Bangalore District Court
Bhoosiri Chits Pvt. Ltd vs Satish Babu. M on 16 April, 2025
C.C.NO.29992/2022
0
KABC030751032022
Presented on : 15-09-2022
Registered on : 15-09-2022
Decided on : 16-04-2025
Duration : 2 years, 7 months, 1 days
IN THE COURT OF THE XXVIII ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
Present:
Soubhagya.B.Bhusher,
B.A.,LL.B.,LL.M
XXVIII A.C.J.M., Bangalore City.
DATED; THIS THE 16TH DAY OF APRIL-2025
C.C.NO.29992/2022
Complainant: Bhoosiri Chits Private Limited,
Registered under the companies Act, 2013
Having registered O/at No.11, 1st Floor,
Dattatreya Road, Near National Co-operative
Bank Ltd., Basavangudi, Bangalore,
R/by its Managing Director,
B.Y.Thimmegowda.
(By Sri.R.Madhusudhana Reddy.,Adv.,)
V/s
Accused: Sri.Sathish Babu.M S/o Munirathnam,
Age:43 years, R/at No.82, Kalasa Nilaya,
1st Main, K.G.Layout, Banashankari III Stage,
Kathriguppe, Bengaluru-85.
(By Sri.Vedhu Kumar.Y.S.,Adv.,)
:JUDGMENT:
This case arises out of the complaint filed by the complainant against the accused under section 200 of C.C.NO.29992/2022 1 Cr.P.C,. for an offence punishable under section 138 of Negotiable Instruments Act.
2. The case of the complainant's in brief is as under:
It is the case of the complainant is that the complainant is engaged in the business of chit funding. Further one Srinivasan.M.V proprietor of Hemani Enterprises had subscribed 02 chits in BC/ST/17. The said subscriber subscribed in ticket No.BC/ST/17-08 and BC/ST/17-02 for Rs.1,00,00,000/- each. Further the said subscriber successfully bid for Rs.30,00,000/- and was declared as a prized subscriber in April 2017 for the chit group BC/ST/17 and he has received for a sum of Rs.69,47,500/- and further the said subscriber successfully bid for Rs.30,00,000/- and was declared as a prized subscriber for the chit group BC/ST/17 and he has received for a sum of Rs.69,40,000/- after deducting such applicable service taxes. Further the accused stood as surety for the said chit subscriber. Further the said subscriber has paid monthly chit installments till the month of declaration as a prized subscriber and subsequently he has willfully and intentionally defaulted in payment of monthly chit installments. It is further stated that the representatives of the complainant company were in contact with the accused for payment dues and in concurrence of the above mentioned dues the accused had issued the cheque No.759604 dated: 17.11.2021 for C.C.NO.29992/2022 2 Rs.92,00,000/- drawn on the Syndicate Bank, Katriguppe Branch, Bangalore. The complainant was presented the said cheque on 17.11.2021 for realization through its banker the Karur Vysya Bank, Basavanagudi Branch, Bangalore. But the said cheque was dishonored on 18.11.2021 as "Bank CD 025 EXC WEF010721". Thereafter on 17.12.2021 the complainant got issued a statutory notice to the accused through its counsel calling upon him to pay the cheque amount within 15 days from the date of the receipt of the notice. The said notice has been duly served to the accused. Inspite of service of the notice, the accused neither reply to the notice nor paid the cheque amount. As such, the accused have committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court on 02.03.2022.
3. After the complaint was filed, the cognizance of the offence cited therein was taken and it was registered as P.C.R.No.12378/2022. Sworn statement of the complainant was recorded. Since there were sufficient materials to proceed against the accused, an order was passed on 17.09.2022 to register the case in Register No.III.
4. Thereafter, summons was issued to the accused and he has appeared before the court through counsel and secured bail. He has furnished its C.C.NO.29992/2022 3 necessary papers as complied under section 208 of Cr.P.C. Thereafter, the plea of the accused was recorded by the court. He has pleaded not guilty and make a defence.
5. The complainant in support of its case, have examined its Managing Director as PW.1 and got marked 37 documents at Ex.P.1 to 37 and closed its side.
6. After closer of the evidence of the complainant, the statement of the accused under section 313 of Cr.P.C., was recorded. He has denied the incriminating evidence appearing against him. In his defence, the accused is examined as DW.1 and no documents were marked on his behlaf.
7. I have heard the arguments on both the sides and also perused the material placed on record.
8. Upon hearing the argument and on perusal of the material placed on record, the following points arise for my consideration:
1. Whether the complainant proves that the cheque-Ex.P.1 was issued by the accused towards discharge of a legally enforceable debt/liability?
2. Whether the complainant further proves that the complainant have complied with all the mandatory provisions of section 138 of N.I.Act?
3.Whether the complainant proves beyond reasonable doubt that the accused inspite C.C.NO.29992/2022 4 of "Bank CD 025 EXC WEF010721" he had issued the cheque-Ex.P.1 and thereafter failed to repay the amount within stipulated period inspite of receipt of the notice-Ex.P.3 and thus have committed offence punishable under section 138 of N.I.Act?
4. What order?
9. My answers to the above points are as under:
Point No.1: In the Negative.
Point No.2: In the Negative.
Point No.3: In the Negative.
Point No.4: As per final order, for the following;
:REASONS:
10. POINT NO.1: The case of the complainant is that he was acquainted with the accused. Further the complainant is engaged in the business of chit funding. Further one Srinivasan.M.V proprietor of Hemani Enterprises had subscribed 02 chits in BC/ST/17. The said subscriber subscribed in ticket No.BC/ST/17-08 and BC/ST/17-02 for Rs.1,00,00,000/- each. Further the said subscriber successfully bid for Rs.30,00,000/- and was declared as a prized subscriber in April 2017 for the chit group BC/ST/17 and he has received for a sum of Rs.69,47,500/- and further the said subscriber successfully bid for Rs.30,00,000/- and was declared as a prized subscriber for the chit group BC/ST/17 and he has received for a sum of Rs.69,40,000/- after deducting such applicable service taxes. Further the accused stood as surety for the said chit subscriber.
C.C.NO.29992/2022 5 Further the said subscriber has paid monthly chit installments till the month of declaration as a prized subscriber and subsequently he has willfully and intentionally defaulted in payment of monthly chit installments. The representatives of the complainant company were in contact with the accused for payment dues and in concurrence of the above mentioned dues the accused had issued the cheque in question in favour of the complainant. The complainant was presented the said cheque on 17.11.2021 for realization through its banker. But the said cheque was dishonored as "Bank CD 025 EXC WEF010721". Thereafter the complainant got issued a statutory notice to the accused through its counsel calling upon him to pay the cheque amount within 15 days from the date of the receipt of the notice. Inspite of service of the notice, the accused neither reply to the notice nor paid the cheque amount. As such, the accused have committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court.
11. In support of the case, the complainant have examined its Managing Director as P.W.1 and 37 documents were marked at Ex.P.1 to 37. In the chief examination P.W.1 has repeated the contents taken by the complainant in the complaint. Ex.P.1 is the cheque issued by the accused in favour of the complainant dated: 17.11.2021 for Rs.92,00,000/-. Ex.P.1(a) is the C.C.NO.29992/2022 6 signature of the accused. Ex.P.2 is the bank memo dated: 18.11.2021 informing the dishonor of the cheque as "Bank CD 025 EXC WEF010721". Ex.P.3 is the office copy of the legal notice dated: 17.12.2021. Ex.P.4 is the postal receipt. Ex.P.5 is the track consignment. Ex.P.6 and 7 are the enrollment applications. Ex.P.8 and 9 are the chit agreements. Ex.P.10 and 11 are confirmation letters. Ex.P.12 and 13 are the vouchers. Ex.P.14 and 15 are the cash receipts. Ex.P. 16 and 17 are the surety proposal forms. Ex.P.18 and 19 are the guarantors. Ex.P.20 and 21 are the ondemands. Ex.P.22 and 23 are the agreements creating lieu in favour of foreman. Ex.P.24 is the board resolution. Ex.P.25 is the complaint. Ex.P.26 is the certified copy of the sanctioning letter. Ex.P.27 is the certified copy Incorporation certificate. Ex.P.28 is the Prized subscriber details. Ex.P.29 is the ledger statement. Ex.P.30 is the agreement. Ex.P.31 is the bank statement. Ex.P.32 to 34 are the cash vouchers. Ex.P.35 is the letter head, bank statement. Ex.P.36 is the payment details in respect to the bounced cheque No.000657 related to the party payment. Ex.P.37 is the prized subscriber account details.
12. In order to disprove the case of the complainant, the accused himself examined as DW.1 and no document were marked on his behalf. In his chief examination has deposed regarding the defence taken by him.
C.C.NO.29992/2022 7
13. The accused has taken the defence that he had given the blank signed cheque in favour one Raju for the purpose of security for rent. Further he had given blank signed band paper and two blank papers for the purpose of rent agreement. Further the complainant company have misused the said security cheque, band paper and blank papers and filed this false complaint against him. But the accused in his defence has not disputed Ex.P.1 being his cheque drawn on his account. He also does not dispute his signature appearing on the said cheque. But, he has taken up the contention that he has issued the signed cheque, band paper and blank papers in favour of one Raju for the purpose of security, when the cheque, band paper and papers were given to the Raju its were blank. Further he contended that he has never admitted regarding repayment of the amount as contended by the complainant. Further contended that the complainant has not paid the entire amount to his brother. Further the complainant has knowing the facts created the alleged story and presented the security cheque issued to one Raju. Further the complainant filled up the said cheque and also filled the date purported to have been issued on 17.11.2021. Further the main defence of the accused is that there was no any legally enforceable debt liability to the complainant from the accused for which the cheque-Ex.P.1 was issued. Further the complainant have not produced any C.C.NO.29992/2022 8 material to disclose the due amount by the subscriber. The accused has specifically denied having agree to repay the amount of Rs.92,00,000/- as per contention taken by the complainant.
14. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of legally enforceable debt/liability, for which the cheque came to be issued. The learned counsel for the complainant has argued that from the evidence placed on record, the fact that the complainant is engaged in the business of chit funding. Further argued that one Srinivasan.M.V proprietor of Hemani Enterprises had subscribed 02 chits in BC/ST/17. Further the said subscriber subscribed to ticket No.BC/ST/17-08 and BC/ST/17-02 for Rs.1,00,00,000/- each. Further argued that the said subscriber successfully bid for Rs.30,00,000/- and was declared as the prized subscriber in April 2017 for the chit group BC/ST/17 and received for a sum of Rs.69,47,500/- and further he has successfully bid for Rs.30,00,000/- and was declared as the prized subscriber for the chit group BC/ST/17 and received a sum of Rs.69,40,000/- after deducting such applicable service taxes. Further argued that the accused is none other than the brother of the subscriber and he stood as surety for the said chit subscriber. Further argued that the said subscriber has paid monthly chit installments till the month of declaration as a prized C.C.NO.29992/2022 9 subscriber. After receiving the prized money the subscriber has willfully and intentionally defaulted in payment of monthly chit installments. It is further argued that the representatives of the complainant company were in contact with the accused for payment dues. The accused in concurrence of the above mentioned dues had issued the cheque-Ex.P.1 in favour of the complainant. He further argued that the accused has not denied Ex.P.1 being his cheque drawn on his account and signature appearing on the said cheque. When the signature is not disputed, the presumption under section 139 N.I.Act is to be drawn in favour of the complainant. The accused has failed to elicit anything in the cross examination of P.W.1 to disbelieve the said evidence. The defence have failed to rebut the presumption under section 139 N.I.Act.
15. He further argued that the accused has failed to produce any believable evidence that he had issued the blank cheque in favour of one Raju for the purpose of security of rent and also why he has not returned back the same is not clear. He further argued that the accused failed to produce any documentary evidence regarding the same. Further argued that to prove under section 139 of N.I.Act, there is a presumption that the cheque has been issued for discharge of legally enforceable debt or liability. In the present case, the accused has not disputed the Ex.P.1 being his cheque drawn on his account. The said presumption is C.C.NO.29992/2022 10 available to the complainant. Further he has argued that the accused had failed to prove the very fact that Ex.P.1 was given to the one Raju for the purpose of security of rent and it was blank when it was given to the complainant. Moreover, under section 118 of N.I.Act, there is a presumption that the Negotiable Instruments is drawn on the date, for the amount and in favour of the person as shown in it. It is for the accused to rebut the said presumption. But, in the case on hand no such evidence forthcoming. It was also argued by him that as per the defence by the accused that he had given the blank signed cheque as security measure. As such, very defence of the accused is not believable. He further argued that the accused has not produced any documentary evidence before this court. Upon careful perusal of the entire evidence of records both the oral as well as documentary evidence the complainant have proved their case.
16. It was further argued that the learned counsel appearing for the accused seriously disputed that the complainant have misused the cheque, blank signed papers and band paper. However, he has miserable failed to prove the said fact. Further argued that it is specific case of the accused that the complainant has not paid the entire chit amount to his brother. But the complainant have misused the cheque, blank signed papers and band. Further the materials available on record clearly established that the accused admitted C.C.NO.29992/2022 11 the issuance of cheque. The initial burden is the complainant to prove that the cheque was issued in favour of the complainant towards payment of amount, then onus shifts upon the accused to prove his defence and it is for the accused to rebut the legal presumption enumerated under section 138 of Negotiable Instruments Act. As per presumption the cheque was issued for discharge of legal liability and it is for the accused to rebut the said presumption by adducing the cogent and convincing evidence. It was further argued that the accused had executed surety proposal form, ondemand promissory note and other necessary documents in favour of the complainant. The complainant has proves that the accused as stood surety to the subscriber and he has issued the cheque in favour of the complainant for repayment of the chit dues of the subscriber. On the contrary, the accused utterly failed to prove his probable defence that he had issued the blank cheque for the purpose of security. Under these circumstances the complainant have established their case in compliance of 138 of the N.I.Act. Hence, he prays to convict the accused.
17. The learned counsel for the accused argued that the accused had issued the blank cheque in favour one Raju for the purpose of security for rent. Further argued that the accused has also issued the blank signed papers and blank band in favour of one Raju for the purpose of rent agreement. The complainant have C.C.NO.29992/2022 12 misused the cheque, blank papers and blank band and filed a false complaint against the accused. Further argued that the accused never admitted regarding repayment of the said amount and there is no transaction as alleged by the complainant. The accused has specifically denied having agree to repay the amount of Rs.92,00,000/- to the complainant. Further argued that the complainant has not paid the entire prized amount to the subscriber, hence the accused is not liable to pay the amount covered under the cheque. Further argued that the complainant unable to prove that subject cheque was issued in discharge of duly enforceable debt/liability and the complainant has not come with a clean hands before this court. Further argued that as on the date of the presentation of the cheque subscriber and the accused is not in due of Rs.92,00,000/- to the complainant. The complainant in order to harass to the accused fill up the cheque and presented to the bank. Hence, the accused is not liable to pay the cheque amount. Further argued that the complainant have also filed cheque bounce cases against the original subscriber and his another surety in CC.No.24647/2022 dated: 01.08.2022 and C.C.No.29984/2022 dated: 15.09.2022 in respect of single transaction. PW.1 during his cross examination has specifically admits the same.The complainant has also filed this case in respect of the amount of Rs.92,00,000/-.
C.C.NO.29992/2022 13
18. It is further argued that the evidence placed before this court clearly shows that the complainant in order to make illegal monetary gain has presented a blank cheque given as security, by filling up the cheque, and for the purpose of this case he has created documents and no transaction has been carried out between the complainant and the accused as alleged in the complaint. Hence, the accused proves that the cheque was issued as a security in favour of one Raju and not to discharge any legally enforceable debt/liability in favour of the complainant. The accused has also successfully managed to rebut the evidence of the complainant with detailed cross examination of PW.1 and thereby rebutting the presumption under section 139 of N.I.Act. Further argued that as on the date of presentation of the cheque, the subscriber was not in due of Rs.92,00,000/-. The complainant has not produced any material to show that when the subscriber defaulted monthly installment before presentation of the cheque. The alleged balance amount remains unexplained. Thus the complainant failed to prove that the accused had issued the subject cheque for repayment of the due amount of Rs.92,00,000/-. The complainant has misused the cheque obtained from the accused issued for security in favour of one Raju. Therefore, issuing the subject cheque for repayment of the due is far away from truth. The complainant unable to prove beyond reasonable C.C.NO.29992/2022 14 doubt that the accused had issued the cheque to them in lieu of liability recoverable debt. Further the accused created doubt against the story putforth by the complainant in the complaint. Further argued that the pharse "debt or other liability" means a legally enforceable debt or other liability. There was no convincing evidence from the complainant's side as to existence of any existing debt or liability to be discharged by the accused. The accused has discharged the onus that the subject cheque was not received by the complainant for any existing debt/liability. Further one Raju having received the subject cheque as a security and it has misused by the complainant by filling huge amount. The complainant has miserably failed to prove the liability to the tune of the amount covered by the cheque. The offence is deemed to be committed if amount covered by cheque is either in discharge of the liability incurred by the accused either full or in part. It cannot be any way in excess of the liability incurred. Therefore, the section 138 of N.I.Act cannot be said to be applicable.
19. Further argued that the complainant has misconceived his purported rights in filing the above complaint on the alleged cheque. The cheque was issued by the accused only for security purpose in favour of one Raju for the purpose of rent. Further argued that even as per the complaint that whatever the chit amount received by the subscriber are very C.C.NO.29992/2022 15 well cleared and paid upto date. There is no balance or any mismanagement from the subscriber or the accused. Further argued that the complainant has not made out any case against the accused for the alleged payment of dues as claimed in its complaint. The complaint is also not in accordance with law. It is further argued that the complainant has not followed any mandatory procedure laid down under law and that the claim of the complainant regarding legally recoverable debt is also not that of the amount claimed in the aforesaid cheque. Admittedly the said cheque was given as security. By taking undue advantage of possession of the aforesaid cheque, the complainant has foisted a false complaint against the accused. Further argued that the notice under section 138 purportedly issued by the complainant is not in accordance with law and the said notice is not served to the accused. As such notice itself is not admissible in the eye of law. Hence, he prays to dismiss the complaint and acquit the accused.
20. In the proceedings for dishonor of cheque under section 139 of N.I.Act a presumption can be raised that when the cheque is issued, it was drawn for discharge of legally enforceable debt or liability. Therefore, under section 139 of N.I.Act, there is an initial presumption in favour of the complainant that the cheque-Ex.P.1 was issued, for discharge of legally enforceable debt. The presumption under section 139 C.C.NO.29992/2022 16 of the act does include the existence of legally enforceable debt or liability. The said presumption can be rebutted by the accused. This is in the nature of a rebuttable presumption and it is opened to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there is initial presumption which favour the complainant. The test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused cannot be excepted to discharge an unduly high standard of proof. In the absence of the compelling justifications, revers onus clauses usually impose an evidentary burden and not a persuasive burden. It is settled position that when an accused has to rebut the presumption under section 139 of the Act, the standard of proof for doing so is that of preponderance of probabilities. Therefore, if the accused is able raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence on his own.
21. In the case on hand the very liability of the accused to pay any amount to the complainant is seriously disputed. To prove this fact the complainant's have examined its Managing Director as PW.1. In his C.C.NO.29992/2022 17 evidence he has deposed that one Srinivasan.M.V, proprietor of Hemani Enterprises has subscribed to two chits conducted by the complainant for chit value of Rs.1,00,00,000/- each. The said subscriber successfully bid the both the chits and was declared as the prized subscriber and he received a prize money from the complainant. The accused is stood as a surety for the subscriber in two chits. Further the subscriber after receiving the chit money he intentionally and willfully defaulted in payment of monthly chit installments. Further deposed that after regular follow up made by the complainant, the accused in concurrence of the dues had issued the cheque in question on 17.11.2021. The complainant presented the said cheque for encahsment. But the said cheque was dishonor for the reasons "Bank CD 025 EXCWEF010721". Thereafter, the complainant had issued a demand notice to the accused. Inspite of service of the notice the accused not paid the said amount and not replied to the notice. Hence, the complainant had initiated a criminal complaint under section 138 of N.I.Act. But the accused has contended that he had issued the cheque in favour of one Raju for the purpose of security of rent. He denies any amount being due by him or subscriber. He also denies issuance of the cheque for repayment of the amount.
22. To prove the factum of the case the complainant produced oral evidence of PW.1 alone and C.C.NO.29992/2022 18 produced Ex.P.1 to 37 only. The documents produced by the complainant does not disclose that the accused had due of Rs.92,00,000/-. In the said circumstances the complainant required to prove the amount is still due by the accused. The complainant's have examined its Managing Director as PW.1. In his evidence PW.1 has repeated the contentions taken by the complainant in the complaint. In all 37 documents are produced at Ex.P.1 to 37. The accused has denied issuance of the cheque-Ex.P.1 in favour of the complainant for discharge any legally enforceable debt or liability. Therefore, it is necessary to discuss the evidence regarding the amount still due from the accused. Since the complainant claims that one Srinivasan.M.V, proprietor of Hemani Enterprises was due to the complainant for a sum of Rs.92,00,000/-. The accused had executed surety proposal form, ondemand promissory note and other necessary documents in favour of the complainant. However the accused and the subscriber have failed to repay the said amount to the complainant. When the complainant requested the accused to repayment of amount. The accused had issued the cheque-Ex.P.1 for discharge of the said amount/liability. The complainant company maintained record regarding transaction, books of account and ledger statement no such materials are produced in this case. How the amount of Rs.92,00,000/- is due from the accused has not been properly explained. Because C.C.NO.29992/2022 19 the complainant have not shown how this figure came to be arrived as still due from the accused. Further PW.1 during his cross examination specifically admits that the complainant have filed a case against present accused as well as brother of the accused Srinivas and Shashikumar before this court in respect of single transactions. Further admits that same are pending in adjudication before this court. These admissions clearly goes to show that the brother of the accused and Shashikumar had issued the cheques for a sum of Rs.92,00,000/- each in favour the complainant. The earlier cheque issued by the subscriber was dishonored, so it cannot be said that the cheque in question was issued for repayment of amount. Hence, question of issuance of cheque in favour of the complainant does not arise at all.
23. Further when the complainant is a company maintaining account of all its transaction, it was required to produce some documents with regard to transaction with the subscriber. Further the complainant not produced books of account and other relevant documents to prove that the said amount is still due from the accused in respect of this case. The failure to produced these materials records creates doubt regarding existence of legally enforceable debt. As observed in the judgment reported in the Hon'ble Rajasthan High Court reported in 2012 Crl.L.J NOC 568 in the case of Ashok Leyland Finance Limited Vs C.C.NO.29992/2022 20 State of Rajasthan and another, on the failure of the complainant to produce the loan papers and account statement which are in their possession it amounts to the presumption available under section 139 of N.I.Act, being rebutted by the accused. PW.1 during the course of cross examination has admits that;
"78 ಲಕ್ಷ ಅಸಲು ಹಣವನ್ನು ಆರೋಪಿ, ಆರೋಪಿಯ ತಮ್ಮ ನಾದ ಶ್ರೀನಿವಾಸ್ಮತ್ತು ಶಶಿಕುಮಾರ್ ರವರಿಂದ ವಸೂಲಿ ಮಾಡಿಕೊಳ್ಳ ಲು ದೂರು ದಾಖಲಿಸಿರುತ್ತೇವೆ. 92 ಲಕ್ಷ ಹಣವನ್ನು ಕೇಳಿ ಮೂರು ಜನರ ವಿರುದ್ಧ ವುಾ ದೂರು ದಾಖಲಿಸಿದ್ದೇವೆ ಎಂದರೆ ಸರಿ. 78 ಲಕ್ಷ ಅಸಲು ಹಣ ಬರುವಲ್ಲಿ 2 ಕೋಟಿ 74 ಲಕ್ಷ ಹಣಕ್ಕೆ ಪ್ರ ಕರಣ ದಾಖಲಿಸಿದ್ದೇವೆ ಎಂದರೆ ಸರಿ. ಚಂದಾದಾರರು ಎಷ್ಟು ಹಣವನ್ನು ಪಾವತಿಸಿದ್ದಾ ರೆ ಮತ್ತು ಎಷ್ಟು ಹಣವನ್ನು ಪಾವತಿಸುವುದು ಬಾಕಿ ಇರುತ್ತ ದೆ ಎನ್ನು ವುದಕ್ಕೆ ಸಂಬಂಧಿಸಿದಂತೆ ನಾನು ನ್ಯಾ ಯಾಲಯಕ್ಕೆ ದಾಖಲೆ ಹಾಜರಿಸಿಲ್ಲ ಎಂದರೆ ಸರಿ, ಹಾಜರಿಸಲು ನನಗೆ ತೊಂದರೆ ಇಲ್ಲ ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ.
24. In the cross examination of PW.1 as extracted hereinabove, clearly establish that the complainant have filed separate cases against the accused, his brother i.e., original subscriber and another one surety in respect of single transactions. Then question of repayment of the due amount to the complainant does not arise at all. According to the complainant the subscriber not cleared the due amount. In order to repayment of due amount the accused had issued the cheque in question in favour of the complainant. Now the moot question arises for determination is "whether the complainant had balance of Rs.92,00,000/- from the accused in respect of this case. It is also worthwhile to consider that the complainant has not at all produce C.C.NO.29992/2022 21 any iota evidence in support of their contention. When the subscriber has issued the earlier cheque for repayment of the said amount, the said cheque was dishonored then question of issuance of the cheque in question by the accused in favour of the complainant does not arise at all, necessarily adverse inference is to be drawn for withholding material piece of evidence as per section 114(g) of Indian Evidence Act. It is also trite that admissions are substantial piece of evidence, which can be relied upon to determine the rights of the parties in the absence of proper explanation. The very due amount by the accused has been challenged.
25. Moreover the contention by the complainant and their case it is reveals that the accused not cleared the due amount. Further from the evidence produced by the complainant the very fact that in order to clear of the said amount the accused had issued the cheque in question in favour of the complainant is not proved by any reliable evidence. Further the exact amount still due by the accused is not clearly forthcoming. So also the cheque being issued for the amount due by the accused has not been established. Though there is an initial presumption under section 139 of N.I.Act, if the accused from the cross examination raise some reasonable doubt, the said presumption can be held to have been rebutted.
26. In proceedings under section 138 of N.I.Act C.C.NO.29992/2022 22 the standard of proof required by the accused to rebut the presumption is not so high. It is sufficient, if the accused by way of preponderance of probabilities creates doubt regarding very existence legally enforceable debt or liability. The learned counsel for the accused has submitted that when the cheque is issued for uncertain liabilities the offence under section 138 of N.I.Act, is not attracted. In various judgments it has been observed that an initial presumption is available in favour of the complainant that the cheque was drawn for legally enforceable debt. The accused could rebut the said presumption. It is also observed that when the accused denied the very due amount, the complainant has to produced some evidence to established the said fact. In some judgments it is also observed that the standard of proof required for the complainant prove his case is beyond reasonable doubt. While the accused only by preponderance of probability could rebut the presumption.
27. In judgments of the Hon'ble Supreme Court as well as Hon'ble High Courts have observed that the accused if reasonably produces evidence to probables his defence, it is sufficient to discharge presumption. Then the burden is on the complainant to produced probables evidence. But in the case on hand as already above discussed except producing some documents and oral evidence of P.W.1 no material is produced by the complainant to prove the issuance of the cheque in C.C.NO.29992/2022 23 order to discharge of liability. While on the other hand the accused has shows that cheque was not issued for repayment of the dues.
28. In the judgment reported in 2011 ALL MR (Crl) 1922 in the case of "Bhalla Automobiles V/s Rajesh S/o Rambhau Maurya", the Hon'ble court has discussed that the complainant has to take all grounds available to him at the filing of the complaint and he cannot be permitted to change his stand at different times. In such circumstances the accused is entitled for benefit of doubt.
29. In the judgment reported in 2008 ALL MR (Crl) 1164 in the case of "Krishna Janardhan Bhat V/s Dattareya.G.Hegde", the Hon'ble Court has observed that the accused is need not entered the witness box to prove his defence. He can rely on the materials already on record. It was further observed that the standard of proof to prove the defence is preponderance of probabilities. Thus from the above discussion and placing reliance on the judgments noted above this court is of the opinion that the accused has succeeded in rebutting the initial presumption available to the complainant under section 139 of N.I.Act. When there is no other material produced by the complainant to support its contention for repayment of amount the accused had issued Ex.P.1-cheque, he has failed to prove the material ingredients of legally enforceable C.C.NO.29992/2022 24 debt.
30. If the accused succeeds in rebutting the presumption, the onus of proving the existence of legally enforceable debt for which the cheque was issued will be on the complainant. But in the case on hand the complainant's have failed to produce any evidence in order to prove that the cheque-Ex.P.1 was issued for discharge any legally enforceable debt. Whereas the accused has succeeded, in rebutting the initial presumption available in favour of the complainant. In the said circumstances the defence has succeeded in discharging his burden of rebutting the said presumption. Thus from the above discussion and placing reliance on the judgments noted above this court of the opinion that the accused has succeeded in rebutting the presumption available to the complainant under section 139 of N.I.Act. When there is no other material produced by the complainant to support of their contention the accused not cleared the due amount in respect of this case. The evidence of PW.1 is not consistent enough in order to prove these materials aspects. In the said circumstances the defence has succeeded in discharging his burden of rebutting the said presumption.
31. The accused has taken up the plea that he had issued the blank cheque in favour of one Raju for the purpose of security of rent. The complainant during the cross examination has specifically admitted that C.C.NO.29992/2022 25 three cases have been filed in respect of single transactions. However, the complainant has already above discussed has not produced any evidence to prove the due amount by the accused and the issuance of the cheque for discharge of the debt. The complainant's have failed to prove the material ingredients of existence of legally enforceable debt. Therefore, I answer point No.1 in the Negative.
32.POINT NO.2: According to the complainant the cheque-Ex.P.1 when it was presented the bank for encashment same was returned dishonor for the reasons 'BANK CD 025 EXCWEF010721'. To prove this fact the complainant's have produced the cheque- Ex.P.1, the bank memo-Ex.P.2 and also notice-Ex.P.3. On perusal of the bank memo-Ex.P.2 it is disclosed that cheque-Ex.P.1 was dishonor for the reasons "BANK CD 025 EXCWEF010721" in the account of the drawer namely the accused. These facts are also stated in the legal notice-Ex.P.3 and the oral evidence of PW.1. The accused has not seriously disputed the dishonor of the cheque for the reasons 'BANK CD 025 EXCWEF010721'. What has been disputed is the fact that cheque-Ex.P.1 was not issued for discharge of any legally enforceable debt or liability. Further he had issued the cheque for the purpose of security to the one Raju. When he demanded him to returned the same, but he has not returned the said cheque. But the complainant misused the said security cheque.
C.C.NO.29992/2022 26 Thereafter, the said cheque-Ex.P.1 came to dishonored for the reason 'BANK CD 025 EXCWEF010721' has been proved by the complainant.
33. In order to attract the offence under section 138 of N.I.Act the cheque has to be issued by the accused which was drawn on an account maintained by him for discharge, in whole or in part of any debt or other liability. Further it is required that the said cheque when presented by the complainant was returned unpaid by the bank for any of the reasons enumerated in section 138 of N.I.Act. Thereafter the accused had failed to repay the cheque amount inspite of having received a notice demanding such payment within a period of 15 days on receipt of the legal notice. In the present case it is the case of the complainant that the cheque-Ex.P.1 was issued to them on 17.11.2021. The said cheque was presented on the same day to the Karur Vysya Bank, Basavanagudi Branch, Bangalore for encashment. Thereafter they have received the bank memo on 18.11.2021 as per Ex.P.2 informing them that the cheque was dishonored for the reasons that 'BANK CD 025 EXCWEF010721'. Thereafter within statutory period of receipt the said information the complainant have got issued the legal notice as per Ex.P.3 calling upon him to make payment of the cheque. The said notice is shown to have been served as per Ex.P.5. But the accused has failed to reply to the notice.
C.C.NO.29992/2022 27
34. The accused has nowhere seriously denied the service of notice. However, he also does not dispute the address shown on the notice. The requirement of section 138 of N.I.Act is that notice has to be sent to the last known address of the accused. In the case on hand admittedly the notice is sent to the said address. Further this case is filed for a single transactions. Then question of the accused issuance of subsequent cheque in favour of the complainant does not arise at all. Therefore the accused is entitled to be acquitted in this case. In the present case the first essential requirement of the existence of legally enforceable debt or liability to the complainant by the accused has not been proved. Hence, the complainant have failed to comply the required mandatory provision of section 138 of N.I.Act. Though the notice is issued and the complaint is filed within the period as contemplated in the said provision, the basic requirement is not established. Accordingly, I answer point No.2 in the Negative.
35.POINT NO.3: In view of the findings of this court, the essential requirements to attract the offence of section 138 of N.I.Act has not been proved by the complainant and also as there is no sufficient evidence to hold the accused liable for any offence in the present case. Hence, I answer point No.3 in the negative.
36.POINT NO.4: The complainant has been held C.C.NO.29992/2022 28 to have failed to prove the very transaction with the accused. Hence, the accused is found to be not guilty of the offence charged. In the said circumstances, the accused cannot be directed to pay any compensation. In view of the above discussions, I proceed to pass the following;
ORDER Acting under section 255(1) of Criminal Procedure Code, the accused is hereby acquitted for an offence punishable under section 138 of Negotiable Instruments Act.
The bail bond executed by the accused hereby stands cancelled.
(Dictated to the stenographer directly on computer typed by her, corrected by me and then judgment pronounced in the open court on 16 th day of April-2025) (Soubhagya.B.Bhusher) XXVIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE List of witness examined on behalf of the complainant:
PW.1 : Mr.B.Y.Thimmegowda.
List of documents marked on behalf of the complainant:
Ex.P.1 : Cheque.
Ex.P.1(a) : Signature of the accused.
Ex.P.2 : Bank endorsement.
Ex.P.3 : Office copy of legal notice.
Ex.P.4 : Postal receipt.
Ex.P.5 : Track consignment.
Ex.P.6 & 7 : Enrollment applications.
Ex.P.8 & 9 : Chit agreements.
C.C.NO.29992/2022
29
Ex.P.10 & 11 : Confirmation letters.
Ex.P.12 & 13 : Vouchers.
Ex.P.14 & 15 : Cash receipts.
Ex.P.16 & 17 : Surety proposal forms.
Ex.P.18 & 19 : Guarantors.
Ex.P.20 & 21 : Ondemands.
Ex.P.22 & 23 : Agreements creating lien in favour of foreman.
Ex.P.24 : Board resolution.
Ex.P.25 : Complaint.
Ex.P.26 : Certified copy of Sanctioning letter.
Ex.P.27 : Certified copy of Incorporation certificate.
Ex.P.28 : Prized subscriber detail.
Ex.P.29 : Ledger statement.
Ex.P.30 : Agreement.
Ex.P.31 : Bank Statement.
Ex.P.32 to 34 : Cash vouchers.
Ex.P.35 : Letter head cum Bank statement.
Ex.P.36 : Payment details in respect bounced cheque.
Ex.P.37 : Prized subscriber account details.
List of witnesses examined on behalf of the accused:
DW.1 : Mr.Satheesh Babu.
List of documents marked on behalf of the accused:
-Nil-.
XXVIII Addl. Chief Judicial Magistrate, Bengaluru City.
C.C.NO.29992/2022 30 16.04.2025 (Judgment pronounced in the Open Court Vide Separate Sheet) :ORDER:
Acting under section 255(1) of Criminal Procedure Code, the accused is hereby acquitted for an offence punishable under section 138 of Negotiable Instruments Act.
The bail bond executed by the accused hereby stands cancelled.
XXVIII Addl. Chief Judicial Magistrate, Bengaluru City.