Bangalore District Court
A.B.Narendra vs Ms.Deepa J on 28 February, 2020
IN THE COURT OF THE JUDGE COURT OF SMALL
CAUSES AND XXVI A.C.M.M, AT BENGALURU
Present: Abdul Khadar, B.A., LL.B.,
JUDGE, Court Of Small Causes,
Bengaluru
Dated this the 28th day of February 2020
C.C. No: 7770/2014
Complainant: A.B.Narendra
S/o.Bheemappa
Aged 35years
Residing at No.16/2,
East Anjaneya temple road,
Bengaluru-04.
(By Sri.Nagarajsharma -Advocate)
-Vs-
Accused : Ms.Deepa J
D/o Jaganath,
Age 36 years,
Residing at No. 363, 9th Main,
Dollars Layout, J.P.Nagar 4th
Phase, Bengaluru-78.
(By Sri.N.Vishvanath-Advocate)
JUDGMENT
The complainant has filed the private complaint under Sec. 200 of Cr.P.C., against the accused for having committed an offence punishable under Sec.138 of Negotiable Instruments Act.
2 CC.7770/20142. According to the complainant, the accused and her husband Chandrashekar had entered for an sale agreement for the property at Boyalahalli Village, Jaala Hobli, Bengaluru West Taluk Sy. No.60/3 for 05 sites. The accused was the assigner to Venkatachalapathi's property. After the discussion held between the accused and complainant, complainant has made the advance payment of Rs.28,00,000/- to the accused. As the agreement got cancelled and as per the discussion held three months before, the accused had agreed along with Rs.27,00,000/- would pay an extra amount of Rs.5,00,000/-. The accused has issued a cheques bearing No. 205713 dated 10.06.2013 for Rs.27.00,000/- and No. 205141 dated 02.07.2013 for Rs.5,00,000/- drawn on The Oriental Bank of Commerce, Jayanagar Branch, Bengaluru. The complainant presented same through his banker for encashment on 05.07.2013. The said cheques were returned by the bank with an endorsement to affect that "Insufficient Funds". The complainant had issued a legal notice on 31.07.2013 to the accused, the same was duly served on accused on 01.08.2013. Thereafter inspite the promise made by the accused to clear the said amount within 15 days, but she failed to comply the demand notice. Hence, she committed an offence punishable under Sec.138 of N.I. Act. Accordingly, he 3 CC.7770/2014 has filed the present complaint to take action against the accused in accordance with law.
3. After filing of the complaint under Sec.200 of Cr.P.C, this court after taking cognizance of the offence, proceeded to record sworn statement and thereafter issued process to the accused. The accused appeared through her counsel and got enlarged on bail. Thereafter, accusation for the offence under Sec.138 of the N.I. Act was read-over and explained to the accused, for which, she pleaded not guilty and claimed to make defence. Accordingly, the complainant got examined himself as PW-1 and got marked 14 documents at Exs.P.1 to P.14 Thereafter, accused was questioned under Sec.313 of Cr.P.C explaining the incriminating evidence found against her, for which she denied, it is false and submitted that she was not borrowed any amount covered under cheques. The accused himself examined as DW-1 and no document got marked on her behalf.
4. Heard arguments and perused the materials available on record.
5. Now the points that arise for my consideration are:
1.Whether the complainant proves that the two cheques bearing No. 205713 dated 10.06.2013 for Rs.27.00,000/-
and 205141 dated 02.07.2013 for Rs.5,00,000/- drawn on The Oriental 4 CC.7770/2014 Bank of Commerce, Jayanagar Branch, Bengaluru has been issued by the accused towards discharge of her legal liability and failed to make good to the Complainant after its dishonor and issue of legal notice within the stipulated period and thereby accused has committed the offence Punishable U/s. 138 of the NI Act?
2. What order?
6. My findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : As per the final order below for the following:
REASONS Point No.1:-
7. In order to prove the case of the complainant, the complainant adduced his oral evidence as PW.1 filed by way of affidavit, in which he reiterated compliant averments and got marked documentary evidence at Ex.P1 to P14 and his argument also stated that how the accused has committed an offence, what is the reason the prosecution has been initiated. According to the learned counsel for the complainant, when the cheques and signatures are admitted, then the presumption as required under Section 139 of N.I. Act comes to the aid of the complainant and it is the 5 CC.7770/2014 turn of the accused to explain or rebut the said presumption by raising a probable defence.
8. In this regard, the court has to see whether the accused has been successful in rebutting the presumption through cross-examination of PW-1 and her evidence. According to the evidence of PW-1 that the accused was the assigner to Venkatachalapathi's property. The accused and her husband entered into sale agreement in respect of 5 sites in Sy.No,60/3 of Boyalahalli Village Jaala Hobli, Bengaluru and they received advance amount of Rs.28,00,000/- from the complainant. The said sale agreement was cancelled due to some title issue as the accused agreed to return the advance amount with extra amount of Rs.5,00,000/- to the complainant. In order to secure the repayment of said amount she issued aforesaid 2 cheques for Rs.27,00,000 and Rs.5,00,000/-. These cheques were issued by the accused in the capacity of the Managing Director of Ishanvi Technologies Pvt. Ltd. The complainant has presented same through his banker for encashment on 05.07.2013. The said cheques were returned by the bank with an endorsement to effect that "Funds Insufficient". The complainant had issued a legal notice on 31.07.2013 to the accused; the same was duly served on accused on 01.08.2013. Inspite of demand notice the accused not 6 CC.7770/2014 cleared the cheques amount not replied to the notice. Therefore, there shall be initial burden on the complainant to prove that he had so-much of amount with him to lend the same without taking any other documents except Ex.P.1 and P.2 cheques. Further he drew the attention of the court to Section 139 of the Act, which reads thus.......
"....presumption in favour of the 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...".
9. So, when the cross-examination of PW-1 indicates that the accused had issued cheques to discharge of her liability to PW-1. During the course of cross-examination of PW-1, he categorically admits that he saw the Venkatachalapathi before entering into sale agreement he verified what are the transaction held between accused and Venkatachalapathi in respect of property during the year 2011. The agreement has executed by the accused in favour of Venkatachalapathi out of which some property the accused executed assignment deed in his favour. He verified the document the registered sale deed executed by the Venkatachalapathi in favour of accused. One Chandrashekar was the cousin of accused. He was not verified sale agreement executed 7 CC.7770/2014 by the Chandrasheker in respect of 5sites in Sy.60/3. He denied that he has not done any transaction with the accused. He do not verified GPA executed by the Chandrashekar and Venkatachalapathi in favour of accused. He knows that the sale agreement was cancelled since the title of said property was in dispute. He denied that by knowing fully well that the transaction was illegal for the purpose of this case he created assignment in the year 2011. After cancellation of agreement in the year 2011, when he asked for return of advance amount at that time accused given 2 blank signed cheques as per Ex.P11 and 12. He admits in Ex.P11 and 12 the name column is blank. He admits Chandrashekar was not executed agreement in respect of property. He deposed that Ex.P1 cheque was issued in the year 2013. After cancellation of agreement, the accused issued 2cheque for Rs.27,00,000/- and Rs.5,00,000/-. He has not obtained documents for balance amount and for repayment of said amount.
10. In his further cross examination deposed that, he is a software company employee as per Ex.P8 Venkatachala was the owner and developer accused not the owner of said property. The Ex.P10 is not registered document in Ex.P10 para No.2 he has not mentioned mode of payment of Rs.27,00,000/- to show that he 8 CC.7770/2014 paid said amount to accused and in that connection he produced Ex.P10. As per Ex.P8 there is litigation pending over schedule property as the said agreement was cancelled as per Ex.P9 between Venkatachalapathi and accused. As per Ex.P10 at para 4, there is a recital that the Venkatachalapathi had admitted that he executed sale deed in his favour and also there is a recital that if the vender fails to execute the sale deed he is entitled to refund the advance amount. He admits in Ex.P13 form No 29 is blank and there is no signature of accused and he has not made the party to this complaint who are signed documents. He also admits that the Chandrashekar not executed authorization letter to recover the amount from the accused. As per Ex.P10 he admits he paid Rs.50,00,000/- to Venkatachalapathi and no cancellation agreement held between himself and accused. He admits that Ex.P1 and 2 belong to company. He do not know the directors of the company. The accused is one of the director. He met the accused for real estate business. He denied that for commission of real estate business he obtained cheques from the accused. He admits that there is a difference of ink used to write for name and amount in Ex.P1 and 2. He admits that he has not made the company as party to this complaint and also not issued 9 CC.7770/2014 Legal notice to the company and also not issued notice to Venkatachalapathi. He has not produced IT returns and not declared this transaction in the assessment year 2011 and also not produced bank statement to show that he paid Rs.27,00,000/- to the accused. He pleads ignorance that the signature found in Ex.P6 belongs to accused and the accused is not residing in the address shown in Ex.P6.
11. On perusal of cross examination of PW-1 it clearly revels that in connection with a property transaction negotiation between Venkatachalapathi and the accused entered assignment agreement dated 10.10.2011 in Ex.P10 there is no mention with regard to the mode of payment to the accused. The evidence also discloses that there was a litigation in respect of Layout developed by the Venkatachalapathi has the owner entered into cancellation agreement on 05.11.2011 as per Ex.P9 with the accused. In terms of clause 8 of Ex.P10 the owner is liable to return the advance amount back to the complainant and the complainant is liable to recover the advance amount from the owner Venkatachalapathi and not from the accused. Hence Exs.P1 and 2 cheques are not legally enforceable debt since the cheques in question has been issued by the company and the company has not been arrayed as accused. Moreover the complaint is 10 CC.7770/2014 silent about the transaction between company and the complainant. The Ex.P1 and 2 cheques belongs to Ishanvi Technologies Pvt. Ltd. This evidence/admission of PW1 itself quite clear that, the accused was issued cheques on behalf of company not individual capacity and the said company still exist and the accused is one of the Director and other Directors as well as company has not been arrayed as accused in the complaint.
12. On the other hand, the accused taken defence that, the agreement of sale dated 03.09.2011 and cancellation of agreement dated 05.11.2011 and assignment agreement at Ex.P8 to 10 there is no mention of the mode of payment made to the accused. PW-1 himself admits the terms of clause (8) of the Ex.P10 that the owner is liable to return the advance amount back to the complainant. In the cross examination of PW-1 he categorically admits company not made as a party and there is no transaction by him with the said company. Admittedly the complainant is relaying on the assignment agreement at Ex.P10 there is no transaction inter-se between complainant and accused. She has not received the notice, admittedly loan agreement or cancellation agreement was executed by the accused in favour of the complainant with regard to the money transaction. She 11 CC.7770/2014 has no necessity to raise loan with the complainant. The complainant taken the advantage of the blank signed cheques filled the contents and filed this false complaint. No statutory notice issued to Ishanvi Technologies Pvt. Ltd., and directors are not made as parties to the above case. The complainant has not mentioned about the accused being a Director of the company in notice and complaint. The accused is not liable to discharge any debt to the complainant. Hence, this complaint is not maintainable and the complainant failed to prove his case that as on the date of issuance cheques there was a legally recoverable debt under Ex.P1 and P2. The same has been elicited from the mouth of PW1 at the time of cross examination. This witness cross examined by the complainant in length but nothing has been elicited form her mouth to show that, she is sole director of the Ishnavi Technologies Pvt. Ltd., She only responsible for the day to day affairs of the company and towards discharge of liability of the company being a director she issued alleged cheques in question to the complainant.
13. In the cross examination she deposed that complainant is a family friend. She denied that prior to 2010 she knows the complainant . She admits purchase of site in the month of September 2011 by entering into sale agreement with Venkatachalapathi as per 12 CC.7770/2014 Ex.P8. Chandrashekar is her brother he also signed Ex.P8 as one of the witness. She admits after Ex.P8 she entered assignment agreement with the complainant as per Ex.P10 in respect of site property. She admits her signature found in Ex.P10 and stamp paper was purchased in her name as per Ex.P10 she assigned 5site properties in favour of complainant. She denied that in Ex.P10 page No.3 para 2(a) there is recital that she received Rs.27,00,000/- from the complainant. She admits the contents of the above is true but she has not received amount shown in Ex.P10, in page 4 para No.3 she agreed herself to execute all such required documents from time to time as and when demanded by the complainant. She agreed that at the time of execution of sale deed she handed over the possession of original documents of the site property to the complainant. If the vender fails to execute sale deed the complainant got liberty to file civil suit against the vender. If the complainant fail to register the property by deducting Rs.10,000/- remaining amount as to be returned to the complainant. She admits there is no relation to Ex.P8 with the complainant. She admits Ex.P11 and 12 belongs to her account. Ex.P11(a) and 12(a) belongs to her signature. The car shown in Ex.P14 belongs to her brother Chandrashekar. She denied that for repayment 13 CC.7770/2014 of Rs.27,00,000/- she gave Ex.P11 and 12 cheque to the complainant. She admits that Exd.P1 and 2 belongs to her account and Ex.P1(a) and 2(a) is her signature 2 cheques were returned for insufficient funds. Ishanvi Technologies company belongs to her self and her sister. She admits 20 cheques were given to complainant as security in her chief affidavit. She has not taken back the cheques and not given stop payment instruction to her banker and not given complaint to the police. Her mother name is Geetha she denied that her mother received the demand notice.
14. In the further cross examination she admits Ishanvi Technologies Pvt. Ltd. belongs to her, which was started the year 2007 till today the said company running. The company had 2 directors they are herself and her mother. She herself look after the day today affairs of the company and her mother is not actively participating in day today's affairs. She herself taken financial decision, after that she informed about her mother. She only authorized signatory to sign company cheques. She admits there was no direct transaction held between complainant and company and there was no connection of real estate business and the company. She denied that she herself liable for the real estate business and Bheemappa and Chandrashekar also liable for the real estate business. She has not given 14 CC.7770/2014 complaint to the police for misuse of company cheques. She signed cheques and given to Chandrashekar for company business and same has been given to complainant. But she has not taken any legal action against Chandrashekar. She denied that in order to cheat the complainant she has given company cheques for repayment of debt to the complainant.
15. In support of his defence, he relied on a decisions reported in M/s. Indus Airways Pvt. Ltd., - vs- M/s Magnum Aviation Pvt. Ltd and Anr. reported in (2014) 12 SCC 539 wherein it is held that the Supreme Court has held in the above case that Section 138, treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The explanation eaves no manner of doubt that to attract an offence U/Sec. 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of cheque. In other words, drawl of the cheque in discharge of existing or past adjudicated liability is sinequa non for bringing an offence U/Sec. 138. If a cheque is issued as an advance payment for purchase of th goods and for any reason purchase order is not carried to it logical conclusion either because s of its cancellation or otherwise, and material or goods for which purchase order was placed is not supplied, in our considered 15 CC.7770/2014 view, the cheque cannot be held to have been drawa for an existing debt or liability.
2. (2007)5 SCC 264 in the case of Kamalas vs Vidhyadharan M.J.and Another, wherein it is held that Burden on accused to rebut the presumption can be discharged by preponderance of probabilities - court can draw inference from material brought: on record as well as circumstances relied upon by accused as held by the Supreme Court in the case.
3. (2008) 4 Supreme Court Cases 54 in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde wherein it is held that - NI Act S. 139 S- Presumption under-Scope of - Held, S. 139 merely raises presumption in favor of holder of cheque that the said cheque has been issued for discharge of any debt or other liability - Existence of legally recoverable debt is not a matter of presumption under S.139.
4) In this regard I have relied decision reported in AIR 2012 SC 2795 in the case of Aneetha Hada
-vs- M/s. Godfather Travels and Tours Pvt.Ltd, wherein it is held that Offence by company - Directors/other officer of company cannot be prosecuted alone - Arraigning company as accused is condition precedent for their prosecution. Section 141 of the Act is concerned with the offences by the company. It makes the other 16 CC.7770/2014 persons vicariously liable for commission of an offence on the part of the company. The vicarious liability gets attracted when the condition precedent under Section 141 namely, offence by company stands satisfied. The power of punishment is vested in the legislature and that is absolute in S. 141 which clearly speaks of commission of offence by the company. The liability created is penal and thus warrants strict construction. It cannot, therefore be said that the expression " as well as" in S. 141 brings in the company as well as the Director and /or other officers is tenable even if the company is not arraigned as an accused. The words "as well as" have to be understood in the context. Applying the doctrine of strict construction, it is clear that commission of offence by the company is an express condition precedent to attract the vicarious liability of the company can be prosecuted, then, only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. It necessarily follows that for maintaining the prosecution under S. 141 of the Act, arraigning of company as an accused is imperative only then the other categories of offenders can be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself.
17 CC.7770/20145) Another decision reported in (2012) 5 SCC 661 in the case of Aneetha Hada -vs- Godfather Travels and Tours Private Limited wherein it is held that Mandatory requirement of impleading company as one of the accused - director or authorized signatory of cheque-Prosecution against, without arraigning of company as accused, held, not maintainable.
6) Another decision reported in 2015 CRI. L. J. 4764 in the case of Jetendra Vora -vs- Bhavana Y.Shah and another wherein it is held that Dishonour of cheque issued by respondent partnership firm - Notice though addressed to accused, proprietor and constituted attorney of respondent firm - But there is no specific averment that liability of firm to whom goods were sold was taken over by constituted attorney of respondent firm - Order of High Court acquitting accused on ground that complaint was not maintainable against them - Is proper.
7) In the case of Pooja Ravinder Devidasani vs State of Maharastra and another reported in AIR 2015 supreme Court 675 wherein it is held that no evidence on records show that there is any act committed by the appellant no reasonable inference can be drawn that appellant could be vicariously held liable for offence she was charged continuation of proceeding against appellant U/s 138 and 141 being abuse of 18 CC.7770/2014 process of law thus cheques in question allegedly issued by company be virtue of letter of guarantee would not make alleged directof of company liable u/s 138 and 141.
8) Another decision reported in 2016 1 KCCR 764 in the case of M/s. Halappanavar Agro chemicals v/s M/s Jajee pesticides, wherein his lordship held that cheque issued by one partner failure arraign firm and other partner complainant as such not maintainable.
9) Another decision reported in 2016 (20 KCCrR 1666 in the cse of Srinath v/s D.K. Venkatanareshbabu, wherein their lordship held that complainant receiving cheque from accused/ director of company but not arraigning the company is a serious lapse vitiates entire proceedings.
10) Another decision reported AIR 2017 Supreme Court 4125 in the case of N Harihara Krishna v/s J.Thomas, wherein their lordship held that director / other officers of company cannot prosecuted alone arraigning company as accused is condition precedent for their prosecution. Every person signing cheque on behalf of company on whose account a cheque is drawn- does not become drawer of cheque.
16. On careful perusal of the above culled out principles of the Hon'ble Supreme Court and also High 19 CC.7770/2014 court, it could be seen from the evidence of PW1 wherein, it reveals that the accused was issued a cheque dated 10.06.2013 and 02.07.2013 as a director of Ishanvi Technologies Pvt. Ltd., drawn on Oriental Bank of commerce, Jayanagar Branch bearing No.205713 and 205141 for Rs.27,00,000/- and Rs.5,00,000/- in favour of complainant and the evidence on record disclosed that the cheques have been issued by the accused not in her individual capacity but as a director of Ishanvi Technologies Pvt. Ltd. and the Ex.P1 and P2 also mentioned as director wherein, the accused has signed the said cheques. This act of the accused show that representing the company she issued cheques. When that is so the other directors who are also responsible for the conduct of the day to day business of the said company but admittedly company and other directors were not made as a parties in this case. Hence, in the absence of arraying the company, the complainant has filed against one of the Directors is not maintainable in law.
17. In the present case the complainant not pleaded the mode of payment to the accused. Further he admits that he do not have the documents to show that as on the date of entering into sale agreement he had 27,00,000/- amount with him. This evidence shows that PW-1 has failed to produce relevant 20 CC.7770/2014 documents in support of his source for advancing money to the accused and he also not aware as to when where the transaction took place for which the cheques in question were issued to him by the accused and also not sure as to who wrote the cheque and making contradictory statements in this regard, in view of said serious defects in evidence of PW-1, the presumption under Sec.139 of N.I. Act is rebutted by the accused. In view of the above, the accused need not step into the witness box and need to prove his defence beyond all reasonable doubt as he is expected of the complainant under criminal trial. Hence, the complainant failed to establish his case.
18. On the other hand the accused has rightly rebutted the presumption. Hence, he prayed for acquittal. The learned counsel for the complainant argued that the complainant has proved his case by tendering his evidence and also proved all the ingredients of the offence punishable under Sec.138 and 142 of N.I. Act. Exs.P.1 and P.2 have been issued by the accused towards debt which legally recoverable was not disputed by the accused the signatures found on Exs.P.1 and P.2 and also not disputed the contents of Exs.P.1 and P.2 at the time of cross-examination.
19. In this regard, he relied on the decision reported in 21 CC.7770/2014
1. (2010)11 Supreme Court Cases 441 in the case of Rangappa V/s Sri. Mohan, wherein it is held that A. Negotiable Instruments Act, 1881 - S. 139 - Presumption under - Scope of - Held, presumption mandated by S.139 includes a presumption that there exists a legally enforceable debt or liability - However, such presumption is rebuttable in nature - Criminal Trial
- Proof - Presumptions - Generally.
C. Negotiable Instruments Act, 1881 - Ss. 138 and 139 - Dishonour of cheque - Conviction for - Matters to be considered by court - Held, what courts have to consider is whether ingredients of offence enumerated in S.138 have been met and if so, whether accused was able to rebut statutory presumption contemplated under S.139.
2. 2008 (8) SCALE 680, in the case of Mallavarapu Kasiviswara Rao V/s Thadikonda Ramulu Firm & Ors. wherein it is held that, U/Sec. 118(a) of the N.I. Act Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the court to believe the non-existence of the consideration either by direct 22 CC.7770/2014 evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal.
3. (1999) 3 SCC 35 in the case of Bharat Barrel & Drum Manufacturing Company vs Amin Chand Payrelal, wherein it is held that Sec.118A presumption that promissory note for consideration is rebuttal -initial burden lies on defendant to prove non existence of consideration by bringing on record such facts and circumstances which may lead the court to believe non existence of consideration or non existence so probable that a prudent man would act upon the plea that it did not exist. This can be done either by direct evidence or by preponderance of probabilities. Showing that the existence of consideration was improbable, doubtful or illegal. If burden is discharge, onus shifts on the plaintiff to prove passing of consideration as a matter of fact and failure to prove would disentitle him to relief.
4. (2002) 1 SCC 234 in the case of MMTC Ltd., and another v/s Medchi Chemicals and Pharma Pvt.Ltd., at para-19. Wherein the Apex Court made observation that "the authority shows that even when the cheque is dishonoured by reason of stop payment instructions, by virtue of Section 139, the court has to presume that the cheque was received by the holder for 23 CC.7770/2014 the discharge in whole or in part, of any debt or liability. Of course, this is a rebuttable presumption. The accused can thus show that the "stop payment" instructions were not issued because of insufficiency or Paucity of funds. If the accused shows that in his account, there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued, because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then, offence under Sec.139 of the act would not be made out. The important thing is that the burden of so, proving would be on the accused".
5. AIR 2001 Supreme Court 2895 in the case of K.N Beena Vs. Muniyappan and another wherein it is held that - NI Act (26 of 1881) S. 138, S. 139 S. 118- Cheque dishonour complaint - Burden of proving that cheque had not been issued for any debt or liability
- Is on the accused- Denial/averments in reply by accused are not sufficient to shift burden of proof onto the complainant- Accused has to prove in trial by lending cogent evidence that there was no debt or liability - Setting aside of conviction on basis of some formal evidence led by accused- Not proper.
24 CC.7770/20146. Cri. Appeal No.230-231/2019 between V.Birsingh Vs Mukesh Kumar, wherein his lordship held that the owners to rebut the presumption under Sec.139 that the cheque has been issued in discharge of debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Sec.138 of the N.I.Act. Secs.20, 87 and 139 of N.I.Act makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of liability. It is immaterial that the cheque have been filled in by any person other than the drawer , if the cheque is duly signed by he drawer. If the cheque is otherwise valid, the penal provisions of Sec.138 would be attracted.
7. AIR 2019 SC 1876 in the case of Rohitbhai Jivanlal Patel Vs. State of Gujarat and another wherein it is held that Dishonour cheque - Rule of presumption of innocence of accused - cannot be applied with same rigour to offence U/S. 138, particularly where presumption is drawn that holder received the cheque for discharge the debt or liability.
20. It is settled law that the drawee of the cheque has to prove the existence of debt or liability. In 25 CC.7770/2014 the present case also, the complainant not averred in his complaint that on what date, the accused agreed to refund the earnest money along with excess amount. But in the cross-examination of PW-1 he admits the vendor/developer only liable to pay the advance amount as per Ex.P10 and not this accused. This evidence of PW-1 shows that the complainant has not spelled out the date, on which date he advanced amount towards sale of 5sites to the accused. The cheque indicates that it bears the date as 10.06.2013 and 02.07.2013. Therefore, accordingly class (b) of Sec.118 of the Act, that it was deemed to have been drawn on 10.06.2013 and 02.07.2013. It is clear that no consideration has been passed under Ex.P1 and P2-cheques on the said date. Therefore, presumption under class (a) of Sec.118 of the Act stood rebutted.
21. The document at Ex.P1 and P.2 itself not proved that as on the date of issuance of cheques there was recoverable debt and can it be believed that unless source is proved to the court as to the capacity of complainant to lend a sum of Rs.27,00,000/- to the accused, then the case of the complainant cannot be accepted. Normally, their, arises the presumption when the cheque and signature are admitted. When once such evidence is placed by way of cross-examination of PW-1, then, complainant must be in a position to show 26 CC.7770/2014 source of income as on the date of lending. Therefore, I am of the view that the complainant has utterly failed to prove that Exs.P.1and P.2 cheque have been issued towards legally recoverable debt. On the other hand the accused has been in successful in raising probable defence in the mind of court Exs.P1 and P2 cheques were not given towards legally recoverable debt or liability.
22. In the present case also the accused rebutted the presumption U/s139 of N.I. by cross examining the PW1 that Exs.P1 and P2 cheques were not given towards legally recoverable debt or liability and hence, the evidence of accused not necessary. As per the aforesaid rulings, the presumption mandated by Section 138 of Negotiable Instruments Act includes that there exists legally enforceable debt or liability, which is rebuttable presumption and it is open to the accused to raise defence wherein the existence of legally enforceable debt or liability can be contested. The complainant has not rebutted the burden which cast upon him and he has not produced any corroborative evidence to establish his case. Therefore, on the basis of aforesaid decisions coupled with the defense taken by the accused, those decisions are squarely applicable to the present case on hand. The accused has given rebuttal evidence to the case of the complainant. The 27 CC.7770/2014 complainant failed to give corroborative evidence. Hence, the case of the complainant creates doubtful. In view of the above fact, I am of the view that he has failed to prove that the cheque has been issued for legally recoverable debt. Hence, I answer Point No.1 in the Negative.
Point No.2:.
23. In view of the above findings on points No's 1 to 4, I proceed to pass the following:
ORDER Acting under Section 255(1) Cr.P.C. the accused is hereby acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and surety bond of the accused is hereby stand cancelled.
(Dictated to the Stenographer directly over computer, typed by her, corrected and then pronounced by me in the Open Court on this the 28th day of February 2020) (Abdul Khadar) Judge , Court of Small Causes, & XXVI ACMM, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of complainant:
PW -1 : A.B. Narendra List of Documents marked on behalf of complainant:
Ex.P1&2 : Cheques
Ex.P.1(a)&2(a) : Sig.of accused
Ex.P.3&4 : Two Bank Endorsements,
28 CC.7770/2014
Ex.P.5 : Legal Notice,
Ex.P.6 : Postal Receipt
Ex.P7 : Postal acknowledgement
Ex.P8 : Sale agreement dated 02.09.2011
Ex.P9 : Cancellation Sale deed dated
05.11.2011
Ex.P10 : Assignment agreement
Ex.P10(a) : Signature of accused
Ex.P11 &12 : Accused issued 2 cheque to the
Complainant
Ex.P13 : Form No.29/30
Ex.P14 : Seizing letter
List of Witnesses examined on behalf of accused:
DW-1 : Deepa J.
List of documents marked for accused:
-Nil-
(Abdul Khadar)
Judge , Court of Small Causes,
& XXVI ACMM, Bengaluru.