Bangalore District Court
The Accused Finally Agreed To Pay Some ... vs Correcting The Reason As 'Funds ... on 27 February, 2023
1 C.C.No.29834/2021
KABC030790872021
Presented on : 29-10-2021
Registered on : 29-10-2021
Decided on : 27-02-2023
Duration : 1 years, 3 months, 29 days
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 27th day of February 2023
Present: Lokesh Dhanapal Havale, B.A.LL.B
XV Addl.C.M.M., Bengaluru.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case C.C.No.29834/2021
2.Name of the Complainant: Sri. S. Ramesh,
S/o Suryaarayana
Aged about 30 years,
R/at No.11, 2nd Main, 2nd Cross,
Near Anjaneya Temple,
Monorayanapalya,
Bangalore- 560 032.
3.Name of the accused: Sri. Vishwanath
R/at No.1, 1st Floor,
"Sakula Nilaya",
1st cross, Bayanna Layout,
Opposite to Akshaya Residency
Apartment,
Near Guru Narayana School,
Shivashankara Block,
Hebbal, Bengaluru- 560 024.
2 C.C.No.29834/2021
4.The offence complained of : U/s.138 of Negotiable Instruments
Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(1) Cr.P.C., accused
is Convicted
7.Date of final Order 27th day of February 2023
* * *
This complaint is filed U/Sec.200 of Cr.P.C. against the
accused for the offence punishable U/Sec.138 of the Negotiable
Instruments Act, 1881.
2. The facts of the complaint in brief are as under:
The complainant and his brother are running Saloon in the
name and the style of "S.P.N Men's Saloon" at No.60,
Ashwathkattee, Hebbal, Bengaluru- 560 024. The accused is being
Government Employee working in Forest Department and he is
permanent customer to complainant saloon and visiting frequently
to saloon from past 3 years as such the accused is well known to
the complainant. He had approached the complainant for financial
assistance in the month of December 2020 for hand loan of
Rs.1,50,000/-. The complainant paid Rs.1,50,000/- on 31.12.2020
by way of cash, wherein the accused has assured that he will
repay the said amount within 4 months. After lapse of 4 months
the complainant approached the accused for repayment of the said
3 C.C.No.29834/2021
loan amount and upon several demands and requests made by the
complainant, the accused finally agreed to pay some nominal
interest of Rs.9,000/- accordingly issued 2 cheques bearing
Nos.248681 dated 19.04.2021 for an amount of Rs.56,000/- and
another cheque bearing No.248682 for an amount of Rs.1,03,000/-
both cheques drawn on Karnataka Bank, Shrirampuram branch,
Bengaluru towards the discharge of hand loan. On presentation of
cheques for encashment through his banker Karnataka Bank, R.T
Nagar branch, Bengaluru, they were returned dishonored with an
endorsement "Funds Insufficient" vide endorsement dated
16.07.2021. He issued legal notice dated 09.08.2021 to the accused
calling upon him to repay the amount of cheques. The notice sent
through RPAD was served on him on 10.08.2021. Thereafter as the
reason for the dishonour of the cheque is only mentioned as
'Funds Insufficient' inadvertently in the notice dated 09.08.2021
and the corrigendum to the notice is sent through RPAD to the
accused correcting the reason as 'Funds Insufficient' and 'Drawers
signature differs' on 20.09.2021 and it was served on the accused
on 24.09.2021. The accused failed to repay the amount within 15
days from the said date and thereby committed an offence
punishable U/s.138 of the N.I.Act.
3. After the institution of the complaint, the cognizance
was taken and it has been registered as PCR No.18143/2021. The
sworn statement of the complainant has been recorded and on the
basis of sworn statement and other materials on hand, the criminal
case has been registered against the accused and summons was
issued to him. In response to the service of summons, the accused
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appeared through his learned counsel and got enlarged on bail.
The prosecution papers were supplied to the accused and the
substance of the accusation was read over and explained to the
accused in Kannada. He pleaded not guilty and claimed to be
tried.
4. During trial the complainant examined himself as PW-1
and got marked Ex.P1 to P10. The statement of the accused
U/s.313 of Cr.P.C. is not recorded. The accused did not lead
defence evidence.
5. Heard the counsel for the complainant and the
arguments on the side of the accused are taken as nil. On perusal
of the entire materials on record, the points that arise for my
consideration are as under;
1. Whether the complainant proves that the
accused issued two cheques bearing
Nos.248681 dated 19.04.2021 for an amount
of Rs.56,000/- and cheque bearing No.248682
dated 19.04.2021 for an amount of
Rs.1,03,000/- both cheques drawn on
Karnataka Bank Ltd, Shrirampuram branch,
Bengaluru towards the discharge of legally
enforceable debt/ liability and on their
presentation for encashment, they were
dishonored with an endorsement "Drawer's
signature differs from specimen filed in this
5 C.C.No.29834/2021
office" and the accused has not paid the
amount even after 15 days from the date of
service of legal notice sent through RPAD on
16.07.2021, and thereby accused committed
an offence punishable U/Sec.138 of N.I. Act,
1881?
2. Whether the accused rebuts the
presumption U/s.139 of the N.I.Act?
3. What order?
6. My answers on the above points for consideration are as
under.
Point No.1 : In the Affirmative
Point No.2 : In the Negative
Point No.3 : As per final order for the following;
REASONS
7. Point No.1and 2 :- The points are taken together for
the common discussion to avoid repetition of facts and evidence. It
is necessary to discus the provisions U/s. 118(a) and 139 of the
Act., 1881 at this stage.
"118. Presumptions as to negotiable
instruments. - Until the contrary is
6 C.C.No.29834/2021
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;"
"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."
8. On plain perusal of the provision U/s. 118(a) and 139
of the N.I.Act., it can be seen that initially the presumptions
constituted under these two provisions are in favour of the
complainant. However the presumptions are rebuttable and 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.
9. It is also well established that an accused need not
examine himself for discharging the burden of proof placed upon
7 C.C.No.29834/2021
him under a statute. He may discharge his burden on the basis of
the materials already brought on record. An accused has
constitutional rights to remain silent. 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.
10. Under the light of position of the law, I have perused
the complaint and the evidence placed on record. The complainant
examining himself as PW-1 and he got marked Ex.P1 to P10. PW-
1 filed his evidence affidavit on oath and reiterated the complaint
averments. Ex.P1 and 2 are the cheques bearing Nos.248681 dated
19.04.2021 for Rs.56,000/-, No.248682 dated 19.04.2021 for
Rs.1,03,000/- both cheques drawn on Karnataka State Bank of
Mysore, Girinagar branch, Bengaluru issued in favour of the
complainant. Ex.P1(a) & 2(a) are the signatures of the accused.
Ex.P3 and 4 are the Bank endorsements dated 16.07.2021 with
shara "Funds Insufficient" & "Drawers Signatures Differs". Ex.P5
is the office copy of Legal Notice dated 09.08.2021 issued by the
complainant to the accused demanding repayment of the cheque
amount. Ex.P6 is the postal receipt for having sent the legal notice
to the accused. Ex.P7 is the postal acknowledgment for having
served the notice on the accused on 13.08.2021. Ex.P8 is the office
copy of the corrigendum to the notice dated 09.08.2021 at Ex.P5
sent on 20.09.2021. The legal notice at Ex.P5 was sent stating that
the cheques were dishonoured with shara 'funds insufficient' and
8 C.C.No.29834/2021
another shara was not mentioned and therefore corrigendum notice
is sent mentioning the another shara that the 'drawers signatures
differs'. Ex.P9 is postal receipt for having sent the corrigendum to
the legal notice to the accused. Ex.P10 is the postal
acknowledgment for having served the corrigendum to the legal
notice on the accused on 24.09.2021.
11. On perusal of the documents, it is clear that the
cheques at Ex.P1 & 2 bearing Nos.248681 dated 19.04.2021 for
Rs.56,000/- & No.248682 dated 19.04.2021 for Rs.1,03,000/- both
cheques drawn on Karnataka State Bank of Mysore, Girinagar
branch, Bengaluru issued in favour of the complainant was
presented for encashment within the validity. The Bank
endorsements dated 16.07.2021 with shara "Funds Insufficient" &
"Drawers Signatures Differs". The Hon'ble Supreme Court of India
has in the case of Laxmi Dychem v. State of Gujarat and Ors.
reported in (2012) 13 SCC 375 held that the expression "amount
of money...........is insufficient" appearing in Section 138, N.I. Act
is a genus and dishonour for reasons such as "account closed",
"payment stopped", "referred to the drawer" are only species of
that genus. Just as dishonour of a cheque on the ground that the
account has been closed is a dishonour falling in the first
contingency referred to in Section 138, so also dishonour on the
ground that the "signatures do not match" or that the "image is
not found", would constitute a dishonour within the meaning of
Section 138 of the Act. On perusal of the above decision, it is
clear that the endorsement "drawer's signature differs" also
attracts the offence punishable U/s.138 of N.I.Act. The complainant
9 C.C.No.29834/2021
issued statutory legal notice to the accused on 09.08.2021 as per
Ex.P5, which is well within the time from the date of receipt of
dishonor memo. Complaint was filed on 22.09.2021, which is
within limitation. The issuance of the cheques and the signature
on the cheques at ExP.1 & 2 are not disputed. Therefore, the
documents on record clearly show that the complainant has
complied the ingredients of Section 138(a) to (c) of the N.I.Act.
Therefore the presumptions U/s.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. The accused can rebut the presumptions by raising
probable defences and proving it relying on the evidence of the
complainant or by leading her direct evidence.
12. The plea of the accused was recorded on 29.04.2022.
The case was posted for cross examination of PW.1 on 13.06.2022.
The accused failed to cross examine PW.1 even though sufficient
opportunities are given. Therefore cross examination was taken as
nil on 13.12.2022. The case was posted for recording of statement
u/sec.313 of Cr.P.C. The accused did not appear before the Court
to proceed with the case. Hence the statement of the accused
U/s.313 of Cr.P.C could not be recorded. As per the Hon'ble
High Court of Karnataka in Crl. Revision Petition
No.437/2010 in the case of R.V.Kulkarni Vs. Dakshina Murthy
vide Judgment dated 28.06.2012, wherein it was held that it
was for the accused to appear before the Court and to have
defended himself effectively and to make himself available for the
10 C.C.No.29834/2021
Court to record the statement U/s.313 of Cr.PC. In the said case
the complainant preferred the revision before the Hon'ble High
Court challenging the order of the First Appellate Court in
remanding the matter for fresh trial for non recording of the
statement of the accused U/s.313 of Cr.P.C. The Hon'ble High
Court of Karnataka observed that there is no justification of the
Appellate Court for having held that there is failure of justice on
account of statement of the accused not having been recorded
U/s.313 of Cr.P.C. The Hon'ble High Court of Karnataka also
discussed settled law in respect of statement of accused U/s.313 of
Cr.P.C by referring to the decision of three judge bench of Hon'ble
Supreme Court in the case of Basavaraj R.Patil Vs.State of
Karnataka reported in (2000) 8 SCC 740. It is clear from the
above decision that it is the duty of the accused to appear before
the Court and make available himself for recording of statement
U/s.313 of Cr.P.C. and to lead defence evidence. The accused
failed to utilize the opportunity by remaining absent. Therefore the
statement of the accused U/s.313 of Cr.PC was not recorded and
the defence evidence is taken as nil. The order sheet shows the
conduct of the accused in delaying the proceedings. Further the
Hon'ble Supreme Court of India in the case of Sumeti v/s
M/s Paramount Tech Fab Industries in Crl.Appeal
No.292/2021 arising out of SLP(Crl) No.8498 of 2019 decided
on 9.3.2021 held that a statement of the accused recorded
u/sec.313 of Cr.P.C is not a substantive evidence of defence but
only on opportunity to the accused to explain the incriminating
circumstances appearing in the prosecution case of the accused. It
was also observed that if there is no evidence in support of his
11 C.C.No.29834/2021
defence either to disprove or to rebut the presumption under
sec.139 of the Act, the statement recorded under sec.313 of Cr.P.C
pleading false implication and innocence does not come to the aid
of the accused as it is not a substantive evidence. Further it is
settled principle that the accused must show prejudice caused to
him due to the non recording of statement u/sec.313 of Cr.P.C. If
no prejudice is pleaded and proved to the satisfaction of Court for
non recording of statement u/sec.313 of Cr.P.C there would be no
violation of salutary principle of natural justice as enshrined in the
maxim "audi alteram partem". No doubt it is well settled that a
circumstance about which the accused was not asked to explain
can not be used against him. But certainly it can be distinguished
under the peculiar facts and circumstances of a particular case. In
the case on hand, it is clear that the accused attempted to misuse
the process of the Court and abandoned the proceedings. The
matter is pertaining to the year 2017 and the delaying tactics have
been practiced by the accused. If the same are entertained, it
would defeat the proceedings instituted by the complainant.
Therefore in the opinion of this Court, the non recording of the
statement u/sec.313 of Cr.P.C would not vitiate the proceedings
unless prejudice is shown by the accused. The scope and object of
Sec.313 of Cr.P.C is explained in catena of decisions and in view
of that no injustice caused to the accused for not having recorded
his statement u/sec.313 of Cr.PC.
13. Further as per the judgment of the Hon'ble Supreme
Court of India in the case of Md. Sukur Ali v/s State of
Assam in Crl. Appeal No.546/2011 dated 24.2.2011, wherein it
12 C.C.No.29834/2021
was held that if the criminal case whether a trial or appeal or
revision is decided against accused in the absence of counsel there
will be violation of Article 21 of the Constitution . However this
Court is of the opinion that as the accused has the right to fair
trial, he is also under the duty or obligation to promptly appear
before the Court and contest the case. As per the law of
jurisprudence, there is always duty or obligation corresponding to
the right. The accused remaining absent for the years together at
his peril and therefore he can not be expected to claim the right.
Further the judgment in the case of Md. Sukur Ali (supra) can be
distinguished on the basis of the facts of the present case. The
facts of the said case are that the Crl. Appeal No.137 of 2003 was
decided by the Hon'ble Gauhati High Court on 1.6.2010 in the
absence of the counsel for the Appellant-accused and the
conviction was upheld. The question before the Hon'ble Supreme
Court was that whether in a criminal case, if the counsel for the
accused does not appear, for whatever reason, should the case be
decided in the absence of the counsel against the accused, or the
Court should appoint an amicus curie to defend the accused.
Usually in appeal or revision, there is no question of recoding of
evidence of the parties. The counsels appearing for the parties
canvass the arguments on behalf of their parties assisting the Court
about the correct position of law and the error committed by the
Trial Court or Appellate Court as the case may be. However that
is not the case when it comes to a trial. The parties have to
personally appear before the Court and lead evidence and the
complainant has only benefit of recording the evidence through
GPA/SPA holder. In a case where the accused himself is not
13 C.C.No.29834/2021
appearing and because of instructions being not given or for any
other reason, the counsel is also not appearing, if the Amicus
Curie is appointed by the Court to defend the accused, he could
not proceed with the case without there being any instructions of
the accused and knowledge of the facts/the defence of the accused.
If the Amicus Curie is unaware of the defence of the accused
under the facts of a particular case, he is unable to proceed with
the case in effective manner. If the accused himself is not
appearing, there is no question of leading the defence evidence.
Further at a later stage, the accused may appear and if at all
something went against him in his absence, he might challenge it.
If the counsel for the accused appear at a later stage, he might
also challenge it. Therefore with due respect to the judgment of
the Hon'ble Supreme Court in the case of Md. Sukur Ali (supra)
this Court is of the opinion that under the circumstances as
elaborated herein above the appointment of Amicus Curie in trial
is not feasible. Further the proceedings under the N.I Act are quasi
civil in nature and the object of the N.I Act is to bring back the
credibility of Negotiable Instrument which were loosing their
credibility because of lack of responsibility on the part of the
drawer and to inculcate faith in the efficacy of banking operations
in transacting business on Negotiable Instrument in general to
bring the erring drawer to book, so that such irresponsibility is
not perpetuated, to protect the honest drawer and to safeguard the
payee who is almost a looser. Such being the case, if the accused
is allowed to abuse the process of the Court, the object of the Act
would be defeated. Further in the case of K.S Panduranga v/s
State of Karnataka, reported in 2013(3) SCC 721 the Hon'ble
14 C.C.No.29834/2021
Supreme Court held that, "regard being had to the principles
pertaining to binding precedent, there is no trace of doubt that
the principle laid down in Md. Sukar Ali (Supra) by the learned
judges that the Court should not decide a criminal case in the
absence of counsel of the accused as an accused in a criminal case
should not suffered for the fault of his counsel and the Court
should, in such a situation must appoint another counsel as
amicus curie to defend the accused and further if the counsel does
no appear deliberately, even then the Court should not decide the
appeal on merit is not in accordance with the pronouncement by
larger bench in Bani Singh." The Hon'ble Court further held that
in view of the aforesaid annunciation of law, it can safely be
concluded that the dictum in Md. Sukur Ali (Supra) to the effect
that the Court can not decide a criminal appeal in the absence of
counsel for the accused and that too if the counsel does not
appear deliberately or shows negligence in appearing, being
contrary to the ratio laid down by the larger bench in Bani Singh
(Supra) is per in curium. Furthermore the transaction alleged in
the case is a hand loan transaction between the parties and the
accused is not in judicial custody. Under such circumstances the
question of appointing counsel for the accused at the cost of state
may not arise at all. Hence, in view of the law laid down in the
case of K.S Panduranga (Supra), the case is proceeded on merits.
14. The accused failed to cross examine PW1 and he did not
lead any defence evidence. Further the order sheet shows the
conduct of the accused in delaying the proceedings. If at all the
accused had no liability towards the complainant as alleged in the
15 C.C.No.29834/2021
complaint and if at all he had not issued the cheque in question
for the said liability, he would have promptly proceeded with the
case and also he would have lead defence evidence by taking the
probable defences and proving the same by leading cogent
evidence. The same has not been done. He had not taken any
action against the complainant for misuse of cheque. It is pertinent
to note that the notice at Ex.P5 and the corrigendum notice at
Ex.P8 have been served on the accused but the accused did not
bother to issue reply notice taking any specific defence. Therefore
there is nothing on record to disbelieve the case of complainant.
15. The cheques and signature on the cheques at ExP.1 & 2
are not disputed. It attracts the ratio laid down by the Hon'ble
Supreme Court of India in its decisions reported in 2011 (11) SCC
- 441 - Rangappa V/s.Sri.Mohan and SCC 2015 (8) Page No.378 -
T.Vasanthakumar V/s.Vijayakumari and the recent Judgment
delivered in Crl. Appeal No.508/2019 - Rohit Bhai Jeevanlal Patel
V/s.State of Gujarath and another. The ratio is that the cheque
shall be presumed to be for consideration unless and until the
court forms a belief that the consideration does not exist or
considers the non-existence of consideration was tenable that a
prudent man would under no circumstances act upon the plea that
the consideration does not exist. On perusal of Ex.P1 & 2, it
clearly show that the signature and the contents are written in
same ink. Further as per Section 20 of the N.I.Act, if the person
signs and delivers Negotiable Instrument and it is left incomplete
and thereby he authorizes the holder to complete the Negotiable
Instrument and thereby he is liable for the amount mentioned in
16 C.C.No.29834/2021
the Negotiable Instrument. In the Judgment rendered by the
Hon'ble Supreme Court of India in Bir Singh V/s.Mukesh
Kumar reported in AIR 2019 SC 2446, it was held by the
Hon'ble Apex Court that "If a signed blank cheque is voluntarily
presented to a payee, towards some payment, the payee may fill
up the amount and other particulars. This in itself would not
invalidate the cheque. The onus would still be on the accused to
prove that the cheque was not in discharge of a debt or liability
by adducing evidence. Even a blank cheque leaf, voluntarily
singed 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 cheques was not issued in discharge of a debt."
Therefore there is nothing on record to disbelieve the case of the
complainant.
16. The Hon'ble Supreme Court of India in the case of
Rangappa Vs. Mohan reported in 2011 (11) SCC 441 held as
under;
The presumption mandated by Section 139 of N.I.Act
does indeed include the existence of legally
enforceable debt or liability. It is rebuttable
presumption and it is open to the accused to raise a
defence wherein the existence of legally enforceable
debt or liability can be contested. However there can
be no doubt that there is an initial presumption which
favours the complainant. Section 139 of the Act is an
17 C.C.No.29834/2021
example of reverse onus clause that has been included
in furtherance of the legislative objective of improving
the credibility of negotiable instruments.
Therefore the as per the presumption U/s139 of N.I.Act,
if the cheque and signature are admitted then it shall be
presumed that there is legally enforceable debt.
17. The Hon'ble Supreme Court of India in its latest case
of M/s. Kalamani Tex v. P. Balasubramanian reported in 2021
SCC OnLine SC 75 observed at para No.14 to 16 as under:-
14. Adverting to the case in hand, we find on a
plain reading of its Judgment that the trial Court
completely overlooked the provisions and failed to
appreciate the statutory presumption drawn under
Section 118 and Section 139 of NIA. The Statute
mandates that once the signature(s) of an accused on
the cheque/negotiable instrument are established, then
these 'reverse onus' clauses become operative. In such
a situation, the obligation shifts upon the accused to
discharge the presumption imposed upon him. This
point of law has been crystalized by this Court in
Rohitbhai Jivanlal Patel Vs. State of Gujarat, (2019) 18
SCC 106 in the following words:
"In the case at hand, even after purportedly
drawing the presumption under Section 139 of the NI
18 C.C.No.29834/2021
Act, the trial Court proceeded to question the want of
evidence on the part of the complainant as regards
the source of funds for advancing loan to the accused
and want of examination of relevant witnesses who
allegedly extended him money for advancing it to the
accused. This approach of the Trial Court had been at
variance with the principles of presumption in law.
After such presumption, the onus shifted to the
accused and unless the accused had discharged the
onus by bringing on record such facts and
circumstances as to show the preponderance of
probabilities tilting in his favour, any doubt on the
complainant's case could not have been raised for
want of evidence regarding the source of funds for
advancing loan to the appellant-accused....."
15. Once the 2nd Appellant had admitted his
signatures on the cheque and the Deed, the trial
Court ought to have presumed that the cheque was
issued as consideration for a legally enforceable debt.
The trial Court fell in error when it called upon the
Complainant-Respondent to explain the circumstances
under which the appellants were liable to pay. Such
approach of the Trial Court was directly in the teeth
of the established legal position as discussed above,
and amounts to a patent error of law.
19 C.C.No.29834/2021
16. No doubt, and as correctly argued by
senior Counsel for the appellants, the presumptions
raised under Section 118 and Section 139 are
rebuttable in nature. As held in M.S.Narayana Menon
Vs. State of Kerala, (2006) 6 SCC 39, which was
relied upon in Basalingappa (supra), a probable
defence needs to be raised, which must meet the
standard of "preponderance of probability", and not
mere possibility. These principles were also affirmed
in the case of Kumar Exports (supra), wherein it was
further held that a bare denial of passing of
consideration would not aid the case of accused.
Therefore it is clear from the above judgments that the
accused has to raise a probable defence and prove it by adducing
evidence, which must meet the standard of preponderance of
probabilities. Unless the same has been done, doubt can not be
raised on the case of the complainant.
18. On perusal of the evidence, the Court has raised
presumption U/s.139 of N.I.Act in favour of the complainant as
the complainant has complied all the ingredients of 138 of N.I.Act.
The presumption would operate in favour of the complainant
unless the contrary is proved. The onus is on the accused to prove
his defence and rebut the presumption. The accused has not taken
specific defence either by issuing reply notice or by leading
defence evidence. If at all the cheques in question was misused by
the complainant, then the accused would have taken legal action
20 C.C.No.29834/2021
against the complainant which has not been done. The accused
appeared before the court and he is having the knowledge of the
proceedings at all times. Therefore the overall evidence on record
gave the impression that the accused issued the cheques in favour
of the complainant in respect of the transaction as averred in the
complaint.
19. For the reasons mentioned herein above, it is
crystallized that the accused has utterly failed to prove that there
was no existence of legally enforceable debt/liability between him
and the complainant and he has not at all issued the instant
cheques towards the discharge of legally enforceable debt. On the
other hand, the complainant has proved that the accused issued
the cheques for the legally enforceable debt; the cheques are
dishonored due to the reason 'Funds Insufficient' and the notice
issued by him was served to the accused on 10.08.2021. The
complainant proved his case beyond reasonable doubt. The accused
failed to rebut the statutory presumptions U/s.118(a) & (b) and 139
of the N.I.Act. Accordingly the accused is found guilty for the
offence punishable U/s.138 of the N.I.Act. Hence, I proceed to
answer the Point No.1 in Affirmative and Point No.2 in the
Negative.
20. Point No.3 : In view of the reasons assigned in Point
No.1 and 2, I proceed to pass the following:-
21 C.C.No.29834/2021
ORDER
As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby convicted for the offence punishable u/s.138 of NI Act, 1881 and sentenced to pay fine Rs.1,70,000/- (Rupees One Lakh Seventy Thousand Only). On deposit of fine amount, the complainant is entitled for compensation of Rs.1,65,000/- (Rupees One Lakh Sixty Five Thousand Only). The remaining balance amount of Rs.5,000/- is to be forfeited to the State.
In default of payment of the fine amount accused shall undergo simple imprisonment for two months.
The personal bond executed by the accused and surety bond are hereby stand cancelled.
The copy of the judgment shall be furnished to the a at free of cost.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by him, is verified and then pronounced by me in Open Court on this the 27th day of February-2023.) (Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.
22 C.C.No.29834/2021ANNEXURE Witnesses examined for the Complainant:-
PW.1 : Sri. S. Ramesh Documents marked for the Complainant:-
Ex.P1 & 2 : 2 Cheques Ex.P1(a) & 2(a) : Signatures of the accused Ex.P3 & 4 : 2 Bank endorsements Ex.P5 : Legal notice Ex.P6 : Postal receipt Ex.P7 : Postal acknowledgement Ex.P8 : Corrigendum Notice Ex.P9 : Postal receipt Ex.P10 : Postal acknowledgment Witnesses examined For Defence:-
NIL Documents marked for Defence:-
NIL (Lokesh Dhanapal Havale), XV Addl.CMM., Bengaluru.23 C.C.No.29834/2021
27.02.2023 (Judgment Pronounced in the Open Court Vide Separate Order sheet) ORDER As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby convicted for the offence punishable u/s.138 of NI Act, 1881 and sentenced to pay fine Rs.1,70,000/-
(Rupees One Lakh Seventy Thousand Only). On deposit of fine amount, the complainant is entitled for compensation of Rs.1,65,000/- (Rupees One Lakh Sixty Five Thousand Only). The remaining balance amount of Rs.5,000/- is to be forfeited to the State.
In default of payment of the fine amount accused shall undergo simple imprisonment for two months.
The personal bond executed by the accused and surety bond are hereby stand cancelled.
The copy of the judgment shall be furnished to the a at free of cost.
XV Addl.CMM., Bengaluru.