Bangalore District Court
Sri.Rajath Dwarka vs Sri.R.Prasad on 27 February, 2023
1
C.C.No.221/2021
KABC030008742021
Presented on : 05-01-2021
Registered on : 05-01-2021
Decided on : 27-02-2023
Duration : 2 years, 1 months, 22 days
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated : This the 27th day of February 2023
Present: Sri.N.M. RAMESHA, B'Com.,L.L.M.
XVI Addl.C.M.M., Bengaluru City.
Case No. C.C.No
: C.C.No.221/2021
Complainant : Sri.Rajath Dwarka
S/o Late.Munirathnam Naidu,
Aged about 42 years
R/at No.2062,
7th Main, 2nd Stage,
Kumaraswamy Layout,
Bengaluru -560 078.
(By Sri.Rathan.S., Adv,)
V/s
Accused : Sri.R.Prasad
S/o Late.Ramprasad
Aged about 47 years
R/at No.1880,
10th Main Road, 2nd Stage,
2
C.C.No.221/2021
Kumaraswamy Layout,
Bengaluru-560078.
(By Sri.A.R.Vivek., Adv.,)
Case instituted : 08.09.2020
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 27.02.2023
JUDGMENT
The Complainant has filed this complaint against the accused under the provisions of Sec.200 of the Code of Criminal Procedure, for the offence punishable U/Sec.138 of the Negotiable Instruments Act.
2. The case of the Complainant is as under:-
The accused was known to complainant since several years. The accused has approached the complainant on 25.05.2019 and requested for hand loan of Rs.50,000/- to fulfill his immediate financial commitments towards school fees of his children. Therefore, the complainant has paid a loan of Rs.50,000/- to the accused in the last week of May 2019. The accused has agreed to repay the loan in the month of December 2019. But, in spite of repeated 3 C.C.No.221/2021 request and demand, the accused has failed to repay the loan amount. On demand, the accused has issued a cheque bearing No.113506 dated 5.1.2020 for Rs.50,000/- drawn on the Mysore Silk Cloth Merchants Co-operative Bank Ltd., Bangalore. Therefore, the complainant has presented the cheque for encashment before the ICICI Bank Ltd., Vasanthapura Main Road, Bangalore. But the cheque was dishonoured for want of sufficient funds in the account of the accused vide endorsement dated 7.1.2020. The complainant has informed the accused about the dishonour of cheque for which, the accused has requested the complainant to re- present the cheque in the month of March, 2020. Therefore, the complainant has re-presented the cheque for encashment before ICICI Bank Ltd., Vasanthapura Main Road, Bangalore. But the said cheque was again dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 5.3.2020. Therefore, the complainant got issued a legal notice dated 18.3.2020 calling upon the accused to pay the cheque amount within 15 days from the date of receipt of legal notice. The legal notice was duly served on the accused on 20.3.2020. But in sptie of service of legal notice, the accused neither replied the notice nor made necessary arrangememnts to pay the cheque amount 4 C.C.No.221/2021 and thereby committed an offence punishable U/s.138 of NI Act. Hence, this complaint.
3. After presentation of complaint, it was ordered to be registered as PCR No.9718/2020 vide order dated 8.9.2020.
4. The sworn statement of the complainant has been recorded and the documents were got marked as per Ex.P.1 to P.7.
5. My Learned Predecessor in office having heard the arguments of learned counsel for complainant and having satisfied with the complaint averments, sworn statement of complainant and documents at Ex.P.1 to P.7 and having satisfied with the prima facie materials placed on record and in view of courts closed from 25.3.2020 till 29.11.2020 due to lockdown by vertue of various notifications issued by Hon'ble High Court of Karnataka dated 25.3.2020, 16.4.2020, 30.4.2020, 15.5.2020, 2.6.2020, 1.7.2020, 15.7.2020, 27.8.2020, 18.9.2020 and 30.9.2020 and in view of Limitation period for filing of complaint extended till 29.11.2020, for the purpose of Sec.4 of Limitation Act and in view of the Hon'ble Supreme Court in its order dated 23.3.2020 in suo moto Writ Petition (Civil) No.(s) 03/2020 extended the period of limitation with effect from 15.3.2020 till the 5 C.C.No.221/2021 date on which the lackdown was lifting and allowed the extension for a period of 15 days even after lifting the lockdown and whatever the dealy caused in presenting the complaint was condoned and has taken the cognizance for the offence punishable U/s.138 of N.I.Act and the case was order to be registered as CC.No.221/2021 and the process was ordered to be issued against the accused vide order dated 5.1.2021.
6. On service of summons, the accused has appeared before the court through his learned counsel and obtained the bail by depositing cash surety of Rs.1,000/- vide Q.No.6281 dt: 30.6.2022. The copies of all the prosecution papers were supplied to the accused.
7. The Plea of accused for the offence punishable U/s.138 of N.I.Act has been recorded and the substance of accusation has been read over and explained to the accused in the language known to him. The accused has pleaded not guilty, but claims to be tried.
8. In order to establish the guilt against the accused, the complainant got himself examined as PW-1 and got the documents marked as Ex.P.1 to P.7. PW.1 was subjected for cross examination by the learned counsel for the accused.
6C.C.No.221/2021
9. The statement of accused as contemplated under the provisions of Section 313 of Cr.P.C has been recorded vide dated 7.9.2022 and the incriminating evidence as such forthcoming against the accused in the evidence of complainant and documents has been read over and explained to the accused in the language known to him. But the accused has denied the entire evidence of complainant and documents. The accused did choose to enter the defence evidence.
10. In order to substantiate his defence, the accused got himself examined as DW.1. However, the accused did not choose to produce the documentary evdience on his behalf.
11. I have heard the arguments of learned counsel for both the side. The learned counsel for the complainant has also filed detailed notes of arguments and also filed memo with decisions.
12. In the light of the arguments canvassed by the learned counsel for both side, I have carefully perused the oral and documentary evidence placed on record and also gone through the principles laid down in the cited decisions.
7C.C.No.221/2021
13. Now, the points that would arise for my consideration are as under:-
1. Whether the complainant proves that the accused has issued a cheque bearing No. 113506 dated 5.1.2020 for Rs.50,000/-, drawn on Mysore Silk Cloth Merchants Co-operative Bank Ltd., Bangalore in his favour towards the legally recoverable debt of Rs.50,000/- and on presentation of cheque for encashment before ICICI Bank, Vasanthapura Main Road Branch, Bangalore for 2 times, it was dishonorued for 2 times for want of sufficient funds in the account of the accused vide bank endorsements dt:7.1.2020 and 5.3.2020 and in spite of issuance of legal notice dt:18.3.2020 and in spite of service of legal notice on 20.3.2020, the accused has failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of N.I.Act?
2. What Order?
14. On considering and assessing the oral and documentatry evidence placed on record, now my answers to the above points are as under :
[ Point No.1: In the Affirmative.
Point No.2: As per final order for the following :-8
C.C.No.221/2021 REASONS
15. Point No.1 : The provisions of Sec.20 of Negotiable Instrument Act deals about Inchoate Stamped Instruments. As per this provisions of law, where one person signs and delivers to another a paper stamped in accorance with the law relating to negotiable instrements then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima-facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, or any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instruemnt, in the capacity in which he signed the same, to any holder in due course for such amount.
16. The provisions of Sec.118 of Negotiable Instrument Act deals about presumptions as to neogtiable instruments. As per this provisions of law, unit the contrary is proved, the following presumptions shall be made:-(a) of consideration: that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transfered, was accepted, 9 C.C.No.221/2021 indorsed, negotiated or transferred for considertaion: (b) as to date: that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance- that every accepted bill of exchange was accpted within a reasonable time after its date and before its maturity. (d) as to time of transfer-that every transfer of a negotiable instrument was made before the maturity; (e) as to order of indorsement; that the indorsements appearing upon a negotiable instrument were made in the order in which they apear thereon; (f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped and (g) that holder is a holder indue course- that the holder of a negotiable instrument is a holder in due course. [
17. The provisions of Sec.138 of Negotiable Instrument Act deals about dishonour of cheque for insufficiency etc., of funds in the accounts. As per this provisions of law, where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or inpart, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to 10 C.C.No.221/2021 honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other proviosn of this Act, be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both.
18 As per the proviso attached to the above said provisions of law, nothing contained in this section shall apply unless-(a) the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing , to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
11C.C.No.221/2021 [ 19. The provisions of Sec.139 of Negotiable Instrument Act deals about presumption in favour of holder. As per this provisions of law, it shall be presumed, unles the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability.
20. The provisions of Section 146 of the Negotiable Instruments Act, 1881 deals about the Bank's slip prima facie evidence of certain facts. As per this provisions of law, the Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.
21. Now keeping the above said provisions of Section 20, 118, 138, 139 and 146 of N.I.Act, in mind, let us consider as to whether the complainant could able to comply all the madates, ingredients, terms and conditions of Section 138 of N.I.Act, so as to raise or to draw the presumption in his favour as per Section 118 and 139 of N.I.Act.
12C.C.No.221/2021
22. It is averred in the complaint and stated by PW.1 in his oral evidence that the accused was known to him since serveral years and the accused has approached him on 25th May 2019 and requested for loan of Rs.50,000/- to fulfill his immediate financial commitments towards school fees of his children and therefore, he has paid a hand loan of Rs.50,000/- to the accused in the last week of May 2019 and the accused has promised to repay the loan in the month of December 2019, but in spite of repeated request and demands, the accused has failed to pay the loan amount within time and on further request and demand, the accused has issued a cheque bearing No.113506 dated 5.1.2020 for Rs.50,000/- drawn on Mysore Silk Cloth Merchants Co-operative Bank Ltd., Bengaluru towards repayment of said loan amount of Rs.50,000/- and therefore, he has presented the cheque for encashment before ICICI Bank, Vasanthapura Main Road Branch, Bangalore, but it was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 7.1.2020.
23. It is further averred in the complaint and stated by P.W.1 in his oral evidence that he has informed the dishonour of cheque to the accused for which, the accused has requested him to re-present the 13 C.C.No.221/2021 cheque for encashment in the month of March 2020 and therefore, he has again re-presented the cheque for encashment before the ICICi Bank, Vasanthapura Main Road Branch, Bengaluru which was again dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 5.3.2020 and therefore, he has issued a legal notice dated 18.3.2020 calling upon the accused to pay the cheque amount within 15 days from the date of receipt of legal notice and the legal notice was duly served on the accused on 20.3.2020, but in spite of service of legal notice, the accused has failed to pay the cheque amount and therefore, he has presented the complaint before the court on 8.9.2020.
24. The complainant has produced the cheque dated 5.1.2020, bank endorsements dated 7.1.2020 and 5.3.2020, legal notice dated 18.3.2020, postal receipt dated 19.3.2020, postal acknowledgemnet dated 20.3.2019 and complaint and they are marked at Ex.P1 to P7.
25. The accused has not seriously disputed the fact that the cheque vide Ex.P1 belongs to him and his signature on the cheque and he has drawn the cheque on an account maintained by him with his banker. The 14 C.C.No.221/2021 accused has also not disputed the issuance of cheque or presentation of cheque for encashment for 2 times or issuance of bank endorsements or dishonour of cheque for want of sufficient funds in his account or issuance of legal notice or service of legal notice.
26. In fact, there is no material suggestions to PW.1 either to deny the issuance of cheque or the signature of the accused on the cheque or presentation of cheque for encashment or dishonour of cheque for want of sufficient funds in the account of the accused or issuance of legal notice or service of legal notice. On the other hand, it is suggested to PW.1 that the accused has issued the cheque towards security purpose of loan transaction of Rs.50,000 and the accused has already repaid the loan.
27. Be that as it may, DW.1 in his oral evidence on oath before the court has stated that he has availed a loan of Rs.50,000/- from the complainant on 25.10.2019 and issued the cheque in question for security purpose of the loan and he has received the notice issued by the complainant. DW.1 has admitted that he is aware about the bank transaction and he has issued the cheque to the complainant for repayment of loan amount. Under these circumstances, it is said that 15 C.C.No.221/2021 the admissions are the best proof for the complainant to comply the mandates of Sec.138 of NI Act.
28. However, on perusal of complaint averments, oral evidence of PW.1 and the documentary evidence at Ex.P1 to P7, it clearly establishes that the complainant and accused were known to each other since longtime and therefore, the accused has availed a loan of Rs.50,000/- from the complainant and issued the cheque in question vide Ex.P1 in favour of the complainant and on presentation of cheque for encashment for 2 times before ICICIBank, it was dishonoured for 2 times vide bank endorsements at Ex.P2 and P3 and therefore, the complainant has issued a legal notice vide Ex.P4, calling upon the accused to pay the cheque amount within 15 days from the date of receipt of legal notice and the legal notice was duly served on the accused as per Ex.P6. But in sptie of service of legal notice, the accused neither replied the notice nor make necessary arrangements to pay the cheque amount within time.
29. It is pertinent to note here that, the cheque vide Ex.P1 is dated 5.1.2020. As could be seen from the documents at Ex.P2 & P3, on presentation of cheque for encashment for 2 times before ICICI Bank, it was 16 C.C.No.221/2021 dishonoured for 2 times vide bank endorsements dated 7.1.2020 and 5.3.2020. So, it is clear that the complainant has presented the cheque for encashment before the bank within the validity of the cheque and it was dishonoured for want of sufficient funds in the account of the accused. As could be seen from the documents at Ex.P4 to P6, the complainant got issued a legal notice on 18.3.2020 giving 15 days time to the accused to pay the cheque amount and the legal notice was duly served on the accused as per Ex.P6 on 20.3.2020. But, in spite of service of legal notice, the accused neither replied the notice nor make necessary arrangements to pay the cheque amount.
30. It is also pertinent to note here that the courts were closed from 25.3.2020 till 29.11.2020 on account of Covid-19 Pandemic situation by virtue of various notifications issued by Hon'ble High Court of Karnataka dated 25.3.2020, 16.4.2020, 30.4.2020, 15.5.2020, 2.6.2020, 1.7.2020, 15.7.2020, 27.8.2020, 18.9.2020 and 30.9.2020 and the Limitation period for filing of complaint was extended till 29.11.2020 for the purpose of Sec.4 of Limitation Act and the Hon'ble Supreme Court in its order dated 23.3.2020 in suo moto Writ Petition (Civil) No.(s) 03/2020 extended the period of limitation with effect from 15.3.2020 till the date on 17 C.C.No.221/2021 which the lackdown was lifting and allowed the extension for a period of 15 days even after lifting the lockdown and whatever the dealy caused in presenting the complaint was already condoned vide order dated 5.1.2020.
31. So, it is crystal clear that the complainant has complied the mandates of Sec.138 of NI Act by adducing the oral evidence of PW.1 and by producing the documentary evidence at Ex.P1 to P7. Under these circumstances, when once the complainant has complied the mandates of Sec.138 of NI Act, this court has no option, but to draw the presumtpions in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
32. Admittedly, the presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NIAct are not conclusive proof, but they are rebuttable in nature. Therefore, when once the complainant has complied the mandates of Sec.138 of NI Act and when once the court has drawn the presumptions in favour of the complainant under the provisions of Sec.118 and 139 of NI Act, then the onus shifts on the accused to rebut the statutory 18 C.C.No.221/2021 presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
33. The learned counsel for the complainant has argued with force that the oral evidence of PW.1 and the documentary evidence at Ex.P1 to P7 clearly establishes the loan transaction of Rs.50,000/- between the complainant and accused on 25.5.2019 and issuance of cheque vide Ex.P1 by the accused to the complainant towards legally recoverable debt of Rs.50,000/- and dishonour of cheque for want of sufficient funds in the account of the accused as per bank endorsements vide Ex.P2 and P3 and issuance of legal notice and service of legal notice and thereby, the complainant has complied the mandates of Sec.138 of NI Act and therefore, the presumptions are in favour of the complainant U/Sec.118 and 139 of NI Act.
34. It is further contended that the accused neither disputed the loan transaction nor issuance of cheque or dishonour of cheque for want of sufficient funds in his account or issuance of legal notice or service of legal notice, but he has admitted the said facts in his evidence. However, the accused has taken a contention that he has availed a loan of Rs.50,000/- from the complainant in the year 2013 and issued the 19 C.C.No.221/2021 cheque for security purpose and he has already repaid the loan of Rs.50,000/- with interest of Rs.2,000/- and the complainant has failed to return the cheque and filed the case. But the accused has not proved the said defence before the court with legal evidence and not examined any independent witnesses and not produced any cogent documentary proof before the court and thereby failed to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act and therefore, the evidence of complainant and documents has to accepted and the accused is liable for conviction U/Sec.138 of NI Act.
35. In support of his submission, the learned counsel for the complainant has relied upon a decision rendered by the Hon'ble Supreme Court in Crl.A.No.123/2021 in between M/S. Kalamani Tex & another V/s P.Balasubramanian, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under section 139 of the NI Act, in the absence of any cogent evidence to show that the cheque was not issued for discharge of a debt.
20C.C.No.221/2021
36. The learned counsel for the complainant has also relied upon a decision rendered by the Hon'ble Supreme court in Crl.A.No.508/2019 in between Rohitbhai Jivanlal Patel V/s State of Gujarat and another, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that, the accused has to bring on record such facts and such circumstances which may lead the court to conclude either that the consideration did not exist or that its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. Mere denial would not fulfil the requirements of rebuttal as envisaged U/Sec.118 and 139 of NI Act. On the same principles, the learned counsel for the complainant has also relied upon a decision rendered by the Hon'ble High Court of Calcutta in CRA.No.685/2018 in between Bubrata Bose V/s Mithu Ghosh.
37. The learned counsel for the complainant has also relied upon a decision rendered by the Hon'ble Supreme Court in Crl.A.No.1020/2010 in between Rangappa V/s Mohan, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that the very fact that the 21 C.C.No.221/2021 accused had failed to reply to the statutory notice under section 138 of NI Act leads to the inference that there was merit in the complainant's version. Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under section 139 of NI Act has to be raised by the court in favour of the complainant.
38. The learned counsel for the complainant has also relied upon a decision rendered by the Hon'ble High Court of Kerala in Crl.R.P.No.244/2020 in between M.Valsan @ Wilson V/s State of Kerala and another, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble High Court of Kerala has pleased to held that it is trite that the complainant need not adduce evidence regarding the original transaction or original consideration as required in a suit for realisaction of money. When the accused has not reasonable and probabal explanation as to how the cheque travelled from his possession to that of the complainant is certainly a crucial aspect while considering the acceptability of the evidence of the complainant.
22C.C.No.221/2021
39. The learned counsel for the complainant has also relied upon a decision rendered by the Hon'ble High Court of Delhi in Crl.L.P.No.559/2015 in between Sheela Sharma V/s Mahendra Pal, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble High Court of Delhi has pleased to held that the mere advancement of the loan in cash, may entail consequences for the party acting in breach of section 269ss of the income tax Act. That is not the concern of the court. Whether or not, the complainant reflected the availability of the said amount in the income tax returns is also not a matter of concern for the court. That would again be an aspect to be considered by the income tax authroties. The advancement of loan, in cash is not prohibited in law. The transaction of advancement of loan in cash does not illegal. Such a transaction is enforceable at law. Breach of Sec.269ss of the income tax Act provides the penalty to which the person would be subjected to under section 271D of the income tax Act. Sec.271D does not provide that such a transaction would be null and void. On the same principles, the learned counsel for the complainant has also relied upon a decision rendered by the Hon'ble High Court of Madhya Pradesh in MCRC.No.34478/2021 in between Vijay Kumar V/s Om Prakash Dubey.
23C.C.No.221/2021
40. Per contra, the learned counsel for the accused has vehemently contended that the oral evidence of PW.1 and the documentary evidence at Ex.P1 to P7 do not establish the loan transaction of Rs.50,000/- between the complainant and accused in the year 2019 and also do not establish the existence of legally recoverable debt of Rs.50,000/- and also do not establish the issuance of cheque in question towards legally recoverable debt of Rs.50,000/-. The evidence adduced by the complainant do not establish the guilt against the accused for the offence punishable U/Sec.138 of NI Act.
41. It is further contended that the accused has raised a probable defence and proved the same before the court with legal evidence of DW.1 and also by eliciting the material facts in the evidence of PW.1 which clearly establishes that the complainant and accused were known to each other since 20 years and the complainant has been doing money lending business and the accused has availed a loan of Rs.50,000/- on 25.10.2019 and issued a blank signed cheque for Rs.50,000/- and the accused has already repaid the loan with interest of Rs.2,000/-, but the complainant has not issued any receipt for having received the loan and not returned the cheque and got the cheque 24 C.C.No.221/2021 bounced and filed a false case. Nothing is elicited in the evidence of DW.1 to disprove the defence taken by the accused and all the material suggestions put to DW.1 has been denied by DW.1 and therefore, the defence raised by the accused is more probable than that of the case made out by the complainant and therefore, the accused is entitled to an order to acquittal.
42. Now, keeping the arguments canvassed by the learned counsel for both the side and the principles laid down in the cited decisions in mind, let us consider as to whether the accused could able to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
43. It is the evidence of DW.1 that the complainant was known to him since 20 years who is doing money lending business and he has availed a loan of Rs.50,000/- from the complainant on 25.10.2019 and also availed a loan of Rs.50,000/- from the complainant in the year 2013 and already repaid the loan and issued a signed blank cheque to the complainant in the year 2019 and was paying interest at Rs.2,000/- per month and the complainant had not issued any receipt and the complainant has insisted him to repay the loan and therefore, he has repaid the loan of Rs.50,000/- in the 25 C.C.No.221/2021 month of January 2020 and requested the complainant to return the cheque for which, the complainant has torn the cheque and thereafter, he has filed a false case against him.
44. Though, the accused has taken this bald contention, same has not been amplied before the court in any manner. The accused neither produced any documentary evidence nor adduced any evidence of independent witnesses or elicited anything in the evidence of PW.1 either to falsify the case made out by the complainant or to falsify the oral evidence of PW.1 or to falsify the documentary evidence at Ex.P1 to P7 or to substantiate his probable defence or to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
45. No doubt, it is suggested to PW.1 that he has been doing money lending business; that the accused has already repaid the entire loan amount, but he has failed to return the cheque; that the contents of the cheque has been written by him; that after repayment of loan of Rs.50,000/- by the accused, he had torn the cheque; that after presentation of cheque before the bank for encashment, the accused has repaid the loan;
26C.C.No.221/2021 that he has purposefully taken a coluour xerox of the cheque and torn the colour xerox cheque in presence of accused after repayment of loan and he retained the original cheque with him and failed a false case with an intention to harass the accused.
46. But, all these material suggestions have been specifically denied by PW.1. Therefore, it is said that the denied suggestions are always remained as suggestions only and not come in the way of accused either to substantiate his probable defence or to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act or to falsify the case made out by the complainant or to falsify the oral evidence of PW.1 or to falsify the documentary evidence at Ex.P1 to P7.
47. However, there is no material suggestions to PW.1 on behalf of accused either to deny the loan transaction of Rs.50,000/- or to deny the issuance of cheque or the signature of the accused on the cheque or presentation of cheque for encashment or dishonour of cheque for want of sufficient funds in the account of the accused or to deny the issuance of legal notice or service of legal notice. In fact, it is forthcoming in the evidence of PW.1 that he has been doing real estate business and 27 C.C.No.221/2021 also contract work from 2017 and was having sufficient source of income so as to lend the loan of Rs.50,000/- to the accused.
48. It is pertinent to note here that if really the accused has issued a signed blank cheque to the complainant in the year 2019 towards security for loan of Rs.50,000/- and if really the accused has already repaid the loan to the complainant and if really the complainant has failed to return the cheque to the accused and if really the complainant has taken a colour xerox of the cheque and torn the same in the presence of accused and thereafter, presented the cheque before the bank and filed the case by misusing the cheque in question, then the accused could have definately either issued the reply notice to the complainant or issued stop payment instructions to the concerned bank to stop the payment or the accused could have lodged a complaint before the jurisdictional police station or before any police station or before the court or he could have taken some legal action against the complainant for misuse of cheque or he could have obtained the receipt from the complainant for having repaid the loan of Rs.50,000/- with interest to the complainant. But the accused has not done so. No explanation as such forthcoming either in the evidence of DW.1 or during the cross-examination 28 C.C.No.221/2021 of PW.1. Under these circumstances, in the absence of such an explanation in this regard on the part of the accused, an adverse inference has to be drawn against the defence raised by the accused. The very inaction on the part of the accused in this regard creates a doubt about the defence raised by the accused and leads to an adverse inference against the probable defence raised by the accused.
49. But, on the other hand, DW.1 in his cross- examination has admitted that he studied upto PUC and working as a pigmi collector at MSCB Bank since 18 years and therefore, he is very much aware about all the bank transactions. It is also stated by DW.1 that he has not received any documents from the complainant for having paid interest on every month and he do not have any documents to show that he has already repaid the entire loan to the complainant with interest. It is also admitted by DW.1 that he has issued the cheque in question to the complainant towards repayment of loan.
50. It is pertinent to note here that at one point of time, DW.1 has stated that he has availed a loan of Rs.50,000/- from the complainant in the year 2013. But, at another point of time, DW.1 has stated that he has availed a loan of Rs.50,000/- from the complainant 29 C.C.No.221/2021 on 25.10.2019. At another point of time, DW.1 has stated that he has issued a blank signed cheque to the complainant for loan of Rs.50,000/- availed in the year 2019. But, at another point of time, DW.1 has stated that he has paid the interest till January 2020. But at another point of time, DW.1 has stated that he has repaid the loan of Rs.50,000/- to the complainant in the month of January 2020.
51. Further, at another point of time, DW.1 has stated that the complainant has torn the colour xerox cheque in his presence. But, at another point of time, DW.1 has stated that after repayment of loan, the complainant has returned the cheque in question and he has produced the same before the court. But, he ahs not produced the said cheque returned by the complainant. But, at another point of time, DW.1 has stated that he has issued the cheque in question to the complainant towards repayment of loan of Rs.50,000/-.
52. So, from these evidence of DW.1 and material suggestions put to PW.1, it is crystal clear that the accused has kept on changing his version from stage to stage and the accused has also kept on changing his defence from stage to stage and thereby laid on the material facts before the court. Under these 30 C.C.No.221/2021 circumstances, utmost confidence cannot be reposed on the evidence of DW.1. Therefore, the evidence of DW.1 is not sufficient either to rebut the statutory presumptions available in favour of the complainant U/Sec.118 and 139 of NI Act or to falsify the case made out by the complainant or to falsify the oral evidence of PW.1 or to falsity the documentary evdience at Ex.P1 to P7.
53. On appreciation of entire oral and documentary evidence placed on record, it is found that the accused has availed a loan of Rs.50,000/- from the complainant in the last week of May 2019 and in repayment of the loan of Rs.50,000/-, the accused has issued the cheque vide Ex.P1 and on presentation of cheque for encashment within its validity, it was dishonoured for want of sufficient funds vide bank endorsements at Ex.P2 and P3 and therefore, the complainant got issued a legal notice vide Ex.P4 within the stipulated time from the date of receipt of bank endorsements and the said notice has been duly served on the accused as per Ex.P6. But, the accused neither replied the notice nor made necessary arrangements to pay the cheque amount and therefore, the complainant has presented the complaint before the court and complied all the mandates of Sec.138 of NI Act.
31C.C.No.221/2021
54. It is pertinent to note here that the accused has clearly admitted the issuance of cheque and also his signature on the cheque including dishonour of cheque for want of sufficient funds in the account of the accused and also service of legal notice. But the accused has failed to raise a probable defence and failed to prove the same before the court with legal evidence and thereby failed to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act. Under these circumstances, there are no reasons to disbelieve or to discard the oral evidence of PW.1 and the documentary evidence at Ex.P1 to P7.
55. Therefore, there is some legal and considerable force in the submission of the learned counsel for the complainant the oral evidence of PW.1 and the documentary evidence at Ex.P1 to P7 clearly establishes the issuance of cheque for legally recoverable debt of Rs.50,000/- and also dishonour of cheque for want of sufficient funds in the account of the accused including service of legal notice, but the accused neither replied the notice nor made necessary arrangements to pay the cheque amount and in fact the accused has admitted the issuance of cheque and his signature on the cheque and therefore, the presumptions are always in favour of 32 C.C.No.221/2021 the complainant U/Sec.118 and 139 of NI Act, but the accused neither replied the notice nor made necessary arrangements to pay the cheque amount and also failed to raise a probable defence and also failed to prove the same before the court with legal evidence and in fact, the accused kept on changing his version from stage to stage and kept on changing his defence from stage to stage and thereby laid on the material facts and therefore, the accused is liable for conviction U/Sec.138 of NI Act and the decisions cited in this regard are also applicable to the present facts and circumstances of the case.
56. But. on the other hand, the arguments of the learned counsel for the accused that the oral evidence of PW.1 and the documentary evidence at Ex.P1 to P7 do not establish the existence of legally recoverable debt of Rs.50,000/- and the complainant has failed to prove the existence of legally recoverable debt of Rs.50,000/- as on the date of issuance of cheque, but the accused has raised a probable defence and proved the same before the court with oral evidence of DW.1 which clearly establishes that the accused has already repaid the loan of Rs.50,000/- with interest to the complainant, but the complainant has failed to return the cheque and he had taken a colour xerox of the cheque and torn the same in 33 C.C.No.221/2021 the presence of accused by retaining original cheque with him and thereafter, he has presented the cheque and got the cheque bounced and filed case against the accused and thereby the acucsed has rebutted the presumptions U/Sec.118 and 139 of NI Act and therefore, the accused is entitled to an order of acquittal is not sustainable under law and therefore, cannot be accepted.
57. Therefore, for the reasons discussed above, this court is of the considered view that the materials placed on record clearly establishes the guilt against the accused for the offence punishable U/Sec.138 of N.I.Act. Hence, I hold that the complainant has proved the guilt against the accused for the offence punishable U/s.138 of NI Act. Hence, I answer point No.1 in the 'Affirmative'.
58 . POINT. No.2:- The provisions of Section 138 of N.I.Act provides punishment for imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of cheque or with both. In the present case, the complainant and accused were known to each other since several years and the accused has availed the loan of Rs.50,000/- in the 34 C.C.No.221/2021 month of May 2019 for his financial problems towards the school fees of his children. Therefore, considering the nature of loan transaction between the complainant and accused including facts and circumstances of the case and time taken for disposal of this case, this Court is of the considered view that if the following sentence is awarded, then it would meet the ends of justice. Hence, in view of my findings on point No.1, I proceed to pass the following:-
O RDE R The accused is found guilty for the offence punishable U/s.138 of Negotiable Instruments Act.
Hence, acting U/sec.255(2) of Cr.P.C, the accused is convicted and sentenced to pay fine of Rs.60,000/- (Rupees Sixty Thousand Only), in default of fine amount, he shall undergo simple imprisonment for 3 months for the offence punishable under section 138 of N.I.Act.
Out of the fine amount collected from the accused, an amount of Rs.58,000/- (Rupees Fifty Eight Thousand only) shall be paid to the complainant as compensation U/s.357 of Cr.P.C. and the remaining fine of Rs.2,000/- shall be adjusted towards the cost of state expenses.35
C.C.No.221/2021 The bail bond of the accused shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.
The cash surety of Rs.1,000/-
deposited by the accused vide Q.No.6281 dated 30.6.2022 shall be refunded to the accused after appeal period is over with due identification.
Office to supply the copy of the Judgement to the accused forthwith at free of cost.
(Dictated to the stenographer, transcribed by her, print out taken by her verified, corrected and then pronounced by me in the open Court on this the 27th February 2023).
(N.M.RAMESHA) XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.Rajath Dwarka
2. List of documents exhibited on behalf of the Complainant:-
Ex.P.1 : Original Cheque.
Ex.P.1(a) : Signature of the Accused.
Ex.P.2 & 3 : Bank Memos.
Ex.P.4 : Copy of Legal Notice.
Ex.P.5 : Postal Receipt.
Ex.P.6 : Postal Acknowledgment
Ex.P.7 : Complaint
36
C.C.No.221/2021
3. List of witness/s examined on behalf of the Accused:-
DW.1 ; Sri.R.Prasad
4. List of documents exhibited on behalf of the Accused:-
NIL (N.M.RAMESHA) XVI ACMM, Bengaluru City. 37
C.C.No.221/2021 27.02.2023 Judgment pronounced in open court, (vide separate order) ORDER The accused is found guilty for the offence punishable U/s.138 of Negotiable Instruments Act.
Hence, acting U/sec.255(2) of Cr.P.C, the accused is convicted and sentenced to pay fine of Rs.60,000/-
(Rupees Sixty Thousand Only), in default of fine amount, he shall undergo simple imprisonment for 3 months for the offence punishable under section 138 of N.I.Act.
Out of the fine amount collected from the accused, an amount of Rs.58,000/- (Rupees Fifty Eight Thousand only) shall be paid to the complainant as compensation U/s.357 of Cr.P.C. and the remaining fine of Rs.2,000/- shall be adjusted towards the cost of state expenses.
The bail bond of the accused shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.
The cash surety of Rs.1,000/-
deposited by the accused vide Q.No.6281 dated 30.6.2022 shall be 38 C.C.No.221/2021 refunded to the accused after appeal period is over with due identification.
Office to supply the copy of the Judgement to the accused forthwith at free of cost.
XVI ACMM, Bengaluru City