Bangalore District Court
Sri. Rathan Kumar Aravind vs Sri. Vinonath @ Mani on 13 February, 2020
1 C.C.No.1907/2018 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 13th day of February, 2020
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.1907/2018
Complainant : Sri. Rathan Kumar Aravind,
S/o. Mr. Rathan Kumar,
Aged about 43 years,
M/s. Bangalore Agarwal
Bhavan, # 9, 10,
Doddanna Industrial Estate,
Magadi Main Road,
Kottige Palaya,
Opp. Unani Medical Institute,
Bengaluru -560 091.
Rep. by Sri Sathyanarayana Chalke
and others Adv.,)
- Vs -
Accused : Sri. Vinonath @ Mani
Vinonath,
Major,
C/o. M/s. Inter Trans Services
(I) Pvt. Ltd.,
# 4/5, New No.5/1, 3rd Floor,
1st Cross,
Raja Ram Mohan Roy Extn.,
2 C.C.No.1907/2018 J
K.H.Road,
Bengaluru -560 025.
(Rep. by Sri. U.R.Nayak, Adv.,)
Case instituted : 27.12.2017
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 13.02.2020
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, while acknowledging payment and towards the discharge of liability towards him, the accused issued a cheque bearing No.000128 dated 19-10- 2017 for a sum of Rs.15,00,00,000/- (Rupees Fifteen Crores only) drawn on M/s. Central Bank of India, Vijayanagar Branch, Bengaluru to him and while issuing the cheque in his favour, the accused assured him to honour the same on its presentation 3 C.C.No.1907/2018 J either on the date appearing on the cheque or at any time subsequent thereto, within the period of its validity. It is further contended that, the accused has instructed him to present said cheque, thereafter he has presented the said cheque for encashment though his banker i.e., M/s. State Bank of India, Ramanjaneyanagar Branch, Bengaluru, but the said cheque came to be dishonoured with shara "Funds Insufficient" dated 20-10-2017 and it was communicated to him on 23.10.2017 thereafter he got issued legal notice dated 10-11-2017 to the accused by RPAD demanding amongst other things, the payment of the amount due under the cheque and the said notice was served on the accused on 13-11-2017, inspite of it, the accused not complied with the demands made in the notice , however has send false frivolous and baseless reply dated; 29.11.2017. Hence the complainant 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 4 C.C.No.1907/2018 J sworn statement, in which, he has reiterated the averments of the complaint. In support of his sworn statement, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.8 i.e, Original Cheque dated:-19.10.2017 as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank Memo as per Ex.P.2, the office copy of the Legal Notice as per Ex.P.3, Postal Receipt as per Ex.P.4, postal acknowledgement as per Ex.P.5 and reply notice as per Ex. P.6, subsequently during the course of cross- examination of the Accused/DW.1 has marked certified copy of the Settlement Receipt as per Ex.P.7 and certified copy of the Cheque issued receipt as per Ex.P.8, signatures of the Accused, complainant and his wife are as per ExP.8(a), 8(b) and Ex. P.8(c) respectively.
4. Prima facie case has been made against the Accused and summons was issued against him in turn the Accused has appeared before the Court and he has been enlarged on bail and the substance of the accusation has been read over to him, to which he has pleaded not guilty and has claimed the trial.
5 C.C.No.1907/2018 J5. Thereafter the statement of the Accused as required U/s.313 of Cr.P.C. has been recorded, the Accused has denied the incriminating evidence appearing against him and chosen to lead his rebuttal evidence. The Accused himself examined as DW.1 and closed his side.
6. Heard the arguments by both sides and perused the written argument submitted by the learned counsel for the Accused and complainant and perused the materials on record and decisions submitted by the learned counsel for the complainant i.e., 1) Delhi High Court order dated:
17.7.2019; M/s. Shivom Minerals Ltd., and Other Vs. State and another; 2) (2015) 15 SCC 693- Omniplast (P) Ltd., Vs. Standard Chartered Bank and others; 3) (2014) 12 SCC 539 - Indus Airways (P) Ltd., and others Vs. Magnum Aviation Pvt. Ltd., and another; 4) LAWS (KAR) 2011 1135 - Veerayya Vs. G.K. Madivalakar; 5) (2014) 2 SCC 236 - John K. Abraham Vs. simon C. Abraham and another 6) (2015) 1 SCC 99- K. Subramani Vs. K.Damodara Naidu; 7) (2006) 6 SCC39 - M.S. Narayana Menon Alias Mani Vs. 6 C.C.No.1907/2018 J State of Kerala and antoher; 8) (2008) 4 SCC 54-
Krishna Janardan Bhat Vs. Dattatraya G. Hegde; 9) (2009) 2 SCC 513 - Kumar Exports vs. Sharma Carpets; 10) ILR 2008 KAR 4629 - Shiva Murthy Vs. Amrth Raj; 11) ILR 2009 KAR 2331 - B. Indiramma vs. Sri Eshwar; 12) ILR 2009 KAR 172- Sri.Visvanath Pai Vs. Vivekananda S. Bhat.
I have perused the decisions relied upon by the learned counsel for the Accused i.e.,1) Crl.Appeal No.1020/2010 in the case of Rangappa Vs. Mohan; 2) Crl. Appeal No.230- 231/2019 in the case of Birsingh Vs. Mukesh Kumar 3) Crl. Appeal No. 950-951/2018 in case of T.P. Muguran (Dead) Ther. LRs. And ors., Vs. Bojan; 4) Crl. Appeal No. 2571/2010 in the case of Kowdi Yalameli Enterprises Vs. V.G. Bhat and Ors., 5) Crl. Rev. Petition No.293/2017 in the case of Harishkumar T. Vs. Mahadeva 6) Crl. Appeal No. /2019 SLP 3858/2019 in the case of Pavan Diliprao Dike Vs.Vishal NarendraBhai Parmar; 7) Crl. Appeal No. 664/2012 in case of M. Abbas Haji Vs. T.N.Channakeshava.
7 C.C.No.1907/2018 J7. On the basis of complaint, evidence of complainant and documents the following points that are arise for consideration are:-
1. Whether the complainant proves that the accused has issued cheque bearing No.000128 dated:
19.10.2017 for sum of Rs.15,00,00,000/= drawn on M/s.
Central Bank of India, Vijay Nagar Branch, Bengaluru, to discharge legally recoverable debt to the complainant and when the complainant has presented cheque for encashment through his banker but the said cheque has been dishonoured for the reasons "Funds Insufficient" on 20.10.2017 and the complainant issued legal notice to the accused on 10.11.2017 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?
8. The above points are answered as under:
Point No.1: In the Affirmative Point No.2: As per final order for the following:8 C.C.No.1907/2018 J
REASONS
9. 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 liability and issuance of cheque in discharge of said debt or liability;
2. Cheque shall be presented for payment 9 C.C.No.1907/2018 J 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.
10. 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 shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are 10 C.C.No.1907/2018 J 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.
11. 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 his evidence testified that, the Accused towards payment and discharge of his liability to him has issued cheque bearing No.000128 dated 19-10- 2017 for a sum of Rs.15,00,00,000/- (Rupees Fifteen Crores) drawn on M/s. Central Bank of India, Vijayanagar Branch, Bengaluru and while issuing the cheque in his favour, the accused assured him that the said cheque will be honoured on its presentation either on the date appearing on the 11 C.C.No.1907/2018 J cheque or at any time subsequent thereto, within the period of its validity. The complainant/PW.1 further testified that, the accused has instructed him to present said cheque, thereafter he has presented the said cheque for encashment though his banker i.e., M/s.State Bank of India, Ramanjaneyanagar Branch, Bengaluru, but the said cheque came to be dishonoured with shara "Funds Insufficient" dated 20-10-2017, and it was communicated to him on 23.10.2017, thereafter he got issued legal notice dated 10-11-2017 to the accused by RPAD and the said notice was served on the accused on 13-11- 2017, inspite of receipt of the said notice the accused has not complied with the demand made in the notice.
12. In support of the oral evidence of the complainant, he produced the i.e, the Original Cheque dated:-19.10.2017 as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank Memo as per Ex.P.2, the office copy of the Legal Notice as per Ex.P.3, Postal Receipt as per Ex.P.4, postal acknowledgement as per Ex.P.5 and reply notice as 12 C.C.No.1907/2018 J per ExP.6, subsequently during the course of cross- examination of the Accused/ DW.1 has marked certified copy of the Settlement Receipt as per Ex.P.7 and certified copy of the Cheque issued receipt as per Ex.P.8, signatures of the Accused, complainant and his wife are as per ExP.8(a), 8(b) and Ex. P.8(c) respectively.
13. In the present case, the Accused has not disputed his acquaintance with the complainant and also not disputed the issuance of cheque i.e Ex.P.1 infavour of the complainant and signature found at Ex.P.1(a) is that of his signature. It is also not in dispute by the accused that, the cheque in question presented for encashment and dishonoured for the reason of "Funds Insufficient" since as matter on record, proved by return memo i.e.P.2 issued by the concerned bank dated: 20.10.2017, therefore it is a matter on record and has been proved that, the cheque in question was presented within its validity period and dishonoured as per the bank endorsement issued by the banker of accused. It is also not in dispute that, the cheque in question i.e. Ex.P.1 belongs to the account of the accused and 13 C.C.No.1907/2018 J has not denied his signature which is appearing at Ex.P.1(a). It is also not disputed by the Accused with regard to service of legal notice issued by the complainant as per Ex.P.3 and receipt of the said notice as per Ex.P.5. i.e., postal acknowledgement, and the Accused has given reply to the said notice, hence the complainant has proved that, he has complied the mandatory requirements as required U/s.138(a) to (c) of N.I.Act.
14. It is the specific defence of the Accused that, he has denied the claim made by the complainant and also issuance of the cheque towards discharge of the liability in question. It is also specific defence of the Accused that, the complainant is husband of one Mrs. Bharathi Devi who was one of the partners along with him in Bengaluru Agarwala Bhavan and was not taking part in day to day affairs of the said partnership business but the complainant used to take care of the affairs of the said firm and when ever there was requirements of funds the complainant used to take the cheques of the account of Bengaluru Agarwal Bhavan Firm and individual account of the partners 14 C.C.No.1907/2018 J of the firm, in good faith he had given his two signed blank cheques of his individual account and several signed blank papers to the complainant to raise loan for the purpose of the business of firm but the complainant has misused his signed blank cheques and signed blank papers and filed this false case. Hence on this back ground the oral and documentary evidence adduced by the complainant and Accused has to be examined by the court.
15. The learned counsel for the Accused in the written argument contended that, the averments made in the complaint is bald without disclosing the back ground/facts as to how, when and in what connection the round figure huge liability of Rs.15 crores arose, and the averments with regard to liability is only one line i.e. while acknowledging payment towards discharge of his liability towards the complainant the cheque is issued but the complainant in his cross-examination narrates the business story saying that, he is carrying on his family business under the name Agarwal Bhavana Hotel and he is the proprietor of his brand name Bengaluru Agarwal Bhavana and has filed this 15 C.C.No.1907/2018 J complaint in his individual capacity but he has not produced even a single piece of document to show that, he is carrying on the family business under the name Agarwal Bhavana Hotel and Bengaluru Agarwal Bhavana Hotel is his brand name and he is the proprietor of it. It is also contended in the written argument that, the complainant admitted that, he know the Accused since 2002 and Accused is MD of M/s. Inter trans services Pvt. Ltd., and his wife is the Chairman and Managing Director of the said company and also admitted that, Accused gave to him one receipt and in that connection gave him the cheque in question but he admits that, the said receipt gave to him in 2015 and do not know the exact date when the said receipt gave to him and said receipt got with him and till now has not produced it before the court, but he has produced certified copy of the receipt i.e Ex.P.7 and cheque received receipt as per Ex.P.8 only at the time of cross-examination of the Accused. It is also contended in the written argument that, the complainant admitted in the cross-examination that, business transaction with the Accused pertains to (1) usage of the brand name 2) procedures and 16 C.C.No.1907/2018 J methods to prepare the food items and 3) recipe and he had given permission to the Accused to do above said three business for three years and it was a oral agreement and further it was agreed that, turn over of business for three years fixed at Rs.32 crores and in the said business the share of the Accused was 49% and in that connection Accused had agreed to pay to him Rs.15 crores and the balance 51% share belongs to his wife Bharathi Devi, but in fact 49% of 32 crores comes to 15,68,00,000/= and not exactly Rs.15 crores. The complainant has also admitted that he has not given Rs.15 crores to the Accused and has got documents to show that, Accused is due to him of Rs.15 crores but the complainant has not produced any documents before the court and has not averred the business details in the complaint for the reasons best known to him though he has admitted that, before filing the complaint he had explained to his advocate about the business dealings that, Accused has 49% share and his wife has got 51% share in the partners business. It is also contended in the written argument that ,the complainant has admitted that, according to him the Accused has given the cheque to him when he 17 C.C.No.1907/2018 J gave the receipt to him and according to him the cheque and the receipt were given to him in the year 2015 only but the complainant has failed to produce the receipt at the time of his examination-in-chief but has produced Ex.P.7 and P.8 at later date in the cross-examination of the Accused, therefore Ex.P.7 and P.8 got prepared by the complainant after filing this case if Ex.P.7 and P.8 were to be there with the complainant as on 24.12.2015 and 1.10.2017 while he failed to aware the same in the complaint and why did he not produced them at the earliest point of time and Ex.P.7 is not acknowledgement of payment and there is no mention of Exs.P.7 and P.8 in the complaint. The complainant has also admitted that, there was partnership business between the Accused and his wife and he can produce the partnership deed before the court but it has not been produced and also admitted that he is not the partners of the said partnership firm, if the complainant is not the partner of the M/s Bengaluru Agarwal Bhavan, how he can file the complaint, therefore the complaint is not at all maintainable in law as the complainant admitted that, there is no connection between this case and the said 18 C.C.No.1907/2018 J partnership business. It is also argued that, the complainant admitted that, he knew that, in the legal notice he has not mentioned about the business dealings that, for 3 years the amount fixed was Rs.32 crores and Accused has 49% share and his wife had 51% share, hence the complaint itself is not maintainable.
16. It is also contended in the written argument that, the complainant in his complaint has not disclosed the nature of business transaction between him and the Accused, which date/dates the liability arose, quantum of liability, to whom and when the cheque was given and for what purpose the cheque was given and thus in the absence of clear and specific averments in the complaint it cannot be said that, there was existence of legally enforceable debt or liability, just by stating in the complaint the word legally enforceable debt or liability will not become legally enforceable debt or liability that too when the debt/liability is so huge and to the tune of Rs.15 crores, the complainant ought to have produced the contract or agreement, book of accounts, balance sheet, partnership deed, I.T. 19 C.C.No.1907/2018 J Returns to prove legally enforceable debt or liability but nothing is produced.
17. On careful considering the arguments canvassed by the learned counsel for the Accused and averments of the complaint and evidence of the complainant makes it clear that, the complainant in the complaint has not disclosed the nature of business transaction between him and the Accused and on which date or dates the liability arose and it is also true that, the complainant in his complaint stated that, "that while acknowledging payments and towards discharge of his liability towards the complainant (which is legally enforceable) the Accused issued the cheque bearing No. 000128 dated: 19.10.2017 for an amount of Rs.15,00,00,000/= drawn on an account maintained by him with M/s. Central Bank of India, Vijayanagar Branch, Bengaluru to the complainant". Now the question is whether non mentioning of the nature of business transaction in the complaint itself invalidates the transaction in question or it can be held that, there was no existence of legally enforceable debt or liability as against the Accused.
20 C.C.No.1907/2018 J18. The complainant during the course of his cross-examination has categorically stated that, he is carrying on the family business under the name M/s. Agarwal Bhavan Hotel and he is the proprietor of his brand name Bengaluru Agarawal Bhavan and the business transaction with the Accused pertains to (1) usage of the brand name 2) procedures and methods to prepare the food items and 3) recipe and he had given permission to the Accused to do above said three business for three years and it was a oral agreement and further it was agreed that, turn over of business for three years fixed at Rs.32 crores and in the said business the share of the Accused was 49% and in that connection Accused had agreed to pay to him Rs.15 crores and the balance 51% share belongs to his wife Bharathi Devi. The complainant/PW.1 further stated in his cross- examination that, he know the Accused since 2002 and he is the MD of M/s. Inter trans services Pvt. Ltd, and his wife was also chairman and Managing Director of the said company and the Accused has left the said partnership business in the year 2015 and since then he asking the Accused to pay Rs.15 crores to him and the Accused has issued the 21 C.C.No.1907/2018 J cheque and receipt in the year 2015 itself. It is also admitted by the complainant that he has got with the said receipt and till now he has not produced it to the Court and has no objections to produce it. It is true that the complainant/PW.1 has admitted that before filing the complaint he had explained to his advocate about the business dealings that accused has 49% share and his wife has got 51% share in the partnership firm.
19. In addition to the above the accused during the course of his cross examination has admitted certain facts which are relevant here to refer i.e. the accused in his cross examination admitted as under:
"It is true to suggest that in the year 2012 I became one of the partner of Bengaluru Agarwal Bhavan along with the wife of the complainant witness volunteers that earlier it was proprietor ship concern and later it became partnership firm. It is true to suggest that the wife of the complainant Smt.Bharathi Devi having 51% stakes and 22 C.C.No.1907/2018 J I was holding 49% of the stakes of the said firm. The Bengaluru Agarwal Bhavan is manufacturing and selling of sweets, confectiries and savories and vegetarian food. When I was inducted as a partner in Bengaluru Agarwal Bhavan at that time there were no restaurants and they were running under the license New Arya Bhavan. During my tenure as partner Bengaluru Agarwal Bhavan was having three restaurant situated at Padmanabhanagara, Frazer town and HSR Layout witness volunteers that HSR Layout was franchise given by us."
The accused/DW.1 further at page No.6 admitted as under:
"It is true to suggest that during my tenure as partner of Bengaluru Agarwal Bhavan the income taxes were paid -------------------------------------------- I do not remember the sale made by Bengaluru Agarwal Bhanvan Rs.12,80,00,000/- as disclosed to the authorities for the assessment year 23 C.C.No.1907/2018 J 2015-16."
The accused/DW.1 further at page No.2 admitted as under:
"As on this day I am not the partner of the said Bengaluru Agarwal Bhavan. I was retired in the year 2015 from the said firm. It is true to suggest that, when I stepped out from the Bengaluru Agarwal Bhavan firm on the same day one Mr.Kamath was inducted was incoming partner to the said firm."
20. It is true that, the complainant has not produced the document at the time of leading his evidence to show that, there was a partnership business between the Accused and complainant's wife Bharathi Devi, the Accused had 49% share and complainant's wife had 51% and complainant had given permission to said partnership for (1) usage of the brand name 2) procedures and methods to prepare the food items and 3) recipe and he had given permission to the Accused to do above said three business at Rs.32 crores and the Accused share worksout to Rs.15 crores and has not 24 C.C.No.1907/2018 J produced the document to show that Accused is due to the complainant an amount of Rs.15 crores. But the complainant at the later stage i.e during the cross examination of the accused/DW.1 has produced Ex.P.7 i.e., the settlement receipt dated:
24.12.2015 and Ex.P.8 i.e., cheque issued receipt dated: 1.10.2017. On careful perusal of the contents of Ex.P7 & 8 wherein it is clearly mentioned that, the Accused being the director of M/s.ITS India Pvt.
Ltd., have entered into full and final settlement for purchase of share of 51% plus previously purchased share in the period of 2011-12 and including good will of the company and all other ac together towards Miss.Bharathi Devi was holding in M/s. inter Trans services (I) Pvt. Ltd., in between him and Miss. Bharathi Devi and has agreed to pay Rs.11,70,00,000/- and issued cheque as soon as possible for the same with 18% interest p.a., till clear the dues from September 2015 and agreed to issue the cheque infavour of Mrs. Bharathi Devi or her authorized person and he had signed the settlement receipt in front of Mr.Rathan kumar Aravind (Complainant herein) and he has received back all three cheques which have issued towards 25 C.C.No.1907/2018 J sale consideration of 51% shares which was rejected by Smt.Bharathi Devi as demanded full and final settlement and has assured to sign the few board resolutions which kept pending due to full and final settlement dues. It is also seen the settlement receipt dated: 24.12.2015 entered into between the Accused and complainant for usage of his intellectual properties like brand name (Bengaluru Agarwal Bhavan ) and using his recipes, method process and guidelines to make all food products and sell under his brand name Bengaluru Agarwal Bhavan from 27th July 2012 to 26th June 2015 and the Accused has agreed to pay 49% on agreed amount of Rs.32 crores and 18% interest p.a. till clearance of the dues and he has signed to the settlement receipt in front of Smt. Bhavathi Devi and also agreed to pay Rs.2 Lakhs additionally for have used the intellectual property few more days than admitted period and also agreed to issue cheques as soon as possible infavour of the complainant or his authorized person. It is also seen from Ex.P.8 i.e .cheque issued receipt wherein the Accused has issued three cheques bearing Nos. 100137, dated:
11.11.2017, for sum of Rs.11,70,00,000/= infavour 26 C.C.No.1907/2018 J of Bharathi Devi, cheque bearing No. 000128 dated:
19.10.2017 for sum of Rs.15,00,00,000/= infavour of the complainant i.e., Ex.P.1 cheque in question and also another cheque baring No. 000126 dated: 11.11.2017 for sum of Rs.2 Lakhs in the name of complainant towards the settlement receipt dated 24.12.2015 and also promising to honour the said cheques and acknowledged that, he has received all other cheques which have issued previously in this regard infavour of Mrs.Bharathi Devi and complainant.
21. It is relevant here to mention that, the Accused during the course of his cross-examination has admitted his signature found on Ex.P.8 which is marked as and P.8(a) but has stated that, when he was signed the document i.e. Ex.P.7 and P.8 the said documents were blank sheets. Hence it goes to show that, though the Accused has admitted his signatures on Ex. ExP.7 and P.8 but he denies the contents of Ex.P.7 and P.8 by contending that, at the time of signing the said document the said documents were blank sheets but it is relevant here to mention that, the Accused further categorically 27 C.C.No.1907/2018 J admitted that, his educational qualification is B'com L.L.B and C.A. final year and he is not in the habit of signing the blank documents and he do not remember how many blanks signatures have been taken on blank sheets and he had given the blank signed sheets infavour of the complainant when he was a partner of Bengaluru Agarwal Bhavan and also stated that he had given blank signed sheets to raise the loan to the said Bengaluru Agrawal Bhavan and also admitted that at the time of his retirement from the partnership firm of the Bengaluru Agarwal Bhavan no loan was advanced on the basis of his signed blank cheques and documents and he has not called upon the complainant to return his blank signed cheques and documents at the time of his retirement. Hence, the admissions of the Accused makes it clear that, though he has denied the contents of Ex.P.7 and P.8 and admitted that, when he was signed the Ex.P.7 and P.8, the said documents were blank sheets but he categorically admits that he is not in the habit of signing the blank documents and also admitted that, his educational qualification is B'Com L.L.B and C.A. final year, in such circumstances, the contentions of 28 C.C.No.1907/2018 J the Accused that, when he was signed to the Ex.P.7 and P.8 they were blank sheets cannot be acceptable one, on the contrary an adverse inference can be drawn against he Accused that, for the purpose of his defence the Accused is intentionally denying the contents of the Ex.P.7 and P.8. It is also relevant here to mention that, the Accused himself admitted that, at the time of his retirement from the partnership firm of the Bengaluru Agarwal Bhavan no loan was advanced on the basis of his signed blank cheques and documents and he has not called upon the complainant to return his blank signed cheques and documents, in such circumstances it cannot be held that, he had given the blank signed cheque and sheets infavour of the complainant when he was partner of Bengaluru Agarwal Bhavan and said blank signed cheques and sheets were given to raise loan to the said Bengaluru Agarwal Bhavan. If really the accused had given signed blank cheques and signed blank sheets to the complainant in order to borrow loan to the Bengaluru Agarwal Bhavan, definitely the accused would have produced the documents to show that on the basis of his signed blank cheques and sheets the complainant had 29 C.C.No.1907/2018 J obtained loans to Bengaluru Agarwal Bhavan, but the accused himself admitted that at the time of his retirement from the said firm no loan was advanced on the basis of his signed blank cheques and documents, therefore in the absence of such materials it cannot be held that the complainant was used to collect the blank signed cheques and blank signed sheets from the accused to borrow loan to the Bengaluru Agarwal Bhavan thus he has signed on Ex.P.7 & P.8 on blank sheets and has issued blank signed cheques to the complainant.
22. Hence on careful considering the statement made by the complainant in his cross examination and the admissions of the accused during the course of his cross examination and careful perusal of the Ex.P.7 & P.8 documents i.e. the settlement receipt and cheque issued receipt makes it very clear that the accused has admitted that, earlier the Bengaluru Agarwal Bhavan was proprietorship concern and later it became partnership firm and in the year 2012 he became one of the partner of Bengaluru Agarwal Bhavan along with the wife of the complainant by name 30 C.C.No.1907/2018 J Smt.Bharathi Devi. It is also admitted fact by the accused that the wife of the complainant Smt.Bharathi Devi having 51% of shares and the accused was holding 49% of shares in the said firm. It is also admitted by the accused that he was retired in the year 2015 from the said firm. It is true that the complainant in his complaint has not disclosed the nature of business transaction between him and the accused and also liability and the purpose of the cheque given by the accused, but during the course of cross examination of the complainant he also specifically stated about the nature of the business transaction between him and the accused, the liability arose and quantum of liability and the cheque is given towards the discharge of the liability i.e. the complainant has specifically stated that as per Ex.P7 & 8 i.e. settlement receipt and cheque issued receipt, the accused has entered into the settlement with the complainant for usage of his intellectual properties like brand name i.e. Bengaluru Agarwal Bhang, using his receipies, methods, process and guidelines to make all food products and sell under his brand name i.e. Bengaluru Agarwal Bhavan for a period of three 31 C.C.No.1907/2018 J years i.e. from 27th July 2012 to 26th June 2015 and for using the same the accused has agreed to pay 49% on agreed amount of Rs.32 crores and 18% interest per annum till clearance of the dues and also signed to the said settlement receipt and agreed to issue cheques as soon as possible in favour of the complainant or his authorized person and as per Ex.P8 the accused has issued three cheques out of the said cheques the Ex.P1 is also cheque issued for sum of Rs.15 crores in the name of complainant. Hence though the complainant has not averred in the complaint regarding nature of business transaction in question and liability of the accused in question and issuance of the cheque towards the liability in question by the accused but the complainant has specifically disclosed the above said facts not only in his cross examination but also by producing Ex.P.7 & P.8. Though the accused has in his cross examination denied the agreement between him and complainant with regard to usage of brand name and using his receipies, methods, process and to sell under his brand name for a period of three years and agreed to pay 49% on agreed amount towards usage of the said trade mark of the 32 C.C.No.1907/2018 J complainant and also execution of the settlement receipt and issuance of the cheque in question, but the accused has admitted that the complainant was the proprietor of the Bengaluru Agarwal Bhavan and later it became partnership firm and the wife of the complainant and himself were the partners of the said firm and he stepped out from the said firm in the year 2015 and also admitted his signature found at Ex.P7 & 8 it cannot be held that in the absence of clear and specific averments in the complaint there was no existence of legally enforceable debt or liability or liability will not become legally enforceable debt/liability as contended by the learned counsel for the accused in his written argument.
23. The learned counsel for the accused during the course of argument has relied upon the decision of Hon'ble Apex Court of India reported in (2015) 15 SCC 693 in the case of "OMNIPLAST (P) Ltd., V/s. STANDARD CHARTERED BANK AND OTHERS" and argued that in the said decisions Hon'ble Apex Court held that absence of requite pleading in respect of transaction concern -
33 C.C.No.1907/2018 Jquashment of complaint, confirmed and also relied upon the decision of Hon'ble High Court of Delhi ordered dated 17.07.2019 in the case of "M /s. Shivom Minurals Ltd., and other V/s. State and another" and argued that in the said decision the Hon'ble High Court held that it is required to be aware in the complaint of Sec.138 of NI Act as to what is the factual basis to show existing debt or liability or necessary ingredients to maintain the complains in question or lacking and also argued that in the present case also the complainant has not averred in the complaint in respect of the transaction in question and existence of legally recoverable debt and liability arose, quantum of liability and to whom and when the cheque was given, in such circumstances the complaint is liable to be dismissed.
24. As it is already held the above that the complainant during the course of his cross examination has specifically stated the nature of transaction between him and the accused and also liability of the accused arose and also the quantum of the liability and also the issuance of the cheque in 34 C.C.No.1907/2018 J question by the accused towards discharge of his liability by producing documentary evidence. In this regard it is relevant here to refer the recent decision of Hon'ble Apex Court of India reported in LAWS (SC) - 2019 -8-82 SUPREME COURT OF INDIA (FROM BOMBEY) decided on 21.08.2019 in the case of "SHREE DANESHWARI TRADERS V/S. SANJAY JAIN" wherein the Hon'ble Apex Court held that "N.I.ACT SEC.138 DISHONOUR OF CHEQUE - Appeal against acquittal- Though complaint contents no specific averments that cheques were issued or purchase made on credit, in his evidence, complainant clearly stated that cheques were issued for commodities purchased on credit - oral and documentary evidence adduced by the complainant are sufficient to prove that it was a legally enforceable debt and that cheques were issued to discharge the legally enforceable debt- with evidence adduced by the complainant, the Courts below ought to have raised the presumption under section 139 of NI Act. Evidence adduced by respondent - accused is not sufficient to rebut the presumption raised under Sec.139 of the Act -
35 C.C.No.1907/2018 Jacquittal of respondent accused set aside. Appeals allowed." Hence the principals of the law laid down by Hon'ble Apex Court of India in the above referred decision are aptly applicable to the facts of the present case on hand, in this case also the complainant though he has not averred specific averments in the complaint with regard to nature of transaction and purpose of issuance of cheque in question but the complainant during the course of his cross examination has clearly stated about the transaction in question and also his purpose of issuance of the cheque by the accused and also produced documentary evidence, in such circumstances the arguments canvassed by the learned counsel for the accused cannot be acceptable one.
25. The learned counsel for the Accused in the written argument specifically contended that, the complainant has produced two documents i.e., Ex.P. 7 settlement receipt dated: 24.12.2015 and Ex.P.8 cheque issued receipt dated: 1.10.2017 and the Ex.P.7 is in the form of a letter written by the Accused and name of the addressee is not written in 36 C.C.No.1907/2018 J Ex.P.7 and which is on document sheet of Rs.2 and no stamp duty is paid on Ex.P.7 and there is no mentioning of liability of Rs. 15 crores and there is no acknowledgement of payment of Rs.15 crores and Ex.P.7 is not an agreement and only a letter that too without referring the name of addressee and there was no legal requirement to sign the Ex.P.7 by the complainant and his wife. it is also argued that, Ex.P.7 and P.8 are not at all existing as on the date of issuing of legal notice and filing of the complaint, if really Ex.P.7 and P.8 were in the possession of the complainant as on 24.12.2015, he could have averred about the same in the legal notice and complaint but the complainant has not produced Ex.P.7 and P.8 at the time of filing of complaint and his evidence but later during the course of cross- examination of the Accused the complainant has produced Ex.P.7 and P.8 therefore the complainant has created Ex.P.7 and P.8 for the purpose of this case and cannot be relied upon to prove his claim.
26. It is true that, the complainant has not produced Ex.P.7 and P.8 at the time of filing of the complaint or his evidence and has also not referred 37 C.C.No.1907/2018 J about them either in the legal notice or in the complaint but he has produced Ex.P.7 and P.8 at the time of cross-examination of the Accused by confrontation to the Accused. It is relevant here to mention that, during the course of cross- examination of the complainant he has categorically stated about the existence of the Ex.P.7 and P.8 as on 24.2.2015 and it is the Accused is only elicited the existence of Ex.P.7 during the course of his cross-examination i.e. the complainant in his cross- examination has stated to the suggestions made on behalf of the Accused that, he know the Accused since 2002 and Accused is M.D of M/s. Inter trans services (I) Pvt. Ltd, and Accused has issued one receipt and in connection of said receipt the Accused has issued cheque to him and the said receipt was given to him in the year 2015 and has not produced the said receipt and has no hindrance for production of the said receipt and the said receipt is the document to show that, the Accused is due of Rs.15 crores to him and he can produce the document. Hence, the statement made by the complainant in his cross-examination are not his voluntary statements, on the contrary the existence of receipt 38 C.C.No.1907/2018 J i.e. Ex.P.1 and cheque issued receipt i.e., Ex.P.8 are elicited by the Accused only, therefore the entire perusal of the cross-examination of PW.1 i.e. complainant makes it clear that, the Ex.P.7 is existing only in the year 2015 itself. No doubt, the complainant has not produced Ex.P.7 and P.8 at the earliest point of time, however the said documents have been produced at the time of cross-examination of the Accused by confrontation to him, therefore mere production of the document at later stage that too during the course of trial cannot be held that, the said documents are created and produced before the court unless the said defence has been proved by the Accused. It is also relevant here to mention that, the Accused himself admitted his signatures on the Ex.P.7 & P.8 but he contends that, when he was signed to the said documents the said documents were a blank sheets and he was signed to Ex.P.7 when he was partner with the Bengaluru Agarwal Bhavan and also admitted that, he was retired from the Bengaluru Agarwal Bhavan in the year 2015, hence it goes to show that, the Ex.P.7 was existing in the year 2015 itself, as the Accused himself admitted that, when he was signed to the Ex.P.7 he 39 C.C.No.1907/2018 J was partner with the Bengaluru Agarwal Bhavan, in such circumstances, it cannot be held that, Ex.P.7 was created subsequently as alleged by the Accused. It is also relevant here to mention that, when the Accused himself admitted that, he was signed to Ex.P.7 and P.8 but he contends that, the said documents were blank sheets when he was signed, hence, it goes to show that, the Accused has admitted his signature found on Ex.P.7 and P.8 but he denies the contents of the Ex.P.7 and P.8 were not found when he was signed to the Ex.P.7 and P.8, therefore the burden of proving the said fact i.e. when he was signed the Ex.P.7 and P.8 they were blank sheets is upon the Accused, but except the denial Accused has not produced any satisfactory evidence to show that, when he was signed to Ex.P.7 and P.8 they were blank sheets and subsequently they were got created by the complainant as alleged by him. Therefore the allegations made by the Accused with regard to contents of Ex.P.7 and P.8 against the complainant are remained as allegations but the same have not been proved by the Accused either by producing the documentary evidence or by eliciting the materials from the evidence produced by 40 C.C.No.1907/2018 J the complainant, in such circumstances also the defence taken by the Accused that, the complainant got created Ex.P.7 & P.8 for the purpose of this complaint cannot be acceptable one as the Accused has miserably failed to prove his defence.
27. It is also relevant here to mention that, it is true that, there is no mentioning of name and address of the addressee in Ex.P.7 and there is no mentioning of liability of Rs.15 crores and there is no acknowledgement of payment of Rs.15 crores and Ex.P.7 is not an agreement and it is prepared on document sheet of Rs.2 no stamp duty has been paid, but the perusal of Ex.P.7, according to the complainant it is not an agreement between him and the Accused and he has produced Ex.P.7 stating that, it is a settlement receipt but not as an agreement deed. It is also seen from Ex.P.8 i.e. the cheque issued receipt wherein it is seen that, in pursuance of Ex.P.7 i.e. settlement receipt the cheque in question and other two cheques have been issued by the Accused in favour of the complainant and his wife , therefore the discrepancies which have been raised by the learned counsel for the Accused 41 C.C.No.1907/2018 J in the written argument cannot be acceptable one, as during the course of cross-examination of the complainant nothing has elicited on Ex.P.7 about the discrepancies raised in the written argument and even the Accused during the course of his cross- examination except bare denial nothing has been stated about the Ex.P.7. It is also relevant here to mention that, even for sake of discussion if it is assumed that, Ex.P.7 is not an agreement in accordance with law as contended by the learned counsel for the defence but from the Ex.P.7 and P.8 it can be held that, there was a settlement between the complainant and Accused in respect of the liability in question and in order to discharge the said liability the Accused has issued the cheque in question to the complainant, therefore from Ex.P.7 and P.8 it can be inferred that, the cheque in question has been entered into the hands of the complainant by virtue of the Ex.P.7 & P.8. It is also relevant here to mention that, the argument canvassed by the learned counsel for the Accused in respect of Ex.P.7 & P.8 appears to be as if the complainant is required to prove a debt before the Civil court wherein the plaintiff is required to prove 42 C.C.No.1907/2018 J his claim on the basis of evidence tobe led in support of his claim for recovery of the amount due, but when dishonour of cheque carries statutory presumption of consideration, under such circumstances the holder of the cheque in due course is only required to prove that, the Accused has issued cheque in question in his favour and when the same was presented it was dishonoured 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 other debt or liability as held by the Hon'ble apex court of India in the decision of " Uttam Ram Vs. Devinder singh Hudan and anr.," as referred in the above. In this case also the complainant has proved that the cheque in question issued by the Accused and when it was presented same was dishonoured, in such circumstances in view of the principles of law laid down by the Hon'ble Apex court the complainant cannot be insisted to prove a debt in question as it required tobe proved before the Civil Court, therefore for the said reasons the arguments canvassed by the learned counsel for the defence in respect of Ex.P.7 and P.8 cannot be acceptable one.
43 C.C.No.1907/2018 J28. It is true that, the complainant has not produced the document at the time of leading his evidence to show that, there was an agreement and complainant had given permission to said partnership for (1) usage of the brand name 2) procedures and methods to prepare the food items and 3) recipe and he had given permission to the Accused to do above said three business at Rs.32 crores and the Accused share worksout to Rs.15 crores and has not produced the document to show that Accused is due to the complainant an amount of Rs.15 crores. However as it is already held the above that the complainant has produced Ex.P7 and 8 to show that accused has entered into settlement with the complainant on 24.12.2015 and agreed for usage of intellectual properties i.e. brand name of the complainant i.e. Bengaluru Agarwal Bhavan and using his recipes, methods and also sell under his brand name for a period of three years and also agreed to pay 49% an agreed amount of Rs.32 crores along with interest of 18% per annum till clearance of dues and also issued three cheques as per Ex.P8 out of the said three cheques the Ex.P1 for sum of Rs.15 crores, one of the cheque issued in favour of 44 C.C.No.1907/2018 J the complainant in pursuance of settlement receipt dated 24.12.2015. Even for sake of discussion if it is assumed that the complainant has not produced the documents to show that the accused has issued the cheque in question was legally recoverable debt in question or there is a due of Rs.15 crores by the accused and in order to discharge the said due the accused has issued cheque in question in his favour, but as it is already held in the above that the complainant proved that the cheque in question i.e. Ex.P1 belongs to the account of the Accused and signature found at Ex.P.1(a) is that of the signature of the Accused and also proved that, the cheque in question was presented within its validity period and it was dishonoured for the reason of "Funds Insufficient" as per Ex.P.2 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 initial presumptions can be drawn 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 45 C.C.No.1907/2018 J favour of the complainant to show that, the cheque in question was not 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 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 in the absence of documents produced by the complainant in respect of liability 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 46 C.C.No.1907/2018 J existence of debt or liability. In another decision of 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 47 C.C.No.1907/2018 J JIVANLAL PATEL Vs STATE OF GUJARAT AND ANR 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 48 C.C.No.1907/2018 J 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. 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 49 C.C.No.1907/2018 J statutory presumption of consideration. The 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 50 C.C.No.1907/2018 J cheque has bounced on account of no sufficient fund in the 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". In another decision of Hon'ble Apex Court of India in Crl. Appeal Nos. 132/220 in the case of D.K.Chandel Vs. M/s. Wockhardt (L) wherein the Hon'ble Apex Court held that "production of the account books/cash book may be relevant in the civil court, may not be so in the criminal case filed under section 138 of NI Act while restoring the trial court judgment, the High Court observed that "the reason given by the lower appellate court that he did not bring the cash book or order book etc, could well be understood, if civil suit is tried" but may not be so in the criminal case filed under section 138 of NI Act. This is because of the presumption raised in favour of the holder of cheque.
51 C.C.No.1907/2018 J29. 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, presumptions U/s.118a and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt and 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 regarding source of funds were not of relevant unless the Accused rebutted the 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 mandatory requirements and has proved that, the Accused has issued the cheque in question in his favour and the Accused has admitted the cheque belongs to him and signature appearing on the cheque is that of his 52 C.C.No.1907/2018 J signature, in such circumstances, presumptions have to be drawn towards existence of legally enforceable debt as per Sec.139 of N.I.Act.
30. Therefore, for the above said reasons the arguments canvassed by the learned counsel for the defence in the written argument with regard to legally recoverable debt is not existence cannot be acceptable one and the arguments canvassed with regard to non production of the documents to show that, the Accused is due of Rs.15 crores to the complainant and complainant has not produced any agreement to show that, the Accused is liable to pay an amount of Rs.15 crores to the complainant cannot be acceptable one unless the Accused rebutted the presumptions available to the complainant. In this 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, but the said argument cannot be acceptable one in view of the principles of law laid down by the Hon'ble Apex court of India in the above referred decisions, therefore in view of the principles of law 53 C.C.No.1907/2018 J laid down in the above referred decisions it is presumed that, cheque in question was drawn for consideration as the Accused has admitted the cheque in question belongs to him and signature found on the cheque in question is also that of his signature. It is also relevant here to mention that, on careful reading of the principles of law laid down by the Hon'ble Apex court of India and Hon'ble High Court relied upon by the learned counsel for the Accused with due respect to the principles of law the same are not helpful for the Accused in this case to prove his defence, as the facts and circumstances of the present case and facts and circumstances of the decided case are not one and the same.
31. The learned counsel for the defence in the written argument contended that, the complainant admitted that, he is an income tax assessee and he files tax returns every year and he has not shown in his I.T. Returns the payment of Rs.15 Crores by the Accused and the complainant has also admitted that, he has no knowledge of auditing, which clearly goes to show that, the business transaction was not genuine one. But the Accused himself admitted in 54 C.C.No.1907/2018 J his cross-examination that, during his tenure as a partner of Bengaluru Agarwal Bhavan the income taxes were paid and he ignored the suggestion made to him that as he do not remember the sale made by Bengaluru Agarwal Bhavan Rs.12,80,00,000/= as disclosed to the authorities for the Assessment year 2015-16, hence it goes to show that, the Accused himself admitted that, during his tenure as a partner of the Bengaluru AGarwala Bhavan the income taxes were paid, in such circumstances the argument canvassed by the learned counsel for the Accused cannot be acceptable one. Apart from that, it is true that, the complainant in his cross- examination admitted that, he has not disclosed the amount of Rs.15 crores payable by the Accused in his I.T. Returns concerning the financial year, but mere non declaration of the loan transaction in question in income tax returns could by itself invalidates the transaction or not is to be taken into consideration. In this regard, it is necessary here to refer the decision of our Hon'ble High court of Karnataka reported in 2019(1) Kar. L.R.185 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat in the said case the Hon'ble High Court of 55 C.C.No.1907/2018 J Karnataka held that " Negotiable Instruments Act, 1881 - Sections 138 and 139 -Endorsement 'payment stopped by drawer' - The trial court in the instant case, merely considered a suggestion made from the Accused side in the cross- examination of PW-1 that the complainant was an income tax assessee and that he has not declared the alleged loan transaction in his returns and disbelieved the case of the complainant that too, ignoring that legal presumption under section 139 of the N.I. Act, was operating in favour of the complainant- For these reasons, it has to be held that the complainant has beyond reasonable doubt proved the guilt of the Accused punishable under Section 138 of the N.I. Act. As such, the impugned judgment of acquittal passed by the trial court deserves to be set aside and respondent/Accused is liable to be convicted for the offence punishable under Section 138 of the N.I. Act. Hence in view of the principles of law laid down by the Hon'ble High court of Karnataka in the above referred decisions, in the present case also the complainant admitted that, he has not declared 56 C.C.No.1907/2018 J the loan transaction in question in his I.T. Returns but as it is already held that, the complainant has discharged his primary burden by complying the mandatory provisions of Sec.138 of N.I.Act, therefore it is for the accused to rebut the presumption existing infavour of the complainant U/s.139 of Negotiable Instruments Act. Apart from that, the admissions of the complainant with regard to non declaration of loan transaction in I.T. Returns for the concerned year could not by itself draw an adverse inference and to hold that, there was no existence of legally enforceable debt or the presumption as envisaged U/s.139 of N.I.Act is successfully rebutted by the accused. In another decision of Hon'ble Madhya Pradesh High Court decided in C.R.R No.5263/2018 dated: 7.3.2019 in the case of Smt. Ragini Gupta Vs. Piyush Dutt Sharma Gwalior., wherein the Hon'ble High Court held that, mere non filing of income tax return would not automatically dislodge the source of income of the complainant and non payment of income tax is a matter between the revenue and assessee and if the assessee has not disclosed his income in the income tax return, then the income tax department is well 57 C.C.No.1907/2018 J within its right to reopen the assessment of income of the assessee and to take action as per provisions of Income Tax Act, however non filing of income tax return by itself would not mean that, the complainant had no source of income and thus no adverse inference can be drawn in this regard only because of absence of income tax return. Hence in view of the principles of law laid down by Hon'ble High Court of Madya Pradesh in the above said decision in the present case also though the complainant has admitted that, he has not disclosed his income and transaction in question in his income tax return that itself would not automatically dislodge the source of income of the complainant. Therefore the admissions of the complainant which are elicited in his cross-examination are not helpful for the accused to prove his defence that, in view of non disclosure of source of income of the complainant and transaction in question in his income tax returns that itself sufficient to hold that, the complainant has no source of income cannot be acceptable one.
32. It is relevant here to mention that, the 58 C.C.No.1907/2018 J Accused in order to rebut the presumption available to the complainant U/s.118 and 139 of N.I.Act himself examined as DW.1, in his evidence has stated that, he know the complainant since 2004 and complainant has not paid any amount and has not issued the cheque in dispute to him towards his alleged liability of Rs.15 crores as claimed by him in the present case. The Accused /DW.1 further stated that, the complainant is the husband of Mrs. Bharathi Devi who was one of the partners along with him in Bengaluru Agarwal Bhavan and she was not taking part in the day to day affairs of the said business and the complainant used to take care of the affairs of the said firm and whenever there were requirements of funds for the business of the firm, the complainant used to take cheques of the firm Bengaluru Agarwal Bhavan and the individual accounts of the partners of the said firm and in good faith he had given his two signed cheques of individual account and several signed blank stamp papers to him so as to enable him to raise loan for the purpose of business of his firm but the complainant has misused his signed blank cheques and signed blank stamp papers and filed this false 59 C.C.No.1907/2018 J case against him.
33. The Accused in order to substantiate his oral evidence, has not produced single piece of documents and except his oral self serving statement nothing has been placed before the court. If really the Accused has given his signed blank cheques and signed blank stamp papers to the complainant to raise loan for the purpose of business of his firm and the complainant has raised the loan, definitely the Accused would have produced the documentary evidence but no such documents have been produced by the Accused. In addition to that, the Accused during the course of his cross-examination, categorically admitted that, at the time of his retirement from the partnership firm of Bengaluru Agarwal Bhavan, no loan was advanced on the basis of his signed blank cheques and documents and he has not called upon to the complainant to return of his signed blank cheques and documents at the time of his retirement and also admitted that, he is not in the habit of singing the blank documents, hence the said admissions itself falsify the defence of the Accused that, he has issued two signed blank 60 C.C.No.1907/2018 J cheques and several signed blank stamp papers and handed over the same to the complainant to raise the loan for the purpose of business of the said firm. Therefore when the Accused himself admitted that, he is not in the habit of signing the blank documents and no loan was advanced on the basis of signed blank cheques and documents, in such circumstances the defence of the Accused i.e., the complainant has misused his blank signed cheques and blank signed stamp papers has filed this case cannot be acceptable one. Hence, in the absence of documentary evidence the defence of the Accused appears to be mere denial in nature and Accused has miserably failed to rebut the presumptions available to the complainant U/s.118a and 139 of N.I. Act either by producing cogent and convincible evidence or from the materials placed by the complainant.
34. It is also relevant here to mention that, though the Accused has taken specific defence that, the complainant used to take the blank signed cheques of the account of Bengaluru Agarwal Bhavan and individual accounts of the partners of 61 C.C.No.1907/2018 J the said firm and he had given his two signed blank cheques of his individual account and several blank stamp papers to him to raise the loan for the purpose of business firm but the Accused has not specifically stated on which date, month and year the complainant had collected his blank signed cheques and blank signed stamp papers from him to raise the loan for business of the firm and whether the loan has been borrowed or not and if not borrowed whether any action has been taken against the complainant or not, therefore in the absence of these materials only on the basis of oral say of the Accused, it is very difficult to accept the defence of the Accused and to hold that, the Accused has rebutted the presumption raised U/s.139 of N.I. Act in favour of the complainant, as the Accused has categorically admitted the issuance of cheque in question infavour of the complainant and his signature found on the cheque is that of his signature and the signature appearing on the settlement receipt i.e. Ex.P.7 and also the cheque issued receipt i.e., Ex.P.8, in such circumstances also the defence of the Accused cannot be acceptable one.
62 C.C.No.1907/2018 J35. It is also relevant here to mention that, the Accused during the course of his cross-examination has categorically admitted that, he has given many blank cheques tot eh complainant and he do not remember how many blank signatures have been taken on blank sheets and he had given blank signed cheques and blank signed sheets infavour of the complainant when he was partner of Bengaluru Agrawal Bhavan and also admitted that, at the time of his retirement from the partnership firm no loan was advanced on the basis of his signed blank cheques and documents and he has not called upon the complainant to return of his blank signed cheques and documents at the time of his retirement and also admitted that, he did not have any hindrance to approach Central Bank of India, for stop payment of the cheques which have been signed by him and also admitted that, he came to know about misuse of his cheques when he received the notice from the complainant and he has not lodged any complaint before the Jurisdictional police or court in respect of misuse of his cheques by the complainant and he did not have any hindrance of lodge complaint either before the Jurisdictional 63 C.C.No.1907/2018 J police or in the court and in his reply notice has not stated with regard to issuance of blank signed cheques and documents in favour of the complainant. Hence, the above categorical admissions of the Accused makes it clear that, the Accused himself admitted that, the blank signed cheque and documents which are given by him were not used for obtaining loan and has not taken any action against the complainant for getting return of his alleged handing over of blank signed cheques and documents and alleged misuse of the said cheques and documents by the complainant. If really the complainant has collected his blank singed cheques and blank signed stamp papers for securing loan to the business of firm and even after retirement of the Accused from the said firm, the complainant did not return the alleged blank signed cheques and other documents collected by him, in such circumstances the Accused would have taken 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 blank signed cheque handed over to him or issuing stop payment instructions to his banker, but 64 C.C.No.1907/2018 J no such efforts have been made by the Accused even after receipt of the legal notice by him and after his appearance in this case, therefore except the bare 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 his blank signed cheques and blank signed stamp papers, an adverse inference can be drawn against him that, the Accused has not initiated any action against the complainant since the cheque in question has been issued by the Accused to the complainant towards discharge of the liability in question but not for any other purpose i.e. as alleged by the Accused in his defence. In this 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 65 C.C.No.1907/2018 J 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". It is true that, the above principles of law pertains to the case of different set of facts but the proposition of law held by the Hon'ble Apex Court is aptly applicable to the case on hand since in the present case also the accused has not made any efforts to get return of cheque alleged to have been given to the complainant for securing loan to the business of the firm, 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 66 C.C.No.1907/2018 J 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. In another decision reported in 2015 (4) KCCR 2881 (SC) in the case of T. Vasanthakumar Vs. Vijayakumari wherein the Hon'ble Apex court held that, "
NEGOTIABLE ISNTRUCEMTNS Act, 1881- Section 138 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 cheque in dispute alleged to have been issued towards security to the complainant and the complainant by misusing the said cheque has filed this complaint but the Accused has admitted the issuance of cheque and his signature on the said cheque and also taken defence that, the cheque was issued towards security but no documents or proof given by the 67 C.C.No.1907/2018 J Accused to prove his defence in such circumstances by applying the principles of law laid down in the above decision the defence of the Accused cannot be acceptable one. It is true that, the above principles of law pertains to the case of different set of facts but the principles of law held by the Hon'ble Apex Court are aptly applicable to the case on hand, since in this case also the complainant proved the fact that, the Accused has issued cheque in question towards discharge of his liability. The accused has also failed to produce cogent and convincible evidence to rebut the statutory presumption in support of his defense in such circumstances the defense taken by the accused cannot be acceptable one.
36. The Accused has also taken the defence that, the complainant used to take care of the affairs of the Bengaluru Agarwal Bhavan on behalf of the wife and whenever the funds are required for the business of said firm he used to collect cheques from the firm's account and also individual accounts of the partners and in good faith he had given his two signed blank cheques of his individual account and 68 C.C.No.1907/2018 J several signed blank stamp papers to him so as to enable him to raise loan for the purpose of business of the firm and except his signature on the cheque in dispute the rest of the contents in it is not of his handwriting and the complainant has misused his signed blank cheques and stamp papers and filed this false case. It is also true that, during the course of cross-examination the complainant/ PW.1 admitted that, the signature on the disputed cheque is in blue ink and the rest of the contents of the cheque in dispute are in black ink, but complainant volunteers that, he do not know why the same have been done and also admitted that, he do not know who had written the contents of the cheque but he denied the suggestion that, the Accused has not filled up the contents of the cheque and issued to him. Hence, from the admissions of the complainant and perusal of Ex.P.1 cheque it goes to show that, there is a difference in ink used for signature and use for the rest of the contents in cheque i.e Ex.P.1 but, the complainant has not admitted that, the cheque is not issued to him and contents are not filled up by the Accused, in such circumstances whether the difference in ink in writings of cheque 69 C.C.No.1907/2018 J amounts to material alteration or not is tobe taken into consideration. Even for sake of discussion, if the defence of the Accused is taken into consideration that, he has issued the blank signed cheque, even in such circumstances, if it is assumed that, the contents of the subject cheque are not filled in by the Accused, unless and until the Accused has proved his defence by producing cogent and convincible evidence, it cannot be held that, the contents of the cheque have been filled in by the complainant. In this regard, it is a relevant here to refer a decision of Hon'ble High Court of Karnataka at Bengaluru in a case of Crl. Appeal No. 1664/2003 C/w. Crl.Apeepal 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 70 C.C.No.1907/2018 J 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 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 71 C.C.No.1907/2018 J 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 conjunctures and surmises, a case is made out from the difference in ink between the signature of the cheque and the other handwritten contents.
Hence, in view of the principles of law laid down by the Hon'ble High Court of Karnataka, the same were aptly applicable to the case on hand and the defence of the Accused cannot be acceptable one as the instrument i.e., cheque in question cannot be rendered unenforceable merely because the contents have been filled by different ink, as it would not 72 C.C.No.1907/2018 J render such instrument illegal or inadmissible, the complainant certainly can base action on it.
37. 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 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 cheque in question except his signature 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, 73 C.C.No.1907/2018 J 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 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 74 C.C.No.1907/2018 J 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 cheque in question were filled in by the Accused, in such circumstances also in view of the principles of law laid down in the above decision that itself would not invalidates the cheque in question and it can be presumed that, the said cheque has been issued towards discharge of legally recoverable debt.
38. It is also important to note here that, the Accused has not denied or disputed that the cheque in question as well as the signature therein do belong to him and though he has taken the specific defence that, the complainant used to collect blank signed cheques of firm's account and also individual account of the partners of the firm for raising loans to the business of firm and in good faith he had 75 C.C.No.1907/2018 J given his two blank signed cheques and several blank signed stamp papers to the complainant so as to raise the loan for the purpose of firm's business but he misused the cheques and filed this false case against him 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 cheque in question has come to the possession of the complainant, this would also give 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 has miserably failed to rebut the presumption available in favour of the complainant by producing cogent and convincible evidence.
76 C.C.No.1907/2018 J39. Therefore for the above said reasons arguments canvassed by the learned counsel for the Accused in the written argument cannot be acceptable and are not sustainable since in view of the discussions made and findings given by the court while appreciating the oral and documentary evidence of the complainant and Accused and the Accused has miserably failed to rebut the presumption available to the complainant as U/s.118a and 139 of N.I. Act.
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 issued the Ex.P.1 cheque in question in his favour towards discharge of the liability i.e., usage of his intellectual properties like brand name Bengaluru Agarwal Bhavan and using his reciepies, methods, process and guidelines to make all foods and sell under his brand name for the period of 3 years and thereafter the complainant has presented the said cheque 77 C.C.No.1907/2018 J through his banker and same was 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 cheque 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 Cheque. Therefore 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 78 C.C.No.1907/2018 J 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 pay a fine of Rs.15,05,25,000/= (Rupees Fifteen Crores Five Lakhs and Twenty Five Thousand only) within one month from the date of order, in default she shall under go simple imprisonment for a period of (6) six 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.15,05,00,000/= (Rupees Fifteen Crores and Five Lakhs 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 79 C.C.No.1907/2018 J a sum of Rs.25,000/= (Rupees Twenty Five Thousand only) shall be defrayed as prosecution expenses to the state.
His Bail bond 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 13th day of February 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri. Rathan Kumar Aravind.
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 : Original Cheque;
Ex.P-1(a) : Signature of the Accused;
Ex.P-2 : Bank Memo;
Ex.P-3 : Office copy of the Legal Notice;
Ex.P-4 : Postal Receipt;
Ex.P-5 : postal Acknowledgement
Ex.P-6 : Reply Notice
Ex.P-7 : Settlement receipt;
80 C.C.No.1907/2018 J
Ex.P-8 : Cheque Issued receipt
Ex.P-8(a & b) : Signatures of complainant & accused Ex.P-8(c) : Signature of witness
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Sri. M.Vinonath & Mani Vinonath;
4. List of documents exhibited on behalf of the Accused:-
- Nil-
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.81 C.C.No.1907/2018 J
13.2.2020 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.15,05,25,000/= (Rupees Fifteen Crores Five Lakhs and Twenty Five Thousand only) within one month from the date of order, in default she shall under go simple imprisonment for a period of (6) six months for the offence punishable U/sec.138 of N.I.Act.
82 C.C.No.1907/2018 JFurther acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.15,05,00,000/= (Rupees Fifteen Crores and Five Lakhs 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.25,000/= (Rupees Twenty Five Thousand only) shall be defrayed as prosecution expenses to the state.
His Bail bond 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.
XVI ACMM, B'luru.