Bangalore District Court
Green Pickles Pvt Ltd vs Thippeswamy on 18 January, 2025
KABC020037242024
Digitally signed by
APPASAB APPASAB RAMAPPA NAIK
RAMAPPA NAIK Date: 2025.01.22 15:59:34
+0530
IN THE COURT OF XXIV ADDITIONAL SMALL
CAUSES JUDGE, & A.C.J.M. AT: BENGALURU
(SCCH-26)
DATED THIS THE 18th DAY OF JANUARY 2025
PRESENT : SRI. APPASAB NAIK,
B.A.L.L.B.(Spl)
XXIV ADDL. SCJ & ACJM
BENGALURU.
1 Case CC. No.813 OF 2024
Number
2 The date of 03.01.2024
commencement
of evidence
3 The date of 07.11.2024
closing
evidence
4 Name of the M/s.Green Pickles Pvt.Ltd.,
Complainant Having its Office at
Dwaraganahally, Bisalahalli
Post, Manchenahalli Hobli,
Gowribidanur Taluk,
Chikkaballapura
District - 561 211
Rep. By its Director
Dr.V.Nagegowda
(By Sri.N.Manohar- Adv)
5 Name of the Sri.Thippeswamy,
Accused S/o.Kalappa, No.34,
Near Maamma Temple,
Suladahalli Village & Post,
SCCH - 26 2 CC No.813/2024
Kudligi Taluk,
Bellary Dist.- 583126
(By Sri.B.S.Mahesha- Adv.)
6 The offence U/s.138 of the Negotiable
complained of Instruments Act
7 Opinion of Accused found guilty
the judge
JUDGMENT
The complainant has filed this complaint Under
Section 200 of Cr.P.C against the accused alleging that
the accused has committed an offence punishable Under
Sec.138 of the Negotiable Instruments Act, 1881. (In
short N.I.Act).
2. The brief facts of the complainant’s case are
as under :
It is the case of the complainant that, the
complainant is one of the Directors of M/s.Green Pickles
Pvt. Ltd., and authorized signatory. The accused being
an intrapreneur, agreed to procure and supply Gherkins
through network of farmers to the complainant for its
upcountry and abroad exports. He approached the
complainant to receive the supply at his factor and
requested to enter into agreement. Both of them into
SCCH – 26 3 CC No.813/2024agreement dated 14.04.2023 and accused agreed to
supply required quantity of Gherkins. As per the
accounts maintained by the complainant, it reflects that
accused is in due a sum of Rs.1,67,185/- to the
complainant and towards the discharge of the same
accused issued a cheque bearing No.033541 dated
29.08.2023 drawn on Bellary Dist. Co-op Central Bank
Ltd., H.O. Hospet Branch, for a sum of Rs.1,67,185/-
and assured to present said cheque for encashment.
3. Further it is the case of the complainant that,
on presentation of the said cheque bearing No.033541
dated 29.08.2023 of Rs.1,67,185/- through its banker
Canara Bank, Avenue Road Branch, it was returned with
an endorsement “Funds Insufficient” on 07.09.2023.
Thereafter complainant issued legal notice dated
30.09.2023 calling upon him to pay the cheque amount
within 15 days from the date of receipt of notice. Hence,
this complaint. In spite of it, the accused has not given
any reply to the notice or not paid the due amount.
Hence, this complaint.
SCCH – 26 4 CC No.813/2024
4. After perusing the contents of the complaint and
documents, this court has taken cognizance of offence
punishable u/s 138 of NI act and registered PCR.
Thereafter, this court has recorded the sworn statement
of the authorized person of the complainant firm and got
marked 8 documents as Ex.P.1 to Ex.P.8. Since, the
complainant has made out prima-facie case to proceed
against accused, the case has been registered in Criminal
Register No.III and issued summons to the accused. The
accused, in response to the summons, has appeared
before this court and obtained bail. Thereafter, the plea of
the accused has been recorded. He has pleaded not guilty
and claims to be tried.
5. In view of judgment passed by the Hon’ble Apex
Court in the case of Indian Bank Association and others
V/s. Union of India and others, the sworn statement on
affidavit is treated as evidence of complainant and it is
considered as PW-1 evidence and documents are marked
as Ex.P.1 to Ex.P.8. 313 statement of accused is recorded
accused has denying the incriminating evidence against
SCCH – 26 5 CC No.813/2024
him and adduced defence on his behalf. The learned
counsel for accused filed application U/sec.145 of NI Act
for permission to cross examination of Pw-1 and same is
allowed. Case is posted for cross examination of PW-1,
Sufficient opportunities given to accused for conducting
the cross examination of Pw-1, but he has not effort to
conducting the cross examination of Pw-1 and cross
emanation of Pw-1 is taken as Nil. Accused has not
chosen to lead defence evidence.
6. Heard the arguments from the complainant. The
accused has not submitted the arguments. Perused the
records.
7. Now the points that arise for my consideration are
as follows:-
1. Whether the complainant prove beyond
all reasonable doubt that the accused
has issued cheque bearing No.033541
dated 29.08.2023 drawn on Bellary
Dist. Co-op Central Bank Ltd., H.O.
Hospet Branch, for a sum of
Rs.1,67,185/- in his favour in discharge
of the legally enforceable debt or
liability and when the said cheque was
presented to the Bank for encashment it
was returned unpaid with remarks that
“Funds Insufficient” and inspite of
SCCH – 26 6 CC No.813/2024demand notice, he has not paid the
amount and there by committed the
offence punishable under Sec.138 of
Negotiable Instruments Act?
2. What order?
8. On the basis of the materials available on records,
my finding to the above points as follows:
POINT NO.1: In the Affirmative.
POINT NO.2: As per the final order
for the following:
REASONS
9. POINT No.1: It is the case of the complainant that,
the accused being an intrapreneur, agreed to procure and
supply Gherkins through network of farmers to the
complainant for its upcountry and abroad exports. Both
of them entered into agreement dated 14.04.2023 and
accused agreed to supply required quantity of Gherkins.
Further complainant contended that, as per the accounts
maintained by the complainant, it reflects that accused is
in due a sum of Rs.1,67,185/- to the complainant and
towards the discharge of his legal debt accused has
issued a cheque bearing No.033541 dated 29.08.2023
drawn on Bellary Dist. Co-op Central Bank Ltd., H.O.
SCCH – 26 7 CC No.813/2024
Hospet Branch, for a sum of Rs.1,67,185/- .
10. Further it is the case of the complainant that,
on the assurance given by the accused the complainant
presented the said cheque for encashment through its
banker, on presentation it was returned with an
endorsement “Funds Insufficient”. The legal notice dated
30.09.2023 has been issued to the accused returned as
refused by the accused. The accused has failed to pay
the cheque amount due under the cheque vide bearing
bearing No.033541 for a sum of Rs.1,67,185/- the
accused is liable for prosecution.
11. As already stated supra the Director of the
complainant firm has examined himself as PW.1 and got
marked 8 documents as Ex.P.1 to P8. PW.1 has filed
affidavit in lieu of examination-in-chief reiterating the
entire averments of his complaint. Ex.P.2 is the
agreement. Ex.P-3 is the statement of account .As per
these documents, it appears that the the agreement is
made between the complainant and accused and also
transactions between them. As per Ex.P-3 statement of
SCCH – 26 8 CC No.813/2024
account, this document it appears that the accused is
due by sum of Rs.1,67,185/- as on 29-08-2023. Ex.P.1
is the copy of authorization letter, it discloses that the
director Dr.V.Nagegowda, Director is the authorized
person to file case on behalf of complainant’s company.
Ex.P.4 is the cheque bearing No.033541 dated
29.08.2023 drawn on Bellary Dist. Co-op Central Bank
Ltd., H.O. Hospet Branch, for a sum of Rs.1,67,185/-.
Ex.P.5 is the bank endorsement. Ex.P6 is the legal notice,
Ex.P.7 is the postal receipt, Ex.P.7 is the postal
acknowledgment, Ex.P8 is the return notice cover and
Ex.P8(a) is the unopened notice cover. These documents
disclose that the complainant presented the cheque for
encashment, but the same was returned to him with
endorsement “Funds Insufficient”. These documents
support the averments made in the complaint. As per
these documents, it appears that the complainant has
issued legal notice to the accused demanding them to pay
the cheque amounts within 15 days from the date of
receipt of notice. Therefore, the present complaint has
SCCH – 26 9 CC No.813/2024
been filed within time limit.
12. The documents produced by PW.1 clearly shows
that he has complied with the mandatory provisions of
Section 138 of NI Act. Therefore, it gives raise to
presumption in favour of complainant u/s 118 and 139
of NI Act. However, the presumptions available in favour
of complainant are rebuttable in nature.
13. A careful scrutiny of the documents relied by
the complainant goes to show that, the statutory
requirements of section 138 of N.I. Act is complied with
and this complaint is filed within time. The complainant
has discharged his initial burden by examining its
officials as PW1 and by production of documents. Thus,
complainant is entitled to relied on the statutory
presumptions enshrined under section 118 read with
section 139 of N.I. Act.
14. The Section 118 reads as here: –
“That every negotiable instrument was
made or drawn for consideration and that
every such instrument when it has been
accepted, endorsed, negotiated or
transferred was accepted, endorsed,
negotiated or transferred for consideration”.
SCCH - 26 10 CC No.813/2024
15. Further Section 139 of the Negotiable
Instruments Act provides for presumption in favour of a
holder. It reads as here: –
“It shall be presumed, unless 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.”
16. A combined reading of above said sections
raises a presumption in favour of the holder of the
cheque that he has received the same for discharge in
whole or in part of any debt or other liability.
17. No doubt, the said presumptions of law are
rebuttable in nature. The accused can take probable
defence in the scale of preponderance of probability to
rebut the presumption available in favour of complainant.
Let me examine whether the accused has successfully
rebutted the said presumptions of law. In this back drop,
this court has given anxious consideration to the
materials available on record. It goes without saying
that, accused has not disputed the cheque in question
SCCH – 26 11 CC No.813/2024
and signature found therein. When the drawer has
admitted the issuance of the cheque as well as the
signature present therein, the presumptions envisaged
under section 118 read with section 139 of NI Act, would
operate in favour of the Complainant. The said provisions
lays down a special rule of evidence applicable to
negotiable instruments. The presumption is one of law
and thereunder the court shall presume that the
instrument was endorsed for consideration. The accused
counsel has not cross examined the PW-1 and nowhere
disputed the issuance of cheque and signature thereon.
So also, in the absence of contrary evidence on behalf of
the accused, the presumption under section 118 of the NI
Act, goes in favour of the complainant. No doubt, said
statutory presumptions are rebuttable in nature. As
discussed earlier, when the complainant has relied upon
the statutory presumptions enshrined under section 118
read with section 139 of NI Act, it is for the accused to
rebut the presumptions with cogent and convincing
evidence. To put it other way, the burden lies upon the
SCCH – 26 12 CC No.813/2024
accused to prove that cheque in question is not issued for
discharge of debt or liability. It is worth to note that,
Section 106 of Indian Evidence Act postulates that, the
burden is on the accused to establish the fact which is
especially within his special knowledge. This provision is
exception to the General Rule that, the burden of proof is
always on the prosecution to establish their case beyond
all reasonable doubt. In that view of the matter, the
burden is on the accused to prove that the cheque in
question not issued for discharge of any liability. But
despite of giving sufficient opportunities, the accused
neither led defence evidence nor cross-examined the
PW1. Therefore the evidence placed by the complainant is
remained unchallenged and there is no reason to
disbelieve the version of the complainant. There is no
rebuttal evidence on behalf of the accused.
18. From the discussion made supra, it is clear
that, the accused has neither taken probable defence nor
taken steps to prove the same. To put it other way, the
accused has not taken and proved probable defence to
SCCH – 26 13 CC No.813/2024
rebut the presumption of law available in favour of the
complainant, envisaged under section 118 read with
section 139 of N.I. Act.
19. Therefore, at this juncture, I would like to refer
judgment of Apex court in the case of Bir Singh vs
Mukesh Kumar in CRIMINAL APPEAL NOS.230-231
OF 2019 dated 6-2-2019, wherein Hon’ble Apex court
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
Negotiable Instruments Act, in the absence of
any cogent evidence to show that the cheque
was not issued in discharge of a debt. In
the absence of any finding that the cheque in
question was not signed by the respondent-
accused or not voluntarily made over to the
payee and in the absence of any evidence
with regard to the circumstances in which a
blank signed cheque had been given to the
appellant-complainant, it may reasonably be
presumed that the cheque was filled in by
the appellant-complainant being the payee in
SCCH – 26 14 CC No.813/2024
the presence of the respondent-accused
being the drawer, at his request and/or with
his acquiescence.
In this case also the accused not disputed issue and
cheque and signature and liability. Accordingly, the case
of the complainant is acceptable. The complainant has
proved that, for discharge of liability accused has issued
Ex.P4/cheque and he has intentionally not maintained
sufficient amount in his account to honour the said
cheque. Hence, this Point No.1 under consideration is
answered in the Affirmative.
20. POINT NO.2: In view of the reasons stated and
discussed above, the complainant has proved the guilt of
the accused punishable under section 138 of N.I. Act.
Hon’ble Supreme Court of India in a decision reported in
(2018)1 SCC-560 (M/s. Meters & instrument Pvt Ltd. Vs.
Kanchana Mehta) wherein it is held at para 18 that “The
object of the provision being primarily compensatory,
punitive element being mainly with the object of enforcing
the compensatory element, compounding at the initial
stage has to be encouraged but is not debarred at later
SCCH – 26 15 CC No.813/2024
stage subject to appropriate compensation as may be
found acceptable to the parties or the court.” Therefore,
keeping in mind the time when the transaction has taken
place and primary object of the provision, this court is of
the opinion that, rather than imposing punitive sentence,
if sentence of fine is imposed with a direction to
compensate the complainant for its monitory loss, by
awarding compensation U/Sec.357 of Cr.P.C, would meet
the ends of justice. The amount covered under the
disputed cheque is Rs.1,67,185/-.By considering all
these aspects, this court is of the opinion that, it is just
and proper to imposed fine amount of Rs.1,72,185/-, out
of which compensation of Rs.1,67,185/- has to be
awarded to the complainant U/sec.357 Cr.P.C.
Accordingly, this court proceeds to pass the following:-
-: ORDER :-
Acting U/s 255(2) of Cr.P.C, the accused is
hereby convicted for the offence punishable
U/s 138 of NI Act and accused is sentenced to
pay fine of Rs.1,72,185/-.
In default, the accused shall undergo simple
SCCH – 26 16 CC No.813/2024imprisonment for period of six months. Acting
U/s 357(3) of Cr.P.C. out of the total fine
amount payable by the accused, a sum of
Rs.1,67,185/- shall be paid to the
complainant as compensation and remaining
amount shall be defrayed as state expense.
It is further made it clear that if the accused
opt to undergo imprisonment, it does not
absolve him from liability of paying
compensation to the complainant.
Office is hereby directed to supply free
certified copy of this judgment to the accused
forthwith.
(Dictated to the stenographer, directly over computer,
typed by her, corrected by me and then pronounced in the
open Court on this day 18th January, 2025.)(Appasab Naik)
XXIV ADDL. SMALL CAUSES JUDGE
& A.C.J.M. BENGALURU.
ANNEXURE
I. WITNESSES EXAMINED ON BEHALF OF THE
COMPLAINANT:
PW.1 : Dr.V.Nagegowda
II. DOCUMENTS MARKED ON BEHALF OF THE
COMPLAINANT:
Ex.P.1 : Authorization letter
Ex.P.2 : Agreement
Ex.P.3 : Statement of account
SCCH - 26 17 CC No.813/2024
Ex.P.4 : Cheque
Ex.P.4(a) : Signature of the accused
Ex.P.5 : Bank endorsement memo
Ex.P.6 : Legal notice
Ex.P7 : Postal receipts
Ex.P8 : Return notice cover
Ex.P8(a) : Return notice cover is opened in
open court and kept with file
and got marked.
III. WITNESSES EXAMINED ON BEHALF OF THE
ACCUSED:
–NIL—
IV. DOCUMENTS MARKED ON BEHALF OF THE
ACCUSED:
—NIL—
(Appasab Naik)
XXIV ADDL. SMALL CAUSES JUDGE
& A.C.J.M. BENGALURU.