Bangalore District CourtA.Bharath vs J.Shantha Kumar on 1 December, 2020IN THE COURT OF XX ADDL.CHIEF METROPOLITAN\n         MAGISTRATE AT BENGALURU CITY\n\n            Dated this the 1st day of December 2020\n\n                PRESENT: KALPANA.M.S.,\n                                          B.Sc., LL.M.,\n                            XX ADDL. C.M.M.\n                            Bengaluru.\n\n                        C.C.No.4538/2019\n\nComplainant         :     A.Bharath,\n                          Son and power of attorney holder,\n                          Sri. M.Ananda,\n                          Aged 34 years,\n                          R/at No.03, 19th Cross,\n                          Muniyappa Garden,\n                          5th Phase, J.P.Nagar,\n                          Bengaluru - 560 078.\n\n\n                                         Vs.\n\nAccused             :     J.Shantha Kumar,\n                          Aged about 58 years,\n                          Chairman and Managing Trustee of\n                          Vee Yes Charitable and\n                          Educational Trust,\n                          No.299/B, 2nd Floor, 2nd Cross,\n                          10th Main, 2nd Phase, 1st Stage,\n                          Gokula Extension,\n                          Bengaluru­ 560 054.\n\n\n\nOffence complied of :     U/S. 138of N.I. Act.,\n                                  2\n                                                           C.C.4538/2019\n\n\n\nPlea of accused        :     Pleaded not guilty\n\n\nFinal Order            :     Accused is Convicted\n\n\nDate of Order          :     01­12­2020\n\n\n\n\n                           JUDGMENTThe complainant has filed this complaint through\n\nPower of Attorney holder under section 190 read with\n\nsection 200 of code of criminal procedure          against the\n\naccused alleging that, he has          committed the offence,\n\npunishable undersection       138of Negotiable Instruments\n\nAct, 1881. ( in short referred as "N.I. Act").02.         The sum and substance of the complaint, is as\n\nfollows;Sri. M.Ananda, the father of the complainant, is the\n\nowner of the flat at J.P. Nagar Bengaluru and he has3C.C.4538/2019\nconstituted the complainant as his attorney to deal with the\n\nsaid premises on his behalf. The accused claiming to be the\n\nChariman and Managing trustee of Vee Yes Charitable and\n\nEducational Trust and induced the complainant          permit\n\nhim to use the said premises for the period commencing\n\nfrom July 20, 2017, ending on October 19, 2018 with the\n\npromise of paying him for rent of Rs.20,000/­ per month.\n\nAfter making use of the said premises for the said period,\n\nthe accused had issued a cheque bearing No.000016 dated\n\n06.12.2018 for Rs.3,00,000/­, drawn on Bank of Baroda,\n\nKonanakunte Branch, Bengaluru. Complainant presented\n\nthe said cheque through his banker i.e., IDBI Bank Ltd.,\n\nSarakki Lake Branch, Bengaluru. The said cheque returned\n\nwith   an   endorsement   "Funds   Insufficient"   Thereafter,\n\ncomplainant got issued legal notice on 09.01.2019 to\n\naccused. He did not claim the postal article despite\n\nintimation delivered by the postal authorities and hence\n\nreturned to the sender on 12.01.2019. It is contended that,\n\naccused intentionally not maintained sufficient amount in4C.C.4538/2019\nhis bank account to honour the cheque issued in favour of\n\nthe complainant towards discharge of legally enforceable\n\ndebt. On these allegations, present complaint is filed.03.   Learned Counsel for complainant prays to treat sworn\n\nstatement as examination­in­chief and to consider the\n\ndocuments marked as Ex.P.1 to 6. Inspite of sufficient\n\nopportunity, accused neither cross examined PW.1 nor\n\nadduced defence evidence. After taking bail, accused\n\ncontinuously remained absent and not present before the\n\ncourt for recording of statement under section 313 of code\n\nof criminal procedure.As the Negotiable Instrument Actis\n\nspecial statute and in the light of the decision reported in,\n\nAIR 2014 SC 2528;          Indian bank Association and\n\nothers V/s Union of India and another, the recording of\n\nthe statement of accused is not compulsory.       In the said\n\ndecision, Hon'ble Supreme Court issued directions to follow\n\nthe guidelines stated in the judgment. As per the said\n\nguidelines; after appearance of accused, he has to enter his5C.C.4538/2019\nplea of defence. After recording plea, case shall be fixed for\n\ndefence evidence, unless an application is made by the\n\naccused undersection 145(2)for recalling complainant for\n\ncross examination. This observation clearly goes to show\n\nthat, recording of statement undersection 313of Cr.P.C. in\n\na case filed underNegotiable Instrument Act, is not\n\ncompulsory. Hence, statement under section 313 of code of\n\ncriminal procedure is dispensed with.04. No arguments addressed on behalf of both parties.05.        The points that arise for my consideration are as\n\nfollows;POINTS1. Whether the complainant proves\n              that, accused issued a cheque\n              bearing      No.000016       dated\n              06.12.2018    for    Rs.3,00,000/­,\n              towards discharge of his liability,\n              which was returned unpaid on\n              presentation and also not complied\n              the   notice    issued    by    the\n              complainant and thereby committed6C.C.4538/2019\n             an offence punishable undersection\n             138of Negotiable Instruments Act?2. What Order?06.   Now my answer to the above points is as follows;1. Point No.1: In the affirmative2. Point No.2: As per final order\n\n                               for the following;REASONS07.        POINT No.1:               Complainant    has filed this\n\ncomplaint alleging that, accused has intentionally not\n\nmaintained sufficient amount in his bank account to\n\nhonour the cheque issued by him. Before proceeding\n\nfurther,    let   us   scrutinize    the   documents    relied    by\n\ncomplainant       in   order to     examine   the   compliance     of\n\nstatutory requirements envisaged undersection 138of N.I.\n\nAct. Ex.P.1 is cheque dated 06.12.2018, Ex.P.2 is the bank\n\nendorsement dated 26.12.2018, Ex.P.3 is the legal notice\n\ndated 09.01.2019, accused did not claim the postal article7C.C.4538/2019\ndespite intimation delivered to him by the postal authorities\n\non 12.01.2019, Ex.P.4 is the postal receipt, Ex.P.5 is the\n\nreturned postal cover and Ex.P.6 is the General Power of\n\nAttorney. This complaint is came to be filed on 27.02.2019.\n\nA     careful   scrutiny   of   the       documents   relied   by    the\n\ncomplainant goes to show that, statutory requirements ofsection 138of N.I. Act is complied with and this complaint\n\nis filed within time. It is worth to note that, accused has not\n\ndisputed the signature present on the cheque. Thus,\n\nstatutory presumption enshrined undersection 118read\n\nwithsection 139of N.I. Act would operate.08.      The oral evidence of complainant is supported by the\n\ndocumentary evidence. There is no ambiguity in the oral\n\nand documentary evidence brought on record. The bank\n\nendorsements bearing shara "Funds Insufficient" attractssection 138of the N.I. Act. All the requirements ofsection\n\n138of N.I. Act are complied with.8C.C.4538/201909.          The next point for consideration is, whether\n\npresumption could be drawn in favour of complainant.Section 139of the Act provides that unless contrary is\n\nproved, it shall be presumed that the holder of a cheques\n\nreceived the same for discharge of any debt or other liability.\n\nThe word "shall" indicate that, it is mandatory of the part of\n\nthe court to draw the presumption in favour of holder of the\n\ncheques in due course, unless rebutted.                     At the cost of\n\nrepetition, it is worth to note that, accused has not taken\n\nany steps to rebut the said presumption.10.       That apart,section 118of the N.I. Act lays down a\n\nspecial     rule      of     evidence        applicable     to     negotiable\n\ninstruments. The presumption is one of law and thereunder\n\na court shall presume that the instrument was endorsed for\n\nconsideration. So also, in the absence of contrary evidence\n\non behalf of the accused, the presumption undersection\n\n118of the N.I. Act goes in favour of the complainant.\n\nTherefore,     this        court   can       conveniently        opine   that,9C.C.4538/2019\ncomplainant proved his case through cogent, convincing\n\nand acceptable oral and documentary evidence brought on\n\nrecord.11.    Under the facts and circumstances of this case, it is\n\nprofitable to refer the decisions of the Hon'ble Supreme\n\nCourt of India reported in, AIR 2018 SUPREME COURT\n\n3601, in a case of, T.P.Murugan (Dead) Thr.Lrs. V. Bojan,\n\nwherein it is held that;"Negotiable Instruments Act(26 of\n          1881), Ss.118,138,139­ Dishonour of\n          cheque­ Presumption as to enforceable\n          debt­ cheques allegedly issued by\n          accused towards repayment of debt­\n          Defence of accused that 10 cheques\n          issued towards repayment of loan back\n          in 1995­ Behavior of accused in\n          allegedly issuing 10 blank cheques\n          back in 1995 and never asking their\n          return for 7 years, unnatural­ Accused\n          admitting his signature on cheques and\n          pronote, presumption underS.139would     operate   against       him­\n          Complainant      proving existence of\n          legally enforceable debt and issuance10C.C.4538/2019\n       of cheques towards discharge of such\n       debt­ Conviction, proper".12.In another decision reported in, AIR 2018 Supreme\n\nCourt 3604, in a case ofKrishna Rao Vs. Shankargouda,\n\nwherein it is held that;"Negotiable Instruments Act(26 of 1881),\n       Ss.138,    139­Dishonour      of    cheque­\n       Presumption as to - Accused issuing\n       cheque of Rs. 2 lacs towards repayment of\n       loan to complainant - Said cheque\n       dishonored on account of insufficiency\n       funds­ Complainant proving issuance of\n       cheque having signatures of accused­\n       Accused failing to rebut presumption\n       raised against him and no evidence led by\n       him in his support -Acquittal of accused by\n       High Court in revisional jurisdiction on\n       ground of doubt in mind of court with\n       regard to existence of loan, improper­\n       Accused, liable to be convicted".Theratiolaid down inthe cited decisions is aptly\n\napplicable to the case on hand.13.     That apart, as far as proof of existence of legally\n\nenforceable debt is concerned, it is profitable to refer the11C.C.4538/2019\ndecision of the larger bench of the Hon'ble Apex Court is\n\nheld in a case ofRangappa Vs. Mohanreported in AIR\n\n2010 SC 1898 that,\n\n           "In the light of these extracts, we are\n           in agreement with the respondent­\n           claimant     that   the    presumption\n           mandated bysection 139of the Act\n           does indeed include the existence of\n           the legally enforceable debt or\n           liability".In view of the law laid by three judges bench of\n\nHon'ble Apex Court, the presumption enshrined undersection 139of the N.I. Act is extendable to the existence of\n\nlegally enforceable debt.14.    In this case plea of the accused was recorded as persection 251of Cr.P.C. Accused pleaded not guilty. As persection 251of Cr.P.C. accused has to state about his\n\ndefence. Here, except pleading not guilty accused has not\n\nstated his defence at the time of recording plea. As per the\n\ndecision reported in AIR 2014 SC 2528 (Indian Bank12C.C.4538/2019\nAssociation    V/s    Union     of   India),   Crl.   Petition\n\nNo.8943/2010 M/s.Mess Transgare Pvt V/s Dr .R.\n\nParvathareddy and in Rajesh Agarwals case, Wherein, it\n\nis held that; " Accused cannot simply say " I am\n\ninnocent " or " I pleaded not guilty ". The proposition of\n\nlaw laid down in the aforesaid decision is squarely\n\napplicable to the facts and circumstances of this case. As\n\nsuch, it cannot be taken that accused has rebutted the\n\npresumption of law enshrined undersection 139and118of\n\nN.I. Act, by mere pleading not guilty.15.   From the discussion made supra, this court is of the\n\nfirm opinion that, the complainant clearly proved his case\n\nboth by oral and documentary evidence. Complainant\n\nfulfilled all the ingredients ofsection 138of N.I. Act. Once\n\nthe said provision is complied, then the presumption undersection 139of Negotiable Instrument Act supports him. It is\n\nrebuttable presumption, but the accused failed to rebut the\n\nsame. Hence, this court has no hesitation to hold that,13C.C.4538/2019\ncomplainant has proved that accused has issued the present\n\ncheque    towards    discharge     of   legally   enforceable\n\ndebt/liability. The complainant has also proved that the\n\naccused has intentionally not maintained sufficient amount\n\nin his account to honor the disputed cheque. Accordingly,\n\nthis point No.1 under consideration is answered in the\n\naffirmative.16.      POINT NO.2:    In view of the reasons stated and\n\ndiscussed above, the complainant has proved the guilt of\n\nthe accused punishable undersection 138of N.I. Act It is\n\nworth to note that, the offence is of the nature of civil\n\nwrong. Hence, it is proper to award sentence of fine,\n\ninstead of awarding sentence of imprisonment.       Hon'ble\n\nSupreme Court of India in a decision reported in, (2015)\n\n17 SCC 368, in a case ofH.Pukhraj Vs. D.Parasmal,\n\nobserved that, having regard to the length of trial and date\n\nof issuance of the cheque, it is necessary to award14C.C.4538/2019\nreasonable interest on the cheque amount. Considering all\n\nthese aspects, this court proceed to pass the following;ORDER\n\n                   Acting undersection 255 (2)of\n\n          Criminal Procedure Code, accused is\n\n          hereby     convicted       for     the     offence\n\n          punishable       undersection    138of\n\n          Negotiable        Instrument         Act        and\n\n          sentenced to pay fine of Rs.3,80,000/­\n\n          (Three     Lakhs          Eighty         Thousand\n\n          Rupees     only).         In    default    thereof\n\n          accused         shall      undergo         simple\n\n          imprisonment for 2 (Two) months.Acting under section 357(1) (b) of\n\n          code of criminal procedure, it is ordered\n\n          that,     Rs.3,75,000/­ (Three Lakhs\n\n          Seventy Five Thousand Rupees only),\n\n          there    from     shall    be     paid     to   the15C.C.4538/2019\n         complainant     as   a    compensation,\n\n         remaining fine amount of Rs.5,000/­\n\n         ( Five Thousand Rupees only)            is\n\n         defrayed to the state for the expenses\n\n         incurred in the prosecution.The bail bond of the accused stands\n\n         cancelled after expiry of six months.Office to supply the copy of this\n         Judgment to the accused immediately on\n         free of cost.{Dictated to the stenographer directly on computer,\ncorrected and then signed by me and then pronounced in the\nopen court on this 1st day of December 2020}.(KALPANA M.S.),\n                                    XX ACMM, Bengaluru.ANNEXURE\n\n\nList of witnesses examined on behalf of Complainant:16C.C.4538/2019\n\n\nP.W.1                        A.Bhaath,\n                             Represented by power of\n                             attorney,\n                             Sri. M.Ananda.List of documents produced on behalf of complainant:Ex.P.1                       Cheque\n\n\nEx.P. 1(a)                   Signature of the accused\n\n\nEx.P. 2                      Bank endorsement\n\n\nEx.P. 3                      Copy of the legal notice\n\n\nEx.P. 4                      Postal receipt\n\n\nEx.P. 5                      Returned postal cover\n\n\nEx.P.6                       General Power of AttorneyList of witnesses examined on behalf of accused:­Nil­17C.C.4538/2019\nList of documents produced on behalf of accused:­Nil­\n\n\n\n\n                                   XX A.C.M.M.,\n                                   Bengaluru.