amounting to Rs.4 lakhs. It is further deposed that, he has not borrowed any amount from the Complainant at any point of time and he never issued any cheque to the Complainant.
23. During the course of examination Accused has produced bank statements, and copies of complaints before the various police stations. In the cross-examination he stated that, during the period 2003 to 2020 he residing No.17 and 18, 2nd Floor, 2nd Cross, N.K. Palya, Shivajinagar, Bengaluru. The same house is belongs to Mr. Sridhar. In he cross-examination he stated that he having Rs.20 lakhs financial transaction with Mr.Sridhar. He denied that he not having any financial transaction with Mr. Sridhar He further stated that at the time of vacating the house in the year 2020 he settled all amount to Mr. Sridhar. It is pertaining to note that, during the course of 19 C.C.No.55834/2021 cross-examination the Accused arguing with the learned counsel for Complainant and not ready to heading the warning of the court. In further cross-examination he admits that after vacating the house of Mr. Sridhar, there is no any financial and business transaction with Mr. Sridhar. He further stated that after availing Rs.20 lakhs from Mr. Sridhar, the Accused issued 14 cheques to Mr.Sridhar, which belongs to Corporation Bank, HDFC Bank and Oriental Bank, but he unable to say the cheque numbers. Further he stated that after settling the amount in the year 2020 Mr. Sridhar not returned 14 cheques, therefore, he lodged the complaint against Mr. Sridhar before Shivajinagar police station as per Ex.D6. In the cross- examination he stated that, he issued notice to Mr. Sridhar as per Ex.D5, but he unable to produce postal receipt and acknowledgement with respect of Ex.D5. He denied that he was not sent Ex.D5 to Mr.Sridhar. In the cross-examination he admits that, Ex.D1 letter was given by him to the bank for destroy of cheque number No.912014 to 912020. Further he stated that the bankers were not destroyed the cheques in his presence. He further stated that he only given a letter to the bank. He further he stated that destroy means lost. In the 20 C.C.No.55834/2021 cross-examination he further stated that if the banker were destroyed the cheque as per the letter Ex.D1, Ex.P1 cheque was not before the court through the Complainant. During the course of cross-examination when the learned counsel for Complainant asked to the Accused what happen with the complaint filed by him before Shivajinagar police then the witness answered that, police have not taken any action on his complaint. Further, when the learned counsel for Complainant asked for what action taken by him for not taking action by the police, then witness answered that, therefore, he came to the court. Further the learned counsel for Complainant asked to the Accused for private complaint before the court, then the Accused answered that, all are colluding with the police. The said cross-examination portion is as under;
"ಪೊಲೀಸರಿಗೆ ಕೊಟ್ಟ ದೂರುಗಳ ಮೇಲೆ ನಾನು ನ್ಯಾಯಾಲಯದಲ್ಲಿ ಪೊಲೀಸರಿಗೆ ತನಿಖೆಗೆ ಆದೇಶಿಸಲು ನ್ಯಾಯಾಲಯದಲ್ಲಿ ಅರ್ಜಿ ಸಲ್ಲಿಸಿಲ್ಲ. ಸಾಕ್ಷಿದಾರರಿಗೆ ನ್ಯಾಯಾಲಯದಲ್ಲಿಅರ್ಜಿ ಸಲ್ಲಿಸಲು ತೊಂದರೆ ಇತ್ತಾ ಎಂದು ಕೇಳಿದ್ದಕ್ಕೆ, ಸಾಕ್ಷಿದಾರರು ಎಲ್ಲರೂ ಪೊಲೀಸ್ ಕಡೆ ಇರುತ್ತಾರೆ ಎಂದು ಉತ್ತರಿಸುತ್ತಾರೆ."
24. During the course of cross-examination of Accused, this court has observed that the Accused answering the questions and also in adamant nature and also behaving with 21 C.C.No.55834/2021 court also adamant nature. After taking sufficient time and opportunity the Complainant not completed the cross- examination of DW1.
25. Considering the oral and documentary evidence, the cheque belongs to Accused is not disputed and also signature on the cheque is also not disputed. The only contention of the Accused is that, he was issued Ex.P1 cheque along with other cheques to one Mr.Sridhar and Mr.Sridhar colluding with Complainant and other persons, have misusing the cheques and filed false complaints against him. On the other hand, the contention of the Complainant is that, except Mr.Sridhar, all are common friends and for the urgent financial needs, the Accused borrowed loan from them and for return of the said loan, he issued disputed cheques. Ex.D5 produced by the Accused which is the copy of notice issued by the Accused to Mr.Sridhar all the cheques numbers and bank names are mentioned. Ex.P1 cheque also one of the number mentioned in Ex.D5. As per Ex.D5 it was issued on 22.3.2021. Ex.P1 cheque date is 22.3.2021. May be before presentation of cheque date the Accused has issued the Ex.P1 either to Mr.Sridhar or the Complainant. As per Accused defence, he was vacated the 22 C.C.No.55834/2021 premises in the year 2020 and he issued 14 cheques prior to vacate the premises. The allegations of the Accused in his defence evidence that, after vacating and locking the 4 th floor, Mr.Sridhar break open the lock of the 4 th Floor and taken possession belongs to him belongs along with documents and cheques. Further, he lodged complaint against Mr.Sridhar for break open the 4th floor house and taken possession belongings to him. As per Ex.D6 copy of complaint against Mr.Sridhar lodged on 9.3.2022. Therefore the allegations and documents are not corroborate each other. Further, Ex.D1 is letter to Punjab National Bank submitted on 30.1.2021 for destroying the remaining cheque No.912014 to 912020 which received by the banker on the same day, but he has not produced any action on Ex.D1 by the bank. The said letter was prior before presentation of Ex.P1 cheque. If the cheque was destroyed by the banker as per Ex.D1 the endorsement of the bank is "funds insufficient". If, Ex.P1 cheque was destroyed by the bank, the bank may issued endorsement that, the Ex.P1 cheque was destroyed. Therefore, it appears that, Accused intentionally created the documents to cheat the Complainant and others. 23 C.C.No.55834/2021
26. Further, it is contention of the Accused is that, he has not received notice from the Complainant and address mentioned in the complaint was not belongs to him and he never resided on that address. It is pertaining to note that Ex.D8 is the photograph where the same address was mentioned and also as per the evidence and statement of the Accused is that, he lodged complaint before Shivajinagar Police station, therefore, at the time of issuance of notice, he was residing in Shivajinagar on the said address. Therefore, the contention taken by the Accused is not sustainable. With respect of bank statement produced by the Accused which Transaction between Mr. Sridhar and Accused, which are not concerned to this case. Therefore, Ex.P1 cheque was issued by the Accused towards discharge of legally enforceable debt in favour of Complainant.
27. As discussed above, it has to be presumed that the cheque in question was issued by the accused to discharge the legally recoverable debt or liability. The accused can place rebuttal evidence so as to show that the cheque was not issued for consideration. As appreciated supra, accused has failed to put acceptable and satisfactory evidence to probabilise the 24 C.C.No.55834/2021 defence. Therefore, there is no question of saying that the cheque was not issued for liability.
28. The accused himself admits that he has issued question cheque and he admits his signature also. Therefore, complainant has discharged his initial onus laid on him. When he has discharged his initial onus, it raises presumption U/s 118(a) and 139 of Negotiable Instruments Act. Accused has failed to rebut the presumption either in cross-examining PW-1 or in his evidence.
29. So, far as sentence and compensation is concern, an offence punishable under Section 138 of N.I. Act, is a civil wrong and compensatory in nature, punitive is secondary, considering, the above settled principle of law with facts and circumstances of the case, which clearly reveals that, the Accused has due amount of Rs.4,00,000/- to the Complainant and towards repayment of said due amount, the cheque in question was issued by the accused to the complainant. Therefore, considering the nature of transaction, duration of pendency, litigation expenses, I am opinion that, if sentence of fine of Rs.4,72,000/- (Rupees Four Lakhs and Seventy-two 25 C.C.No.55834/2021 Thousand only) is imposed that would meet the ends of justice, accordingly, the accused is hereby sentenced to pay a fine of Rs.4,72,000/- (Rupees Four Lakhs and Seventy-two Thousand only), out of that, the complainant is entitled for sum of Rs.4,67,000/- (Rupees Four Lakhs and Sixty-seven Thousand only) as a compensation as per Sec.357(1) of Cr.P.C., remaining amount of Rs.5,000/-, is to be appropriated to the State, in case of default the accused shall undergo simple imprisonment for a period of 3 months. Accordingly, the Point No.1 is answered in Affirmative.
30. POINT No.2 : In view of discussion held in Point No.1, I proceed to pass the following :
ORDER Acting U/S 255(2) of Cr.P.C., the accused is convicted for the offence punishable Under Section 138 of Negotiable Instrument Act.
Accused is sentenced to pay fine of Rs.4,72,000/- (Rupees Four Lakhs and Seventy-
two Thousand only) in default Accused shall undergo simple imprisonment for 3 months. Further, it is made clear that out of fine amount, Rs.4,67,000/- (Rupees Four Lakhs and Sixty- 26 C.C.No.55834/2021 seven Thousand only) is to be paid to the complainant as compensation and Rs.5,000/- is ordered to be remitted to the State.
Bail bond stands canceled.
Supply the free copy of this judgment to the Accused forthwith.
(Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in the open court on this 10th December, 2024) PARVEEN A Digitally signed by PARVEEN A BANKAPUR BANKAPUR +0530 Date: 2024.12.13 10:41:36 (PARVEEN A BANKAPUR) XXXIV ACJM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mr. Sandeep Kumar K.
2. Documents marked on behalf of complainant:
Ex.P.1 Original Cheque Ex.P.2 Bank endorsement Ex.P.3 Office copy of legal notice Ex.P.4 Postal receipt Ex.P.5 Postal acknowledgement
3. Witnesses examined on behalf of Accused:
D.W.1 Mr. Shashi Kumar M.
4. Documents marked on behalf of Accused:
Ex.D.1 & 2 Certified copies of application given to the bank Ex.D.3 Certified copy of Cheque statement issued by bank Ex.D.4 Certified copy of bank statement to the bank Ex.D.5 Copy of notice Ex.D.6 Copy of complaint lodged before Shivajinagar police station Ex.D.7 Copy of complaint lodged before Police Commissioner Ex.D.8 Photograph of office Ex.D.9 Cash bill of Photograph Ex.D.10 CD Ex.D11 GST Registration Certificate of wife of the 27 C.C.No.55834/2021 Accused Ex.D12 Certificate u/Sec.65 (B) of Indian Evidence Act Ex.D13 Bank statement Ex.D14 Certificate u/Sec.65 (B) of Indian Evidence Act Digitally signed by PARVEEN A PARVEEN A BANKAPUR BANKAPUR Date: 2024.12.13 10:41:30 +0530 (PARVEEN A BANKAPUR) XXXIV ACJM, BENGALURU.