Bangalore District Court
Sri.V.Krishna Reddy vs Sri. B.Devaraj on 19 March, 2020
1 C.C.No.30023/2015J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 19th day of March, 2019
i.
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.30023/2015
Complainant : Sri.V.Krishna Reddy,
S/o.Venkataswamy Reddy,
Occupation :
Electrical contractor,
Aged about 48 years,
# 13, 4th Main road,
Shakambari Nagar,
J.P.Nagar 1st phase,
Bengaluru -560 078.
(Rep. by Smt. Shakunthala Shetty
., Adv.,)
- Vs -
Accused : Sri. B.Devaraj,
S/o. Bhairappa,
Occupation : Business,
Aged about 45 years,
Sri. Seeti Bhairaveshwara
Nilaya, # 37, 1st Main Road,
Shakambari Nagar,
J.P.Nagar 1st Phase,
Bengaluru - 560 078.
(Rep. by Sri. P.M.Mathew., Adv.,)
2 C.C.No.30023/2015J
Case instituted : 30.9.2015
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 19.3.2020
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, The Accused owned a site at Kothanur, Jambusavari Dinne, Bengaluru and he was intend to sell the same for his requirement, accordingly the Accused entered into a sale agreement with him on 17.10.2013 in respect to the sale of said site for sale consideration of Rs.16 Lakhs and on the date of agreement he has paid Rs.1,50,000/- to the Accused as advance amount and subsequently the Accused has collected Rs.4,50,000/- as additional advance amount to meet his requirement, as per the terms and conditions of sale agreement when he insisted 3 C.C.No.30023/2015J the Accused to get register the sale deed in his favour, the Accused started avoiding to him, consequently he lodge a complaint before the police against the Accused and during enquiry the Accused assured to repay the advance amount within six months, thereafter completion of stipulated time he approached the Accused for payment but the Accused dodging the time for one or other reasons and vehement demand made by him , the Accused issued two cheques i.e (1)cheque bearing No. 438775 dated: 25.6.2015 for sum of Rs.3,50,000/- and (2) cheque bearing No. 438773 dated: 2.7.2015 for sum of Rs.2,50,000/-, both were drawn on Corporation Bank, RBI layout branch, in his favour with instructions to encash the said cheques on the due dates towards repayment of the amount. It is further contended that, as per the instructions of the Accused he has presented the cheques through his banker i.e. Canara Bank, Sarakki Layout Branch, Bengaluru for encashment but said cheques came to be dishonoured and returned with endorsement dated: 31.7.2015 that, "Insufficient Funds", as there is no other go to him has issued a legal notice to the Accused through his advocate on 13.8.2015 4 C.C.No.30023/2015J demanding him to pay the cheques amount within 15 days from the date of receipt of notice and the said notice was served on him on 20.8.2015, even inspite of receipt of notice, the Accused neither complied the demand made in the notice nor replied to the notice. Hence he has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the averments of the complaint and he has produced original documents.
4. Prima-facie case has been made out against the accused and summons was issued against the accused in turn she has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to her, to which she pleaded not guilty and claims to be tried.
5. Thereafter the complainant himself examined as PW.1 by filing his affidavit in lieu of 5 C.C.No.30023/2015J examination in chief and in support of his oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.7 i.e, two Original Cheques dated: 25.6.2015 and 2.7.2015 as per Ex.P.1 and P.2, the signatures on the said cheques identified by P.W.1 as those of the accused as per Ex.P.1(a) and P.2(a) , the Bank Memos as per Ex.P.3 and P.4, the copy of Legal Notice as per Ex.P.5, the Postal Receipts as per Ex.P.6 and postal Acknowledgement as per Ex.P.7 and agreement of sale dated: 17.10.2013 as per Ex.P.8 and acknowledgement issued by the J.P.Nagar police as per Ex.P.9, Delivery note as per Ex. P.10, During the course of cross-examination of the Accused , the complainant got marked the certified copy of the Encumbrance certificate issued by Senior Sub- Registrar, Jayanagar as per Ex.P.11, certified copy of the register sale deed date: 2.7.2013 as per P.12, signature of the Accused as per Ex.P.12(a), Vakalath nama of the Accused marked as Ex.P.13 and signature of the Accused is as per Ex.P.13(a) and closed his side.
6 C.C.No.30023/2015J6. The complainant has also examined the Handwriting Expert as PW.2 and the report submitted by the hand writing expert marked as Ex.C.1 and the signatures of the handwriting expert are marked as Ex.C.1(a) to C.1(f).
7. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence appearing against him and has chosen to lead his rebuttal evidence subsequently the Accused examined himself examined as DW.1 and during the course of cross-examination of Accused, One Deed marked as Ex.N.1 and has not produced any documents on his behalf and closed his side.
8. Heard the arguments of both learned counsels for the complainant and the accused and perused the written argument submitted by the learned counsel for the complainant and decisions relied upon by the complainant materials on record.
9. On the basis of complaint, evidence of complainant and documents and having heard the 7 C.C.No.30023/2015J arguments of both learned counsels for the complainant and the accused, the following points that are arise for consideration are:-
1. Whether the complainant proves that the accused has issued two cheques i.e. 1) cheque bearing No. 438775 dated: 25.6.2015 for sum of Rs.3,50,000/- and 2) cheque bearing No. 438773 dated:
2.7.2015 for sum of Rs.2,50,000/-
, both were drawn on Corporation Bank, RBI layout branch, to discharge legally recoverable debt to the complainant and when the complainant has presented cheque for encashment through her banker but the said cheque has been dishonoured for the reasons "Insufficient Funds" on 31.7.2015 and the complainant issued legal notice to the accused on 13.8.2015 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
10. The above points are answered as under:
8 C.C.No.30023/2015JPoint No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS
11. Point No.1 : Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act pre-supposes conditions for prosecution of an offence which are as under:
1. Existence of legally enforceable debt or 9 C.C.No.30023/2015J liability and issuance of cheque in discharge of said debt or liability;
2. Cheque shall be presented for payment within specified time i.e., from the date of issue before expiry of its validity.
3. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
4. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer in respect of bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
12. It is also one of the essential ingredient of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e.,U/s.118 a presumption 10 C.C.No.30023/2015J shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and or rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
13. In the present case the complainant got examined as PW.1 by filing his affidavit evidence wherein the complainant has reiterated the entire averments of the complaint, the complainant/PW.1 in her evidence testified that, the Accused owned a site at Kothanur, Jambusavari Dinne, Bengaluru and was intending to sell the same for his requirement, accordingly he had entered into a sale agreement dated: 17.10.2013 in respect of the sale of the said site for a total sale consideration amount of 11 C.C.No.30023/2015J Rs.16 Lakhs with him and on the same date of agreement he was paid a sum of Rs.1,50,000/- to the Accused as an advance amount and subsequently the Accused has also collected Rs.4,50,000/- as additional advance amount to meet his requirement and thereafter as per the terms and conditions of the sale agreement , he insisted to get register the sale deed in his favour but the Accused avoided him for that, he lodged the complaint before the police against the Accused and during the enquiry, the Accused assured him to repay the advance amount received by him within six months, even after lapse of the said period, he did not return the same and postponing it on one or other reason, finally at his demand the Accused issued two cheques i.e. Ex.P.1 for Rs.3,50,000/- and Ex.P.2 for Rs. 2,50,000/- in his favour towards repayment of the said amount and requested to present , accordingly he has presented the said cheques through his banker but same came to be dishonoured with endorsement dated: 31.7.2015 as "Insufficient Funds" , thereafter he got issued legal notice to the Accused through his counsel on 13.8.2015 demanding him to pay the cheques 12 C.C.No.30023/2015J amount within 15 days from the date of receipt of notice and even inspite of service of the notice on 20.8.2015, the Accused neither complied the demand made by him nor replied to the notice.
14. In support of the oral evidence of the complainant, he produced the two Original Cheques dated: 25.6.2015 and 2.7.2015 as per Ex.P.1 and P.2, the signatures on the said cheques identified by P.W.1 as those of the accused as per Ex.P.1(a) and P.2(a), the Bank Memos as per Ex.P.3 and P.4, the copy of Legal Notice as per Ex.P.5, the Postal Receipt as per Ex.P.6 and postal Acknowledgement as per Ex.P.7 and agreement of sale dated: 17.10.2013 as per Ex.P.8 and acknowledgement issued by the J.P.Nagar police as per Ex.P.9, Delivery note as per Ex. P.10, During the course of cross-examination of the Accused, the complainant got marked the certified copy of the Encumbrance certificate issued by Senior Sub-Registrar, Jayanagar as per Ex.P.11, certified copy of the register sale deed date: 2.7.2013 as per P.12, signature of the Accused as per Ex.P.12(a), vakalathnama of the Accused marked as Ex.P.13 and signature of the Accused is as per 13 C.C.No.30023/2015J Ex.P.13(a).
15. In the present case, there is no dispute between the parties in respect of their acquaintance. The Accused has also not disputed that, the cheques in question belongs to his account and signatures found on the cheques i.e. Ex.P.1(a) and 2 (a) are those of his signatures. It is also not disputed by the Accused that, the cheques in question were presented for encashment and dishonoured for the reason of "Insufficient Funds" , since as a matter on record i.e. return memos as per Ex.P.3 and p.4 issued by the concerned bank dated: 31..7.2015, therefore it is a matter on record and has been proved that, the cheques in question were presented within their validity period and dishonoured as per the bank endorsement .
16. In relation to the service of notice the Accused has denied the receipt of legal notice caused by the complainant but the complainant in order to prove the service of legal notice caused by him on the Accused has produced the documentary proof i.e. copy of the legal notice, postal receipt and postal 14 C.C.No.30023/2015J acknowledgement i.e., Ex.P.5 to P.7 respectively. The perusal of Ex.P.5 to P.7 makes it clear that, the complainant has issued legal notice to the Accused on 13.8.2015 by mentioning the address of the Accused and the said notice was sent through RPAD to the Accused within 30 days from the date of receipt of bank memo. It is also important to note here that, the learned counsel for the Accused during the course of cross-examination of the complainant and in the evidence of Accused has not disputed the issuance of legal notice by the complainant to the Accused through RPAD and the signature found on the postal acknowledgement i.e Ex.P.7. In addition to that, the Accused in his cross- examination admitted that, he has shown the same address in his chief evidence affidavit which has been shown in the complaint and also not denied the suggestion that summons and warrant have been sent to him from the court to the same address. Hence, in view of the non disputing of the address of the Accused mentioned by the complainant in the legal notice and the said address is admitted by the Accused in his affidavit evidence as his address, in such circumstances it can be held that, the legal 15 C.C.No.30023/2015J notice i.e Ex.P.5 caused by the complainant and it was sent to the correct address of the Accused through RPAD and the said notice was served on the Accused as per Ex.P.7 postal acknowledgement. Even it is not the defence of the Accused that, the signature found on Ex.p.7 is not of the Accused and Accused has not produced any documents to show that, as on the date of issuance of the notice and service of the notice he was/is not residing in the address mentioned by the complainant on RPAD cover and it is also not the defence of the Accused that, the address shown by the complainant is not of his correct address. Therefore in view of the said reasons it can be held that, the Accused has admitted his address mentioned by the complainant in the legal notice as well as RPAD cover as that of his correct address. Even it is not the defence of the Accused that, the signature found on Ex.P.7 is not of his signature or has been created by the complainant and the Accused has not examined concerned postal authorities to disprove the signature found on Ex.P.7 postal acknowledgement is not of his signature. Therefore in view of non disputing of the address of the Accused in the legal 16 C.C.No.30023/2015J notice as well as Ex.P.7 i.e. postal acknowledgement makes it clear that, the Accused has admitted that, the legal notice caused by the complainant was sent to his correct address through registered post and it was served on him, in such circumstances, it can be held that, the legal notice caused by the complainant was duly served on the Accused as per Ex.P.7 and the Accused has not given any reply to the said notice, hence the contentions taken by the learned counsel for the accused in the argument that, the notice issued by the complainant was not served on the accused and the complainant has not complied the mandatory requirements of Sec.138(b) of N.I.Act and complaint is not maintainable cannot be acceptable one.
17. The Accused in his defence has disputed the fact that, he entered into a sale agreement with the complainant and he has received Rs.6,00,000/- from the complainant as advance amount and the issuance of cheques in question to the complainant towards repayment of the advance amount as claimed by the complainant. It is further defence of the Accused that, he took some of Rs.50,000/- from 17 C.C.No.30023/2015J the complainant some time back and the complainant took his blank cheques, blank signed e- stamp papers and some blank signed plain papers from him as security and has executed a bond stating that, he had received three cheques and other documents as security for the transaction and now the complainant has misused the cheques in question and created an agreement on blank signed stamp papers and has produced before the court.
18. It is the specific claim of the complainant that, the Accused owned a site at Kothanur Jambu Savari Dinne, Bengaluru and intend to sell the same for his requirement , accordingly he entered into agreement of sale dated: 17.10.2013 with him in respect of sale of the said site for total sale consideration of Rs.16 Lakhs out of the said sale consideration amount, as on the date of agreement he has paid Rs.1,50,000/- to the Accused and subsequently the Accused has also collected Rs.4,50,000/- as additional advance amount to meet his requirement but later he did not execute the register sale deed in his favour as per the terms and conditions of the sale agreement, at that time he 18 C.C.No.30023/2015J lodged the complaint against the Accused before the jurisdictional police during the enquiry the Accused assured to repay the advance amount received by him within six months and even after six months he did not return the said amount and finally has issued two cheques in question i.e Ex.P.1 and P.2 for Rs.3,50,000/- and Rs.2,50,000/- respectively and the said cheques were presented for encashment and same have been dishonoured for want of sufficient funds in the account of the Accused. On the other hand, the Accused has denied execution of the sale agreement in favour of the complainant and receipt of Rs.6 Lakhs as advance amount towards sale consideration amount from the complainant and also issuance of the cheques in question i.e Ex.P.1 and P.2 in favour of the complainant towards repayment of the advance amount received by him. The complainant has produced sale agreement dated: 17.10.2013 executed by the Accused in his favour which is at Ex.P.8 and signatures of the Accused are identified by the complainant which are at Ex.P.8(a) to P.8(c) and also produced the certified copy of encumbrance certificate issued by the Sub registrar, Jayanagar( Kengeri) Bengaluru which is at 19 C.C.No.30023/2015J Ex.P.11 and certified copy of the register sale deed executed by the Accused and his family members in favour of one Sri.K.Kesavulu Naidu, dated:
2.7.2013 is at Ex.P.12 and signature of the Accused found on the sale deed at Ex.P.12 (a) is that of his signature.
19. The learned counsel for the Accused during the course of cross-examination of the complainant has much cross examined on the execution of the sale agreement i.e. Ex.P.8 produced by the complainant but it is an admitted fact that, the property mentioned in the sale agreement i.e Ex.P.8 therein katha No. 39/2 property number 40, situated at Kothanur Jambusavari Dinne, Bengaluru south Taluk., and property which has been sold by the Accused and his family members to one Sri.K.Kesavulu Naidu on 2.7.2013 through registered sale deed i.e. as per Ex.P.12 for sum of Rs.16 Lakhs, are one and the same. It is also seen from the Ex.P.12 that, the Accused is also one of the vendor i.e. 7th vendor in the registered sale deed and he has also executed the sale deed in favour of one Sri.K.Kesavavulu 20 C.C.No.30023/2015J Naidu. Hence it goes to show that, the Accused is also co-owner of the said property which is shown as schedule in agreement of sale i.e Ex.P.8. Apart from the Ex.P.12 sale deed, Ex.P.1 i.e., encumbrance certificate issued by the sub registrar, wherein also the name of the Accused is disclosed as also one of transferors of property bearing katha No.39/2, situated at No.40 i.e per site property shown in Ex.P.8 agreement of sale, therefore in view of Ex.P.11 and P.12, makes it clear that, the Accused is also one of the owner of the site bearing No.40 and katha No.39/2, as shown in Ex.P.8 i.e agreement of sale deed and the Accused and his family members have sold the said site property as per Ex.P.12 registered sale deed on 2.7.2013 and after alienation of said site he had executed Ex.P.8 i.e., agreement of sale in favour of complainant.
20. It is also relevant here to mention certain admitted facts by the Accused during the course of cross-examination of complainant and also in his evidence the concerned during the cross- examination of PW.1 has made specific suggestions that, the complainant has lent Rs. 50,000/- to him 21 C.C.No.30023/2015J on 13.10.2013 at that time complainant has collected one stamp paper and two document sheets which were duly signed by him and also suggested that, complainant has got typed the document at Ex.p.8 on the said stamp paper and created it and the Accused has not executed any agreement in favour of complainant as per Ex.P.8 and also suggested that, Accused has signed only on one side of the stamp papers at Ex.P.8 at that time, they were blank papers, but all the suggestions were denied by the complainant.
21. However, the above suggestions made by the Accused makes it clear that, the Accused has admitted his signatures on the Ex.P.8, i.e. agreement of sale and also admitted that, the said agreement is got typed and also admitted that, he has put his signatures on one side of two stamp papers, but his defence is that, he had signed the said stamp papers at that time they were blank sheets and later the complainant has got created it as agreement of sale. Hence, when the Accused has admitted his signatures on the documents i.e. stamp papers and also admitted that, the stamp papers have been 22 C.C.No.30023/2015J given to the complainant in respect of alleged loan transaction of Rs.50,000/- borrowed from complainant, the burden of proving the said fact shifted to the Accused and if the Accused is able and proved the said fact, certainly it can be held that, Ex.P.8 is created by the complainant, but except oral denial no documentary proof has been produced by the Accused, moreover the Accused himself denied that, he is not owned any property and has not executed any agreement of sale, if such being the fact, then the doubt arises as to how the complainant has came to know about the site property and property description and other particulars of the property owned by the Accused and if really the Accused has handed over the blank signed stamp papers in respect of alleged loan transaction of Rs.50,000/- and the complainant is intending to create the blank signed stamp papers of the Accused, he would have created the said document as loan document instead of agreement to sale and there was no necessity for the complainant to create at as agreement of sale, in such circumstances, the defence of the Accused appears that, only in order to deny Ex.P.8, has taken the 23 C.C.No.30023/2015J defence that, at the time of signing the stamp papers they were blank sheets and latter complainant got created as sale agreement. It is also important to note that, except the suggestions made to the complainant i.e., complainant has got typed the document at Ex.P.8, on his blank signed stamp paper, nothing has been produced before the court to show that, how and when and for what purpose the complainant has got created Ex.P.8, therefore only on the basis of suggestions that, too suggestions were denied by the complainant, the heavy burden is on the Accused to bring on record such material which could tilt the preponderance of probabilities on his favour. It is also important to note that, the fact of the matter remains that, the Accused could not deny his signatures were available on the blank stamp paper with the complainant, the said suggestions is too remote and uncertain to be accepted, as there are no proof or documentary evidence or reasons available for the Accused singing on blank stamp paper, therefore the defence set-up by the Accused in alleged creation of agreement to sell i.e. Ex.P.8 by complainant cannot be acceptable.
24 C.C.No.30023/2015J22. It is also important here to refer the one of the document which was produced by the Accused himself during the course of cross-examination of the complainant i.e. marked as Ex.N.1, according to the Accused there was an agreement between him and the complainant in respect of alleged loan of Rs.50,000/- borrowed by him from the complainant and at that time the complainant has collected his four signed blank cheques and out of the said cheques two cheques are the subject matter cheques in this complaint. but on careful perusal of the recitals of Ex.N.1 wherein it is nowhere mentioned about the alleged fact that, at the time of borrowing of alleged loan of Rs.50,000/- by the Accused , the complainant had collected his blank signed stamp papers along with the blank signed cheques as alleged by him in his defence, if really the Accused has given his blank signed stamp papers along with blank signed papers, definitely the said fact would have been reflected in the Ex.N.1 but no such recitals are forthcoming in the Ex.N.1, in such circumstances, it can be held that, only for the sake of defence and to deny the existence of Ex.P.8 the Accused had taken the defence that, complainant 25 C.C.No.30023/2015J had collected his blank signed stamp papers and later got typed it and created as agreement of sale, such defence cannot be acceptable one in view of the document produced by the Accused himself i.e Ex.N.1. Hence there appears absolutely no reason to discard the contents of the Ex.P.8 from consideration as Accused himself admitted that, signatures found at Ex.p.8 are those of his signatures, in such circumstances, the document i.e Ex.P.8 cannot be ruled out for ruled out of consideration and the existence of contents in Ex.P.8, therefore the preponderance of probabilities lies heavily against the Accused. therefore in view of the said reasons the complainant has proved that, the Accused has agreed and sell the property to him for sum of Rs.16 Lakhs out of the said sale consideration amount, Accused has received sum of Rs.1,50,000/- on the date of execution of the sale agreement as per Ex.P.8 and has executed the sale agreement in favour of the complainant.
23. It is also important to note here that, according to the complainant, he has paid an amount of Rs.1,50,000/- as on the date of 26 C.C.No.30023/2015J agreement of the sale as an advance amount to the Accused, subsequently the Accused has also collected Rs.4,50,000/- as additional advance amount to meet his requirement and thereafter as per the terms of the sale agreement he insisted to execute the register sale deed but he did not execute the same and started to avoid him for that, he lodged the complaint before the concerned police against the Accused and during enquiry the Accused assured to repay the advance amount received by him and has issued the cheques in question in his favour towards repayment of the said advance amount. In order to substantiate the said contention, the complainant has relied Ex.P.8 i.e sale agreement executed by the Accused. As per the Ex.P.8 the complainant has paid Rs.1,50,000/- on the date of execution of the sale agreement. The complainant has also relied the recitals which were found on the hind side of the second page of sale agreement i.e ., Ex.P.8 which is marked as Ex.P.8(a) during the course of cross-examination of the complainant. As per Ex.P.8(a) the complainant has paid an amount of Rs.4,50,000/- to the Accused and in turn the Accused had signed by acknowledging 27 C.C.No.30023/2015J the receipt of Rs.4,50,000/- from the complainant and his signature got marked as Ex.P.8(b), but the Accused strongly disputed his signature found at Ex.P.8(b) as it is not of his signature and forged. The Accused has also disputed the entries found at Ex.P.8(a) as not of in his handwritings and same were created by the complainant. But during the course of cross-examination of the complainant, PW.1 has categorically stated that, the Accused has written Ex.P.8(a) himself and also identified the signature of the Accused is at Ex.P.8(b). It is true that, some discrepancies have been elicited by the learned counsel for the Accused in respect of Ex.P.8(a) i.e. differences in the pen used to write "2.5 Lakhs" and "total Rs.4.5 Lakhs" in Ex.P.8(a) but even for sake of discussion if it is assumed that, there is the difference in pen used to write the words it cannot be held that, the Ex.P.8(a) writings were created by the complainant as alleged by the Accused in his defence.
24. The Accused in order to disprove the writings i.e Ex.P.8(a) and signature of the Accused found at Ex.P.8(b) and also to prove the signature of 28 C.C.No.30023/2015J the complainant alleged to be found at Ex.N.1(a), has filed an application U/s.45 of Indian Evidence Act requesting to send the documents i.e. Ex.N.1 and the writings on the back side of page No.2 and all signatures in Ex.P.8 for getting handwriting expert opinion and the said application was came to be allowed by this court, accordingly the admitted signatures of the complainant on vakalath dated:
28.9.2015, examination in chief of the PW.1 dated:
5.4.2016 and three sheets of specimen signatures taken before the court and three sheets of specimen signatures of the Accused taken before the court and Ex.N.1 and Ex.P.8 were referred to the Truth Labs forensic Services, Madivala Bengaluru for getting opinion from hand writing expert by comparison of the signatures i.e., admitted and disputed signatures and also writings found at the back page of 2nd sheet of Ex.P.8. Thereafter examination of the admitted and disputed signatures and writings on the back page of 2nd sheet of Ex.P.8 by expert namely Sri. Shankarappa Mural, has submitted a report along with his opinion to the court. The handwriting expert in his opinion submitted that, admitted signatures of the complainant are respectively 29 C.C.No.30023/2015J marked as Ex.S.1 to S.12 i.e found on the Vakalath dated:28.9.2015, examination-in-chief and specimen signatures taken before the court and the specimen signatures of the Accused taken before the court are marked as Ex.S.13 to S.21. The expert has also submitted report with his opinion-I stating that, the person who wrote red enclosed standard signatures marked as S.1 to S.12 also wrote the red enclosed questioned signatures marked as Ex.N.1(a) and also submitted his opinion-I, stating that, the person who wrote the red enclosed standard signatures marked as S.13 to S.21 did not write the red enclosed questioned signature marked as Ex.P.8(b).
The report of the handwriting expert discloses that, according to the opinion of handwriting expert the signature found at Ex.N.1(a) is tallied with the specimen signatures of the complainant and the signature found at Ex.P.8(b) is not tallied with the specimen signature of the Accused that means the signature found at Ex.N.1(a) is that of the signature of the complainant and signature found at Ex.P.8(b) is not the signature of the Accused.
25. It is relevant here to mention that, before 30 C.C.No.30023/2015J considering the arguments canvassed by the learned counsel for the complainant and Accused in respect of opinion of the hand writing expert it is just and proper to consider as to whether the opinion of hand writing expert is conclusive or binding on the court, but it is settled law that, opinion of hand writing expert neither conclusive nor is binding on the court and the court is required to approach the opinion of hand writing expert cautiously and investigate the reasons for experts opinion and further to consider all other relevant evidence and there upon either to accept or reject the opinion of the hand writing expert. This principles of law is laid down by Hon'ble Apex court of India in several decisions mainly in a decision reported in AIR 1963 SC 1728 in the case of Ishwari Prasad Vs. Mohammod ISA., wherein the Hon'ble Apex Court held that "Evidence given by experts of hand writing can never be conclusive, because it is after all opinion evidence. Since we have come to the conclusion that, the evidence given by the attesting witnesses and the scribe and the appellant is wholly satisfactory that evidence proves the execution of the document by the 31 C.C.No.30023/2015J respondent and the said evidence does not really need to corroborated by the opinion of expert." Hence the ratio laid down by the Hon'ble Apex court of India in the decision is clear that, before accepting or rejection of the opinion of hand writing expert the court has to consider the other relevant evidence produced by the parties and the opinion of the expert is not conclusive or binding on the court, therefore the court can either accept or reject the opinion of expert by considering the entire evidence and material available before the court. In another decision of Hon'ble Apex Court of India reported in AIR 1964 SC 529 in the case of Shashikumar Banerjee Vs. Subodha Kumar Banerjee., wherein the Hon'ble Apex court held that " the evidence of handwriting expert can rarely be given precedence over substantive evidence." In another case reported in (1980) 1 SCC 704 in the case of Murari Lal Vs. State of Madhya Pradesh wherein the Hon'ble Apex Court held that "Reliance on expert testimony cannot be precluded merely because it is not corroborated by independent evidence, though the court must still approach such evidence with caution and determine its 32 C.C.No.30023/2015J creditworthy ness after considering all other relevant evidence".
26. It is also relevant here to mention that, whether the finger print or hand writing expert is required special study of subject or shall acquire special experience on the subject or an expert must be skilled and has adequate knowledge of the subject to give opinion on particular subject or not, this principles of law laid down by Hon'ble Apex Court in a decisions reported in AIR 1977 SC 1694 in the case of Laxmichand Khajuria and others Vs. Smt. Ishroo Devi and in AIR 1999 SC 3138 in the case of State of Himachala Pradesh Vs. Jailal and others. Hence in view of principles of law laid down by the Hon'ble Apex Court in the said decisions It is settled law that, in order to relay on the evidence of expert the court must be fully satisfied that, he/she truthful witness and reliable witness fully adopted in the art of identification of hand writing in order to opine the disputed hand writing has been made by a particular person or not., this preposition of law held by Hon'ble Apex Court of India in a decision reported AIR 1979 SC 33 C.C.No.30023/2015J 1011 in Kanchinsing's case. Therefore while accepting the opinion of the expert the court must always be received with care and caution and it is unsafe to base a judgment purely on the expert opinion without corroboration and in order to rely the evidence of expert the court must be satisfied that the witness is experienced in the art of comparison of hand writing.
27. In the present case the complainant has filed his objections to the report submitted by the expert and also examined the hand writing expert as PW.2. The handwriting expert i.e PW.2 in his evidence deposed that, he has received the documents i.e Ex.N.1 and P.8 (b) along with the admitted signatures of the complainant on vakalath, chief affidavit and specimen signatures and also admitted and disputed signatures of the Accused. The PW.2 has also deposed that, on the basis of scientific equipments he has compared and examined the disputed signatures along with the admitted signatures and submitted report to the court which is at Ex.C.1 and also submitted a photocopies of comparison chart along with his 34 C.C.No.30023/2015J affidavit. The perusal of Ex.C.1 report submitted by the PW.2 wherein he opined that, the signature found at Ex.N.1(a) written by the person who wrote S.1 to S.12 specimen signatures i.e the complainant's signature and the signature found at Ex.P.8(b) is not written by the person who wrote S.13 to S.21 specimen signatures i.e. as per the opinion of PW.2/ expert the signature found at Ex.N.1(a) is the signature of complainant and signature found at Ex.P.8(b) is not that of the Accused. Now in view of the objections filed by the complainant and serious dispute made by the complainant to the report submitted by the expert and certain facts elicited by the complainant at the time of leading the evidence of PW.2 in respect of the report i.e Ex.C.1 it is just and proper to evaluate the correctness of the handwriting expert report i.e Ex.C.1 , as it is already held in the above that, the Hon'ble Apex Court in various decisions held that in order to rely the evidence of the expert the court must be received with care and caution and it is an unsafe to base a judgment purely on the expert opinion without corroboration of other evidence.
35 C.C.No.30023/2015J28. The PW.2/Expert in his evidence admitted that, he has been directed by the court to examine the documents which are sent by the court as per letter dated: 9.8.2017 vide No.GTO 2017/2017 and also the Memo of instructions along with the said letter. It is also admitted by the PW.2 that, he has been directed to examine all the signatures found at Ex.P.8 and also the writings found at hind side of page No.2 of Ex.P.8. The PW.2 has also admitted that, there are 9 signatures found in Ex.P.8 but he has examined the Ex.P.8(b) signature comparing with the specimen signatures i.e admitted signatures of the Accused marked as S.13 to S.21 and he has not compared and examined the other signatures found at Ex.P.8 along with the Ex.P.8(b) and he has not examined or compared the signatures of the Accused found in other documents. It is also admitted by the Accused that, he has not examined the writings found at hind side of page No.2 of Ex.P.8. Hence, on careful considering the evidence of the expert i.e., PW.2 makes it clear that, though the court has directed to examine all the signatures found in Ex.P.8 by comparing with the disputed signature i.e Ex.P.8(b) as per the memo of 36 C.C.No.30023/2015J instructions, the handwriting expert has not compared the disputed signature i.e Ex.P.8(b) with the admitted signatures of the Accused which are available in the very document i.e. Ex.P.8 marked as Ex.P.8(c). The PW.2 has not verified the other signatures of Accused in the Ex.P.8 except the Ex.P.8(b) with specimen signatures. Hence, it goes to show that, the Ex.P.8(b) was compared through only the signatures which were obtained in the court by the Accused which are at S.13 to S.21. It is also admitted by the PW.2/Expert that he has not examined the writings found in the hind side of page No.2 in Ex.P.8 though he has been directed by the court as per the memo of instructions. It is relevant here to mention that, though the other signatures of the Accused available in Ex.P.8 which were prior to the filing of the complaint, and admitted signatures of Accused. The signatures of the Accused are of a period subsequent to the filing of the complaint i.e. specimen signatures S.13 to S.21, the handwriting expert i.e PW.2 instead of comparing the signatures i.e. admitted signatures available in Ex.P.8 and other documents but has taken signatures., i.e. subsequent to the filing of the complaint i.e during 37 C.C.No.30023/2015J the course of trial which could not have been used as valid basis of comparison and their use for the purpose of comparison may leads to serious doubt on the reliability of the entire report submitted by the expert i.e Ex.C.1, thus the report submitted by the expert liable to be discarded on this ground alone as the admitted signatures of the Accused for the relevant period though available in the very document i.e Ex.P.8(c) and other documents but the expert has not take use of the said signature as valid basis of comparison. Even the expert has not examine the writings found tat back side of page No.2 of Ex.P.8, though specific direction was given. Therefore, for the said reasons though the PW.2 has submitted the report stating that, the signature found at Ex.P.8(b) and signature marked as S.13 to S.21 were not written by one and the same person but in view of the above said reasons the report submitted by the PW.2 cannot be relied upon and acceptable one.
29. It is relevant here to mention that, the learned counsel for the defence has cross-examined the complainant in length but nothing has been 38 C.C.No.30023/2015J elicited to discredit or discard his evidence, instead of eliciting anything materials from the complainant the Accused rather concentrated his defence on the execution of the agreement of sale by the Accused in favour of the complainant and non production of the document for having receipt of the loan amount by the Accused and also the cheques in question and blank stamp papers were issued as a security in respect of the alleged loan of Rs.50,000/- borrowed by him and the said cheques were misused by the complainant, but the suggestions made to the complainant in respect of the said defence have been categorically denied by the complainant. The complainant/PW.1 specifically stated that, in the month of October 2013 he paid Rs.1.5 Lakhs, thereafter has paid Rs.50,000/- and thereafter he ha paid Rs.2.5 Lakhs to the Accused and Rs.1.5 Lakhs by way of the Accused purchasing his Santro Car by adjusting the said amount towards the sale consideration amount and he has paid a total amount of Rs.6 Lakhs to the Accused. The complainant/PW.1 has specifically denied the suggestions made to him that, he has lent a loan of Rs.50,000/- to the Accused and has collected his 39 C.C.No.30023/2015J four cheques and two stamp papers from him as a security and he has misused said cheques. It is true that, some discrepancies have been elicited from the complainant i.e PW.1 in his cross-examination but same cannot be acceptable one unless and until the Accused has rebutted the presumptions available to the complainant U/s.118 and 139 of N.I. Act.
30. It is relevant here to mention that, as it is already held in the above that, the complainant has proved that, the Accused has executed agreement of sale by agreeing to sell his site property for sum of Rs.16 Lakhs and out of the said sale consideration amount Accused has received Rs.1.5 Lakhs at the time of execution of the sale agreement i.e Ex.P.8 and thereafter has received Rs.4.5 Lakhs from the complainant in total has received Rs.6 Lakhs from the complainant out of the sale consideration amount. It is also true that, the handwriting expert i.e PW.2 has submitted a repot i.e Ex.C.1 stating that signature found at Ex.P.8(b) is not of the signature of the Accused but it is held in the above that, the report submitted by the PW.2 i.e expert cannot be acceptable one in view of the reasons 40 C.C.No.30023/2015J stated above. Even for sake of discussion, if it is assumed that, the complainant has not produced the document to show that, Accused has received advance sale consideration amount of Rs. 6 Lakhs and the writings found at hind side of page No.2 of Ex.P.8 are not of the Accused. But it is already held in the above that, the complainant proved that the cheques in question i.e Ex.P.1 and P.2 belongs to the Accused and signatures found at Ex.P.1(a) and P.2(a) are those of the signatures of the Accused and also proved that, the cheques in question were presented within their validity period and they were dishonoured for the reason of "Funds Insufficient"
as per Ex.P.3 and P.4 and thereafter the legal notice caused by him through RPAD to the Accused was served on him, in such circumstances, it can be held that, the complainant has discharged his initial burden by complying the mandatory requirements as required U/s.138 of N.I. Act and initially the presumptions are available in favour of the complainant U/s.118a and 139 of the N.I. Act. Consequently it is for the Accused to rebut the said presumptions available in favour of the complainant to show that, the cheques in question were not 41 C.C.No.30023/2015J issued either to the complainant or towards discharge of any legally recoverable debt by producing cogent and convincible evidence but not mere suggestions or even by plausible explanation. In such circumstances, when the presumptions U/s.118 and 139 of N.I.Act are available to the complainant, even the said presumption can be drawn to the extent of existence of legally recoverable debt or liability against the Accused, unless and until the said presumptions are rebutted by the Accused even the documents are not produced by the complainant with regard to loan transaction in question. In this regard, it is relevant here to refer the decisions reported in 2001 AIR Karnataka HCR 2154 between 'M/s.Devi Tyres V/s.Navab Jan' and in 2011 ACD 1521 (KAR) between 'Smt. Usha Suresh V/s. Shashidharn', in 2010 SC 1898 between 'Rangappa Vs. Mohan' and 2011 ACD 1412 (KAR) between 'N.Hasainar Vs. M.Hasainar, S/o. Ibrahim'. The Hon'ble High Court of Karnataka in the above decision i.e., 2001 AIR Karnataka HCR 2154 at para No.6 was pleased to hold that issuance of cheque itself was adequate proof of existence of debt or liability. In another decision of 42 C.C.No.30023/2015J Hon'ble Apex Court of India i.e. Hon'ble Three Judges Bench Decision reported in (2010) 11 SCC 441 in the case of Rangappa Vs. Sri. Mohan ., wherein the Hon'ble Apex Court 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. Further held that "Signature on the cheque was his, statutory presumption under S.139 comes into play and the same was not rebutted even with regard to the materials submitted by complainant Appellant not able to prove "lost cheque" theory - Apart from not raising a probable defence appellant was also not able to contest the existence of a legally enforceable debt or liability - hence, his conviction by High Court, held, proper. In another decision of Hon'ble Apex Court of India, reported in CRIMINAL APPEAL NO. 508 OF 2018 DT 15-03-2018 between ROHITBHAI JIVANLAL PATEL Vs. STATE OF GUJARAT AND ANR 43 C.C.No.30023/2015J held that "Negotiable Instruments Act facts like source of funds are not relevant if the Accused has not been able to rebut the presumption. It is further held that " When such a presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the Accused has been able to rebut the presumption or not". In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, "
Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is 44 C.C.No.30023/2015J towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. It is also held that, " the accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the Trial Court and High Court. Both courts not only erred in law but also committed perversity when the due amount is said to be disputed only on the account of discrepancy in the cartons, packing materials or the rate to determine the total liability as if the appellant was proving his debt before the civil court. Therefore it is presumed that, the cheque in question were drawn for consideration and the holder of the cheques received the same in existing debt". It is also held that, " the Trial court and the High Court proceeded as if, the appellant is to prove a debt before civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. A dishonour of cheque carries statutory presumption of consideration. The 45 C.C.No.30023/2015J holder of cheque in due course is required to prove that, the cheque was issued by the Accused and that when the same presented , it was not honoured Since there is a statutory presumption of consideration, the burden is on the Accused to rebut the presumption that, the cheque was issued not for any debt or other liability ". It is also relevant here to refer the decision of Hon'ble High Court of Karnataka reported in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption mandated by Sec.139 of N.I Act includes the presumption that, there existed a legally enforceable debt or liability, however such presumption is rebuttable in nature". In another decision of Hon'ble High Court of Karnataka in the case of Shri.V.R.Shresti Vs. Shri. Bhaskara.P. in Crl. Appeal No. 2109/2017 dated: 15.10.2019 wherein the Hon'ble High Court of Karnataka held that "the Accused has not given any reply to the notice and also in the cross-examination, he categorically admits that, the cheque has bounced on account of no sufficient fund in the 46 C.C.No.30023/2015J bank account of the Accused. Mere non producing of the document before the court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The Accused ought to have rebutted the contention of the complainant by producing cogent evidence before the court and mere denial is not enough".
31. Therefore on careful reading of the principles of law laid down by the Hon'ble Apex Court of India and High Court of Karnataka in the above referred decisions makes it very clear that, once the holder in due course i.e. the complainant proved that, the cheque in question belongs to the drawer and signature appearing on the cheque is that of the drawer i.e., Accused and complied the mandatory requirements as required U/s.138 of N.I.Act, a presumptions U/s.118a and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt and when such presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence regarding source of funds were not of relevant unless the Accused rebutted the 47 C.C.No.30023/2015J presumption available to the complainant as held by the Hon'ble Apex Court and High Court of Karnataka in the above decisions. In the present case also the complainant has complied the mandatory requirements and has proved that, the Accused has issued the cheques in question in his favour and the Accused has admitted the cheques belongs to him and signatures appearing on the cheques are those that of his signatures and legal notice issued by complainant was served on the Accused but inspite of it the Accused has not given any reply to the notice, in such circumstances, presumptions have to be drawn towards existence of legally enforceable debt as per Sec.139 of N.I.Act.
32. Therefore, for the above said reasons the arguments canvassed by the learned counsel for the defence that, the complainant has failed to prove that, he has paid sum of Rs.6 Lakhs to the Accused as advance sale consideration amount and in turn the Accused has executed the sale agreement as per Ex.P.8 and receipt of Rs.6 Lakhs as advance sale consideration amount as per Ex.P.8(a) and signed the Ex.P.8 cannot be acceptable one. In this 48 C.C.No.30023/2015J case also the learned defence counsel argued that, the complainant has to prove his claim by producing his evidence as if it is required for proving his debt before the Civil Court, same cannot be permissible in a proceedings initiated U/s.138 of N.I. Act, as held by the Hon'ble Apex court of India in the above referred decisions, therefore in view of the principles of law laid down in the above referred decisions it is presumed that, cheques in question were drawn for consideration as the Accused has admitted the cheques in question belongs to him and signatures found on the cheques in question are also those of his signatures.
33. It is the specific defence of the Accused that, he had borrowed a loan of Rs.50,000/- from the complainant at that time he had given three blank signed cheques and two blank signed stamp papers to the complainant but the complainant has misused his blank signed cheques and stamp papers and has filed this false complaint against him. It is also relevant here to mention that, the Accused in his cross-examination admitted that, the cheques in question i.e., Ex.P.1 and P.2 belongs to 49 C.C.No.30023/2015J his account and signatures on the cheque i.e Ex.P.1(a) and P.2(a) are those his signatures. Hence, once signature on the Negotiable Instrument Act is admitted, in that circumstances sec. 20 of N.I. Act comes into play i.e. as per Sec. 20 of N.I.Act if the blank or incomplete Negotiable Instrument is given to the holder in due course, it is to be presumed that, he had given authority to the holder in due course to fill up the remaining portion. In this regard, it is relevant here to refer the decision of Hon'ble High Court of Karnataka reported in ILR 2006 KAR 2054 in the case of H.S.Srinivasa Vs. Girijamma and another wherein the Hon'ble High Court held that " a reading of sec.20 of the act which is extracted above reveals that, the words used are ' either wholly blank or having written therein an incomplete negotiable instrument'.
The instrument may be wholly blank or incomplete in a particular in either case, the holder has authority to make or complete the instrument as a negotiable one. The authority implied by a signature to a blank instrument is so vide that, the party so signing is bound to be a holder in due course. Promissory notes are 50 C.C.No.30023/2015J often executed in the name of the payer and left unfilled to be afterwards filled by the actual holder, the object being to enable the owner to pass it off to another without incurring the responsibility as an endorser. Thus, it is seen that, person in possession of an incomplete instrument in maternal particulars has the authority prima facie to fill it and thus the executants becomes liable to pay the amount due'. In another decision of Hon'ble High Court of Madras reported in 2005 (1) DCR 85 in the case of P.A. Thamatharan Vs. Dalmia cements (B) Ltd., wherein it is held that " Negotiable Instrument Act 1991 - Sec. 138 - dishonour of cheque - plea
-body of cheque was not written by Accused - held it is not mandatory and no law prescribes that, the body of cheque should also be written by the signatory to the cheque, a cheque could be filled up anybody and if it is signed by the account holder of the cheque'. In another decision of Hon'ble Apex court to India reported in (2002) 7 SCC in the case of P.K. Manmadhan Karthra Vs.Sanjeeva Raj., wherein it is held that " As long as signature on the cheque is admitted, whether 51 C.C.No.30023/2015J the ink with which the other particulars are filled up is different or that the hand writing is not that of drawer does not matter. Until rebutted, the presumption that, cheque was issued for consideration exists". In another decision of Hon'ble High Court of Karnataka at Bengaluru in a case of Crl. Appeal No. 1664/2003 C/w. Crl.Appeal No.1663/2003 dated: 18.6.2008 in the case of R.Mallikarjuna Vs. H.R.Sadashivaiah wherein the Hon'ble High Court at para No.19 held that " But, the question is, whether that renders instrument unenforceable. In this regard, it must be observed that, this court similar circumstances in the case of S.R. Muralidar Vs. Ashok G.Y. reported in 3001 (4) KAR. LJ K. 122 referring to the provisions of Sections 20, 138, 139, and 140 of the Act and after interpreting alteration and filling up of the cheque observed thus " The trial court has made much about the difference in ink. Admittedly, Accused cheque is issued bearing signature of the Accused. It is the contention of the defence that, blank cheques issued for the business transactions have been illegally 52 C.C.No.30023/2015J converted as a subject matter to this case fastening false liability........ It is not objectionable or illegal in law to receive a inchoate negotiable instrument duly signed by the maker despite the material particulars are kept blank if done with an understanding and giving full authority to the payee to fill up the material contents as agreed upon. Such a course of action in law cannot vitiate the transaction nor can invalidate the negotiable instrument issued and such transaction fully begins the maker of the negotiable instrument to the extent it purports to declare........ The fact that, a document executed is inchoate with regard to some of the material particulars would not render such contract invalid nor make the instrument illegal or inadmissible. Voluntarily, if a person were to deliver an inchoate instrument authorizing the receiver to fill up the material contents as agreed upon, the cheque does not get tainted as in admissible nor it amounts to tampering with the material particulars...... In the present case there is no categorical defence version, it is only by 53 C.C.No.30023/2015J conjunctures and surmises, a case is made out from the difference in ink between the signature of the cheque and the other handwritten contents. Therefore in view of the principles of law of Hon'ble Apex court of India and also Hon'ble High Court of Karnataka and Madras referred above, in the present case the Accused has admitted the signatures on Negotiable Instruments i.e. cheques and he also admitted issuance of the cheques to the complainant, it is prima-facie proof of authorizing the holder in due course i.e. the complainant to fill up the remaining contents of the Negotiable Instrument.
34. It is also relevant here to refer another decision of Hon'ble Apex Court of India reported in AIR 2019 SC 2446 in the case of Birsingh Vs. Mukesh Kumar., wherein the Hon'ble apex Court held that, "presumption U/s.139 is presumption of law, distinguished from presumption of facts and also held that, presumptions are rules of evidence and do not conflict with presumption of innocence which requires prosecution to prove case against the Accused and also held that 54 C.C.No.30023/2015J obligation on the prosecution may discharged with the help of presumptions of law and presumption of fact unless the accused adduces evidence showing reasonable plausibility of non existence of presumed fact." In the present case though the Accused has denied the contents of the cheques in question except his signatures but he did not proved his defence or produced any documents or satisfactory evidence to rebut the presumptions as available U/s.139 of the N.I.Act, under such circumstances in view of the above principles of law, it can be presumed even on fact also that the complainant has proved his case by discharging his burden and complying the mandatory provisions. In the said decision the Hon'ble Apex court has also held that, "presumption as to legally enforceable debt is rebuttable, the signed blank cheque if voluntarily presented to payee towards payment payee may fill up amount and other particulars and it in itself would not invalidate cheque and onus would still be on the accused to prove that, cheque was not issued or discharge of debt or liability by adducing evidence." In another 55 C.C.No.30023/2015J decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, "
Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. In such circumstances even if it is assumed that, the complainant admitted that, he is not aware of the contents of cheques in question were filled in, in such circumstances also in view of the principles of law laid down in the above decision that itself would not invalidates the cheques in question and it can be presumed that, the said 56 C.C.No.30023/2015J cheques have been issued towards discharge of legally recoverable debt. Therefore it cannot lie in the mouth of the Accused that, the complainant has misused his blank signed cheques which were allegedly given to the complainant at the time of borrowing of loan of Rs.50,000/-, thus the defence of the Accused cannot be acceptable one.
35. It is also relevant here to mention that, in order to rebut the presumptions available to the complainant U/s. 139 of N.I. Act, the Accused himself examined as DW.1 who in his evidence has stated that, he took a sum of Rs.50,000/- from the complainant , some time back and the complainant took three blank cheques on blank e-stamp paper and some blank plain papers signed from him as security and he even executed a bond stating that, he has received three cheques and other documents as security for the transaction and now he has misused the cheques and the other documents and created an agreement and produced before the court. The Accused in support of his oral evidence has not produced the documents, however one document which was confronted to the complainant marked as 57 C.C.No.30023/2015J Ex.N.1, according to him the complainant has executed a bond stating tht he has received three cheques and other documents as security. But the perusal of Ex.N.1 wherein it is nowhere mentioned that, the complainant has collected three cheques and other documents as a security for the alleged loan of Rs.50,000/- advanced by the complainant. On the contrary in Ex.N.1 it is mentioned that, the complainant has lent Rs.50,000/- by way of cash and has collected four blank signed cheques i.e cheque No.438778, 438774, 438775 and 438776 as security and if the Accused did not repay the loan amount along with interest, complainant is at liberty to make use of the said cheques. If really the complainant has executed bond stating that he has received three cheques and other documents, definitely the said fact would have been reflected in Ex.N.1, on the contrary it is mentioned that four cheques have been received for security, in such circumstances, the Ex.N.1 cannot be taken into consideration to rely the defence of the Accused. it is also relevant here to refer the admission of the Accused that, the Accused in his cross-examination admitted that, there is no title, no date or himself or 58 C.C.No.30023/2015J witness signed on Ex.N.1 and also admitted that, details of the bank name is not mentioned in Ex.N.1 and also admitted that, stamp paper was purchased in the year 2013. But the stamp paper discloses that, it was purchased on 12th March 2014. It is also admitted by the Accused that, he never seen the complainant writing in Kannada language and the complainant's mother tongue is Telugu and he himself know to read and write kannada and his mother tongue is also Kannada, hence the above admissions of the Accused makes it clear that, the stamp paper i.e. Ex.N.1 was purchased on 12th March 2014, if such being the fact then the question of execution of the document by the complainant in favour of the Accused in the year 2013 does not arise at all. It is also important to note that, when the Accused himself admitted that, he never seen the complainant writing in Kannada language and his mother tongue is Telugu, then it cannot be held that, the complainant has executed the Ex.N.1 is Kannada language stating that, he has received four blank signed cheques as alleged by the Accused on the contrary the Accused admitted that he himself know to read and write the Kannada language, in such 59 C.C.No.30023/2015J circumstances an adverse inference can be brawn against the Accused that, the Ex.N.1 might have prepared by the Accused himself, as the Accused himself has produced the Ex.N.1. It is also pertinent to note her that, the Accused though he has stated that, he took sum of Rs.50,000/- from the complainant as loan but he nowhere stated that, on which date, month and year he has taken alleged loan from the complainant and on which date, month and year the complainant had collected his blank signed cheques, blank signed stamp paper as alleged by him, therefore in the absence of such materials the defence taken by the Accused appears to be denial in nature and it has not been proved by producing cogent and convincible evidence. Therefore the entire perusal of the oral and documentary evidence of the Accused it can be held that, Accused has miserably failed to prove that, the complainant had collected his blank signed cheques and stamp paper and later he has misused them and has filed false case against him.
36. It is the specific defence of the Accused that, he has borrowed a loan of Rs.50,000/- from the 60 C.C.No.30023/2015J complainant and at that time the complainant has collected his blank signed cheques and blank signed stamp paper as security to the said loan and he has misused the said cheques and stamp papers and has field this false complaint. As it is already held in the above that, the Accused in order to substantiate his defence has not produced single document, therefore only on the basis of oral evidence it cannot be held that, the cheques in question and blank signed stamp papers have been given by the Accused as a security to the complainant at the time of borrowing of Rs.50,000/- loan. No doubt, the Accused has produced Ex.N.1 but it is already held in the above that, the Ex.N.1 is not proved by the Accused to show that, the complainant had received blank signed cheques at the time of advancing alleged loan of Rs.50,000/- , in such circumstances the defence of the Accused appears to be denial in nature. It is also important to note here that, the Accused admitted issuance of cheques to the complainant and also his signatures on the cheques and has failed to prove his defence that, in such circumstances, it is necessary here to refer decision of Hon'ble High Court of Karnataka reported in 2015 61 C.C.No.30023/2015J (1) KCCR 235 in the case of Lale Patel Vs. Sharanabasappa., wherein the Hon'ble High Court held that " NEGOTIABLE INSTRUMENTS ACT, 1881- section 138 - Dishonour of cheque for insufficiency of funds - Plea of accused that he had given a blank cheque signed as security for a transaction and complainant filled up the contents and denied existence of any debt or loan - Conviction by Trial court - Affirmed by Appellate Court - Revision against. Hence in this case also it is the defence of the Accused that, he had given signed blank cheques to the complainant as security and same have been misused by the complainant by filling the contents of the cheque and denied the existence of debt but no documents have been produced by the Accused to prove his defence, in such circumstances it is for the accused to prove his defence by producing cogent and convincible evidence, if the Accused has not proved the same, it cannot be held that, the cheques in question were issued for the purpose of security in connection with the transaction. In another decision reported in 2015 (4) KCCR 2881 (SC) in the case of T. Vasanthakumar Vs. 62 C.C.No.30023/2015J Vijayakumari., wherein the Hon'ble Apex court held that " NEGOTIABLE INSTRUMENTS Act, 1881- Section s138 and 139 - acquittal - If justified- Accused not disputing issuance of cheque and his signature on it- Plea that it was issued long back as security and that loan amount was repaid- Not supported by any evidence - Fact that date was printed, would not lend any evidence to case of accused- Acquittal not proper. Hence in the present case also it is the main defence of the Accused that the cheques in dispute were given to the complainant at the time of alleged borrowing loan of Rs.50,000/- but in this regard the accused has not produced documents or proof in such circumstances by applying the principles of law laid down in the above decision the defence of the Accused cannot be acceptable one. In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.271/2020 in the case of APS Forex Services Pvt. Ltd., Vs. Shakthi International Fashion Linkers and others., wherein the Hon'ble Apex Court held that "the defence of the Accused that, cheques were given by way of security is not believable in the 63 C.C.No.30023/2015J absence of further evidence to rebut the presumption. It is also held that, once the issuance of the cheque has been admitted and even the signature on the cheque has been admitted, there is always presumption infavour of the complainant that there exists legally enforceable debt or liability and thereafter it is for the Accused to rebut such presumption by leading evidence". In the present case the Accused has admitted that, the cheque was issued and signature is also admitted but it is the defence of the Accused that, it was issued towards loan amount of Rs.50,000/- borrowed by him from the complainant and he has misused his cheques but no documentary proof produced by the Accused in support of his defence, in such circumstances the defence of the Accused cannot be acceptable one in the absence of further proof of evidence to rebut the presumption.
37. It is also important to note here that, the Accused in his defence has taken specific contention that, he had given signed blank cheques and blank signed stamp papers to the complainant at the time 64 C.C.No.30023/2015J of borrowing loan amount of Rs.50,000/- and misused the said cheques and stamp papers by the complainant by filing this complaint. But the Accused in his cross-examination has admitted that, he used to receive the SMS in respect of his cheques having been presented are with regard to the debt and credit of the amounts in his account and he do not remember that, the date of dishonour of cheque in dispute. It is also seen from the records that, the legal notice caused by the complainant was received by the Accused, hence it goes to show that Accused is having knowledge of the dishonour of the cheques when the same were presented to the bank. Hence, even after coming to know about the dishonour of the cheques in question, the Accused has not made any efforts to initiate legal action against the complainant about alleged misuse of cheques in question and stamp papers, in such circumstances it can be held that, if really the Accused has given his blank signed cheques and blank signed stamp papers as a security at the time of borrowing the alleged loan amount from the complainant and thereafter the complainant has misused the same by filing this complaint against him, in such 65 C.C.No.30023/2015J circumstances the Accused definitely he would have taken or initiate action against the complainant either by lodging the complaint before the police or court or atleast by issuing notice to the complainant for return of his alleged signed cheques and blank signed stamp papers handed over to him as a security or by issuing stop payment instructions to his banker, but no such efforts have been made by the Accused even after notice of the dishonour of his cheque and receipt of legal notice issued by complainant and even after his appearance in this case also, therefore mere denial of the Accused is not sufficient to hold that, he has rebutted the presumptions available to the complainant U/s.118 and 139 of the N.I. Act. It is also relevant here to mention that, the conduct of the Accused in not taking the action against the complainant for alleged misuse of cheques in question by the complainant may leads to draw an adverse inference against him that, the Accused has not initiated any action against the complainant since the cheques in question have been issued by the Accused to the complainant towards discharge of the liability in question but not for any other purpose. In this 66 C.C.No.30023/2015J regard it is relevant here to refer the decision of Hon'ble Apex Court of India reported in AIR 2018 SC 3601 in a case of T.P.Murugan(dead) Thr. Lrs.V. Bhojan Vs. Posa Nandi, rep. Thr. Lrs. PA holder, T.P. Murugan V. Bhojan, wherein the Hon'ble apex Court held that "Negotiable Instruments Act (26 of 1881) Ss.118, 138, 139 - Dishonour of cheque - Presumption as to enforceable debt- cheques allegedly issued by accused towards repayment of debt- Defence of accused that 10 cheques issued towards repayment of loan back in 1995 - behavior of accused in allegedly issuing 10 blank cheques back in 1995 and never asking their return for 7 years, unnatural - Accused admitting his signature on cheques and pronote, presumption under S.139 would operate against him - Complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt - Conviction, Proper". Hence in view of the principles of law laid down by the Hon'ble Apex Court are aptly applicable to the case on hand since in the present case also the accused has not made any efforts to get return 67 C.C.No.30023/2015J of cheques alleged to be given to the complainant at the time of borrowing of alleged loan of Rs.50,000/- from him, under such circumstances, the said unnatural conduct of the accused in non taking of action, an adverse inference can be drawn against the accused that, the cheque in question issued by the accused towards discharge of the liability and presumption U/s.139 of N.I.Act would operate against him, as he has admitted the signature and cheque in question is belongs to him.
38. It is evident from the documents produced by the complainant that, the complainant has caused legal notice to the Accused through RPAD as per Ex.P.5 to P.7 by intimating the dishonour of cheque and also requesting to repay the cheque amount within 15 days from the date of receipt of notice and the said notice was served on the Accused as per the postal acknowledgement i.e. as per Ex.P.7. Inspite of service of the said notice, the Accused has not given any reply taking the defence as taken by him during the course of cross- examination of the complainant and also in his evidence. Therefore non issuance of reply is also one 68 C.C.No.30023/2015J of the strong circumstances in favour of the complainant to presume the existence of transaction in question and also liability of the Accused. In this regard it is relevant here to refer the decisions of Hon'ble High court reported in 2007 Cri.L.J. (NOC) 520 (KER) in the case of Sanjeev P.R. Vs. Triveni Credit Corporation., Thodupuzha and another., wherein the Hon'ble High Court held that " (B). Negotiable Instrument Act (26 of 1881) Ss.138 - Dishonour of cheque - Conviction - Validity - Signature in cheque is admitted - Notice of demand through duly received and acknowledged, did not evoke any reply - Concurrent finding that, complainant has succeeded in proving all ingredients of the offence punishable U/s.138 - Conviction of Accused proper. In another decision reported in 2006 Cri.L.J.1 Gorantala Venakteshwara Rao Vs. Kollaveera Raghava Rao and another., wherein it is held that " (B). Negotiable Instrument Act (26 of 1881) Ss.138 - Dishonour of cheque - Legally enforceable debt - Failure of Accused in giving reply to legal notice issued by complainant - is one of strong circumstances to 69 C.C.No.30023/2015J draw an inference that, Accused borrowed amount from the complainant and cheque was issued towards part payment of legally enforceable debt". Hence, in view of the principles of law in the aforesaid decisions it is clear that, non issuance of reply by the Accused is fatal to his defence as such an inference can be drawn against the Accused that, the cheque in question has been issued towards discharge of legally enforceable debt.
39. It is also important to note here that, the Accused has not denied or disputed that the cheques in question as well as the signatures therein do belong to him and though he has taken the specific defence that, he had given blank signed cheques and blank signed stamp papers to the complainant at the time of borrowing of alleged loan of Rs.50,000/- and the complainant has misused the said cheques and has filed this complaint, but the Accused has not proved the said defence by producing cogent and convincible evidence, in such circumstances it can be held that, the Accused has failed to explain and prove how the cheques in question have came to the possession of the complainant, this would also give 70 C.C.No.30023/2015J rise to an adverse inference against him, this proposition of law finds support from the decisions of Hon'ble High Court of Karnataka reported in 2010(1) KCCR 176 in the case of "Siddappa Vs. Manjappa" and in the decision of Hon'ble Apex court of India decided in Crl.A.No.664 of 2012 dated: 19.9.2019 in the case of "M.Abbas Haji Vs. T.M.Chennakeshava" held that, " the Accused has to explain how the cheque entered into the hands of complainant". Therefore for the above said reasons the defense taken by the accused cannot be acceptable one and accused have miserably failed to rebut the presumption available in favour of the complainant by producing cogent and convincible evidence.
40. Therefore considering all these aspects of the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant and accused the complainant has successfully established beyond all reasonable doubt that, the Accused has agreed to sell his property to the complainant for sale consideration amount of Rs.16 Lakhs and entered 71 C.C.No.30023/2015J into agreement of sale as per Ex.P.8 and on the date of agreement has received Rs.1,50,000/- as an advance amount and subsequently has received a sum of Rs.4,50,000/- in total the Accused has received Rs.6 Lakhs towards advance sale consideration amount but later he did not execute the sale deed in favour of the complainant and agreed to return the advance sale consideration amount of Rs.6 Lakhs received by him and has issued the cheques in question i.e Ex.P.1 and P.2 towards repayment of the advance sale consideration amount of Rs.6 Lakhs and thereafter the complainant has presented the said cheques through his banker and same were returned dishonoured with an endorsement of "Funds Insufficient" and thereafter he got issued legal notice to the accused and the said notice was served on him, inspite of it, the Accused did not paid the cheques amount, hence the complainant filed the present complaint against the accused. On the other hand, the accused has failed to rebut the presumption available infavour of the complainant with regard to the existence of legally recoverable debt under Ex.P.1 and P.2 Cheques. Therefore 72 C.C.No.30023/2015J accused has committed an offence punishable U/s.138 of N.I. Act, accordingly for the above said reasons this point is answered in the Affirmative.
41. Point No.2: Negotiable Instrument Act was enacted to bring credibility to the cheque and the very purpose of enactment is to promote the use of negotiable instrument, while to discourage the issuance of cheque without having sufficient funds in their accounts. Such being the case the intention of the legislature is that, complainant be suitable compensated while accused be punished for his act. Hence while awarding the compensation the said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly it will not cause injustice to the accused, accordingly the complainant is entitled for the compensation as ordered by the court and for the said reasons, it is just and proper to pass the following :-
ORDER Acting U/sec.255(2) of Cr.P.C.
the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to 73 C.C.No.30023/2015J pay a fine of Rs.6.65,000/= (Rupees Six Lakhs and Sixty Five Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.6.60,000/= (Rupees Six Lakhs and Sixty Thousand only) shall be paid as compensation to the complainant. Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
The Bail bond of the Accused stands cancelled.
. Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 19th day of March 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.74 C.C.No.30023/2015J
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.V.Krishna Reddy; PW.2 : Sri.Shankarapa Mural
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 & 2 : Original Cheques;
Ex.P-1(a) & : Signatures of the Accused;
2(a)
Ex.P-3 & 4 : Bank Memos;
Ex.P-5 : Office copy of the Legal Notice;
Ex.P-6 : Postal Receipt;
Ex.P-7 : postal Acknowledgement
Ex.P-8 : Agreement of Sale dated: 17.10.2013
Ex.P-9 : acknowledgement issued by the
J.P.Nagar police
Ex.P-10 : Delivery note;
Ex.P-11 : certified copy of the Encumbrance
certificate issued by Senior Sub-
Registrar, Jayanagar;
Ex.P-12 : certified copy of the register sale deed
date: 2.7.2013;
Ex.P-12(a) : signature of the Accused;
Ex.P-13 : Vakalathnama of the Accused;
Ex.P-13(a) : signature of the Accused;
Ex.C-1 : Report submitted by the hand writing
expert;
Ex.C.1(a) to : signatures of the handwriting expert 1(f) 75 C.C.No.30023/2015J Ex.N.1 : Agreement Deed ;
(Marked through DW.1)
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Sri.B. Devaraj;
4. List of documents exhibited on behalf of the Accused:-
- Nil-
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.76 C.C.No.30023/2015J
19.3.2020 Judgment pronounced in the open court vide separate order.
ORDER Acting U/sec.255(2) of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.6.65,000/= (Rupees Six Lakhs and Sixty Five Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.6.60,000/= (Rupees Six Lakhs and Sixty Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
The Bail bond of the Accused stands cancelled.
. Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
77 C.C.No.30023/2015JXVI ACMM, B'luru.