Bangalore District Court
Sri.Muniraju N vs Smt.Nagaveni on 6 April, 2022
KABC020149752017
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 6th day of April, 2022
C.C. No: 20871/2017
Complainant: Sri.Muniraju N,
S/o Narayanappa,
Aged about 55 years,
No.04, Dobi Road,
Devanahalli,
Bangalore-562110.
(By Sri.S.K.Mohan Kumar - Adv.)
-Vs-
Accused: Smt.Nagaveni
W/o Krishnappa,
Aged about 46 years,
R/at Ganigaa Street, (Bidi)
Old Taluk office Road,
(Opp - D.C. Ravikumar House)
Devanahalli,
Bangalore-562110.
And also Available at:
Smt. Nagaveni,
W/o Krishnappa,
Aged about 46 years,
SCCH-09 2 CC.20871/2017
W/at Mini Vidhanasoudha,
Taluk Office, Ground Floor,
Record Section Ramanagara,
Bangalore Rural-571511.
(By Sri. M.Subramani- 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 known to each other from 2009. Accused and complainant were staying at Devanahalli, Bengaluru Rural and accused also working as an attender in Mini Vidhanasourdha, Taluk Office, Record Section, Ramanagara. In the month of November, 2011 accused approached the complainant for hand loan of Rs.5,00,000/- stating that the ill health of her husband for emergency purpose. The complainant has paid Rs.5,00,000/- to the accused in the month of 23rd December 23rd 2011 by way of cash and accused agreed to repay the same within 6 months and SCCH-09 3 CC.20871/2017 accused has executed loan agreement in favour of complainant and for due discharge of the same, accused issued cheque bearing No.961625, dated.28.04.2017 for Rs.5,00,000/- drawn on UCO Bank, Devanahalli Branch, Bengaluru in favour of complainant. On presentation of said cheque through his banker i.e., Canara Bank, Maruthinagar, Yelahanka Branch, Bangalore, and said cheque was returned with an endorsement "Funds Insufficient".
3. It is further case of complainant that he issued legal notice, dated 23.06.2017 through RPAD, the said notice was duly served to the accused. 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.
4. 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. Thereafter, by perusing the averments of complaint, documents, this court has registered the case as CC in register SCCH-09 4 CC.20871/2017 No.3 and issued summons to accused. In pursuance of summons accused appeared through her Advocate and she 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.
5. Complainant in order to prove his case, he himself examined as PW1 and got marked documents Ex.P1 to 7. Thereafter, statement of accused U/Sec. 313 of Cr.P.C. was recorded. Accused denied the incriminating evidence available against her and adduced her defense evidence as DW1 and got marked document as per Ex.D1 &2. Asst.Manager of UCO Bank is examined as DW.2 and closed their side.
6. Heard the arguments of learned counsel for accused. In addition to oral arguments counsel for accused submitted written arguments and memo with citations. But, counsel for complainant has not submitted arguments.
7. The following points are arise for my consideration:
1. Whether complainant proves that the accused has committed an offence punishable under Sec.138 of N.I. Act?
2. What order?SCCH-09 5 CC.20871/2017
8. 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
9. 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.
10. Further Section 138 of 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.SCCH-09 6 CC.20871/2017
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.
11. 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.
12. 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 SCCH-09 7 CC.20871/2017 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.
13. 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 borrowed loan of Rs.5,00,000/- and promised to repay the same within 6 months and for due discharge of the same, she issued cheque in dispute, on presentation it was returned for the reasons "Funds Insufficient". Even after receipt of notice she did not returned the amount and as such committed an offence punishable U/Sec. 138 of N.I. Act.
SCCH-09 8 CC.20871/2017
14. The main defense of the accused is that the cheque in dispute was issued as security to the complainant, as he was stood as surety to the loan borrowed by her and her husband in UCO Bank and by misusing the said cheque, he filed the present false complaint. It is further defense of the accused that no notice was served on her and as such the complaint is liable for dismissal. It further defense of the accused is that the signature found in Ex.P1/cheque doesnot belongs to her and Ex.P1 cheque was issued by her husband as security to the complaint in connection with loan borrowed in UCO Bank.
15. When the matter was posted for arguments, no body was represented for complainant. Hence, the arguments of complainant was taken as heard. On the other hand, learned counsel for accused has submitted the written arguments and memo with citations. The learned counsel for accused in his written arguments has taken the contention that the complainant/PW1 has given so many admissions with regard to bank account of Devanahalli and PW1 has specifically stated he is permanent resident of Devanahalli and he further SCCH-09 9 CC.20871/2017 admitted he is resident of Maruthi Nagar and he has not produced the documents to show that whether he is residing in Maruthi Nagar and complainant has given false address to the court only with an intention to get territorial jurisdiction of this Court. He further admitted that he has not produced the documents regarding source of income and he has not placed any documents like pass book and other documents to prove his financial capacity. It is further arguments of learned counsel for accused that complainant has not obtained any documents from the complainant regarding receipt of loan amount and Ex.P3/notice was not served and complainant has not produced any documents to show that he is residing in address shown in Ex.P7 and he further admitted accused had obtained loan in UCO Bank and he was stood as surety to the said loan and complainant by misusing the cheque, which was issued as security by the husband of accused has filed false complaint.
16. The oral evidence placed by complainant himself clearly establishes there was no transaction as alleged in the SCCH-09 10 CC.20871/2017 complaint and complainant by misusing the security cheque has filed false complaint and complainant has not produced any cogent documentary evidence and it is crystal clear that the complainant has misused the security cheque. It is further contention of accused in written arguments that the cheque in dispute is non CTS cheque, which was existing prior to 2015. Admittedly, the alleged transaction stated by complainant is in the year 2017 and non CTS cheque was not existing in the year 2017. So, it clearly establishes, the cheque in dispute was issued as security and it was misused and complainant has failed to prove his case and prove the existence of legally enforceable debt as on the date of complaint and issuance of cheque by accused. So, complaint is liable for dismissal and prays to dismiss the complaint. In support of his arguments accused counsel has cited the following decisions:
1) ILR 2009 KAR 2331 (B.Indramma V/s Sri.Eshwar)
2) 2011 Crl.J.552 (KAR Amzad Pasha V/s H.N.Lakshmana)
3) 2012 (3) KCCR 2057 ( Veerayya V/s G.K.Madivalar)
4) 2013 (1) DCR 390 (Rajeev V/s State of Kerala) SCCH-09 11 CC.20871/2017
5) 2011 (5) KCCR 4223 Kar HCMB (Rajashekar V/s Savithramma)
6) 2006 (3) KCCR 1779 (KAR H.C.K.Sreedhar Rao.J)
7) ILR 2008 KAR 4629 (Shiva murthy V/s Amruthraj)
8) (2019) 5 SCC 418 - Basalingappa V/s Mudibasspa In the light of above written arguments and submissions and citations placed by learned counsel for accused , I have carefully scrutinised the entire evidence placed by both parties. Admittedly, both complainant and accused to substantiate their contentions have adduced their evidence and both complainant and accused were thoroughly Cross-
examined by their respective counsels. In addition to that accused also examined one Suma Asst. Manager of UCO Bank, Devanahalli is examined as DW.2 and she deposed before the court that accused and her husband were having account in their bank, the bank has issued cheque book to accused and her husband on 25.05.2010, 27.01.2012 and 18.07.2012 and she further deposed they have not issued CTS cheque to accused Nagaveni and she further deposed accused and her SCCH-09 12 CC.20871/2017 husband have jointly taken loan in the year 2010 and to the said loan the complainant Muniraju was stood as surety. She further deposed Ex.P1/cheque was issued on 18.07.2012 and Ex.P1 is not CTS cheque. DW.2 was not Cross-examined by complainant counsel.
17. On careful scrutiny and analyzing evidence placed by both parties, it is crystal clear that the cheque in dispute pertaining to the account of accused and she has not disputed the same. The only evidence of accused is that the cheque in dispute was issued as security to the complainant in the year 2010 in connection with loan taken by them in UCO Bank, as the complainant was stood as surety to the said loan. Accused disputed her signature in Ex.P1. Since accused has disputed the signature in Ex.P1 once again I have carefully perused the evidence. During the course of Cross-examination of PW.1, the learned counsel for accused has suggested that the signature found in Ex.P1 is forged and writings there in were not written by accused and they are forged etc. PW1 denied the said suggestions.
SCCH-09 13 CC.20871/2017
18. Admittedly, the endorsement issued by bank authority discloses that the cheque in dispute was returned for the reasons "Funds Insufficient" and bank authority has not issued endorsement stating that "Signature Differs". Further during the pendency of the case and on the requests of accused signature found in Ex.P1 and other admitted signatures were sent to Central Forensic Scientific Laboratory i.e., handwriting expert, Hyderabad and Director of CFSL has submitted the report and in his report he has given opinion that - " The enclosed signatures stamped and marked Q1 and A1 to A14 were all written by one and the same person". Admittedly, handwriting expert has given opinion that the signature found in Ex.P1 and other signature found in plea, 313 statement and other documents are one and the same and they were written by same person. It means the signature found in Ex.P1 is belongs to accused and only for the sake of defense accused has denied the said signature. In fact, the FSL report submitted by handwriting expert is not disputed nor challenged by accused and even the accused has not SCCH-09 14 CC.20871/2017 subjected the handwriting expert for Cross-examination. So, it is crystal clear that signature found in Ex.P1 is belongs to accused. As stated above, only for the sake of defense she has stated so. As stated above, even bank authority has also issued endorsement stating "Funds Insufficient" and not as "Signature Differs". Even DW2, who is Asst. Manager of UCO Bank has also not stated regarding the signature.
19. This court by using the power U/Sec. 73 of Evidence Act has compared the signatures found in 313 statement, deposition, plea Ex.P1 signature, which is marked at Ex.P1(a). To the naked eye one can say the signatures are made by one and the same person and there is no differences. Normally, there will be some natural variations in all signatures of every person and it depends upon general writing habits, speed, movements, line quality etc. As discussed above, the Director of FSL has submitted report and he clearly opined that the signature found at Q1, A1 to A14 were all written by same person. Therefore, the defense of accused that the signature found in Ex.P1 is forged and it is forged by complainant etc., is SCCH-09 15 CC.20871/2017 not acceptable one. As stated above, accused has taken the said defense only for formal sake and just for denial and there is no truth in it.
20. The next defense of accused is that she was not served with Ex.P3/notice, as such complaint is not maintainable etc., Again in the light of above specific defense, I have carefully perused the evidence. Ex.P3 is the notice issued by complainant and it indicates the complainant has shown 2 addresses of accused - One is Devanahalli residential address of accused and another one is working address of accused and he has sent notice to both addresses. As per Ex.P6, it is crystal clear notice was duly served on the accused and she herself by putting her signature on Ex.P6 has received Ex.P3. In fact in her evidence, she has not whispered anything about the non service of notice. But, during the course of Cross-examination of PW1, learned counsel for accused has suggested Ex.P3/notice was not served to accused. But, the documentary evidence placed by complainant at Ex.P6 clearly establishes the notice was duly served on the accused. SCCH-09 16 CC.20871/2017 Therefore, the said defense taken by accused during Cross- examination is also not acceptable one.
21. Further, the defense of accused is that the cheque in dispute was issued to complainant in the year 2010 as security in connection with the loan taken by accused and her husband in UCO Bank and it is misused by complainant etc.
22. In support of her defense she also placed evidence and in her evidence reiterated the said defense on oath. She was thoroughly Cross-examined and during Cross-examination she has admitted Ex.P1/cheque belongs to her account and she stated she has not given the said cheque to complainant but her husband has given the said cheque, while taking loan in the year 2010. Once again I have carefully perused the evidence of Dw.1 and also Cross-examination of PW1. In the Cross-examination the said defense was suggested to PW1. But, PW1 has specifically denied the said suggestions. Since accused has taken such defense that the cheque in dispute was issued in the year 2010 she has to place some evidence before the court to accept her version. Admittedly, except SCCH-09 17 CC.20871/2017 some oral assertion she has not placed any documentary evidence to show that her husband has issued the cheque in dispute as security in the year 2010. No doubt, present complainant was stood as surety to the loan taken by accused and her husband. But, no satisfactory or cogent evidence is placed to show that the cheque in dispute was issued as security to the complainant in the year 2010. Admittedly, the present complaint is filed in the year 2017. If really, the cheque is misused by the complainant as contended by accused she could have replied the notice immediately after receipt of Ex.P3/notice. As discussed above, notice was duly served on the accused and she has not replied to the said notice and there is no explanation given by the accused what prevented her to respond to the said notice. If really, the cheque in dispute was issued as contended by her , she could have immediately responded to the notice, no such action or reply was issued. So, it is crystal clear that the said defense taken by accused is only an after thought defense, just to escape from liability if possible.
SCCH-09 18 CC.20871/2017
23. Further accused has not made any attempt to give Stop Payment mandate to the bank. In case, the cheque in dispute was issued and complainant refused to return the cheque, accused could have given representation for stop payment mandate to the bank authority. No such stop payment mandate was given, it shows the said defense of accused that the cheque in dipsute is misused by the complainant etc., is an after thought defense. Further if really, the complainant has misused her security cheque as contended by her she could have lodged the complaint to the Police or she could have filed private complaint before the court for misusing of her security cheque. Admittedly, no such legal action is taken by the accused and she has not replied to the notice. So, all these facts clearly establishes the said defense taken by accused is only an after thought defense and there is no truth in it.
24. Further, if really accused is not due an amount as claimed in the complaint and if really the complainant has misused her - security cheque, she could have responded SCCH-09 19 CC.20871/2017 immediately after receipt of notice. Admittedly, accused is not an illiterate lady and she is working in Govt. office and she knows the consequence of issuance of blank cheque etc., and no prudent man would remain silent if really he was cheated by other or the cheque is misused etc. So, the entire defense of accused that the said cheque was issued by her husband as security to the loan etc., is not acceptable one.
25. Further, during the course of arguments, learned counsel for accused has drawn the attention of this court with regard to discrepancies and contradictions available in the evidence of PW1 and submitted that the said discrepancies and contradictions clearly establishes that there was no transaction between complainant and accused and complainant misused the security cheque issued in the year 2010 and prays to dismiss the complaint.
26. Again in the light of above submissions, I have carefully scrutinised the evidence. No doubt here and there some minor discrepancies and contradictions in the evidence of PW1. But, they will not much affect the case of complainant SCCH-09 20 CC.20871/2017 and the said minor discrepancies has to be ignored. In this regard, I would like to quote decision reported in -
AIR 2003 SC 976 Rizan v/s State of Chattisgarh, wherein the Hon'ble Apex Court held that - there may be discrepancies of truth as well as falsehood. In honest witnesses, discrepancies are due to differences in individual power of observation, recollection, reproduction and recitation and not due to deliberate attempt to suppress or depart from the truth. The broad facts of the case and not minor details have to be considered in weighing evidence. Consideration may be given to the situation in life, status, educational background and way of life of witness. Court must distinguish between minor and material discrepancies. Further, the Hon'ble Apex Court in AIR 2007 SC 3228 KULESH MONDAL V/S STATE OF WEST BENGAL., wherein it is held that - normal discrepancies are those, which are due to normal errors of observations, of memory due to lapse of time, due to mental disposition such shock and horror, at the time of occurrence, which are always there, however, honest and trustful a witness may be. Material discrepancies are those, which are not normal and not expected SCCH-09 21 CC.20871/2017 of a normal person. While normal discrepancies donot corrode the credibility of parties case, material discrepancies may do so. Trifling discrepancies just be ignored as natural discrepancies among the honest witnesses.
27. So, in the light of the principles laid by Hon'ble Apex Court the said minor discrepancies and contradictions available in the evidence of PW1 has to be ignored.
28. Further, learned counsel for accused has submitted that the complainant is not at all residing within the jurisdiction of this court and he has shown wrong address, just to get territorial jurisdiction of this court. As such the complaint is liable for dismissal and prays to dismiss the complaint.
29. Once again I have carefully perused the documentary evidence placed by complainant and also averments of complaint, the residential address of complainant is shown as Devanahalli. But, the cheque in dispute was presented at Canara Bank, Maruthi Nagar Branch, Yelahanka, Bengaluru on SCCH-09 22 CC.20871/2017 29.05.2017 for encashment. So, the contention of accused that only in order to get territorial jurisdiction he has shown wrong address is not acceptable one. The presented bank is situated within the jurisdiction of this court and cheque was presented in Yelahanka Branch. Therefore, the said contention of learned counsel for accused holds no water. Moreover, learned counsel for accused has not placed any contrary evidence to substantiate the said contention.
30. Further during the course of arguments, learned counsel for accused has submitted that the cheque in dispute is non CTS cheque and non CTS cheques were available prior to 2015 and non CTS cheque are not in use after 2015 and DW.2, who is the Bank Manager has clearly stated that the cheque in dispute is non CTS. So, it is crystal clear the cheque was issued in the year 2010 and the complainant misused the same without returning the same to the accused and prays to dismiss the complaint on this ground alone.
31. Again in the light of above specific defense and arguments, I have carefully perused the evidence of Dw.2 and SCCH-09 23 CC.20871/2017 Ex.P1/cheque. No doubt, the cheque as per the evidence of DW.2, non CTS cheque and CTS cheque came into existence only after 2015. But, only on that ground case of complainant cannot be doubted and dismissed. Who knows accused with malafide intention to cheat complainant might have issued old cheque to the complainant. Under such circumstances, the arguments canvassed by learned counsel for accused that the cheque in dispute was issued in the year 2010 cannot be accepted. As discussed above, accused might have issued the said non CTS old cheque with malafide intention to cheat the complainant if possible. Further there is no bar under law to use non CTS cheque even after the year 2015. Therefore, the arguments canvassed by learned counsel for accused on this point is not acceptable one.
32. Further, learned counsel for accused submitted in the entire complaint and notice and in chief examination the complainant has not stated the mode of payment to the accused and the amount of Rs.5,00,000/- is big amount and complainant has not placed any documents to show the source SCCH-09 24 CC.20871/2017 of income. So, on this ground itself complaint is liable to be dismissed and prays dismiss the complaint. In this regard, he has relied upon the decision reported in 2012 (3) KCCR 2057, ILR 2008 KAR 5629 and (2019) 5 SCC 418. Again in the light of above submissions, I have carefully perused the evidence once again, merely because the complainant has not stated the mode of payment of loan in the complaint and in the evidence and notice, complaint cannot be dismissed. When once issuance of cheque and signature is admitted the presumption as envisaged U/S 139 of N.I.Act has to be drawn and accused cannot question the source of income of complainant.
33. In this regard, I would like to quote the decision of Hon'ble Apex Court reported in - AIR 2019 SC 1876 Rohit Bhai Jivan Lal Patel V/s State of Gujarat, has held that - Dishonour of cheque - Principles of Presumption - Once presumption of existence of legally enforceable debt drawn in favour of complainant, onus is shifted on accused - unless onus is discharged by accused that preponderance of probabilities are tilting in his favour, SCCH-09 25 CC.20871/2017 doubt on case of complainant cannot be raised for want of evidence regarding source of funds for advancing loan to the accused. Recently, the Hon'ble Apex Court by accepting the above principles and reiterating the above principles of Rohit Bhai Jivan Lal Patel's case in the case of Kalamani reported in (2021) 5 SCC 283 Kalamani Text. and anr. V/s P.Balasubramanaian has further held that - the statute mandates that once the signatures of accused on the cheque/N.I. are established, then these reverse onus clauses become operative.
34. So, in view of the above principles, the arguments cnavassed by learned counsel for accused holds no water and the decision relied by learned counsel for accused in this regard are not applicable to the facts and circumstances of the present case and in view of the recent decision of the Hon'ble Apex Court in Rohit Bhai Jivan Lal Patel's case, the said decisions relied by learned counsel for accused cannot be considered.
SCCH-09 26 CC.20871/2017
35. Further, I have gone through the decision relied by learned counsel for accused. With great respect to the said decision, the facts and circumstances of the said decision are not applicable to the case on hand. In the said decision the very factum of delivery of cheque was questioned by accused and its receipt itself was disputed seriously. But, in the present case, that is not the situation because issuance of cheque is admitted by accused. But her defense is that it was issued in the year 2010 as security. As discussed above, accused has failed to prove the said defense. Under such circumstances, the said decisions relied by learned counsel for accused are not applicable to the case on hand.
36. 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 SCCH-09 27 CC.20871/2017 contemplated U/Sec.139 of N.I.Act is rebuttable presumption. However, the onus of proving that the cheque was not issued 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 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 SCCH-09 28 CC.20871/2017 Bratindranath Banerjee reported in (2001) 6 SCC
16.
37. 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 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 her contention. Accused has not placed any probable defense in this regard to displace the presumption available in favour of complainant.
38. 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 SCCH-09 29 CC.20871/2017 complainant and accused, the complainant has successfully established his case and proved that he had advanced loan of Rs.5,00,000/- to the accused and accused is due a sum of Rs.5,00,000/- to the complainant and for due discharge of amount Rs.5,00,000/- accused has issued Ex.P1 cheque in favour of complainant. 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.
39. 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 SCCH-09 30 CC.20871/2017 Balasubramaniam, Wherein the Hon'ble Apex court at head note D has held that Negotiable Instrument Act 1881- 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 2017 and the loan transaction, this court feels an amount of Rs.7,00,000/- 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.7,05,000/-. In default of payment of fine amount, the accused shall under go Simple Imprisonment for a period six months.SCCH-09 31 CC.20871/2017
After deposit of fine amount an amount of Rs.7,00,000/- shall be paid to the Complainant as compensation as provided U/s.357(3) Cr.P.C. The remaining amount Rs.5,000/- 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 06 th day of April, 2022.) (Umesha.H.K) Judge, Court of Small Causes & ACMM Bengaluru.
ANNEXURE List of Witnesses examined on behalf of complainant:
PW1 Muniraju N List of Documents marked on behalf of complainant:
Ex.P1 Cheque
Ex.P1(a) Signature of accused
Ex.P2 Bank endorsements
Ex.P3 Notice
Ex.P4 & 5 Postal receipt
SCCH-09 32 CC.20871/2017
Ex.P6 Speed post acknowledgment
Ex.P7 Unserved postal cover
List of Witnesses examined on behalf of accused:
DW-1 Nagaveni DW-2 Suma
List of documents marked on behalf of accused DW-1 Postal cover DW-2 Notice (Umesha.H.K) Judge, Court of Small Causes & ACMM, Bengaluru.