Bangalore District Court
Sri.K.V.Ravindra vs Sri.Dinakaran.K on 7 March, 2023
KABC030297332018
IN THE COURT OF XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
PRESENT: BHOLA PANDIT,
B.Com.,LL.M.,
XX ADDL. C.M.M.
Bengaluru.
Dated this the 7th day of March 2023
C.C.No.10239/2018
Complainant : Sri.K.V.Ravindra,
S/o Late.Venkateshaiah,
Age 64 years,
R/at.No.415/2/2,
4th Cross, Wilson Garden,
Bengaluru- 560 027.
{ By Smt.G.V.Padmavathi. - Advocate }
Vs.
Accused : Sri.Dinakaran.K,
S/o Kailasam,
Age 26 years,
R/at.No.7/2 (old No.3),
Old Anjaneya Temple Street,
Ulsoor,
Bengaluru- 560 008.
{By Kumar & Kumar Advocates - Advocate}
2 C.C. 10239/2018
Offence complained : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of Order : 07-03-2023
JUDGMENT
The present complaint is filed under section 2(d) read with section 200 of code of criminal procedure against the accused seeking to punish him for the offence punishable under section 138 of the Negotiable Instruments Act ( in short referred as "N.I. Act").
02. The thumbnail of the averments of the complaint are as under;
It is contended in the complaint that, the accused and the complainant are friends and well known to each other and out of the said relationship, the accused has 3 C.C. 10239/2018 borrowed a sum of Rs.6,00,000/- from the complainant on 20.07.2015 with interest at the rate of 12% per annum for the purpose of purchase the property and had executed on demand promissory note to repay the said amount within 30 months. It is further stated that, in the month of December 2017, when the complainant had approached the accused, the accused has issued two post dated cheques, i.e., cheque bearing No.000008 dated 20.02.2018 for a sum of Rs.6,00,000/- drawn on HDFC bank, Kondapur Branch, Hyderabad, Andra Pradesh towards the principal amount and cheque bearing No.000009 dated 20.03.2018 for a sum of Rs.1,80,000/- drawn on HDFC bank, Kondapur Branch, Hyderabad, Andra Pradesh towards interest on the principal amount in favour of the complainant. When the complainant had presented the cheque bearing No.000009 dated 20.03.2018 for a sum of Rs.1,80,000/- drawn on HDFC bank, Kondapur Branch, Hyderabad, Andra Pradesh for encashment 4 C.C. 10239/2018 through his banker i.e., Shushruthi Souhardha Sahakara Bank Niyamitha, Wilson Garden Branch, Bengaluru, but it returned unpaid with banker's endorsement dated 23.02.2018 as "stop payment". On 02.04.2018, demand notice was issued to the accused, which was duly served to the accused on 04.04.2018. Inspite of service of demand notice, the accused has neither paid the cheque amount nor has issued reply to the said demand notice. Thus, the complainant has sought to convict the accused for the offence punishable under section 138 of NI Act and award double of the cheque amount to the complainant.
03. On presentation of complaint, this court has verified the averments of complaint along with records and thereby had taken cognizance for the offence punishable under section 138 of NI Act. Thereby, as per the verdict of the Hon'ble Apex court reported in AIR 2014 SC 1983 in the case of Indian Bank Association and others V/s Union of India and others, the sworn statement of the 5 C.C. 10239/2018 complainant has been recorded as PW.1 and got exhibited five documents at Ex.P.01 to Ex.P.05. Having been made out the prima-facie case, the complaint has been registered in Register No. III and issued process against the accused.
04. In response to the summons, the accused put his appearance before the court through his counsel and filed bail application under section 436 of Code of Criminal Procedure, the accused has been enlarged on bail. The substance of accusation has been recorded and read over to the accused and stated his defense that, entire amount repaid, but the complainant has not returned the cheque. On filing application by the complainant under section 145(1) of NI Act, sworn statement of the complainant has been treated as examination in chief. Similarly, on filing application under section 145(2) of NI Act, the accused has been permitted to cross examine PW.1. On completion of the trial of the complainant's side, the statement of accused under section 313 of Code of Criminal Procedure has been 6 C.C. 10239/2018 recorded and read over to the accused, the incriminating material found in the trial of the case of the complainant. The accused has denied the same in toto and gave explanation that, in the year 2017 he borrowed Rs.50,000/- loan from the complainant and he has repaid the the said amount in six installments, at the time of borrowing the said amount he had taken cheque and misused the same to file this false complaint. The accused also wants to lead his defense evidence. Similarly, the accused has filed his evidence in the form of affidavit. As per the judgment of the Hon'ble High Court of Karnataka in Cr.Pet.No.9331/2017 dated 02.07.2019 in the case of Vittal Sambrekar Vs. Manjunath, the accused is permitted to lead his defense evidence by way of affidavit and got exhibited seven documents at Ex.D.01 to 07.
05. Heard the oral argument of Learned counsels for both the parties. Perused the materials available on record. 7 C.C. 10239/2018
In support of his argument, the Learned counsel for the complainant has relied the following verdicts;
1. 2022(3) AKR 381 AIR Online 2022 kar 2570 M.S.Sathya Narayana Vs. Lingaraje Urs
2. AIR 2020 Supreme Court 945 APS Forex Services (P) Ltd., Vs. Shakthi International Fashion Linkers In support of his written arguments, the Learned counsel for the accused relied the following verdicts;
1. 2007 AIR SCW 7008 M/S.Rahul Builders \ Vs. Arihant Fertilizers and Chemical and another
2. 2007 AIR SCW 6482 M/S. Sarav Investment and Financial consultants pvt.Ltd and another Vs. L.Loyds Register of Shipping Indian Office Staff Provident Fund and Another.
3. (2007)5 SCC 264 Kamala S. Vs. Vidyadharan M.J. & Another
4. AIR 2007 (NOC) 2612 (AP) G.Veeresham Vs. S.Shiva Shankar & Another.
5. (2009)2 SCC 513, Kumar Exports Vs. Sharma Carpets, 8 C.C. 10239/2018
6. AIR 2009 (NOC) 12330 A.Vishwanatha pai Vs. Vivekananda S.Bhat 7.2010SCC Online Kar 2464 SanheetaVed Vs. Iqmen Data Solutions Pvt.Ltd.,
8. 2010(3) AIR kar 207 S.Thimmappa Vs. L.S.Prakash
9. 2012(3) KCCR 2057 Veerayya Vs. G.K.Madivalar
10. 2012(2) AIR KAR R 285
11. 2014(2) SCC 236 John K Abraham Vs. Simon C.Abraham & Another 12.2015(5) KLJ 457
13. 2016 SCC Online Gau 745 Anjelus Topno Vs. Shree Kanta Sharma
14. AIR 2019 SC 1983 Basalingappa Vs. Mudibasappa
15. 2019(5) SCC 418
16. ILR 2020 KAR 227 Mr.Manjunath.S.Vs. Mr.B.K.Subbarao. I have carefully and meticulously gone through the above relied precedents.
9 C.C. 10239/2018
06. The following points that arise for my consideration are as under;
POINTS
1. Does the complainant proves beyond reasonable doubts that, the accused has issued a cheque bearing No.000009 dated 20.03.2018 for a sum of Rs.1,80,000/- towards the discharge of his lawful liability of the complainant and when the said cheque was presented for encashment, it was returned unpaid due to " Stop payment' in the account of the drawer as per banker's memo and inspite of issuance of demand notice , the accused has failed to pay the cheque amount, thereby has committed the offence punishable under section 138 of NI Act?
2. What Order or sentence ?
07. My findings to the above points is as follows;
1. Point No.1: In the affirmative
2. Point No.2: As per final order for the following;
10 C.C. 10239/2018REASONS
08. POINT No.1: It is the specific case of the complainant that, the accused had borrowed hand loan of Rs.6,00,000/- from the complainant on 20.07.2015 with interest at the rate of 12% per annum for the purpose of purchase the property and had executed on demand promissory note to repay the said amount within 30 months. It is further stated that, in the month of December 2017, when the complainant had approached the accused, the accused has issued two post dated cheques, i.e., cheque bearing No.000008 dated 20.02.2018 for a sum of Rs.6,00,000/- drawn on HDFC bank, Kondapur Branch, Hyderabad, Andra Pradesh towards the principal amount and cheque bearing No.000009 dated 20.03.2018 for a sum of Rs.1,80,000/- drawn on HDFC bank, Kondapur Branch, Hyderabad, Andra Pradesh towards interest on the principal amount in favour of the complainant. When the complainant had presented the cheque bearing No.000009 dated 11 C.C. 10239/2018 20.03.2018 for a sum of Rs.1,80,000/- drawn on HDFC bank, Kondapur Branch, Hyderabad, Andra Pradesh it returned unpaid due to "stop payment" in the account of the drawer and inspite of receipt of demand notice, the accused has failed to make the payment of the cheque amount.
09. To substantiate and establish this fact before the court beyond reasonable doubts as per the verdict of the Hon'ble Apex court in the case of Indian Bank Association and others V/s Union of India and others , the sworn statement of the complainant has been treated as affidavit evidence. In his affidavit evidence, PW.1 has replicated the averments of the complainant. To corroborate the evidence of PW.1, the complainant has placed on record in all five documents as per Ex.P.01 to 05. Ex.P.1 is the disputed cheque dated 20.03.2018, Ex.P.1 (a) is the signature of accused, Ex.P.2 is the banker's memo dated 23.03.2018, which shows the reasons for the return of the cheque at 12 C.C. 10239/2018 Ex.P.1 for unpaid is as "Stop payment " , Ex.P.3 is the legal notice dated 02.04.2018 demanding for payment of cheque amount by replicating the averments of complaint. Ex.P.4 is the the postal receipt about sending legal notice at Ex.P.3, Ex.P.5 is postal acknowledgement. The Learned Defense Counsel cross examined PW.1 at length.
10. In order to disprove the case of the complainant as well as to rebut the statutory presumption which could be drawn in favour of the complainant and also to prove the probable defense to the touch stone of preponderance of probabilities, the accused adduced his oral evidence before the court by way of filing his affidavit in the form of examination of chief as DW.1 and got marked in all seven documents at Ex.D.01 to 07. Ex.D.1 is the HDFC bank account statement of accused, Ex.D.2 is the copy of the document DD bearing No.666785 dated 19.01.2015 for Rs.45,000/-, Ex.D.3 is the view cheque status copy dated 04.04.2022 in respect of cheque bearing No.8 and the 13 C.C. 10239/2018 status shown as cheque stopped. Ex.D.4 is also one of the view cheque status dated 04.04.2022 pertaining to cheque bearing No.9 showing status as cheque stopped and Ex.D.5 is the certificate under 65b-(4) of Indian Evidence Act pertaining to documents at Ex.D.2 to 4, Ex.D.6 is the letter dated 29.09.2022 and Ex.D.7 is bank account statement of the accused. The Learned Prosecuting Counsel has cross examined DW.1 in substance.
11. It is vehemently argued on behalf of the complainant side that, the signature on the cheque is not disputed and the on demand promissory note very much corroborates the oral testimony of PW.1 thus, the legal presumption shall be drawn in favour of the complainant. No reply was given to the demand notice, hence hence an adverse inference can be drawn against the accused as per section 114 of Evidence Act. It is further argued that, the accused has paid Rs.45,000/- to his own loan account and the same is shown as he has received the only the said amount as 14 C.C. 10239/2018 loan from the complainant. The said amount of Rs.45,000/- was not all paid by the complainant. It is further argued that, the documents at Ex.D.6 & 7 supports the case of the complainant and not the defense of the accused and thereby the accused has failed to rebut the statutory presumption under section 118(a) & 139 of NI Act. Hence, it is sought to convict the accused. In support of his argument, the Learned Prosecuting Counsel has relied the judgments as listed above.
Per contra, the Learned Defense Counsel strenuously contended that, the complainant not established before the court the service of demand notice, hence under section 138 of NI Act is not strictly complied. It is further argued that, the complainant not proved before the court the existence of legally enforceable debt so also his financial capacity to advance the alleged hand loan amount in cash. It is argued that, by the oral evidence of DW.1 coupled with the documents produced in the D-series, the accused has raised probable defense and thereby has proved the same 15 C.C. 10239/2018 and stands rebutted the legal presumptions raised in favour of the complainant. The complainant has failed to discharge the onus shifted upon him, accordingly it is sought to dismiss the complaint and thereby to acquit the accused. In support of argument, the Learned Defense Counsel has relied the documents as listed above.
12. Before to appreciate the oral and documentary evidence relied by the respective parties and also to appreciate the arguments canvassed by the both the Learned counsels, it is necessary to know as to whether the present complaint is filed in consonance with the provisions of section 138 of NI Act or not?. In this regard, the Learned Defense Counsel has also relied two judgments of the Hon'ble Apex Court reported in 2007 AIR SCW 7008 in the case of M/S Rahul Builders and another judgment reported in 2007 AIR SCW 6482 in the case of M/S. Sarave Investment Financial Consultants Private Limited and Another. On perusal of the cheque in question at Ex.P.1, 16 C.C. 10239/2018 the return memo at Ex.P.2, the demand notice at Ex.P.3 and postal receipt at Ex.P.4. They clearly whispers that, the cheque in question has been presented to the bank for encashment within its validity period. The demand notice at Ex.P.3 clearly whispers that, within 30 days from the date of receipt of return memo it was issued. Ex.P.5 is postal acknowledgement. Therefore, I am of the considered opinion that, only after compliance of requirements of section 138 of NI Act, the present complaint has been filed.
13. As per sections 118(a) & 139 of NI Act are two important provisions and they provides for raising mandatory presumptions in favour of the complainant until the contrary is proved by the accused. Even in the catena of decisions i.e., in the case of Rangappa Vs. Mohan reported in 2010(11) SCC 441, in the case of Bir Singh Vs. Mukesh Kumar reported in 2019(4) SCC 197, in the case of APS Forex Services (P) Ltd., Vs.Shakthi International Fashion Linkers reported in 2020(12) SCC 724, in the 17 C.C. 10239/2018 case of Rajeshbai Muljibhai Patel Vs. State of Gujarat, reported in 2020(3) SCC 794, in the case of Triyambak S. Hegde Vs. Sripad reported in Live Law 2021 SC 492 and it is laid down that, " Once the issuance of cheque and the signature thereon is admitted by the accused, the court is required to raise presumption in favour of the complainant stating that, the accused has issued the cheque for some consideration towards discharge of his legal debt or liability of the complainant and that the complainant is the due holder of the said cheque. The burden shifts on the accused to rebut the statutory presumptions under sections 118(a) & 139 of NI Act." Now, it is well established law that, the presumption mandated by section 139 of NI Act, thus indeed includes the existence of legally enforceable debt or liability and it is open for the accused to raise a probable defense wherein the existence of legally enforceable debt or liability can be contested and he shall prove before the court on preponderance of probabilities, 18 C.C. 10239/2018 only thereupon a statutory presumption raised in favour of the complainant stands rebutted.
14. In the well known judgment of the Hon'ble Apex Court reported in AIR 2019 SC 1983 , in the case of Basalingappa Vs. Mudibasappa in para No.19, the top court of the country held that;
"Applying the rule of the word 'proved' under section 3 of Evidence Act, it became evident that in a trial under section 138, a prosecution will have to be made out every negotiable instrument was made or drawn for consideration and that it was extended for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges burden to prove that instrument was executed by the accused, the rules of presumptions under section 118 & 139 help him to shift the burden on the accused.
The presumptions will live, exists & survive & shall and only when the contrary is proved by the accused, that is the cheque was not issued for consideration and in discharge of any debt or liability. A presumption itself is not evidence, but only makes a prima-facie case for a party to whose benefits it exists.
The accused may adduce direct evidence to prove that the note in question 19 C.C. 10239/2018 was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insists in every case the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated, but bare denial of the passing of consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is possible has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration & debt did not exists or their non- existence was so probable, that a prudent man would under the circumstances of the case act upon the plea that they did not exists."
In the instant case on hand, though the accused did not give any reply to the demand notice issued under Ex.P.3, an adverse inference cannot be drawn against the accused as per section 114 of Evidence Act as such, the demand notice sent to the accused is not personally served on the accused. While recording the substance of accusation, the accused simply has denied the accusation 20 C.C. 10239/2018 and not put forth his defense. The accused has put forth his defense only during the cross examination of PW.1. On page No.8 & 12 of the cross examination of PW.1 it has been suggested that, during the year 2015 PW.1 has availed loan of Rs.2,45,000/- from the Panjab and Sindh Bank and out of which, Rs.2,00,000/- was kept for himself and Rs.45,000/- was paid to the accused through DD and at that time, as security for repayment of the said loan of Rs.45,000/-, the complainant had took two cheques from the accused. PW.1 has denied this suggestion made from the defense side. But, looking of this suggestion made to PW.1, it appears that, it is the defense of the accused put forth before the court. Even the accused in his affidavit evidence in para No.4 of the evidence has clearly admitted that, he has issued two signed blank cheques. Neither during cross examination of PW.1 nor in his oral evidence, the accused not at all denied his signatures on the disputed cheques. Therefore, as per the aforesaid judgments of the Hon'ble Apex Court, the legal presumptions under 21 C.C. 10239/2018 section 118(a) & 139 of NI Act shall go in favour of the complainant and against the accused to the extent that, the accused has issued disputed cheque at Ex.P.1 from his account for some consideration towards the discharge of his debt or liability owes towards the complainant and that the complainant is the due holder of the said cheque and also payee of the same. Here, the Learned Defense Counsel vehemently argued that, the legal presumption under sections 118(a) & 139 of NI Act shall not extends, but the complainant shall proved the same before the court beyond all reasonable doubts only then the said legal presumption shall lies in favour of the complainant. To buttress his contention, the Learned Defense Counsel has relied the judgment of Hon'ble Apex Court reported in 2014(2) SCC 236 in the case of John K Abraham Vs. Simon C.Abraham and another. However, in the case of Rangappa Vs. Mohan reported in 2010(11) SCC 441, the larger bench of the Hon'ble Apex Court has clarified the law with regard to drawing presumption under section 118(a) & 139 of NI Act 22 C.C. 10239/2018 and held that, the presumption under section 118(a) & 139 of NI Act shall includes that the cheque issued towards the discharge of legally recoverable debt or liability by the complainant. Later in the latest judgment of the Hon'ble Apex Court reported in 2021(5) SCC 283 and 2022(1) SCC 742, the larger bench of the Hon'ble Apex Court has reiterated the law laid down in the case of Rangappa Vs. Mohan , since the judgment in the case of Rangappa Vs. Mohan and the subsequent two judgments of the larger bench of the Hon'ble Apex Court, whereas the judgments in the case of John K Abraham has been delivered by the two judges bench, hence the ratio of the larger bench of the Hon'ble Apex Court in the judgment of Rangappa Vs. Mohan followed by latest two judgments of the larger bench of the Hon'ble Apex Court would prevail. Therefore the contention of Learned Defense Counsel is not acceptable in this regard. Since, the accused has admitted the cheque belongs to his account and also admitted his signature on the cheque. Therefore, the burden shifts on the accused to 23 C.C. 10239/2018 rebut the statutory presumption under section 118(a) & 139 of NI Act which goes in favour of the complainant. Now it is well settled law that, to rebut the statutory presumption under section 118(a) & 139 of NI Act, the accused is required to raise probable defense and thereby to prove the same on preponderance of probabilities by producing his own evidence or he may rely upon the evidences produced by the complainant.
15. To rebut the statutory presumption under section 118(a) & 139 of NI Act, the accused adduced his oral evidence by way of filing his examination in chief in the form of affidavit as DW.1, wherein the accused has denied the entire case of the complainant inter alia deposed in para No.4 stating that, in the 2nd week of January 2015, he approached the complainant for financial help of Rs.45,000/- as such, he had came to know about the sanction of loan of Rs.2,45,000/- to the complainant from Panjab and Sindh Bank, Chickpet Branch, Bengaluru. 24 C.C. 10239/2018 Accordingly, out of the said loan amount of Rs.2,45,000/-, the complainant himself had received a sum of Rs.2,00,000/- and he was given Rs.45,000/- by way of DD No.686785 dated 19.01.2015 and he got encashed the said DD amount by deposit to his account. He further deposed that, periodically he has remitted loan of Rs.45,000/- to the accused along with interest and when he has asked the complainant for the return of his undated blank signed cheques bearing No.000008 and 000009 of HDFC bank, Kondapur Branch, Hyderabad, Andhra Pradesh, which were taken as surety and also requested for the return of his on demand promissory note which was taken as security. He further deposed that, no transaction of Rs.6,00,000/- had taken place between himself and the complainant, just to harass himself unnecessarily the complainant has filed this complaint against him. In support of his oral evidence, the accused has placed before the court in all seven documents which are marked at Ex.D.1 to 7. The Learned Defense Counsel has also cross examined PW.1 at length. 25 C.C. 10239/2018 During the cross examination of PW.1, no such material evidence culled out from the mouth of PW.1 that, he has not obtained any documents from the accused in respect of alleged advancement of hand loan amount. Further, elicited from his mouth that, he has not produced any of his bank account statement before the court to establish his financial condition for the advancement of alleged hand loan amount, thereby questioned the financial capacity of the complainant to lend such a huge loan amount. As per my findings above, the burden to prove the alleged advancement hand loan of Rs.6,00,000/- and also the financial capacity of the complainant lies on the complainant himself only when the accused has successfully rebutted the legal presumption by producing cogent and acceptable evidence. After scrutinizing the oral evidence of complainant as well as accused, it is admitted fact that, the complainant and accused are known to each other. The accused stated in his evidence that, the loan amount of Rs.2,45,000/- was sanctioned to the 26 C.C. 10239/2018 complainant in the Panjab and Sind Bank, Chamarajpet Branch, Bengaluru and out of the said loan amount, the complainant himself had received Rs.2,00,000/- and Rs.45,000/- was lent to him through DD No.666785. In order to prove this fact before the court, the accused did not produce before the court the loan account statement of complainant in support of his defense. But, accused himself produced Ex.D.6 & 7. By scrutinizing these two documents at Ex.D.6 & Ex.D.7 it can be clearly seen that, the accused himself had a loan account bearing No.03481200000824 in Panjab and Sind bank at Chickpet Branch, Bengaluru. These two account statements further whispers that, on 19.01.2015 a loan amount of Rs.2,40,000/- was sanctioned to the accused and the said amount was credited to the loan account of accused by debiting the same from the bank account and the said entry has been coined as loan disbursement debt vide DD No.666783. The term loan disbursement debt in the banking transaction refers to a fact that, after sanction of 27 C.C. 10239/2018 the loan, the loan amount would be released to the account of the borrower and it became credit amount to the borrower by debiting the same to the lender account. The accused himself has produced one document titled as 'Loan Closure Cum No Due Certificate' dated 29.09.2022 issued by Panjab & Sind bank, Chickpet Branch, Bengaluru and the same has been marked as Ex.D.6. The contents of this Ex.D.6 clearly reveals that, the accused Mr.Dinakaran was sanctioned personal loan amount of Rs.2,45,000/- on fixed deposit amount of Mr. K.V.Ravindra, who is the present complainant in this case. This Ex.D.6 further reveals that, out of the loan amount of Rs.2,45,000/- from the loan account as shown in Ex.D.7 an amount of Rs.2,00,000/- was transferred to the joint account of one Suman K.R to K.V.Ravindra through DD No.666784 on 19.01.2015 in their account bearing No.03481200000253 at Panjab & Sind Bank, JC Road Branch, Bengaluru and the balance loan amount of Rs.45,000/- has been transferred vide DD bearing No.666785 dated 19.01.2015 28 C.C. 10239/2018 to the another account of accused maintained in HDFC bank and same amount was credited to HDFC Bank account on 21.01.2015 it is evident from his HDFC bank account marked at Ex.D.1. That apart, during his cross examination, DW.1 has admitted the certified copies of documents confronted to him in CC.No.7752/2018, therefore those two documents marked on behalf of the complainant as Ex.P.8 & 9 in that case and Ex.P.8 is the copy of the demand notice issued by the Advocate to the accused Dinakaran.K on behalf of Panjab & Sind bank demanding for the repayment of the loan amount of Rs.2,45,000/- together with interest at the rate of 12.25% per annum and Ex.P.9 is the certified copy of the acknowledgement and the accused has admitted his signature on Ex.P.9. Meaning thereby, the accused has received his demand notice sent to him under Ex.P.8 to put his signature on the acknowledgement at Ex.P.9. Although, in his oral evidence and also during his cross examination, the accused has denied of his having had 29 C.C. 10239/2018 loan account in Panjab & Sind bank at Chamarajapet, Bengaluru as per Ex.P.7 & Ex.D.7 (in CC.7752/2018), but since the documents at Ex.P.7 (Ex.D.8) ( in CC.7752/2018), Ex.D.6 coupled with the other two documents at Ex.P.8 & 9( in CC.7752/2018), I am of the considered opinion that, the accused himself borrowed personal loan of Rs.2,45,000/- by opening loan account as per Ex.P.7 (Ex.D.7) on the fixed deposit amount of complainant and that the complainant K.V.Ravindra stood as a guarantor to the said loan amount borrowed by the accused. Further, as per demand notice at Ex.P.8 ( in CC.7752/2018), when the accused has became defaulter in repayment of the said amount either by EMI or lump sum amount, the lending bank Panjab & Sind bank got issued demand notice to the accused, Ex.P.8 ( in CC.7752/2018) for the repayment of the said loan amount. Therefore, the accused has failed to raise probable defense before the court and also failed to prove the same on preponderance of probabilities. The documents at Ex.D.3 & 4 clearly whispers about dishonour of both the cheques 30 C.C. 10239/2018 bearing No.000008 & 000009 for which, the complainant has filed present cases. The Learned Defense Counsel relied the further judgments of the Hon'ble Apex Court, Hon'ble Gowhati High Court at Sl No.12 to 16 and with due respect to the ratio laid down in the relied judgments, I have carefully gone through the facts of the case of the relied judgments. Since the facts of the present case on hand is different from the facts of the relied judgments, the ratio put forth in both relied judgments are not applicable to the case on hand. The Learned Defense Counsel also relied the judgment reported by Hon'ble Apex Court in the case of Basalingappa Vs. Mudibasappa reported in AIR 2019 SC 1983 , wherein also by relying the earlier verdicts of the Hon'ble Apex Court in the case of Rangappa Vs. Mohan held that, ' if the accused raised probable defense and established the same on preponderance of probabilities and questioned the alleged transaction as well as the financial capacity of the complainant to lend the alleged loan amount, under such circumstances, the onus again shifts 31 C.C. 10239/2018 on the complainant to prove the case on beyond all reasonable doubts and also his financial capacity to lend the disputed loan amount.' In the instant case on hand, when the accused has failed to raise probable defense and prove the same on the touch stone of the preponderance of probabilities, the verdict of the Hon'ble Apex Court in the case of basalingappa Vs. Mudibasappa is not applicable to the case on hand in order to acquit the accused, but the law laid down in the said judgment is commonly applicable to all the proceedings for the offence punishable under section 138 of NI Act. The Learned Prosecuting Counsel also relied recent judgment of the Hon'ble Apex Court reported in 2022(3) AKR 381, with due respect to the ratio of this judgment, this principle of law is applicable to the case on hand wherein it is held that, ' Once the accused has admitted his signature and cheque, the legal presumption shall go in favour of the complainant'. The Learned Prosecuting Counsel relied another judgment of Hon'ble Apex Court reported in AIR 2020 SC 945 wherein also the 32 C.C. 10239/2018 Hon'ble Apex Court pleased to held that, ' once the accused admits signature and cheque, the presumption goes in favour of the complainant that there is a existence of legally enforceable debt or liability. The plea of accused that, cheque was given by way of security and the same has been misused by the complainant complainant and accused is liable to be convicted'. In the present case on hand also, the accused took the same defense contending that, while availing loan of Rs.45,000/- from the complainant, the disputed cheques of both the cases and DP note at Ex.P.6 was taken from him by the accused and after repayment of the said loan amount, the cheques and DP note s was not at all returned. In order to substantiate this contention, except his self serving testimony, the accused did not produce any iota of evidence. That apart, as per the evidence of accused, when he has repaid the loan amount of Rs.45,000/- to the complainant, what had prevented him to take steps to get back his signed blank cheques and signed blank DP notes. Even, he did not lodge 33 C.C. 10239/2018 any complaint before any jurisdictional police against the complainant for the alleged misusing of his cheques and DP notes. On the other hand, the oral evidence of PW.1 very much corroborates the substantive evidence of DW.1 and during his cross examination, nothing has been suggested with regard to the defense taken by the accused. Thus, from his oral evidence coupled with the documents produced at Ex.D.1 to 7 and also considering the material evidence found during the cross examination of DW.1, I am of the considered opinion that, the accused has failed to raise probable defense and thereby also failed to prove the same on preponderance of probabilities. Hence, I answered point No.1 in the affirmative.
16. POINT NO.2: In view of the reasons stated and discussed above, the complainant has proved the guilt of the accused punishable under section 138 of N.I. Act It is worth to note that, the offence is of the nature of civil wrong. Hence, it is proper to award sentence of fine, 34 C.C. 10239/2018 instead of awarding sentence of imprisonment. Accordingly, this court proceed to pass the following;
ORDER
Acting under section 255 (2) of
Criminal Procedure Code, accused is
hereby convicted for the offence
punishable under section 138 of
Negotiable Instrument Act and
sentenced to pay fine of
Rs.02,60,000/-(Rupees Two Lakhs
Sixty Thousand only). In default, he
shall undergo simple imprisonment for 3 (Three) months.
Acting under section 357(1) of code of criminal procedure, it is ordered that an amount of Rs.02,50,000/-
( Rupees Two Lakhs Fifty Thousand only), there from shall be paid to the 35 C.C. 10239/2018 complainant as a compensation, remaining fine amount of Rs.10,000/-
(Rupees Ten Thousand only) is defrayed to the state for the expenses incurred in the prosecution.
The bail bond of accused stands canceled subject to appeal period.
Supply free copy of judgment to the accused.
{Dictated to the stenographer, transcribed and computerized by her, revised corrected and then pronounced in the open court on this 7 th day of March 2023}.
(BHOLA PANDIT) XX ACMM, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:
P.W.1 K.V.Ravindra 36 C.C. 10239/2018 List of documents produced on behalf of complainant:
Ex.P.1 Cheque Ex.P. 1(a) Signature of the accused Ex.P. 2 Bank endorsement Ex.P. 3 Copy of the legal notice Ex.P. 4 Postal receipt Ex.P. 5 Postal acknowledgement
List of witnesses examined on behalf of accused:
D.W.1 Dinakaran List of documents produced on behalf of accused:
Ex.D.1 HDFC bank account statement
of accused.
Ex.D.2 Copy of the document DD
bearing No.666785 dated
19.01.2015 for Rs.45,000/-.
37 C.C. 10239/2018
Ex.D.3 View cheque status copy dated
04.04.2022 in respect of cheque
bearing No.8.
Ex.D.4 View cheque status dated
04.04.2022 pertaining to
cheque bearing No.9.
Ex.D.5 Certificate under 65b-(4) of
Indian Evidence Act pertaining
to documents at Ex.D.2 to 4.
Ex.D.6 Letter dated 29.09.2022
Ex.D.7 Bank account statement of the
accused.
Digitally signed by
PANDIT PANDIT S BHOLA
S BHOLA Date: 2023.03.13
18:14:04 +0530
XX A.C.M.M.,
Bengaluru.