Bangalore District Court
Sri. Vijay Savanur vs Sri.Srihari N Acharya on 13 January, 2022
KABC020078642018
IN THE COURT OF THE JUDGE COURT OF SMALL CAUSES
AND A.C.M.M, AT BENGALURU
Present: UMESHA.H.K, B.A., LL.B.,
JUDGE, Court Of Small Causes,
Bengaluru.
Dated this the 13th day of January, 2022
C.C. No: 1563/2018
Complainant: Sri. Vijay Savanur,
S/o Late S. Krishna Rao,
Aged about 42 years,
Residing at No.109,
1st Floor, 6th Cross,
5th Main, RK Layout,
Padmanabhanagar,
Bengaluru-560070.
(By Sri.Dilip Kumar - Adv.)
-Vs-
Accused: Sri.Srihari N Acharya
S/o Late Vithobha Acharya,
#34/26, Sapthagiri Homes SF 01,
4th Main 6th Cross, Cauvery School Road,
Vivekananda Nagar,
Banashankari 3rd Stage,
Bengaluru-560 085.
Also available at:
M/s. Kesari Tours,
#35/1, Allapat Bldg,
Cunningham Road,
Bangalore-560052.
SCCH-09 2 CC.1563/2018
(By Sri. M.S. Harish Kumar & DVP
Adv.)
JUDGMENT
Complainant has filed this private complaint under Sec. 200 of Cr.P.C., against accused for an offence punishable under Sec.138 of Negotiable Instruments Act.
2. It is the case of the complainant that, accused and complainant are well acquainted with each other. The complainant was running travel agency under the name and style of M/s. Easy Fly Tours and Travels. The complainant along with his friends had planned a holiday to Thailand and the complainant contacted the accused to make arrangements for travel and stay in Thailand on a group holiday basis and discussed the travel schedule and the cost for the package and upon mutual understanding of the terms of the travel and stay, the complainant went ahead and paid to the accused the requisite advance amount for the purpose of making the arrangements for the holiday. The accused issued hotel vouchers and Air tickets as discussed and upon issuance of SCCH-09 3 CC.1563/2018 the same, the balance payment was made to the accused. The group of travelers including the complainant had no reasons to disbelieve the veracity of the vouchers and air tickets issued by the accused.
3. Further, it is the case of the complainant that on the day of travel i.e., on 21.05.2017 at airport, when the complainant and his friends attempted to check in and board the flight, to their shock and it was learnt that the AIR tickets had been cancelled and a refund of the tickets was already obtained at the behest of the accused and at that time, the complainant repeatedly tried to contact the accused over phone and all the efforts of complainant tried to contact the accused over phone and all the complainant efforts failed since the accused ignored the complainant's call and later the accused has given evasive answer to the complainant alleging that the said mistake was done by the person, who actually booked the tickets. The accused was aware that it was his responsibility for entire arrangements but the accused have cancelled the tickets and collected the entire refund to enrich SCCH-09 4 CC.1563/2018 himself. The complainant contacted the hotels in which the bookings were made and confirmed that only vouchers were genuine and rescheduling the same, at the behest and responsibility of the complainant, alternative flight arrangements were made and the group travelled to Thailand at the cost of the complainant and as the tickets were booked at the last minute the air fare were high and the complainant borne the burden of the air tickets in order to ensure that the group travels on its holiday.
4. It is further case of complainant that he confronted the accused and demanded that the accused should make good the loss that has been suffered due to his illegal acts but the accused shown his hostile attitude for which the complainant informed the accused that he would approach the jurisdictional police station requesting for intervention as he had committed an offence of cheating, fraud and criminal breach of trust and at that point of time, the brother of accused one Sri.N.Srivasta Acharya intervened and assured that the issue can be amicably settled and the accused SCCH-09 5 CC.1563/2018 brother requested the complainant not to pursue the matter before the police and on the said assurance of the accused brother, the complainant had several meetings with both the accused and his brother and worked out the details of the actual loss suffered by the complainant owing to the illegal acts committed by the accused and it was mutually agreed that the accused is liable to pay Rs.22,53,757/- to the complainant and the accused has confirmed the same in his own handwriting on 23.05.2017 and have acknowledged that he had agreed to pay the said amount.
5. Further, the complainant submitted the accused gave an undertaking to the complainant an amount of Rs.22,53,757/- would be paid to the complainant in the form of postdated cheques and an undertaking in the form of Memorandum of understanding was executed on 24.05.2017. Thereby the accused and his brother towards discharge of liability issued three post dated cheques Rs.5,00,000/- two cheques each and another cheque for Rs.12,53,757/- totally for Rs.22,53,757/- drawn on Axis Bank Ltd., Chamarajpet SCCH-09 6 CC.1563/2018 Branch, Bengaluru, dated 03rd, 15th & 30th June 2017 and on presentation of said cheques through his banker Canara Bank, Padmanabhanagar Branch, Bengaluru and they were dishonoured with an endorsement "Drawer Signature Differs", memo dated:14.07.2017.
6. It is further case of complainant that he issued legal notice, dated 19.07.2017 through RPAD, the said notice was duly served on accused on 20.07.2017. After receipt of said legal notice accused have promised to repay the amount due to the complainant in various installments and thereafter accused paid a part payment of Rs.6,18,000/- to the complainant as on 27.08.2017 in various installments and in order to put the accused under legal obligation in writing both accused and complainant have entered into an addendum to the earlier Memorandum of Understanding dated 24.05.2017. Thereafter, complainant had acceded to the accused, requested and accepted to receive part repayment in installments with a conditions that the entire amount has to be repaid within 31.12.2017.
SCCH-09 7 CC.1563/2018
7. Further, the complainant submitted that accused issued three cheques along with addendum memorandum of understanding dt.27.08.2017 accused has not paid any amount till October 2017. Thereafter, the complainant learnt that the accused has no intention to repay the legally enforceable debt of Rs.16,35,757/-. Finally, the complainant lodged a complaint before the Chennamanakere Achukattu Police Station on 02.11.2017 and the said police have registered the case in Cr.No.409/2017 against the accused for the offence punishable under Sec.417, 419, 420, 468 and 471 of IPC.
8. Further, the complainant submits that after registration of the said case and even after lapse of due date i.e., on 31.12.2017 the accused has failed to make the balance payment of Rs.16,35,757/-. Thereafter, the complainant demanded the accused to repay the entire balance amount in the month of January 2018 for which accused have requested the complainant to present the cheque bearing No.000453 on 08.02.2018 for Rs.16,35,357/- drawn on ICICI Bank and when SCCH-09 8 CC.1563/2018 the said cheque was presented through his Banker Axis Bank, Chamarajpet Branch and the same was dishonoured with an endorsement "Insufficient Funds".
9. Further, complainant submits that after dishonouring of the above said cheque complainant got issued legal notice dt.26.02.2018 and it was sent to three addresses mentioned in the cause title through RPAD and the notice sent to first two addresses were returned unserved with postal shara "No Such Person" dt.02.03.2018 and 27.02.2018. Similarly, the notice sent to the third office address was also duly served on 27.02.2018 and the RPAD didnot returned to the complainant and on verifying the same on official website of India Post, it was duly served on accused on 27.02.2018. However, accused did not paid the aforesaid amount. As such accused committed an offence punishable under Section 138 of N.I.Act and prays to convict accused.
10. My Predecessor in Office by taking cognizance for the offence punishable U/Sec.138 of N.I. Act, registered the case as PCR. Sworn statement of complainant was recorded. SCCH-09 9 CC.1563/2018 Thereafter, by perusing the averments of complaint, documents, this court has registered the case as CC in register No.3 and issued summons to accused. In pursuance of summons accused appeared through his Advocate and he is on bail. Plea read over as per the provisions of U/Sec.251 of Cr.P.C. accused pleaded not guilty and claimed to be tried.
11. Complainant adopted the sworn statement evidence as his evidence in view of the decision of Hon'ble Apex Court in Indian Bank Association V/s Union of India as PW1 and got marked documents Ex.P1 to 13. Thereafter, statement of accused U/Sec. 313 of Cr.P.C. was recorded. Accused denied the incriminating evidence available against him and adduced his defense evidence as DW1 and got marked 7 documents as per Ex.D1 to 7 on his behalf.
12. Heard the arguments of learned counsel for complainant and accused.
13. The following points are arise for my consideration: SCCH-09 10 CC.1563/2018
1. Whether complainant proves that the accused has committed an offence punishable under Sec.138 of N.I. Act?
2. What order?
14. My findings on the above points are as under:
Point No.1 : In the Affirmative; Point No.2 : As per the final order;
for the following:
REASONS
15. Point No.1:- Before appreciation of fact and oral, 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 doubt. However, a proceeding U/Sec. 138 of N.I. Act is quasi criminal in nature and quasi civil in nature. In this proceeding proof beyond all reasonable doubt is subject to presumption as envisaged U/Sec. 118, 139 of N.I. Act. An essential ingredients of Sec. 138 of N.I. Act is that Whether a person issues cheque to be encashed and the cheque so the issued towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing cheque, SCCH-09 11 CC.1563/2018 shall be deemed to have been committed an offence punishable U/Sec.138 of N.I. Act. N.I.Act presupposes conditions for prosecution of an offence which are as under:
1. Existence of legally enforceable debt or liability and issuance of cheque in discharging 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 the receipt of such notice.
16. If the above said ingredients are satisfied by the holder in due course gets cause of action to launch prosecution against the drawer in respect of the bounced cheque and as per Sec. 142 (b) of N.I. Act the complainant has to be filed within one month from the date on which the cause of action arise to file complaint.
SCCH-09 12 CC.1563/2018
17. It is also one of the essential ingredients 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 presumption. U/Sec. 118(a) presumption shall be raised regarding consideration, date, transfer, endorsement and holder, in due course of Negotiable Instrument. Even Sec. 139 of N.I. Act are rebuttable presumption shall be raised that, cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumption are mandatory presumptions that are required to be raised in case of Negotiable Instrument. But, the said presumption are not conclusive and they are rebuttable one. This preposition of law has been laid down by Hon'ble Apex Court and Hon'ble High Court of Karnataka in catena of decisions.
18. In the light of above, let me discuss the case of complainant and accused in this case. It is the case of complainant that accused had agreed to arrange for holiday trip to Thailand through his Travel Agency i.e., Ms/ Easy Fly SCCH-09 13 CC.1563/2018 Tours and Travels and booked the air tickets. On the day of travel I.e, on 21.05.2017 the tickets were cancelled, thereafter complainant himself arranged by booking the tickets as the tickets were booked at last minute, the air fares were high and he borne the air tickets in order to ensure that the group travels on its holiday and subsequently, he contacted accused and his brother and settled the matter amicably, accused agreed to pay an amount of Rs.22,53,757/- and entered into agreement dated 24.05.2017 and issued three post dated cheques. On presentation said cheques were returned for the reasons "Drawers Signature Differ". Thereafter, he issued notice to the accused, by receiving notice accused paid an amount of Rs.6,18,000/- under various installments upto 27.08.2017. Thereafter, accused again executed an addendum memorandum of understanding dt.27.08.2017 and again issued cheques bearing No.000453, 000454, 000455 drawn on ICICI Bank towards repayment of remaining amount of Rs.16,35,757/-. Again accused failed to repay the same, finally he presented cheque bearing No.000453 on 08.02.2018, the SCCH-09 14 CC.1563/2018 same was returned for the reasons "Funds Insufficient", then he issued notice and the said notice was duly served. Inspite of it accused has not repaid the amount nor issued reply notice and as such committed the offence.
19. The main defense of the accused is that the complainant threatened him and his wife and by lodging police complaint had obtained his signature on various documents and taken the cheques by force and he is not liable to pay any amount to the complainant.
20. Learned counsel for complainant has vehemently argued that the complainant has proved the ingredients Sec.138 of N.I.Act. Accused has admitted the issuance of cheque and signature and he never disputed regarding repayment of amount. Further, he has admitted execution of Ex.P10 and 11 document. The alleged defense taken by accused that the cheques are taken forcibly is a created and concocted story just to escape from liability. The alleged documents placed by accused under Ex.D1 to D7 are created and concocted documents just for the sake of this case, that SCCH-09 15 CC.1563/2018 too after filing of this complaint. During the cross-examination accused has specifically admitted the payment of Rs.6,18,000/-. So, he has clearly admitted the liability, for due discharge of remaining amount of Rs.16,35,757/- as per the agreement the cheque in dispute was issued by accused and accused has admitted the liability. Now he has taken such false defense just to escape from liability by creating documents. So, accused is liable for conviction and prays to the convict the accused by imposing maximum punishment and double the cheque amount and award compensation.
21. In support of his arguments, he has relied upon the decision reported in (2010) 11 SCC 441 Rangappa V/s Mohan, (2019) 10 SCC 287 Uttam Ram V/s Devinder Singh Hudan & anr., and another decision (2020) 12 SCC 724 APS Forex Services Pvt. Ltd., V/s Shakti International Fashion linkers and Ors., (2001) 8 SCC 458 K.N.Beena V/s Muniyappan.
22. On the other hand, learned counsel for accused has vehemently argued that as per the contention of complainant SCCH-09 16 CC.1563/2018 41 peoples were booked and travelled to the holiday trip. But, there is no mention in the complaint, who were the 41 travellers and there is no details of other passengers in the complaint and there is no averments regarding whether they have executed any authority to the complaint to conduct the case or permitted the complainant to conduct the case. So, in the absence of such material averments, the complaint itself is not maintainable and it is liable for dismissal. He further argued that there is no mention or averment in the complaint for what reasons the tickets were cancelled. All these facts are material facts to consider the case, complainant not stated said facts in the complaint. It shows complainant is hiding something before the Court. So, on this ground complaint is liable for dismissal.
23. He further argued that the burden of proving the existence of legally recoverable debt is on the complainant. There is no material or evidence available on record to show that there is existence of legally recoverable debt. When once tickets are booked how can the accused can cancel the tickets SCCH-09 17 CC.1563/2018 and there is no reason is mentioned for what reasons tickets were cancelled by the accused or the travel agency. So, it means the air tickets were confirmed and there is no fault on the accused, on the day of travelling on 21.05.2017 the complainant took 41 travellers to the airport only to show off himself as he is a very influential person and he called the booking agent and bombarded booking agent for no reasons at the behest of the complainant, the tickets have been cancelled, so there is no fault on the part of accused. When once the tickets were booked there is no role on the part of accused either in canceling the ticket or modification etc. As per the contract or agreement accused booked the ticket, so there ends the matter. In the cancellation there is no role on the part of accused, complainant by threatening the accused and his wife and by lodging false complaint against accused under threat and coercion obtained the cheques and other documents. Though accused lodged the complaint, police have not received his complaint and complainant by using his influence has lodged the false complaint. There is no legally SCCH-09 18 CC.1563/2018 existence of debt or other liability on the part of accused. When such being the case, question of convicting the accused would not arise at all. None of the documents placed by the complainant shows the existence of liability and the evidence placed by accused clearly establishes the cheque in dispute and other documents are obtained under threat.
24. Even otherwise, Ex.P10 & 11 are not proved in accordance with law, when the accused has taken specific defense that the said documents are obtained by threat, it is duty of complainant to prove the said documents in accordance with law except placing the said documents, he has not proved the same. So, the complainant has failed to prove the ingredients of Sec.138 of N.I.Act and prays to dismiss the complaint.
25. In support of his arguments, he has relied upon the following decisions:
1) (2006) 6 SCC 39 (Narayana Menon @ Mani V/s State of Kerala & another.SCCH-09 19 CC.1563/2018
2) CRL.P. No.1387/2011 HCK (R.Parimala Bai V/s Bhaskar Narasimhaiah
3) Subburam V/s Rajendra 06th July 2007 (Indian Kannon.org.)
4) (2020) 7 SCC 1 Arjun Panditrao Khotkar v/s Kushanrao Gorantyal & Others.
26. In the light of above arguments and contention of both complainant and accused, once again I have carefully perused the evidence on record. In order to prove his case, complainant himself examined as PW1 and during the course of his chief examination he has reiterated the complaint averments in detail on oath and in support of his oral evidence he also placed Ex.P1 to 13 documents. Ex.P1 is the cheque, dated 08.02.2018 drawn on ICICI Bank, Chamarajpet Branch, Bengaluru for Rs.16,35,757/- and Ex.P2 is the return memo dated 09.02.2018, the endorsement discloses that the cheque in dispute was unpaid for the reason "Funds Insufficient". Ex.P3 is the copy of legal notice dated 26.02.2018. Ex.P4 to 6 are the postal receipts. Ex.P7 & 8 are the RPAD returned SCCH-09 20 CC.1563/2018 cover. Ex.P7(a) & 8(a) are the copy of notice. Ex.P9 is the postal track consignment, which discloses notice issued by the complainant was delivered on 27.02.2018 to the accused. Ex.P10 is the memorandum of understanding between complainant and accused. Ex.P11 is the addendum to the memorandum of understanding dated 24.05.2017. Ex.P12 is the copy of voluntary statement of accused given in Cr. No.409/2017 on the file of Channamanakere Achukkattu Police Station. Ex.P13 is the C/c of Criminal Revision petition in Cr. R.P. No. 193/2020 dated 16.03.2021. On perusal and careful scrutiny of documents relied by the complainant prima-facie it goes to show that statutory requirement of U/Sec. 138 of N.I.Act is complied with and this complaint is filed within limitation. Thus, the complainant relied on the statutory presumption enshrined U/Sec. 118 R/w & U/Sec.139 of N.I.Act.
27. No doubt, the said presumption of laws are rebuttable in nature. The accused can take probable defence and rebut the presumption available to the complainant. In this scenario, let me examine whether accused has successfully rebutted the SCCH-09 21 CC.1563/2018 presumption of law. It is the specific defence of the accused that the cheque in question was taken by the complainant by threatening him and by force and he has no liability to pay any amount to the complainant. On these main defence, accused sought for dismissal of the complaint.
28. Accused in order to substantiate his defence he himself examined as DW1 and during the course of his examination he has reiterated the above defense on oath. In support of his oral testimony, he has also placed Ex.D1 to 7 documents. He has been testified in cross-examination by learned counsel for complainant and during the cross- examination he has specifically admitted the signature found in Ex.P1(a) and issuance of cheque, he further admitted he has paid an amount of Rs.6,18,000/- through IMPS to the account of complainant on various dates as part payment. He further admitted he had entered into memorandum of understanding as per Ex.P10 & 11. He further admitted after entering into memorandum of understanding as per Ex.P10 he issued Ex.P1 cheque and further admitted the liability of SCCH-09 22 CC.1563/2018 amount to the extent of Rs.16,35,715/- as mentioned in Ex.P1 cheque. He further admitted as on the date of presentation of cheque the said amount was due, he further admitted regarding pending of criminal case against him in Crime No. 409/2017 and regarding Ex.P12 statement given by him. On perusal of cross examination of DW-1 dated 25.11.2019 and 18.12.2019 it is crystal clear that accused has specifically and unequivocally admitted the issuance of cheque and his liability.
29. At this juncture, I would like to quote decision of Hon'ble Apex Court reported in (2020) 12 SCC 724 APS Forex Services Pvt. Ltd., - Versus - Shakti International Fashion linkers and Ors." by reiterating the principles laid down in Kumar export V/s Sharma Karpet (2009) 2 SCC 513 and "Rangappa Vs. Mohan case reported in (2010) 11 SCC 441. The Hon'ble Apex has held that: "The fact that the accused has admitted the issuance of cheque and his signature on the cheque and that the cheque in question pertaining to the account, there is a SCCH-09 23 CC.1563/2018 presumption u/Sec. 139 of NI Act, that there exists a legally enforceable debt or liability." Even our Hon'ble High Court relying on the Hon'ble Apex Court decision recently in Criminal Appeal No.140/2011, dtd. 20th November-2020 - Muralidhar Rao Vs. P. Nageshwar Rao" has held that "a person who signs a cheque and make it over to the payee remains liable unless he adduces the evidence and rebut the presumption that the cheque had been issued for payment of debt or in discharge of a liability and the onus shifts on the accused to establish a probable defence." Further recently the Hon'ble Apex Court in Triyambaka S Hedge v/s S.Sripad Cr.L.Appeal No.849-850/2011, dated 23.09.2021 reported in L.L (Live Law) 2021 SC 492 by reiterating the same principles as held - that applying the proposition of law that when once signature is admitted to be that of accused, the presumption envisaged in Sec.118 of the Act can legally be inferred that the cheque was made or drawn for consideration SCCH-09 24 CC.1563/2018 on the date which the cheque bears. Sec.139 of the Act enjoins on the court to presume that the holder of the cheque received it for discharge of any debt or liability. The question to be looked into is as to - whether any probable defense was raised by accused.
30. In the light of above dictum of Hon'ble Apex Court and Hon'ble High Court of Karnataka, once signature and issuance of cheque is admitted the heavy burden is on the accused to place rebuttable evidence to displace the statutory presumption available in favour of complainant. So, in the light of above let me discuss, whether accused is able to displace the presumption available in favour of complainant and able to prove his defence.
31. The main defence of accused is that, the cheque in dispute had taken by complainant by threatening him and by force. No doubt, accused in support of his evidence during his chief examination he has stated that the cheque in question was taken by complainant by threatening him. But, in the entire cross examination dated 25.11.2019 and 18.12.2019 he SCCH-09 25 CC.1563/2018 never stated or whispered any thing about alleged threat or force used by the complainant. The accused is mainly relaying upon Ex.D3 document i.e., E-complaint lodged by his wife dated 27.10.2017. Even on perusal of this complaint he specifically admitted that he had booked ticket for 41 passenger and they were cancelled. Further, he relied on Ex.D5 to 7. Ex.P5 is the order sheet maintained in PCR 5283/2021 on the file of 2nd Addl. Chief Metropolitan Magistrate and Ex.D6 series C/c of complaint and Ex.D7 is CD and pen- drive. On perusal of Ex.D5 & 6 it shows after filing of this case accused has filed a private complaint before the 2 nd Addl. Chief Metropolitan Magistrate, Bengaluru against the complainant for the alleged offences U/Sec. 319, 354-A, 499, 500, 507 & 509 of IPC. So, it is crystal clear that the said complaint is an after thought complaint and it is filed only for the sake of defence. In fact, during the cross examination dated 25.11.2019 he has specifically admitted that "ಪರರರದ ಹಲಲಲ ಮರಡದ ಸಸಬಸಧ ಪಲಲಸರಗಲ ದದರರ ನಲಡದದಲರರ ಎಸದರಲ ಇಲಲ" . This portion of evidence clearly establishes that accused in order SCCH-09 26 CC.1563/2018 to create some defence has filed such complaint, after filing of this case. If really, the cheque in dispute and other documents were taken by force or threatening him and his wife, what prevented him to lodge the complaint immediately after such incident. If the police authority have refused to take his complaint, he would lodge the complaint before the court immediately after such incident. But, no such legal action was taken by accused. Apart from that, the Ex.D3 complaint was lodged on 27.10.2017 and alleged threat or assault was in the month of June or July and there is no reason or explanation for such delay in lodging complaint under Ex.D3 and accused has not explained why he himself has not lodged the complaint against the complainant for such assault or threat made by complainant. On perusal of cross examination of DW1 dated 25.11.2019 he specifically stated and admitted he has transferred amount through IMPS to the account of complainant on various dates to the extent of Rs.6,18,000/-. If really, such a threat or coercion by the complainant, accused would not have transferred such amount SCCH-09 27 CC.1563/2018 of Rs.6,18,000/- on various dates as admitted by him and the coercion will happen only once and it will not continued one. If really he was under threat or coercion why he has not taken immediate legal action against the complainant in the month of June, July or August 2017. It clearly establishes there was no such coercion or threat by complainant and accused himself voluntary and amicably settled the matter and transferred the amount to the extent of Rs.6,18,000/- and for remaining amount he issued cheque in dispute.
32. Further, if really the cheque is taken forcibly why he has remained silent without giving application to the bank for stop payment. Admittedly, accused is not illiterate person and he is well educated person and he is doing travel business. No prudent man would keep quite if really the cheques are taken by force or by threat. Immediately, he would have given stop payment application to the bank authority. The silence on the part of accused clearly establishes that he had voluntarily issued the cheque for remaining balance and now he has taken such defence just to escape from liability if possible. SCCH-09 28 CC.1563/2018 Further, during the cross examination he has specifically and unequivocally admitted that " ಪಪಮರಣ ಪತಪದ 10ನಲಲ ಖಸಡಕಲಯಲಲ ರರರರ ಒತರತಯದಸದ ಚಲಕರಕಗಳರ ಹರಗದ ದರಖಲಲಗಳಗಲ ನನನ ಸಹ ಪಡಲದದರದರಲಸದರ ಹಲಲಳಲಲ ಎಸದರಲ ಸರ. ಆ ಸಸಬಸಧ ಪರರರದ ಪಲಲಸರಲದಸದಗಲ ಶರಮಲರಗ ಬಲವಸತದಸದ ಚಲಕರಕಗಳನರನ ಪಡಲದದರದರಲಸದರ ನಲದಲಟಲಸರ, ದದರರ ಹರಗದ ಕರನದನರ ಕಪಮ ಕಲಕಗಲದಸಡಲಲ ಎಸದರಲ ಸರ. ನನನ ಇ-ಮಲಲಲ ನಲಲ ಪರರರದಗಲ ನನನ ವವವಹರರದಲಲ ಹಸತಕಲಕಲಪ ಮರಡರತತಲರರ ಎಸದರ ಹಲಲಳಲಲ ಎಸದರಲ ಸರ. ನನನ ಕಸಪನಯ ಹಲಸರನರನ ಬಳಸಕಲದಸಡರ ಪರರರದ ಟಕಲಲಟಲಬರಕಲಮರಡರತತದರದರಲಸದರ ಇ-ವಲರಲಲಲನಲಲ ಹಲಲಳಲಲ ಎಸದರಲ ಸರ. ಈ ಎಲರಲ ವಚರರಗಳನರನ ನರವರರಲಯದಲಲ ಮದಲ ಬರರಗಲ ಹಲಲಳರತತದಲದಲನಲ ಎಸದರಲ ಸರ." From above evidence, it is crystal clear no coercion or force from anybody. On the other hand, it clearly establishes accused himself voluntarily issued the cheque for due discharge of amount.
33. As discussed above, if really complainant has threatened him and taken his signatures and documents and cheques, why he has transferred such huge amount of Rs.6,18,000/- commencing from 04.07.2017 to 25.09.2017 and for what reasons he remained silent without taking any action during such period, If really the said amount was forcibly taken SCCH-09 29 CC.1563/2018 by complainant by threatening him. In fact the alleged complaint lodged at Ex.D3 is in the month of October 2017, that too by his wife and no explanation is offered by accused why he has not lodged the complaint personally immediately after alleged incident of assault and threat. The silence on the part of accused clearly establishes the said defence taken by him is an after thought defence and to suit such defence he has filed subsequent complaint.
34. Further, on perusal of cross examination of DW-1, it clearly establishes there was no such threat or coercion or force by complainant and accused as per settlement made among them and as agreed under Ex.P10 and 11 he has issued the cheque for legally enforceable amount admitting the claim of complainant. Admittedly, Ex.P10 was came into existence on 24.05.2017 and Ex.P11 was came into existence on 27.08.2017. if really, Ex.P10 was taken by force or by threatening him, he would not have executed Ex.P11 document in the month of August and he would not remained silent without taking any legal action against complainant for SCCH-09 30 CC.1563/2018 taking such document under Ex.P10 by force. Even he has not replied the notice issued by complainant. Regarding service of notice he has specifically admitted during the course of his cross examination and Ex.P9 also discloses that notice was duly served. If really the cheque in dispute and other documents were taken by force he would have replied to the notice immediately after receipt of notice. As stated above, no prudent man would remain without taking any legal action if really his cheques and documents were taken by force or by threat. The silence on the part of accused in not replying the notice would also clearly establishes that the said defence is an after thought defence.
35. Further, most important thing to be considered here is during the cross-examination the accused has specifically admitted his liability. If really there is no liability on his part or cheques are obtained by force or by threatening him as contended by him - why he has admitted his liability during the course of cross-examination. Admittedly, there is no threat or coercion in the court. Atleast he could have stated during SCCH-09 31 CC.1563/2018 the cross-examination that the said cheques were taken by force or by threatening, he would not have admitted his liability. So, the defense of the accused that the cheque in dispute was taken by threatening him etc., is not acceptable one.
36. Further, during the course of arguments, learned counsel for accused has vehemently argued that there must be contract between accused and complainant and no such contract among them and complainant except stating he has paid amount for arrangement of holiday trips, he has not placed any other documents, when there is no such contract and there is no legal debt question of issuing cheque by accused doesnot arise at all and the cheque in dispute taken by force threatening the accused and his wife. He further argued Ex.D7 pen drive and C.D placed by accused and the conversation took place between the complainant and accused clearly establishes accused was taken to some unknown place and by beating the accused through local rowdies, complainant took the signatures to few papers and thereafter SCCH-09 32 CC.1563/2018 took the accused to Basavanagudi Police Station and made some influence without lodging complaint and got signatures in front of Police Inspector by giving threat to the accused. So under such circumstances, the cheque in dispute came in possession of complainant, there is no legally enforceable debt or liability on the part of accused and prays to dismiss the complaint.
37. In the light of above, specific defense once again, I have carefully scrutinized the evidence and heard the alleged conversation of accused and complainant in Ex.D7 i.e., CD and pen drive. No doubt, on hearing of alleged conversation in Ex.D7 CD and pen drive, there is some threat and complainant alleged to have used slang languages during such conversation. But, the complainant has denied the said conversation. When such being the case, it is the duty of the accused to prove the same in accordance with law. Mere production of such CD and pen drive with certificate as provided U/Sec.65-B (4) is not enough and accused is required to prove the same in accordance with law and accused has to SCCH-09 33 CC.1563/2018 clarify that the voice in the said conversation is of complainant. Admittedly, there is no such evidence is available to show that the said voice is of complainant.
38. Further, there is no particulars or evidence is available through which phone number the said call was made and on which date, time and place the said conversation took place, through which phone it was recorded and who has recorded the same and who has copied from original phone to CD and pen drive and how the digital audio has been copied and other material things are not available. So, under such circumstances, the said conversation which is in CD and pen drive at Ex.D7 cannot be considered under law. Even otherwise, the scope of this case is very limited and this court is required only to consider whether the offence was committed U/Sec.138 Act or not. Assuming for a moment, that there was some conversation between accused and complainant and even if it is taken into consideration, in the said conversation also, accused has admitted liability and he never disputed in the entire conversation that he has no SCCH-09 34 CC.1563/2018 liability to pay the amount to the complainant etc. So, under such circumstances, the arguments canvassed by learned counsel for the accused is not acceptable one. I have gone through the decision relied by learned counsel for accused with regard to admissibility of CD and pen drive and certificate as per Sec.65-B (4) reported in (2020) 7 SCC 1 (Arjun Pandit Rao Khotkar V/s Kailash Kushan Rao Gorantyal & others). With great respect to the said decision, the facts and circumstances of the said case are not applicable to the case on hand. As discussed above, accused has not given the particulars and not fulfilled the requirements of valid certificate as provided under Sec.65-B(4) of Evidence Act. Further, accused has not fulfilled the conditions specified in Sub Sec. (2) of Sec.65-B. So, the said decision is not helpful to the accused. Even otherwise, DW1 during his chief- examination has not stated anything about C.D and pen drive and with regard to alleged conversation and even a single suggestion was not made with regard to said pen drive during the course of cross-examination of PW.1. So under these SCCH-09 35 CC.1563/2018 circumstances, the arguments of learned counsel for accused in this regard is not acceptable one. As stated above, the scope of this complaint is very limited.
39. Further, during the course of arguments, learned counsel for accused mainly concentrated his arguments that in the entire complaint there is no averments with regard to liability and he has not produced any document to show the existence of liability and he has not discharged his initial burden. So, when such being the case, question of rising the presumption U/Sec.118 and U/Sec.139 of N.I.Act of Act would not arise at all. Admittedly, accused by placing and rising probable defense he has discharged his burden then the onus shifts on the complainant to prove his case and complainant has not placed such evidence or discharged his burden and not shown the existence of liability. So, under such circumstances, an adverse inference has to be drawn against complainant and prays to dismiss the complaint. In support of his arguments he has relied upon the decision of Hon'ble Apex Court reported in SCCH-09 36 CC.1563/2018 (2006) 6 SCC 39 M.S.Narayan Menon @ Mani V/s State of Kerala & anr.
40. On the other hand, learned counsel for complainant countering the said argument has submitted that during the cross-examination DW1 has specifically admitted his liability. Further, due discharge of amount he has paid an amount of Rs.6,18,000/- from June to August 2017 by way of IMPS payment and transferred the some amount like installments to the account of complainant as part payment, it means there exists a liability on the part of accused and for that liability he has transferred the amount and issued the cheque in dispute for remaining amount. He further argued the documents placed by complainant at Ex.P10 and Ex.P11 clearly establishes the liability of accused and complainant has pleaded with regard to liability in his complaint. So, the arguments canvassed by accused counsel is not acceptable one. He further argued when once the issuance of cheque and signature is admitted the heavy burden is on the accused to place probable defense to displace the presumption available SCCH-09 37 CC.1563/2018 U/Sec.118 and U/Sec.139 of N.I.Act. Admittedly, accused has not placed such evidence. So, the question of shifting the onus on the complainant would not arise at all. The said decision relied by learned counsel for accused is not applicable to the facts of present case and prays to convict the accused. In support of his argument he relied upon Rangappa V/s Mohan's decision, Uttam Ram and Devinder Singh and APS Forex Service Pvt. Ltd., V/s Shakti International Ltd.,
41. In the light of above arguments, once again I have perused the evidence and decisions relied by both counsels. As rightly submitted by learned counsel for complainant DW.1/accused himself has specifically admitted his liability during the course of his cross-examination. Even the averment at Ex.D6 i.e., private complaint filed by accused clearly establishes there exists a liability and corroborates the version of complainant. As stated above, if really there was no liability why the accused has transferred an amount of Rs.6,18,000/- on various dates to the account of complainant. Further, SCCH-09 38 CC.1563/2018 Ex.P10 and 11 documents clearly establishes that there exists a liability and for due discharge of said liability the cheque in dispute was issued by accused. Further, in Ex.P12 i.e., statement given by accused before the C.K.Achukattu Police, accused has specifically admitted his liability. During course of argument, learned counsel for accused submitted that Ex.P12 being confession statement made before the police is not admissible and that cannot be taken into consideration. No doubt, the said statement is given before the Police. But, when it was confronted to the accused during the cross- examination he has specifically admitted the contents of Ex.P12 and also admitted the signature found in Ex.P12. So, it can be taken into consideration. Apart from this document, there are other documents are available to show the existence of liability on the part of accused. So, under such circumstances, the arguments canvassed by learned counsel for accused that there is no documents to show the existence of liability and complainant has failed to prove the same etc., is not acceptable one. I have gone through the decision relied SCCH-09 39 CC.1563/2018 by learned counsel for accused in M.S.Narayan Menon's case, wherein the complainant being share broker has withhold some material documents and not produced the books of accounts in respect of said transaction. So, considering the said fact, the Hon'ble Apex Court withholding of relevant evidence is fatal to the case of complainant and non production of document in respect of transaction between accused and complainant is fatal and an adverse inference has drawn with regard to same and set aside the conviction. But, in the present case that is not the situation complainant has placed material documents to prove the liability of accused and also placed sufficient evidence before the Court. Further, accused has not discharged his initial burden and raised a probable defense to shift the onus on the complainant. So, under such circumstances, with great respect to the said decision, the facts of said decision are not applicable to the case on hand. As rightly submitted by learned counsel for complainant when once issuance of cheque and signature is admitted the heavy burden is on the accused and he is SCCH-09 40 CC.1563/2018 required to place probable defense to rebut the presumption. Admittedly, no such probable defense is raised to rebut the presumption. So, the question of shifting onus on the complainant would not arise at all.
42. Further, during the course of arguments, learned counsel for accused has vehemently argued that when accused denied the execution of Ex.P10 & 11 documents the heavy burden is on the complainant to prove the contents of said documents and the signatures to the said documents are taken under threat, they are void document, there is no previty of contract between complainant and accused. When once the said documents are treated as void documents, they cannot taken into consideration and any consideration taken under said document by force is illegal and against to public policy. So, based on that document complainant cannot claim and prays to dismiss the complainant. In support of his arguments, he has relied upon the decision reported in -
CRL.P.1387/2011 dated 06th July 2018 R.Pramila Bai V/s Bhaskar Narasimhaiah.
SCCH-09 41 CC.1563/2018
43. In the light of above submission, once again I have perused the materials on record and Ex.P10 & 11 documents. As stated above, accused has specifically admitted Ex.P10 & 11 and his liability and he has not placed any acceptable evidence to show that the signatures on Ex.P10 & 11 document were taken by force or under threat. When such being the case the arguments of learned counsel for accused that the said documents are void documents and they are taken against to public policy etc., is not acceptable one. I have gone through the decision relied by learned counsel for accused, wherein complainant paid an amount of Rs.80,000/- to the accused for the purpose of securing job for his nephew, as job was not made available to complainant nephew. He requested accused to return the amount and cheque was issued by accused towards the said amount. The Hon'ble High Court held that agreement between accused and complainant for securing job is void and consideration therein being unlawful cannot be recovered and there did not exists any legally enforceable debt or liability for discharge. SCCH-09 42 CC.1563/2018 Consequently, Sec.138 would not be attracted. So, on the said ground the Hon'ble High Court has acquitted the accused. But, here in this case, that is not the situation and there is no such illegal agreement or payment. In the present case, complainant paid lakhs together amount to the accused to book the tickets for holiday trip to Thailand and for the reasons best known to the accused tickets were cancelled on boarding day, thereafter complainant by paying extra amount made arrangements for holiday trip for 41 members. So, with great respect to the said decision, the facts and circumstances, of said case is not applicable to the case on hand and the said judgment has no applicability to the facts of the present case.
44. Learned counsel for accused further relied another decision of Hon'ble Madras High Court reported in - (2008) Cr.L.J.760 Subbaram V/s Rajendra. I have gone through the said decision, wherein the brother of accused had issued cheque and as the cheque was not issued to discharge any legally enforceable debt or liability, the Hon'ble High Court held that complaint was not maintainable and dismissed the SCCH-09 43 CC.1563/2018 complaint. But, herein this case that is not the situation the accused herein for due discharge of his liability he issued the cheque in dispute. So, the facts of the said decisions are not applicable to the case on hand.
45. Mere, plausible explanation is not sufficient or enough to rebut the presumption available in favour of complainant. Sec.139 of N.I.Act mandates that unless the contrary is proved, it is to be presumed that holder of the cheque received the cheque of the nature referred to U/Sec. 138 of N.I.Act for the discharge in whole or in part, of any debt or other liability. Needless to mention that the presumption contemplated U/Sec.139 of N.I.Act is rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque.
Sec.139 introduces an exception to the General Rule as to the burden of proof and shifts the onus on the accused. The presumption U/Sec.139 of N.I.Act is presumption of law, as distinguished from presumption SCCH-09 44 CC.1563/2018 of facts. Presumption or rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond all reasonable doubt. The obligation on the prosecution may be discharged with the help of presumption of law and presumption of facts, unless the accused adduces evidence showing the reasonable possibility of the non existence of presumed fact as held by Hon'ble Apex Court in the decision of - Hiten P Dalal V/s Bratindranath Banerjee reported in (2001) 6 SCC 16.
46. A meaningful reading of the provision of N.I.Act including, in particular Sec.20, 87, 118, 138 , 139 makes it amply clear that - a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of liability. Further, it is immaterial that the cheque may have been filled by any person other than the drawer, if the cheque is duly signed by SCCH-09 45 CC.1563/2018 the drawer and it would attract the provisions of Sec.138 of N.I.Act. As discussed above, except some plausible explanation accused has not placed any iota of evidence to accept his contention. Even the alleged explanation offered by accused is not acceptable and believable one. Accused has not led any cogent evidence nor placed any probable defense that there was no debt or liability and to displace the presumption available in favour of complainant.
47. As discussed above, accused has miserably failed to place any evidence except some unbelievable defense. So, under such circumstances, this Court is of the opinion that the accused has failed to rebut the presumption and he has not placed any evidence before the Court that there was no debt or liability.
48. 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 complainant and accused, the complainant has successfully established beyond all reasonable doubt that accused is liable SCCH-09 46 CC.1563/2018 to pay an amount of Rs.16,35,757/- and the said amount is due to him and for due discharge of said amount Rs.16,35,757/- accused has issued Ex.P1 cheque. On the other hand, accused has miserably failed to rebut the presumption available in favour of complainant with regard to the existence of legally recoverable debt under Ex.P1 cheque. Therefore, accused has committed an offence punishable U/Sec.138 of N.I.Act. Thus, for the above reasons, I answer Point No.1 in the Affirmative.
49. Point No.2: As discussed in point No.1, the complainant has proved the guilt of the accused. It is worth to note that the offence is of the nature of quasi civil and quasi criminal wrong. Hence, it is proper to award sentence of fine only instead of imposing sentence of imprisonment to the accused. At this juncture, it is worth to place the reliance of recent decision of Hon'ble Apex Court reported in 2020 (1) SCC 283 Kalamani Text. and another V/s. P Balasubramaniam, Wherein the Hon'ble Apex court at head note D has held that Negotiable Instrument Act 1881- SCCH-09 47 CC.1563/2018 Sec. 138 - compensation under - there needs to be a consistent approach towards awarding it compensation and unless there exist special circumstance, the court should uniformly Levy fine of up to the double of cheque amount along with simple interest at 9%. So considering the pendency of the case from 2018 and transaction between the accused and complainant this court, feels an amount of Rs.25,00,000/- can be awarded as compensation to the complainant, which would meet the ends of justice. Thus for the above reasons, I proceed to pass the following:
ORDER Acting under Section 255[2] of Cr.P.C, the accused is hereby convicted for the offence Punishable U/s. 138 of the N.I. Act. The accused is sentenced to pay total fine amount of Rs.25,10,000/-. In default of payment of fine amount, the accused shall under go Simple Imprisonment for a period six months.
SCCH-09 48 CC.1563/2018
After deposit of fine amount an amount
of Rs.25,00,000/- shall be paid to the
Complainant as compensation as provided
U/s.357 (3) Cr.P.C. The remaining Rs.10,000/- be appropriated to the state as fine.
The bail bond of the accused is hereby stand cancelled.
Office is directed to furnish free copy of this judgment to the accused. (Dictated to the stenographer on computer, corrected and then pronounced by me in the open court on this the 13 th day of January, 2021.) (Umesha.H.K) Judge, Court of Small Causes & ACMM Bengaluru.
ANNEXURE List of Witnesses examined on behalf of complainant:
PW1 Vijay Savanur List of Documents marked on behalf of complainant:
Ex.P1 Cheque
Ex.P1(a) Signature of accused
Ex.P2 Bank endorsement
Ex.P3 Notice
Ex.P4 to 6 Postal receipt
Ex.P7 & 8 Unserved postal cover
SCCH-09 49 CC.1563/2018
Ex.P7(a) & 8(a) Copy of legal notice
Ex.P9 Track consignment
Ex.P10 Memorandum of Understanding
Ex.P11 Addendum to the MOU
Ex.P11(a) Signature of accused
Ex.P12 Statement of accused
Ex.P12(a) Signature of accused
Ex.P13 C/c of order in Cr.R.P No. 193/2020
List of Witnesses examined on behalf of accused:
D.W.1 N.Srihari Acharya List of documents marked on behalf of accused Ex.D1 Confirmed Air ticket Ex.D2 Memorandum of Article of Association of M/s. Easy Fly Tours and Travel Pvt Ex.D3 Copy of complaint Ex.D4 Endorsement Ex.D5 C/c of Order sheet in PCR No.5382/2021 Ex.D6 C/C of complaint in PCR No. 5382/2021 Ex.D7 One CD and Pen drive (Umesha.H.K) Judge, Court of Small Causes & ACMM, Bengaluru.