Bangalore District Court
Smt. Jayashree C.R vs M/S Sureshkumar Real Estate on 9 July, 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 9th day of July 2020
C.C. No: 6282/2016
Complainant: Smt. Jayashree C.R.
W/o Mohan Gowda
Aged Major,
Residing at No.6121,
Shobha Apartments,
Nagasandra Post,
Tumkur Road,
Bengaluru-560073.
(By Sri. N. Shivakumar- Advocate.)
-Vs-
Accused: 1. M/s Sureshkumar Real Estate
Developers Pvt. Ltd.,
Having its registered office at
No.62/435, Mallikarjun Layout,
Gentha Colony, Kustagal Road,
Keshwapur, Hubli-580023.
Rep. by its Managing director,
Dr.Suresh Kumar Pendem,
2. Dr.Suresh Kumar Pendem,
Managing Director
M/s Sureshkumar Real Estate
SCH-09 2 CC.6282/2016
Developers Pvt. Ltd.,
Having its registered office at
No.62/435, Mallikarjun Layout,
Gentha Colony, Kustagal Road,
Keshwapur, Hubli-580023.
3. Philomina Pendem,
Director,
M/s Sureshkumar Real Estate
Developers Pvt. Ltd.,
Having its registered office at
No.62/435, Mallikarjun Layout,
Gentha Colony, Kustagal Road,
Keshwapur, Hubli-580023.
(By Sri. Karigowda, Advocate)
JUDGMENT
The complainant has filed the private complaint under Sec. 200 of Cr.P.C., against the accused No.1 to 3 for having committed an offence punishable under Sec.138 of Negotiable Instruments Act.
2. It is the case of the complainant that, the accused No.1 is the Company and Accused Nos. 2 and 3 are its Directors and are also doing business of real estate. The accused No.2 being Managing Director of the Company and being Close friend of complainant's husband and approached complainant's husband for hand loan for forming residential layout in the name of SK City at Gajandragad-Kustagi Road, Gadag. In order to help the SCH-09 3 CC.6282/2016 accused, the complainant and her husband gave a hand loan of Rs.27,50,000/- to the accused and assured that they will repay the said amount within a short period of time. The complainant and her husband regularly followed up with the accused for the return of money, but the accused ignored them and after that accused No.2 paid Rs.10,00,000/-by way of cash on 22.05.2015 and towards discharge of balance amount of Rs.17,50,000/- the accused No.2 issued post dated cheques bearing No. 391054, dated 27.05.2014 for sum of Rs.2,00,000/-, No.391055 dated 07.06.2015 for sum of Rs.5,00,000/-, No. 391056 dated 20.06.2015 for sum of Rs.5,00,000/- and cheque bearing No.391057 dated 28.06.2015 for sum of Rs.5,50,000/- all cheques were drawn on Yes Bank Ltd., Ground Floor, SVB City Centre Club Road, Hubli. The complainant presented the said cheques for encashment through its banker Karnataka Bank Ltd., (KBL), Hesaraghatta Branch, Bengaluru but the said cheques were returned for the reasons "Stale Cheque (out dated) of cheque bearing No.391054 and Funds Insufficient" vide endorsement dated 31.08.2015. Immediately, the complainant got issued legal notice to the accused on 24.09.2015 through RPAD calling upon them to repay the dishonoured cheques amount within 15 SCH-09 4 CC.6282/2016 days from the date of receipt of said notice. The said notice was duly served to the residential address of the accused on 29-09-2015. After receiving the demand notice the accused not paid the amount, but instead had replied to the notice dated 14.10.2015. Hence, the accused persons have committed an offence punishable under Sec.138 of N.I. Act. Accordingly, the complianant has filed the present complaint to take action against the accused persons in accordance with law.
3. Being satisfied with the complaint averments, this Court has taken cognizance and after recording sworn statement being satisfied with the prima-facie case, issued summons to the accused persons compelling their appearance. In pursuance of service of summons the accused persons have appeared through their counsel before this Court and got enlarged on bail.
4. In support of the case, the complainant himself examined as P.W.1 and got marked 15 documents as per Ex.P1 to P.15. Witness by name Mohan Gowda examined as PW-2 on behalf of complainant. After closure of evidence of Complainant, the accused persons were examined as contemplated U/s.313 Cr.P.C and their statement were recorded. The accused no.2 and 3, totally denied the case of the complainant and they have SCH-09 5 CC.6282/2016 defense evidence. Accused No.2 himself examined as DW1 and got marked one document at Ex.D1 on his behalf.
5. Heard arguments canvassed by the learned counsel for the complainant and the accused and perused the documents available on records.
6. Now the points that arise for my consideration are:
1.Whether the complainant proves that, the accused No.2 had issued post dated cheques bearing Nos'391055 and 391056 for sum of Rs.5,00,000/- each, dated
07.06.2015 &20.06.2015 for Rs.5,00,000/- and cheque bearing No.391057 dated 28.06.2015 for sum of Rs.5,50,000/- and all cheques were drawn on Yes Bank Ltd., Ground Floor, SVB City Centre Club Road, Hubli, towards discharge of accused No.1 legal liability and when the said cheque presented for encashment, which came to be dishonoured with an endorsement as "Funds Insufficient" after issuance of legal notice, they fails to repay dishonoured cheques amount of Rs.15,50,000/- within the stipulated period and thereby committed an offence punishable under Sec.138 of N.I. Act?
2. What order?
7. My findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : As per the final order below for the following:SCH-09 6 CC.6282/2016
REASONS Point No.1:-
8. It is pertinent to note that, whenever a private complainant is filed seeking prosecution of the accused no. 1 to 3 for an offence punishable under Section 138 of Negotiable Instrument Act, if the issuance of cheque and the signature on the cheque is accepted and admitted by the accused no. 2 and 3, an initial presumption as to be raised by the Court in favour of the complainant, that the cheque in question was issued towards legally recoverable debt or liability. Of course, this presumption is rebuttable presumption. Such rebuttable evidence has to be placed before the Court by the accused persons. It is well known that, the accused can rebut the said legal presumption either by cross-examination of complainant or by leading evidence. The complainant himself examined as PW.1 filed affidavit by way of chief examination has reiterated the versions of complaint. I would not like to reproduce the same to avoid repetition of facts since the complainant has explained the details of complaint averments in chief examination. The complainant has produced 15 documents at Ex.P1 to P15.
9. So far as the document is concerned Exs.P1 to 3 are cheques bearing No. No.391055 dated 07.06.2015 for SCH-09 7 CC.6282/2016 sum of Rs.5,00,000/-, No. 391056 dated 20.06.2015 for sum of Rs.5,00,000/- and cheque bearing No.391057 dated 28.06.2015 for sum of Rs.5,50,000/- all cheques were drawn on Yes Bank Ltd., Ground Floor, SVB City Centre Club Road, Hubli Exs.P1(a) to 3(a) are the signatures of accused No.2. Exs.P4 to 6 are the Bank Endorsements issued by the Karnataka Bank Ltd., Hesarghatta Branch, Bengaluru, stating that, the cheques were not honoured for the reason of "Funds Insufficient" Ex.P7 is the legal notice dated 24.09.2015, wherein , the complainant called upon the accused Nos.1 to 3 to make payment of Rs.15,50,000/- within 15 days from the date of receipt of notice. Exs.P.8 to 10 are the postal receipts. Exs.P11 to13 are postal acknowledgement. Ex.P14 is the reply notice, wherein, the accused persons admits that they are who run the real estate business in the name and style of M/s Suresh Kumar Real Estate Developers Pvt. Ltd.,, in the address shown in notice and taken defence that one Dr.Rathnashekar babu known to accused No.2 since 2 years through Manjunath, during accused visit to Bengaluru. At that time, said Rathnashekar Babu asked the Manjunath to invest certain amount in the real estate business. Accordingly said Manjunath agreed for the same and transferred SCH-09 8 CC.6282/2016 Rs.27,50,000/- in two parts i.e., Rs.10,00,000/- and after 30 days the remaining Rs.17,50,000/- from his account at Bengaluru to the current account bearing No.02498 300000702 of Yes Bank Hubli. At that time ,the accused No.2 given Blank post dated cheque drawn on Yes Bank, Hubli, along with blank bond for Rs.100/- (10 no's) after 6-8 months. After that Rathnashekar Babu and Manjunath came to the house of accused and forced to issue blank post dated cheque in the month of June 2015 and they threatened that if blank post dated cheques are not issued, they would take necessary action against accused persons. Accordingly the accused No.2 issued 5 blank cheques to the Rathnashekar Babu and they assured that they would not present the said cheques to the bank which are taken only as security. After that on 28.09.2015 when the accused No.2 visited Bengaluru for his work at that time Rathnashekar Babu, Manjunath along with some anti social elements picked up accused No.2 at 4-00 pm., and took him to their office and forced, threatened him to sign 10 blank bonds purchased by them and threatened that if he does not put his signature they would manhandle him. He denied transactions and issuance of cheques to the complainant and called upon to withdraw the notice. Ex.P15 is the letter given by the accused SCH-09 9 CC.6282/2016 No.2 on behalf of NGO by name SK helping hands foundation the mother NGO, Hubli, wherein the accused No.2 acknowledged the receipt of Rs.27,50,000/- which was received from the husband of complainant by name Mohan Gowda and for further settlement, he issued cheques dated 27.05.2015 , 7.06.2015, 20.6.2015 and 28.06.2015 respectively drawn on Yes Bank, dated 22.05.2015 and also he paid Rs.10,00,000/- by cash out of Rs.27,50,000/- to Mohan Gowda. According to the learned counsel for the complainant, when the issuance of cheques and accused No.2 signatures are admitted, then the presumption as required under Section 139 of N.I. Act comes to the aid of the complainant. It is the turn of the accused to explain or rebut the said presumption by raising a probable defence.
10. In this regard, the court has to see whether the accused No.2 has been successful in rebutting the presumption through cross-examination of PW-1 and their evidence. In support of their defence, the accused cross examined PW-1 in length, nothing has been elicited from the mouth of PW-1 that no debt exists under Ex.P.1 to 3. PW-1 deposed that the contents of complaint and chief affidavit were given by her husband to her counsel. She knows the accused persons since 3-4 years. The accused SCH-09 10 CC.6282/2016 No.2 who is the friend of her husband, they are doing real estate business. She paid Rs.27,50,000/- by way of cash to accused No.2 and 3 on 27.05.2015 in her residence. She is a house wife. Her husband working as team leader in Tayota Motors. She do not know the yearly income of her family. She denied that she saw the accused for the first time before this court. The contents of Exs.P1 to 3 filled by the accused No.2. Rs.27,00,000/- paid by her husband by selling house property situated at Peenya, Dasarahalli for a total consideration of Rs.20,00,000/- to north Indians which was in the name of her husband. She has not gone to Gadag to inspect whether the accused is doing real estate business. She has deposed that she is ready to not produce bank statements before the court to show that she had Rs.27,50,000/- in her account as on the date of lending of loan to the accused persons. She is not an income tax assessee. She had no problem to transfer the aforesaid amount to the accused account through her account. She had 10-13 lakhs amount in Karnataka Bank account and same was withdrawn in the month of January 2013. The vendors paid Rs.20,00,000/- by way of cash in the year 2014-15 and her husband executed sale deed in favour of vendor. Accused Nos.2 and 3 repaid Rs.10,00,000/-
SCH-09 11 CC.6282/2016on 22.05.2015 cheque was issued by the accused No.2, she do not know exact date. The cheques were belongs to the personal account of accused No.2. She admits that she knows the Manjunath and Dr. Rathnashekarbabu and she knows connection with this transaction by receiving cheques on Rathnashekar Babu and Manjunath. As per the say of her husband she misused the cheques and filed this false case against the accused. She do not know Manjunath transferred Rs.27,50,000/- to the current account No.024983800000702 of Yes Bank Hubli, belonging to accused No.1 account and said amount was repaid to the account of Manjunath at that time, the accused No.1 company gave 5cheques and 10 blank stamp papers were received by the Manjunath. After repayment of cheques and stamp papers not returned to the accused and same were misused. She pleads ignorance that the accused issued reply notice to Rathnashekar Babu and Manjunath and she has not examined Rathnashekar Babu and Manjunath as witnesses. She denied that she has not paid any amount to the accused and she has not obtained any documents from the accused persons.
11. One witness Mohan Gowda examined as PW-2 who is the husband of complainant. He knows the facts SCH-09 12 CC.6282/2016 and circumstances of the case. He deposed that what ever deposed by the PW-1, this witness cross examined by the counsel for the accused, wherein he deposed that he studied ITI. He knows the bank transaction. He was working as group leader at Tayota Company and since 2000 to 2016 and was drawing Rs.80,000 to 90,000/- salary per month. Now he is doing tiles business. He is an income tax assessee. On 10.09.2014 his wife lent loan to the accused, at that time, accused No.2 and 3 himself and complainant were present. They requested loan to develop SK Developers Layout. He has not inspected the aforesaid place and not verified the documents. He sold house property for a sum of Rs.52,50,000/- in the month of August, out of which, he paid Rs.27,50,000/- through his wife by way of cash. He has not obtained loan agreement from the accused. After 3-4 months, the accused No.2 executed letter in his favour which is marked at Ex.P15 by confortation through DW-1. He paid loan on 10.09.2014 at that time he had 1-150 lakhs in his account at City Bank M.G. Road. He has no problem to produce bank statement. He is also having account at SBI, Bidadhi branch. On 10.09.2014 he had Rs.7 to 8 lakhs in his account. His wife is having SB account Karnataka Bank, Hesaraghatta Branch, at the time of SCH-09 13 CC.6282/2016 lending of loan to the accused she had 8 -10 lakhs in her account. He sold house property bearing No.634 situated at Sai Maruthi Nilaya , T.Dasarahalli, measuring 15X40 for a sum of Rs.30,00,000/- on 08.08.201, to one Panjabi . The vendor paid Rs.25-30 lakhs by way of cash. 7-8 laksh by DD and 7-8 lakhs by way of cheque. Out of which, he presented cheque and DD to his account and cash deposited to his wife's account. He has not disclosed the property sold information in IT returns and also loan advanced to the accused persons. He admits that Rathnashekar Babu is physiotherapy doctor. He knows him since 2013-14 and he knows the transaction held between him and accused persons. He denied that himself and complainant not paid any amount to the accused persons. He denied that the accused No.3 has not done any transaction with him and so also, there was no transaction held with accused persons and himself, on the say of Manjunath, complainant has filed this false complaint against the accused persons. He admits that he is having salary account. He obtained cheques from the accused persons in the name of his wife, entire transaction was done by himself and his wife and jointly paid loan to the accused persons. She do not know Manjunath transferred Rs.27,50,000/- to the current SCH-09 14 CC.6282/2016 account No.024983800000702 of Yes Bank Hubli, belonging to accused No.1 account and said amount was repaid to the account of Manjunath and accused No.1 company gave 5cheques and 10 blank stamp papers to the Manjunath and the same were misused through his wife to file this false case against accused persons without returning the same to them even after repayment of loan.
12. Admittedly, in the cross examination of PW-1, the accused has not elicited from the mouth of PW.1 that there is no existence of legally recoverable debt payable by the accused persons to the complainant as they have not taken any amount from the complainant. Hence the complainant proved his case from four corners of NI Act. The accused no.2 and 3 have not at all disputed the issuance of cheque or signature on it. Hence it is crystal clear that the cheque in question was issued by the accused in favour of complainant towards discharge of accused No.1 firm liability. If at all, the cheques were misused by the complainant, what prevented the accused No.3 to take legal action against the complainant immediately after the receipt of demand notice. To escape from the liability, the accused persons intentionally denied the transaction.
SCH-09 15 CC.6282/201613. The statutory presumption under Sec.139 of N.I. Act explains initial presumption infavour of the producer of an instrument. It says court shall presume that one instrument is handed over infavour of another person only for the purpose of recover of existed debt. Therefore, the statutory presumption explained under Sec.139 of N.I. Act always provides presumption infavour of the complainant. But, it does not mean that the statutory presumption cannot be rebutted. The said presumption can be rebutted at the strength of strong oral and documentary evidence. Let us see the attempt of the accused to rebut the evidence of complainant.
14. To defeat the case of the complainant, accused no.2 himself examined as DW-1, wherein he deposed that he do not know the complainant. He had real estate business with Manjunath for that purpose he borrowed Rs.27,00,000/- and some Government rules were not completed by him and hence he repaid the said amount to Manjunath. At the time of advancement of loan, the Manjunath obtained signed 5blank cheques from him after repayment of loan, the said Manjunath not returned the cheques and same were misused through complainant to file this complaint. Manjunath transferred Rs.7,50,000/- on 11.12.2014 and 12,50,000/- on SCH-09 16 CC.6282/2016 12.12.2014 to his account and to show the same, he produced bank statement at Ex.D.1.
15. DW-1 in his cross-examination categorically admits that he is doing real estate business by purchasing agricultural land and by conversion of the land, forming sites and selling the said sites to the vendors. He is a M.com, LLB graduate. He is running Suresh Kumar real estate developers company wherein his wife and himself are the Directors. The said company started in the year 2013 and also running NGO in the name and style of SKLP hands foundation. He denied that he formed layout in the year 2013 at Gajendragad, for that, he met some investors and so also he met complainant and her husband and his friends, borrowed Rs.27,50,000/- in the year 2013. On 22.05.2015, he paid Rs.10,00,000/- to the complainant and for the remaining balance amount he issued the alleged cheques in question to the complainant has been denied. He admits his NGO letter head and contents along with signature of him and the said document is marked at Ex.P15 and his signature marked at Ex.P15(a). He do not remember the cheques number which were issued by one Rathnashekar Babu and Manjunath. He admits his signature and writings on Ex.P1 to 3 belongs to him.
SCH-09 17 CC.6282/201616. The admitted portion of evidence is reproduced as it is:
¤.¦.1-3 gÀ°ègÀĪÀ §gÀªÀtôUÉ ºÁUÀÆ ¸À» £À£ÀzÀÄ JAzÀgÉ ¸Àj. He denied that the para No.12 of Ex.P14 reply notice that by kidnapping him on 28.09.2015 Dr. Rathnashekar babu and Manjunath were taken his signatures on 10 blank bond papers forcibly.
17. The above said evidence of DW-1 clearly corroborates the case of the complainant that, there is legally recoverable debt on Ex.P1 to P3 cheques by the accused persons to the complainant. Accused persons have not made out a probable defence so as to shift the burden on the complainant. The accused No.2 has failed to establish his defence that the cheques were misused by the complainant which were forcibly taken from him by the Ratnashekarababu and Manjunath. Thus, accused persons have failed to rebut the presumption arisen in favour of complainant under Sections 118(a) and 139 of N.I. Act.
18. It is pertinent to note that ordinarily in the cheque bounce cases, what the court has to consider is, whether ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption SCH-09 18 CC.6282/2016 contemplated by Sec.139 of the Act. Once, the cheque relates to the account of the accused and he or she accepts and admits the signature on the said cheques, then initial presumption has contemplated under Sec.139 of the N.I. Act has to be raised by the court in favour of the complainant. The presumption referred in Sec.139 of N.I. Act is a mandatory presumption and not a general presumption.
19. On perusal of the evidence of parties, it reveals that after service of notice, the accused No.2 has not taken any legal action against complainant nor husband of the complainant. This defence of DW-1 clearly establishes the fact that the story created by the accused persons is false. When the accused No.2 has admitted Ex.P1 to P3 cheques belongs to the accused No.2 personal account and he was a partner of accused No.1 firm along with accused No.3, and involved in day to day activity of partnership business and also admits his signature on Exs.P1 to P.3, it is sufficient to hold that the complainant has proved the existence of debt under Exs.P1 to P.3, by the accused No.2. Thus, it clearly goes to show that since the accused persons had issued the cheques in question to the complainant for consideration. The notice at Ex.P7 issued by the complainant was duly served on residential SCH-09 19 CC.6282/2016 address of accused No2 and 3, but they have not taken any legal action against the complainant, there itself the accused persons have failed to raise the probable defence. The documents on record shows that accused persons 1 to 3 borrowed loan from the complainant and her husband for their business and the accused No.2 issued the cheques at Exs.P1to P.3 to the complainant to discharge their liability.
20. It is pertinent to note that ordinarily in the cheque bounce cases, what the court has to consider is, whether ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused persons were able to rebut the statutory presumption contemplated by Sec.139 of the Act. Once, the cheque relates to the account of the accused persons and accused No.2 accepts and admits the signatures on the said cheques, then initial presumption has contemplated under Sec.139 of the N.I. Act has to be raised by the court in favour of the complainant. The presumption referred in Sec.139 of N.I. Act is a mandatory presumption and not a general presumption.
21. In this regard I have relied Apex Court decision reported in (2019) 4 SCC 197 in the case of Bir Singh v/S Muskesh Kumar wherein in it is held that, Sec.139 SCH-09 20 CC.6282/2016 introduces an exception to the general rule as the burden of proof and shifts the onus on the accused, The presumption under Section 139 of the N.I. Act is a presumption of law as distinguished from presumption of facts. Presumption are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumption of law and presumptions of fact, unless the accused adduces evidence showing the reasonable possibility of the non existence of the presumed fact as held in Hiten P Dalal. But mere denial or rebuttal by the accused was not enough , he accused had to prove by cogent evidence that there was no debt or liability.
22. In this regard, it is useful to refer decision of Hon'ble Apex Court in Criminal Appeal No.867/2016 (arising out of SLP(CRL) No. 5410 /2014) in the case of Sampelly Satyanarana Rao V/s. Indian Renewable Energy Development, wherein it is held that in "Rangappa V/s Mohan, this court held that once issuance of a cheque and signature thereon are admitted presumption of a legally enforceable debt in favour of the holder of the cheque arises, it is for the accused to rebut SCH-09 21 CC.6282/2016 the said presumption, though accused need not adduce the own evidence and can rely upon the material submitted by the complainant. However mere statement of the accused may not be sufficient to rebut the said presumption. On perusal of the evidence, it reveals that after service of notice or summons from the Court, the accused has not taken any legal action against complainant and the evidence of PW.1 clearly shows that the complainant husband having sufficient income for advancement of loan in question to the accused persons in the year 2015, since it is a huge amount and the complainant husband was doing team leader in Toyota Motors and now doing tiles business. During the cross examination the accused persons were not denied the source of income to lend loan to the accused. Hence, the defence of DW-1 clearly establishes the fact that the story created by the accused persons is false. When the accused persons have admitted Exs.P1to P.3-cheques belongs to accused No.2 individual account, it is sufficient to hold that the complainant has proved the existence of debt under Exs.P1to P.3, by the accused persons. Thus it clearly goes to show that since the accused persons have issued the cheques in question to the complainant to discharge their liability. The notice Ex.P7 issued by the complainant was SCH-09 22 CC.6282/2016 duly on the accused persons after that they have not taken any legal action against complainant, there, itself they have failed to raise the probable defence. The documents on record shows that the complainant had lent the money to the accused persons and they issued the cheques to the complainant to discharge their amount owed by accused persons.
23. Now, the question that arises whether the issuance of cheques in question by the accused persons to discharge their liability of them to the complainant comes under the purview of Sec.138 of N.I. Act or not. It is settled law that in order to draw the presumption under Sec.118 read along with 139 of N.I. Act, the burden was heavily upon the complainant to have shown that he had required funds for having advanced the money to the accused persons that the issuance of the cheques in support of the said payment advanced was true and that they were bound to make the payment as had been agreed while issuing the cheques infavour of the complainant.
24. In the present case also the accused persons have not rebutted the presumption U/s.139 of N.I. by cross examining the PW1&2 that Exs.P1to P.3, cheques were not given towards legally recoverable debt or liability.
SCH-09 23 CC.6282/2016As per the aforesaid rulings, the presumption mandated by Section 138 of Negotiable Instruments Act includes that this exists legally enforceable debt or liability, which is rebuttable presumption and it is open to the accused persons to raise defence wherein the existence of legally enforceable debt or liability can be contested. The complainant has proved that the accused persons have issued the cheques in question to the complainant to discharge their liability which accused No.2 individual account owed to him. When such being the case the contention of the accused No.2 and submission of learned counsel for the accused persons that they did not borrow any amount from the complainant and hence, they are not liable to pay the amount of cheques cannot be acceptable. Thus, the story brought by them is unworthy of credit apart from being unsupported by any evidence.
25. The oral and documentary evidence available on record are clearly and categorically established all the ingredients of Section 138 of N.1.Act and also proved the fact that the accused No.2 had issued the cheques in question in favour of the complainant for consideration towards the discharge of liability and the said cheques were dishonoured and then the accused persons failed to pay the amount of cheques within 15 days from the date SCH-09 24 CC.6282/2016 of service of the demand notice. Hence, the dishonor of the cheques in question is clearly attracts the penal provision of Section 138 of the N.I. Act and the complainant has proved the guilt leveled against the accused persons for the offence P/u/s Section 138 of the N.I. Act. The accused persons have utterly failed to rebut the presumption under Sec.138 of N.I. Act infavour of the complainant. Hence, the complainant is entitled for benefit of statutory presumption as contemplated under Sec.139 of the Act. I did not find any informalities or contradictions elicited to render his evidence incredible. Therefore, the testimony of PW-1 inspires confidence to believe and to act upon the evidence of PW.1 and the documentary evidence at Ex.P1 to P15 are consistence, corroborative and supporting to each other and in accordance with the case of the complainant and which leads me to conclude that the complainant has proved beyond reasonable doubt against the accused persons for the alleged offence punishable under Sec.138 of N.I. Act. Accordingly, I answer Point No.1 in the Affirmative.
Point No.2:
26. In view of my above discussions and findings on Points No.1, I proceed to pass the following:
SCH-09 25 CC.6282/2016ORDER Acting under Section 255[2] of Cr.P.C, the accused No.1 to 3 are hereby convicted for the offence Punishable U/s. 138 of the N.I. Act.
The accused No.2 and 3 shall pay fine of
Rs.17,50,000/-.
In default of payment of fine amount, the accused Nos.2 and 3 shall under go Simple Imprisonment for six months.
Out of the amount so realized, the accused No.2 and 3 shall pay a sum of Rs.17,40,000/- to the Complainant as compensation, as provided U/s.357 Cr.P.C. The remaining amount of Rs.10,000/- shall go to the State. The bail bond and cash security amount of Rs.14,000/- deposited by the accused No.2 and 3 is hereby stand cancelled and forfeited to the state.
Office is directed to furnish free copy of this judgment to the accused Nos.2 and 3. (Dictated to the stenographer on computer, corrected and then pronounced by me in the open court on this the 9th day of July 2020.) (Abdul Khadar) Judge, Court of Small Causes & XXVI ACMM, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of omplainant:
PW1 Jayashree C.R.
PW2 Mohan Gowda
SCH-09 26 CC.6282/2016
List of Documents marked on behalf of complainant:
Ex.P1 to 3 : Cheques, Ex.P1(a) to 3(a) : Sig.of accused No.2 Ex.P4 to 6 : Bank Endorsement Ex.P7 : Legal notice Ex.P8 to 10 : Postal receipts Ex.P11 to 13 : Postal acknowledgements Ex.P14 : Reply notice Ex.P15 : Document related to NGO Ex.P15(a) : signature of accused
List of Witnesses examined on behalf of accused:
D.W.1 Suresh Kumar Pendem List of documents marked on behalf of accused:
Ex.D.1 Statement of accounts
(Abdul Khadar)
Judge, Court of Small
Causes & XXVI ACMM,
Bengaluru