Bangalore District Court
M Devandaran vs S.K.Komadan on 24 September, 2024
KABC020319372022
IN THE COURT OF THE XII ADDL. JUDGE, COURT OF SMALL
CAUSES & ADDL. CHIEF JUDICIAL MAGISTRATE, BENGALURU
(SCCH-08)
DATED THIS THE 24th DAY OF SEPTEMBER - 2024
PRESENT: Smt. Kannika M.S.
M.A., LL.B
XII ADDL. SCJ & ACJM
MEMBER - MACT, BENGALURU.
C.C. No.12580/2022
Complainant : Sri. M. Devandaran,
S/o. Late K.M. Muniswamy,
Aged about 58 years,
R/at No.202, 3rd Floor,
M/s. Savora Prime Lake,
Near Garden City College Hostel,
TC Palya Residency,
4th Cross, Bangalore - 49.
(By Sri. Shafi Ulla Sharief, Advocate)
:Vs:
Accused : Sri. S.K. Komadan,
Prop. of S.K. Enterprises,
S/o. Late M. Soundarajan,
Aged about 46 years,
R/at No.3, 4th Cross, Dayanandanagar,
SCCH-8 2 C.C.No.12580/2022
Bhashyam Circle, Srirampuram,
Bangalore.
(By Sri. Raghu K.S., Advocate)
Date of complaint : 27.04.2022
Date of commencement of
Evidence : 24.08.2022
Offence charged : Sec.138 of Negotiable
Instruments Act
Date of Judgment : 24.09.2024
Opinion of the Judge : Accused found not
guilty
(Kannika M.S.)
XII Addl. Small Causes Judge
& ACJM, Bengaluru.
JUDGEMENT
This is a private complaint filed U/Sec.200 of Cr.P.C. against the accused for the alleged offence punishable U/Sec.138 of Negotiable Instrument Act.
SCCH-8 3 C.C.No.12580/2022
2. The brief facts of the case of the complainant is that:
The accused is the proprietor of M/s. Kings Cafe and family Restaurant and borrowed Rs.10,00,000/- on different dates from the complainant for commencing new business under the name and style of M/s. S.K. Associates and Kings Cafe Family Restaurant by promising the complainant to induct him as a partner and assured to pay dividends as per the profits in the said business. But, after the commencement of said business, accused failed to share profits. When the complainant demanded for repayment of the amount, towards discharge of liability, the accused issued two cheques bearing Nos.980156 and 980157 dated 07.03.2022 for a sum of Rs.1,60,000/- and Rs.50,000/- respectively, drawn on State Bank of Mysore, R.T. Nagar Branch, Bengaluru. As per the instruction of the accused, complainant has presented the said cheques for encashment through his banker State Bank of SCCH-8 4 C.C.No.12580/2022 India, Subhashnagar branch, Bengaluru, but the said cheques came to be dishonored and returned with shara "No such account". Thereafter he has issued the legal notice on 17.03.2022 through RPAD to the accused address and the same was served to the accused on23.03.2022. The accused has not paid the amount, and hence, the complainant has filed the present complaint before this Court.
3. Cognizance was taken and sworn statement of the complainant was recorded. Since there were sufficient materials to proceed against the accused, the summons was issued to accused. Accused appeared through his counsel and got enlarged on bail. Substance of accusation was framed, read over and explained to the accused in the language known to him, he denied the same and claimed to be tried. Hence, the case was posted for complainant's evidence. SCCH-8 5 C.C.No.12580/2022
4. In order to prove his case, the complainant got examined himself as PW-1 and got marked the 8 documents at Ex.P1 to Ex.P8 and closed his evidence. After closure of complainant's side evidence, the statement U/Sec.313 of Cr.P.C was prepared and read over to accused, he has denied the same. The accused has adduced evidence and examined as DW.1, and got marked Ex.D1 to D3 documents. Thereafter, case was posted for arguments.
5. I have perused the written arguments submitted by the learned counsel for the complainant and accused and the entire records in this case.
6. The following points arise for my consideration:
1. Whether the complainant has fulfilled the requirements of Sec. 138 of N.I. Act?
2. Whether the complainant has proved that on
07.03.2022 accused has issued cheques worth Rs.1,60,000/- and Rs.50,000/- bearing SCCH-8 6 C.C.No.12580/2022 No. 980156 and 980157 towards the repayment of the loan and discharge of legally enforceable debt?
3. What order?
7. The finding of this court on the above points is as under:
Point No.1 : In Affirmative,
Point No.2 : In Negative,
Point No.3 : As per final order,
for the following;
REASONS
POINTS NO.1 :
8. According the complaint, the accused borrowed the hand loan of Rs.10,00,000/- on different dates from the complainant, by assuring the complainant to induct him as a partner in the business and sharing of profits, but the accused failed to share the profits. Thereafter when the complainant demanded to repay the amount, the accused issued the post SCCH-8 7 C.C.No.12580/2022 dated cheques bearing Nos. 980156 and 980157 dated 07.03.2022 for a sum of Rs.1,60,000/- and Rs.50,000/- drawn on State Bank of Mysore, R.T. Nagar Branch, Bengaluru, and when he has presented the said cheques for collection and for realization, the said cheque dishonored and returned with shara "No such account" on 07.03.2022, hence he issued the legal notice to the accused on 17.03.2022 through RPAD and the same was served. The accused has not paid the amount, hence the complaint.
9. As per Section 101 to 103 of the Indian Evidence Act, the burden of proof lies on the Complaint to establish the facts narrated in the complaint. The Complainant in order to establish his case has examined before the Court as PW1 and filed affidavit evidence in lieu of his examination-in-chief, wherein he has deposed in-consonance with the Complaint averments. PW1 in support of his oral evidence has got marked SCCH-8 8 C.C.No.12580/2022 Ex.P1 to 8. The Ex.P1 and 2 are the cheques bearing Nos. 980156 and 980157 issued by the accused in favour of the Complainant. EX P2 and 3 are is the Bank endorsement dated:07.03.2022 issued by the State Bank of India with respect to the cheque bearing No.980156 and 980157. It is shows that cheques are dishonoured with memo of "No such account". EX.P5 are the legal notices dated 17.03.2022 and issued by the complainant through his counsel to the accused for the repayment of the said loan amount. Ex.P6 is the postal receipt, Ex.P7 is the track consignment letter and Ex.P8 is the certificate under Sec.65(b) of Indian Evidence Act.
10. On the other hand, the accused has lead his defence evidence and examined himself as DW1 and deposed that he was running debt recovery agency for ICICI Bank, Kotak, HDFC and Bajai, ING Vysya banks. He started S.K. Associates in the year 2008 and closed it in 2012. Complainant was working under him and he was paying salary of Rs.10,000/- along with SCCH-8 9 C.C.No.12580/2022 the bus pass. He was keeping the blank signed cheques in the office for the purpose of paying rent, water bill and other expenses. At that time the said cheques have come into the hands of the complainant. He has not filled contents of cheques. He had closed bank account in the year 2012 itself. His bank has merged with other bank. The cheques presented by the complainant are 15 years old cheques. The notice sent by the complainant is not been served on him. He came to know about the case when the police had called him. In support of his defence, he has got marked 3 documents as Ex.D1 to D3, Ex.D1 is the letter issued by the ICICI bank authorising the accused to work as Debt recovery agent on behalf of it, Ex.P2 is the ID card issued by ICICI Bank, and Ex.D3 is the Adhaar card of the accused.
11. In order to constitute an offence under section 138 of N.I. Act, the cheque shall be presented to the bank within a period of 03 months from its date. On it's dishonour for want SCCH-8 10 C.C.No.12580/2022 of sufficient funds or stop payment, the drawer or holder of the cheque as the case may be, shall cause demand notice within 30 days from the date of dishonour, demanding to repay within 15 days from the date of service of the notice. If the drawer of the cheque fails to repay the amount mentioned in the cheque within 15 days from the date of service of notice, cause of action arises for filing complaint.
12. In this case complainant has filed his affidavit in lieu of his oral chief examination. In his affidavit he has testified regarding issuance of cheques for Rs.1,60,000/- and Rs.50,000/-, and the same were dishonoured and after issuance of demand notice, accused failed to repay the cheques amount. The complainant has produced cheques bearing Nos:
980156 and 980157 alleged to be issued by the accused. The said cheques are produced before the court, which were marked as Ex.P.1 and 2. Ex.P.1 and 2 cheque are in the name of complainant for Rs.1,60,000/- and Rs.50,000/- dated SCCH-8 11 C.C.No.12580/2022 07.03.2022. Ex.P.3 and 4 are the Bank endorsements issued by State Bank of India, R.T Nagara branch dated: 07.03.2022 stating "No such Account" to honour Ex.P.1 and 2 cheques.
Ex.P.5 is the copy of legal notice issued to the accused on 17.03.2022 to the address of the accused. Ex.P.6 is the postal receipt and Ex.P7 is track consignment letter and on perusal of the postal receipt and track consignment letter, the Registered postal numbers are different. As per postal receipt the number is RK600624617IN, but the postal track consignment No.RK600624501IN. There is no document with regard to the service of notice to the accused.
13. In this case, cheques dated 07.03.2022 were presented within 03 months and the same were dishonoured on 07.03.2022. These cheques which were marked as Ex.P.1 and P2 dishonoured for the reason of "No such Account". Thereafter, in the proper period legal notice was issued to the SCCH-8 12 C.C.No.12580/2022 accused but there is no document regarding service of notice to the accused. Thereafter, within the period of 30 days complainant has filed this complaint. As such complainant has complied all the mandatory provisions of Sec. 138 of N.I. Act. Accordingly, I answer Point No. 1 in the "Affirmative".
POINT No.2:
14. It is the case of the complainant that, there was a cash transaction and there was contract between the accused and the complainant and accused borrowed a sum of Rs.10,00,000/- from the complainant and to discharge the said legally recoverable debt, accused has issued cheques bearing Nos.980156 and 980157 dated: 07.03.2022. It is further stated by the complainant that, he has discharged his initial burden by proving his case by his oral evidence and also by producing required documents. Therefore, the benefit of presumption U/Sec. 118 and 139 of N.I. Act is in favour of the complainant.
Hence, prayed to convict the accused.
SCCH-8 13 C.C.No.12580/2022
15. On perusal of documents produced by the complainant as already stated above, the complainant has produced a cheques alleged to be issued by the accused for an amount of Rs.1,60,000/- and Rs.50,000/- dtd: 07.03.2022 of State Bank of Mysore, R.T Nagara branch, Bengaluru and it was presented through his banker State Bank of India, Subhashnagar branch, Bengaluru, which issued an endorsement stating "No such Account" on 07.03.2022. The Bank endorsements are marked as Ex.P.3 and P4, which reveals that, the cheques alleged to be issued by the accused was dishonoured. Thereafter complainant issued legal notice dated 17.03.2022 calling upon the accused to repay the amount due to him. After issuing legal notice within statutory period the complainant has filed this complaint and led his evidence in support of his case.
16. Thereafter, accused has put forth his defence by leading defence evidence. The accused has denied the case of SCCH-8 14 C.C.No.12580/2022 the complainant and submitted that, there was no transaction held between them and this complaint is falsely filed against him. He was running the firm in the name of S.K. Associates in the year 2008 and closed the said firm in the year 2012. The complainant was working as executive in the said firm. It is further deposed that he used to keep the blank signed cheques in his firm to pay electricity, rent, water charges etc., of the firm. He has closed his account in the year 2012 itself, the Ex.P1 and P2 are 15 years old cheques. Legal notice not served upon him. Complainant has given the notice to wrong address for illegal gain. The complainant has no capacity to lend the loan amount and also accused has no necessity to get amount from the complainant. The complainant has taken the cheques when he was working in S.K Associates and by misusing the same has filed false complaint.
17. Accused counsel vehemently argued that PW1 in his cross-examination himself admits that he was working as SCCH-8 15 C.C.No.12580/2022 recovery agent under the accused in ICICI bank from the year 2010 to 2015 and drawing salary Rs.5,000/- to 10,000/-. he further admits regarding the difficulty to lead his life and bear the educational expenses of his children and also savings. Rs.10,00,000/- is not a small amount. As per complainant he was working as agent. He has not produced any documents to show his income and also to show that he has capacity to lend the said huge amount. Therefore, he has prayed this court to come to the presumption that complainant has no capacity to lend the huge amount to accused.
18. On the other hand, Complainant counsel argued that the complainant and accused were well known to each other, accused is the proprietor of M/s. Kings Cafe and Family Restaurant and to run the said business accused has borrowed the loan. As per the request, complainant has lent the amount in the year 2012, 2013 and 2014. PW1 has denied the suggestions of the accused counsel that he has no capacity to SCCH-8 16 C.C.No.12580/2022 lend the loan. Accused has failed rebuttable presumptions. Hence, pays to convict the accused person.
19. Before discussion of the oral and documentary evidence of the PW1, we deserve to consideration the evidence of the DW1. Accused himself as examined as DW1. In his evidence he deposed that the notice issued by the accused was not served to him, the address mentioned in the complainant and notice were wrong, the complainant has given notice to wrong address. The complainant has not produced any document to shown that notice was given to proper address of the accused. In support of his contention, accused has relied on Ex.D1 to D3. On perusal of those documents, the address shown in the notice at Ex.P5 and also cause title of the complainant and Ex.D1 and 3 are different from each other. Complainant has failed to prove that he has given the notice to the proper and correct address of the accused.. The postal Registered Number in postal receipt and postal track SCCH-8 17 C.C.No.12580/2022 consignment are different from each other, therefore Ex.P7 is not a believable document.
20. In the cross-examination of the DW1 by the complainant counsel, accused has denied the suggestions of the counsel with regard to availment of the loan of Rs.10,00,000/- from the complainant and also capacity of the complainant to lend the said loan amount. But he admits the Ex.P1and 2 cheques and his signature on the said documents.
21. The counsel of the Complainant argued that accused has borrowed Rs.10.00,000/- and towards discharge of the said liability accused has issued the Ex.P1 and P2. When the complainant has presented said cheques through his account, the same were dishonored with shara "No Such Account." In this regard, complainant has issued legal notice to accused, the said notice has been served, thereafter accused has failed to issue reply to the said notice.
SCCH-8 18 C.C.No.12580/2022
22. Further argued that, the facts of the complaint are corroborated with the documentary evidence which produced by the complainant, hence, they prayed to convict the accused for the offence. Further argued that accused has not denied the Ex.P1 and 2 and his signature on those cheques, therefore it can be presumed that accused has issued the cheques for legally recoverable debt and also prays to convict the accused as per presumption under the Negotiable Instrument Act. The learned counsel for the complainant has relied on the following decisions:
2023 AIR (Supreme Court) 5018 2010 AIR (Supreme Court) 1898 2024 (2) Cri.L.R.(Raj) 877
23. Accused counsel argued that there is no transaction between accused and complainant, but accused has misused the cheques of the accused person and lodged the false complaint against the accused. Further argued that as per SCCH-8 19 C.C.No.12580/2022 complaint, complainant has lent the money in whereas dates of the year 2012, 2013, and 2014. he has not specifically stated exact date and month and also how much amount and in which year he has lent. Further argued that complainant has no financial capacity to lend Rs.10,00,000/-, there is much difference between the evidence of the PW1 and contents of the complaint. Hence, prays to dismiss the case of the complainant. In support of his defence accused has relied upon following mentioned decisions.
1. Basalingappa vs. Mudibasappa - (2019) 5 SCC 418
2.Yeshwanth Kumar vs. Shanth Kumar (Crl. Appl. No.939/2010)
3. Smt. Archana Singh Gautham vs. State of U.P.(2024:
AHC:102434
24. After hearing both the parties, this court has perused the Ex.P1 to P8 produced by the PW1. Even on perusal of the averments made in the complaint, as well as examination-in-
chief, there is no clear terms of the date he has lent money to SCCH-8 20 C.C.No.12580/2022 the accused. It is only stated that he has lent to the accused a sum of Rs.10,00,000/- as handloan in whereas dates of the year 2012, 2013 and 2014, he has not stated on which date, how much amount he has actually paid. But he has only stated that, at the time of borrowing the amount the accused promised to induct the complainant as a partner and also pay the dividends and he has not given any dividend, hence finally he has demanded for repayment of loan amount. Though there may be some discrepancy in forming of sentence, however, there is no clear terms on what date he has paid the amount to the accused. Therefore, on this ground the complainant is unable to show on what dates he has paid the loan amount to the accused. Therefore, the contention of the complainant that he has actually lent the loan and in discharge of the said loan the accused issued the cheques to discharge the legally recoverable debt cannot be acceptable.
SCCH-8 21 C.C.No.12580/2022
25. PW1 in the cross-examination of accused counsel has stated that from 2010 to 2015 he was working as recovery agent to ICICI Bank, and was taking salary Rs.5,000/- 10,000/- per month. He further admits that he has difficulty to manage his family and also bare his children education. Further the Pw1 admits that "he was working under the accused and accused runs the restaurant in the name S.K Associates and Kings Cafe Restaurant before to 2010 and he used to go the office of accused". These admissions of the accused makes it clear that complainant was working under the accused from the year 2010 to 2015, accused was running the restaurant in the name S.K Associates and Kings Cafe Restaurant before 2010 and complainant used to go the office of accused. It is impossible to believe the words of the complainant that accused has borrowed the loan on different dates in the year 2012 to 2014 for commencing the business under the name and style of M/s S.K.Associates and Kings Cafe SCCH-8 22 C.C.No.12580/2022 Restaurant. The complainant has also not produce any documents to show at the time of lending the loan he had capacity to lend. In the absence of any evidence placed by the complainant it is highly difficulty to believe that he had lent the money to accused. In addition to this, except the cheque in question there is no other documentary evidence to show that the complainant had lent Rs.10,00,000/- to accused and the accused had acknowledged the receipt of the same. No contemporary documents have come into existence. When a substantial amount of Rs.10,00,000/- was lent, it is reasonable to accept that the creditor would insist on the debtor to execute some documents evidencing such transaction. Absence of any such documentary evidence, it will create great amount of doubt about the genuineness of the transaction.
26. Further it is the defence of the accused that the Ex.P1 and P2 are 15 years old cheques and the said accounts were closed in the year 2012, the State bank of Mysuru has been SCCH-8 23 C.C.No.12580/2022 merged with State bank of India and he has used to keep the signed blank cheques in his office for payment of electricity and water bills and it was misused by the accused. In the cross- examination, PW1 admits that he was working under the accused and accused runs the hotel business in the name S.K Associates and Kings Cafe Restaurant, accused has hired some workers to run business and he used to go the office of accused. It clears in which circumstance accused has kept the signed cheques and it might have been misused. On perusal of the Ex.P1 and 2 these are non CTS cheques and also after merger of the banks, the bank has given public notice and cut of date for presenting the old cheques. The complainant is not an uneducated or village person, he was working as recovery agent in the Bank. He has knowledge about the Non CTS and CTS cheques and also merger of the bank, even-though, he has taken the Ex.P1 and P2 on 07.03.2022 it is cannot acceptable. SCCH-8 24 C.C.No.12580/2022
27. In the initial stage itself accused has utilized the opportunity of putting forth his defence stating the defence with effective cross-examination of complainant, it appears that accused has produced sufficient evidence to rebut the presumption as there was no transaction held in between accused and the complainant as stated by the complainant through the cheque.
28. In so far as the burden of proof in an offence U/Sec. 138 of N.I. Act is concerned and Sec. 118 of N.I. Act lays down that, until the contrary is proved, it shall be presumed that every Negotiable Instrument was made or drawn for consideration. Sec.139 of N.I. Act., contemplates that, unless the contrary is proved, it shall be presumed that the holder of the cheque received the cheque of the nature referred to in section 138 for discharge, in whole of any debt or liability. It is so held in the decision reported in 2001 Crl.L.J. page 4647 SCCH-8 25 C.C.No.12580/2022 (SC) held in between Hiten P.Dalal V.s Bratindranath Banerjee.
29. In another decision Rangappa V/s Mohan (AIR 2010 SC 1898) Hon'ble Supreme Court has reconsidered this issue and clarified that, existence of legally recoverable debt or liability is a matter of presumption under section 139 of N.I. Act. In para 14 of the judgment the Hon'ble Supreme Court observed as here below;
"In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (Supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favour of the complainant Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in SCCH-8 26 C.C.No.12580/2022 relation to the dishonor of cheque, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable under Section 138 can be better described as regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that, when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence, which creates doubts about the existence of a legally enforceable debt or liability, the presumption can fail. As clarified in the citations, 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/her own".
In another decision held in between Dadapeer Ammashasab VS Munawar Sab (2022 (3) AKR 655 ) Hon'ble High Court of Karnataka has reconsidered this issue and clarified that, existence of legally recoverable debt or liability is a matter of presumption under section 139 of N.I. Act. wherein it is held that:
"(A) Negotiable Instrument Act (26 of 1881).Ss. 138, 139- Dishonour of cheque- Legally enforceable debt-
Presumption-Accused admitted that cheque in question SCCH-8 27 C.C.No.12580/2022 belonged to him ad did not dispute his signature on it- Accused claimed that said cheque was handed over to some one else towards security in connection with chit business- Accused also produced bank endorsement showing that alleged cheque was issued by bank in connection with chit business- On careful examination it was found that all contents of cheque except signature, were not filled up by accused as there was difference in writing-Complainant was BPL card holder and his financial capacity also doubtful- presumption in favour of the complainant, rebutted-Accused entitled to acquittal.
AIR 1999 SC 3762, followed (para 10, 11, 12) B) Negotiable Instrument Act (26 of 1881).Ss. 138, 139- Dishonour of financial capacity of complainant - proof-allegation that cheque issued by accused towards repayment of financial assistance availed from complainant, dishonoured -complainant claimed to be well acquainted with accused and gave him loan for business purpose and household necessities-Even though complainant has stated hat significant sum was advanced to accused as loan, there was not single piece of document to prove same-complainant further stated that while advancing huge loan he had not taken any security from accused-complainant found to be BPI Card holder-Finding recorded by Trial court that financial capacity of complainant was doubtful, proper.
30. In view of the above decision, now it is clear that, the presumption mandated in section 139 of N.I. Act does indeed include the existence of legally enforceable debt or liability. It is a rebuttable presumption. It is open to the accused to raise the SCCH-8 28 C.C.No.12580/2022 defence, wherein the existence of legally enforceable debt or liability can be contested. For rebutting the presumption, the accused need not adduce evidence with unduly high standard of proof, but the standard of proof for doing so with that of preponderance of probabilities. If the accused is able to raise a probable defence, which creates doubt about the existence of legally enforceable debt or liability, the onus shifts back to the complainant. It is also clear that for rebutting the presumption, accused can rely on the materials submitted by the complainant or through his cross examination and he need not necessarily adduce his evidence in all the cases and also burden to show the financial capacity is on the hands of the complainant.
31. In this case complainant has discharged the initial presumption by leading oral and documentary evidence. The complainant was subjected to cross examination at length, in which doubtful or probable circumstances are elicited. The SCCH-8 29 C.C.No.12580/2022 accused denied the case of complainant and also rebutted the statuary presumption by cross-examining PW-1. Under such circumstances it can be believed that, accused has not issued the cheque towards legally enforceable debt.
32. The presumption U/Sec. 139 and 118 of Negotiable Instrument Act 1988, is presumption of law and it is not a presumption of fact. A statutory presumption has an evidentiary value. This presumption has to be raised by the court in all the cases once the factum of dishonour of the cheque is established. The onus to rebut this presumption lies on the accused. In this case complainant has complied the statutory requirements of Sec.138 of NI Act and initial burden is discharged by the accused. At the same time, the accused has successfully rebutted this presumption. Therefore, complainant has failed to establish that, accused has committed the offence punishable under section 138 of SCCH-8 30 C.C.No.12580/2022 Negotiable Instrument Act. Accordingly, I answer Point No.2 in the "Negative".
POINT No.3:
33. In the result for the above stated reasons, I pass the following:
ORDER Accused is acquitted of the offence punishable U/Sec.138 of N.I. Act by acting U/Sec. 255(1) of Cr.P.C.
Bail bond of the accused and surety bond stands cancelled.
(Directly dictated to the Stenographer directly on computer, typed by her, printout taken, corrected by me and then pronounced on this 24th day of September 2024) (Kannika M.S.) XII Addl. Small Causes Judge & ACJM, Bengaluru.SCCH-8 31 C.C.No.12580/2022
ANNEXURE List of witnesses examined for complainant :-
P.W.1 : Sri. M.Devandran List of documents marked for complainant:-
Exhibits Particulars of the Document Ex.P1 & 2 Cheques Ex.P1(a) & Signature of Accused on Ex.P1 & Ex.P2 P2(a) Ex.P3 & 4 Bank Endorsements Ex.P5 Legal notice Ex.P6 Postal receipt Ex.P7 Postal acknowledgment Ex.P8 Certificate u/s. 65-B of The Indian Evidence Act List of witnesses examined for accused: DW.1 : Sri. S.K. Komadan List of documents marked for accused:- Ex.D1 : Authorisation letter Ex.D2 : ID Card Ex.D3 : Adhaar Card (Kannika M.S.) XII Addl. Small Causes Judge & ACJM, Bengaluru.