Bangalore District Court
Deepak C vs Charan Kumar N on 29 January, 2025
1
C.C.No.8073/2021
KABC030241322021
Presented on : 03-04-2021
Registered on : 03-04-2021
Decided on : 29-01-2025
Duration : 3 years, 9 months,
26 days
IN THE COURT OF XXXVI ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
Present: SRI. NITIN YESHWANTH RAO
B.Com. L.L.B(Spl.),
XXXVI Addl. Chief Judicial Magistrate,
Bengaluru.
Dated this 29th day of January 2025
C.C.No.8703/2021
Complainant : Sri.Deepak C.
S/o Chandru Rao,
R/at:44/1,
Moodalapalya,
Nagarbhavi Main Road,
Bengaluru.
(By Sri.NM Adv.,)
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C.C.No.8073/2021
V/s
Accused : Sri.Charan Kumara N.
#796, Kottarapa,
7th Cross, MC Layout,
Vijayanagar,
Bengaluru.
(By Sri.BR Adv.,)
Date of Institution of case 2021
Nature of case Private complaint
Date of recording of evidence 10/3/2021
Date of Judgment 29/1/2025
Offences complained of U/Sec.138 of Negotiable
Instrument Act.
::JUDGMENT:
:
This case is arising out of private complaint filed by the
complainant U/Sec.200 of Cr.P.C., against the accused
alleging the offence punishable u/s.138 of NI. Act.
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2. The sum and substance of the complaint is as
under:
The accused who is complainants friend, sought for
financial assistance to the tune of Rs.1,95,000/- for his
business purpose and promised to repay the same on or
before October 2020. Considering his request,
complainant advanced a sum of Rs.1,95,000/- to the
accused.
The accused however failed to keep up his promise
and assured the complainant that he would repay the
borrowed amount in the month of November 2020. When
the complainant approached the accused in the month of
November 2020, the accused issued a cheque bearing
No.215055 dated: 21/12/2020 drawn on AXIS Bank,
Jayanagar Branch, Bengaluru for a sum of Rs.1,95,,000/-
and assured the complainant that the cheque would be
honoured on presentation.
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Believing his words, the complainant presented the
for collection through his banker i.e. SBI, Nagarbhavi
Branch, Bengaluru on 21/12/2020. The cheque however
was dishonoured and returned with an endorsement
‘payment stopped by the drawer’. Though the complainant
tried to contact the accused, it yielded no result.
Thereafter, the complainant issued legal notice to
the accused on 3/1/2021 and called upon the accused to
pay the cheque amount within 15 days from the date of
the receipt of the notice. The notice was duly served on
the accused on 5/1/2021. Despite the same, the accused
neither came forward to pay the cheque amount nor did
he issue any reply. Constrained by the same complainant
came up with this private complaint.
3. After recording the sworn statement of the
complainant and after verifying the documents,
cognizance was taken of the offence punishable under
Sec.138 of NI Act. A criminal case was registered against
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the accused and summons was issued to him. The
accused on receiving the summons appeared before this
Court through his Counsel and was enlarged on bail. The
complaint copy and documents were served to accused as
contemplated under Sec.208 of Cr.P.C. Substance of
accusation was read over and explained to the accused.
Accused pleaded not guilty and claimed to be tried.
Hence, the case was posted for cross examination of PW1.
4. Sworn statement of the complaint is treated as
his examination in chief. In order to prove his case,
complainant got himself examined as PW1 and got
marked 5 documents as Ex.P1 to 5. The complainant
Sri.Deepak C. who is examined as PW1 reiterated the
complaint averments in his affidavit filed in lieu of chief
examination. The AXIS Bank cheque bearing No.215055
dated:21/12/2020 is marked as Ex.P1. Bank Memo is
marked as Ex.P2. The office copy of the legal notice
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C.C.No.8073/2021
dated: 3/1/2021, Postal receipt and acknowledgment
card are marked as Ex.P3 to 5 respectively.
5. The accused on the other hand, did not come
forward to cross-examine PW1. Therefore, cross of PW1
was taken as nil and then, the case was posted for
recording the statement of accused under Sec.313 Cr.P.C.
As the accused did not appear before the Court despite
being given sufficient opportunities to fully participate in
the trial and despite repeated issuance of warrants and as
the accused remained absent only with the intention of
protracting the proceedings, 313 Statement was
dispensed with and defence evidence was taken as nil and
the case was posted for arguments.
6. Heard the arguments of the learned Counsel for
the complainant. Despite sufficient opportunities, the
accused did not submit his arguments. Hence, defense
arguments were taken as heard. Perused records.
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C.C.No.8073/2021
7. The following points arise for my consideration:
1.Whether the complainant proves that
the accused has committed an offence
punishable under sec 138 of NI Act?
2. What order?
8. My findings on the above points are as
under:
Point No.1: In the Affirmative
Point No.2: As per final order
for the following:
::REASONS::
9. Point No.1:- It is the case of the
complainant that the accused who availed hand
loan of Rs.1,95,000/- from him in the month June
2020, issued the Ex.P1 cheque for repayment of
the said loan but, the said cheque came to be
dishonoured and returned with an endorsement
“payment stopped by the drawer”.
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C.C.No.8073/2021
10. Therefore the complainant issued legal
notice which was duly served on the accused.
Despite the same, the accused did not bother to
make payment. He also did not issue any reply.
11. On careful perusal of the aforementioned
Ex.P1 to 5 documents, it is revealed that the
complainant has complied with all the essentials
enshrined in Sec.138 of NI Act. H e presented the
cheque within time for collection and after its
dishonor, he issued legal notice to the accused
which was duly served on him. Despite the same,
when the accused failed to repay the amount, he
filed this complaint. As the records reveal,
complainant is entitled to the presumption
available under sec 118(a) and 139 of the N I Act.
12. In Rangappa Vs. Mohan reported in 2010 (1)
DCR 706 the Hon’ble Apex court has that ;
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C.C.No.8073/2021
“The Statutory presumption mandated by
sec.139 of the Act, does indeed include the
existence of a legally enforceable debt or
liability. However, the presumption U/S 139 of
the Act is in the nature of a rebuttable
presumption and it is open for the accused to
raise a defence wherein the existence of a
legally enforceable debt or liability can be
contested”.
13. Therefore, in view of the above decision, once the
cheque is admitted, the statutory presumption would
automatically fall in favour of the complainant that, the
alleged cheque was issued for discharge of an existing
legally enforceable debt or liability against the accused
and the burden will shift on to the accused to rebut the
same.
14. The learned counsel for the Complainant
submitted that as the accused admitted the cheque and
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C.C.No.8073/2021
his signature thereon and as he did not adduce any
probable defence evidence, so as to rebut the
presumption, he is to be convicted.
15. Let me now consider whether accused has
rebutted the presumption available in favour of the
complainant with probable and convincing evidence. It is
well settled principle of law that, once the cheque is
admitted there will be a statutory presumption in favour
of the holder or holder in due course U/Ss. 118 and 139
of the Act as observed supra. However, as held by our
Hon’ble Apex Court and the High Court in a catena of
decisions, the presumptions under the said sections are
in the nature of rebuttable presumptions and hence, the
accused can very well rebut the said presumptions by
leading reasonable and probable defense. Let us examine
the same on the basis of the materials available on record.
The accused has not disputed the issuance of the cheques
in question and his signatures on the same. Further
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C.C.No.8073/2021
Ex.P2 is the Bank memo. Sec.146 of the NI Act provides
that bank documents are primafacie evidence in respect
of the transaction. The complainant has issued legal
notice to the accused as per Ex.P3, which was duly served
on him. As such, the accused was having knowledge of
the dishonor of the cheque. In spite of the same, he did
not come forward to pay the cheque amount within the
stipulated period. The order sheet reveals that the
accused though appeared before the Court, he could not
rebut the presumption available in favor of the
complainant. he has not disputed the alleged transaction
with the complainant. Also, nothing contrary was elicited
from the complainant.
16. Towards rebuttal of the presumption available to
the complainant U/Sec.139 of the Act, the accused
neither came forward to cross examine PW1 nor did he
adduce any defence evidence despite sufficient
opportunities.
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C.C.No.8073/2021
17. On meticulous perusal of the oral and
documentary evidence placed on record, it is noticed that
the accused utterly failed to rebut the presumption
available in favor of the complainant.
18. Thus by looking into the totality of the evidence
and the materials available on record, it is clearly revealed
that the accused was due to pay to the complainant a
sum of Rs.1,95,000/- and in furtherance of the
same, he issued the Ex.P1 cheque. The said cheque is
not disputed by the accused. Therefore, complainant has
specifically and categorically proved his case regarding
the existence of the debt and issuance of the cheque for
the discharge of the said debt by the accused. Therefore,
this Court has come to the conclusion that the accused
committed the offence punishable U/s.138 of NI Act.
Accordingly Point No.1 is answered in the affirmative.
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19. Point No.2:- In view of my answer to Point
No.1, I proceed to pass the following:-
ORDER
Accused is found guilty of the
offence punishable U/Sec.138 of
Negotiable Instruments Act 1881.
Acting U/sec.255(2) of Cr.P.C.,
accused is hereby convicted for the
offence punishable U/Sec.138 of
Negotiable Instruments Act 1881 and
he is sentenced to pay fine of
Rs.3,00,000/-. In default, accused
shall undergo simple imprisonment
for a period of six months.
Out of the total fine amount, a
sum of Rs.2,90,000/- shall be paid to
the complainant as compensation
under section 357 of Cr.P.C. and
Rs.10,000/- shall be remitted to the
State exchequer.
Further, it is also made clear
that in view of proviso to Sec.421(1),
the accused shall not be absolved of
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C.C.No.8073/2021his liability to pay compensation
amount of Rs.2,90,000/- awarded
U/Sec.357 of Cr.P.C even if he
undergoes the default sentence. The
bail bond of the accused stands
cancelled.
Office is directed to supply free
copy of this judgment to the accused
forthwith.
(Dictated to the stenographer directly on the computer
system, corrected, signed and then pronounced by me in the
open Court on this the 29th day of January 2025).
(Nitin Yeshwanth Rao),
XXXVI ACJM.,
Bengaluru.
:: A N N E X U R E::
1. List of Witnesses examined on behalf of the
prosecution :
PW1 :
Sri.Deepak C.
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C.C.No.8073/2021
2. List of exhibited documents for complainant :
Ex.P1 :
The AXIS Bank cheque
bearing No.215055
dated:21/12/2020
Ex.P2 :
Bank Memo
Ex.P3to 5 The office copy of the legal notice
dated: 3/1/2021, Postal receipt
and acknowledgment card
3. List of defence Witnesses :
-NIL-
4. List of documents exhibited for defence:
-NIL-
(Nitin Yeshwanth Rao),
XXXVI ACJM.,
Bengaluru.
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C.C.No.8073/2021