Bangalore District Court
M/S Biocare Garment Processors vs M/S Krishna Expo Garments on 29 January, 2025
C.C.NO.774/2021
0
KABC030028062021
Presented on : 13-01-2021
Registered on : 13-01-2021
Decided on : 29-01-2025
Duration : 4 years, 0 months, 16 days
IN THE COURT OF THE XXVIII ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
Present:
Soubhagya.B.Bhusher,
B.A.,LL.B.,LL.M
XXVIII A.C.J.M, Bengaluru City.
DATED; THIS THE 29th DAY OF JANUARY-2025
C.C.NO.774/2021
Complainant: M/s.Biocare Garment Processors,
Having its O/at #27, 1st Phase,
Kumbalgodu Industrial Area,
Kumbalgodu, Mysore Road,
Bangalore-560074, Karnataka,
R/by its Managing Partner,
M.Narendra Hegde.
(By Smt.N.Raja Rajeshwari.,Adv.,)
V/s
Accused: M/s.Krishna Expo Garments,
No.9, C.T.H.Road, Pattabiram,
Chennai-600072.
R/by its Proprietor,
Sri.Narashimhan Mohan Raj,
(Mobile No.9941916375/984039724).
(By Mr.K.Umar & Ors.,Advs.,)
C.C.NO.774/2021
1
:JUDGMENT:
This case arises out of the private complaint filed
by the complainant against the accused under section
200 of Cr.P.C., for an offence punishable under section
138 of Negotiable Instruments Act.
2. The case of the complainant’s in brief is as
under:
It is the case of the complainant is that the
complainant is a partnership firm running a business of
washing/dying of garments by taking bulk orders from
various customers on job work basis. Further the
accused had sent the cloth materials/garments to the
complainant for washing/dying of cloth materials of
garments on various colours on job work basis as per
the quantity mentioned in the invoices. Further the said
materials has already been delivered to the accused on
the date mentioned in the invoices and the accused
had not made any payments against the same. On
repeated personal requests the accused had issued the
cheque No.649350 for Rs.2,69,884/-, cheque
No.649349 for Rs.2,50,000 and cheque No.649529 for
Rs.1,28,871/- all cheques dated: 14.01.2020 drawn on
Indian Overseas Bank, Pattabhiram Branch, Chennai,
as part payment. The complainant had presented the
said cheques for encashment through their banker
State Bank of India, SME Kumara Park Branch,
Bangalore. But the said cheques were dishonored on
C.C.NO.774/2021
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14.01.2020 as “Funds Insufficient”. Thereafter, on
07.02.2020 the complainant got issued a legal notice to
the accused through its counsel, calling upon him to
make payment of cheques within 15 days from the date
of receipt of the said notice. The said notice was duly
served to the accused on 11.02.2020. After service of
the legal notice the accused neither reply to the notice
nor paid the cheques amount. As such, the accused
have committed an offence punishable under section
138 of N.I.Act. Hence, the present complaint came to
be filed before this court on 19.06.2020.
3. After the complaint was filed, the cognizance of
the offence cited therein was taken and it was
registered as P.C.R No.8535/2020. Sworn statement of
the complainant was recorded. Since there were
sufficient materials to proceed against the accused, an
order was passed on 07.01.2021 to register the case in
Register No.III.
4. Thereafter, summons was issued to the
accused and he appeared before the court through
advocate and secured bail. He was furnished its
necessary papers as complied under section 208 of
Cr.P.C. Thereafter, the plea of the accused was
recorded by the court. He has pleaded not guilty and
claimed to be tried.
5. The complainant in support of its case, have
examined its Managing partner as PW.1 and got
C.C.NO.774/2021
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marked 15(a) documents at Ex.P.1 to 15(a) and closed
its side.
6. After closer of the evidence of the complainant,
the statement under section 313 of Cr.P.C., was
recorded. The accused has denied the incriminating
evidence appeared against him. The accused not lead
defence evidence. But the accused examined one
witness by name Perumal as DW.1 and no documents
were marked.
7. I have heard the arguments on both the sides
and also perused the written argument filed by the
learned counsels for the complainant and the accused
and also perused the material placed on record.
8. Upon hearing the arguments and on perusal of
the material placed on record, the following points arise
for my consideration:
1.Whether the complainant proves the
existence of legally enforceable
debt/liability.?
2.Whether the complainant further proves
that the accused had issued the cheques-
Ex.P.6 to 8, towards the discharge of the
said legally enforceable debt/liability.?
3.Whether the complainant further proves
that the cheques-Ex.P.6 to 8 were
dishonored for the reasons “Funds
Insufficient” and thereafter the accused had
failed to repay the same within the statutory
period, inspite of receipt of legal notice.?
C.C.NO.774/2021
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4.Whether the accused have thus
committed an offence punishable under
section 138 of N.I.Act.?
5. What order?
9. My answers to the above points are as under:
Point No.1: In the Affirmative
Point No.2: In the Affirmative
Point No.3: In the Affirmative
Point No.4: In the Affirmative
Point No.5: As per final order, for the following:
:REASONS:
10. POINT NO.1 AND 2: These two points are
inter-related to each other and finding given on any one
point will bearing on the another. Hence, in order to
avoid repetition of facts and evidence, I have taken
these two points together for common discussion. The
case of the complainant is that he was acquainted with
the accused. Further the complainant is a partnership
firm running a business of washing/dying of garments
by taking bulk orders from various customers on job
work basis. Further stated the the accused had sent the
cloth materials/garments to the complainant for
washing/dying of cloth materials of garments on various
colours on job work basis as per the quantity
mentioned in the invoices as stated in para No.2 of the
complaint. Further above stated materials has already
been delivered to the accused on the date mentioned in
the invoices and the accused had not made any
C.C.NO.774/2021
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payments against the same. On repeated personal
requests, the accused had issued the cheques in
question as part payment. The complainant had
presented the said cheques for encashment through
their banker. But the said cheques were dishonored as
“Funds Insufficient”. Thereafter, the complainant got
issued a legal notice to the accused through its
counsel, calling upon him to make payment of cheques.
Inspite of service of the legal notice the accused neither
reply to the notice nor paid the cheques amount. As
such, the accused have committed an offence
punishable under section 138 of N.I.Act. Hence, the
present complaint came to be filed before this court.
11. At this juncture, it is necessary to go through
the provisions of N.I.Act before proceeding further. The
provisions under section 118(a) and 139 of the Act,
1881 are extracted and they reads thus;
“118. Presumptions as to negotiable
instruments: Until 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 transferred, was accepted,
indorsed, negotiated or transferred for
consideration.
C.C.NO.774/2021
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(b). as to date: that every Negotiable
Instrument bearing date was made or drawn on
such date;
“139.Presumption in favour of holder:
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, of any
debt or other liability.”
12. On plain perusal of the provisions under
section 118(a) and 139 of the N.I.Act., as extracted
herein above, it can be seen that initially the
presumptions constituted under these two provisions
favour the complainant. However, it is open to an
accused to raise a defence to rebut the statutory
presumptions. An accused can raise a defence,
wherein the existence of legally enforceable debt or
liability can be contested.
13. It is also well established that an accused for
discharging the burden of proof placed upon him under
a statute need not examine himself. He may discharge
his burden on the basis of the materials already
brought on record. An accused have constitutional
rights to maintain silence. Standard of proof on part of
the accused and that of the prosecution in a Criminal
case is different. The prosecution must prove the guilt
of an accused beyond all reasonable doubts, the
C.C.NO.774/2021
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standard of proof so as to prove a defence on the part
of an accused is “Preponderance of probabilities”.
14. Under the light of above extracted provisions
of the Act, I have perused the oral and documentary
evidence placed on record. In support of the case, the
complainant’s have examined its Managing Partner as
P.W.1 and 15(a) documents were marked at Ex.P.1 to
15(a). In the chief examination P.W.1 has repeated the
contents taken by the complainant in the complaint.
Ex.P.1 is the certified copy of reconstitution of
partnership deed. Ex.P.2 to 4 are the certified copies of
tax invoices. Ex.P.5 is the certified copy of the ledger
account. Ex.P.6 to 8 are the cheques issued by the
accused in favour of the complainant dated:
14.01.2020 total amount of Rs.6,48,755/-. Ex.P.6(a) to
8(a) are the signatures of the accused. Ex.P.6(b) to
8(b) are the bank memos dated: 14.01.2020 informing
the dishonor of the cheques as “Funds Insufficient”.
Ex.P.9 is the certified copy of the legal notice dated:
07.02.2020. Ex.P.9(a) is the certified copy of the postal
receipt. Ex.P.10 is the certified copy of the postal
acknowledgment. Ex.P.11 is the complaint. Ex.P.12 is
the certified copy of the income tax returns for the
period 2019-2020. Ex.P.12(a) is the portion of Ex.P.12.
Ex.P.13 is the certified copy of the income tax returns
for the period 2020-2021. Ex.P.13(a) is the portion of
Ex.P.13. Ex.P.14 is the certified copy of the income tax
C.C.NO.774/2021
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returns for the period 2021-2022. Ex.P.14(a) is the
portion of Ex.P.14. Ex.P.15 is the certified copy of the
income tax returns for the period 2022-2023.
Ex.P.15(a) is the portion of Ex.P.15.
15. I have perused the exhibits on which the
complainant have placed their reliance. On perusal of
the exhibits, it is clear that the cheques in question was
presented for encashment within its validity. The bank
endorsements with a shara “Funds Insufficient”. The
complainant issued the legal notice within one month
from the date of receipt of memos. The notice was duly
served to the accused on 11.02.2020. The complaint
was filed on 19.06.2020, which is within limitation. The
transaction with the complainant is admitted.
Therefore, the documents on record clearly show that
the complainant have complied the ingredients of
section 138(a) to (c) of the N.I.Act. Therefore, the
presumptions under section 118 and 139 of the N.I.Act,
arise in favour of the complainant. The presumptions
are rebuttable and the burden is on the accused to
rebut the presumptions. The presumption is that the
cheques were issued for legally enforceable
debt/liability. However, actual existence debt/liability
can be contested. The accused can rebut the
presumptions by raising probable defences and proving
it relying on the evidence of the complainant or by
leading his direct evidence.
C.C.NO.774/2021
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16. The case was seriously contested by the
accused and the service of notice was disputed. The
notice was duly served to the accused. The counsel for
the accused cross-examined PW.1 in respect of non
service of notice. But PW.1 denied the same. Further
contended that the notice sent to the accused not
served’; that the accused has no knowledge of the
notice as it was not served on him; that the accused did
not give reply notice as the notice was not served on
him; that he did not produce any documents to show
that the accused was not doing business at the said
address, the notice was not served on him and that the
accused did not issue reply notice as he was not doing
business at the said address. The counsel for the
accused argued that no legal presumption can be
raised as the notice was sent to the wrong address and
the accused was not doing business at the said
address. When the notice at Ex.P.9, wherein the name
of the accused is appearing, was confronted.
17. On perusal of Ex.P.9, it is clear that the name
of the accused is appearing in the notice. The same
notice was sent to the accused and the said notice was
duly served to the accused. But the accused not given
any reply. There is no evidence on record to show that
the accused was doing business at some other
address other than the address mentioned in the notice
at Ex.P.9. On the other hand, it is clear that the
C.C.NO.774/2021
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accused was doing business at the said address. The
above discussion clearly shows that the address
mentioned in the notice is the correct address of the
accused. As the notice was given to the accused and
the same notice was sent to him through RPAD, an
inference can be drawn that the notice was served on
the accused. Further the address mentioned in the
notice being the correct address of the accused, the
presumption as per Section 27 of General Clauses Act
can be drawn. It states that the notice sent through
post shall be deemed to be served, if it is properly
addressed to a person to whom it is sent. Therefore,
even though the notice sent to the accused through
RPAD duly served.
18. In a nutshell it can be said that the statutory
notice is an opportunity given to the accused to make
payment and avoid the consequences of 138 of N.I.Act.
In the case on hand, summons was duly served to the
and he was appeared through his counsel and
contested the case by taking all probable defences.
Therefore he cannot take the shelter of statutory
requirement of service of notice to avoid the
consequences of section 138 of N.I.Act. The complaint
was filed on 19.06.2020, which is within limitation. The
accused has denied the issuance of the cheques in
favour of the complainant and signatures in the
cheques. It is his defence that the said cheques were
C.C.NO.774/2021
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not issued to the complainant for repayment of the
amount. Further defence of the accused is that the
complainant have misused the alleged cheques.
Further defence of the accused is that the complainant
taken blank cheques from the accused through
M.C.Reddy and misused the signatures of the accused
and filed false case against the accused. Therefore, the
documents on record clearly shows that the
complainant have complied the ingredients of section
138(a) to (c) of the N.I.Act. Therefore, the
presumptions under 118 and 139 of the N.I.Act, arise in
favour of the complainant. The presumptions are
rebuttable and the burden is on the accused to rebut
the presumptions. Once the issuance of cheques and
signatures are proved, the presumption arises in
respect of the fact that the cheques were issued for
legally enforceable debt/liability. The accused can rebut
the presumption by raising probable defence and
proving it relying on the evidence of the complainant or
by leading his direct evidence.
19. The accused in order to prove his defence, he
has failed to produce oral as well as documentary
evidence. But on his behalf examined witness by name
Perumal as DW.1 and no documents were marked. In
his chief examination he deposed that he is working as
a quality controller in the accused company. Further
besides working as a quality controller he also look
C.C.NO.774/2021
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after bank transaction. He staying on the upper floor
where the office of the accused company is located.
The accused company is having 2 bank accounts, such
accounts are in Indian Bank Pattabhiram and Indian
Overseas Bank. He know the complainant company, he
used to take cloths for washing and drying to the
complainant company. The complainant’s used to come
and go to the accused company. Further deposed that
on 14.01.2020 he was present at the office of the
accused company, because there was Pongal at that
time, no one else was in the office of the accused
company. That day was Tuesday at that time no one
from the complainant company had came with the
cheque. He aware that this case has been registered
as cheque bounced. The accused asked him to go to
the bank and inquire as the cheque did not return. Then
he went to two banks and inquired but they said no
cheques came. He is working in the accused company
since 10.04.2017.
20. In order to attract the offence punishable
under section 138 of N.I.Act, the complainant is firstly
required to prove the existence of legally enforceable
debt/liability, for which the cheques came to be issued.
The learned counsel for the complainant has argued
that from the evidence placed on record, the fact that
the complainant is running a business of washing/dying
of garments by taking bulk orders from various
C.C.NO.774/2021
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customers on job work basis. Further argued the
accused had sent the cloth materials/garments to the
complainant as per Ex.P.2 to 4 for washing/dying on job
work basis. Further argued that the said materials has
already been delivered to the accused on the date
mentioned in the said invoices. But the accused had
not made any payments. Further argued that on
repeated requests made by the complainant the
accused towards the discharge of the part payment had
issued the cheques-Ex.P.6 to 8. She further argued that
the accused has not denied Ex.P.6 to 8 being his
cheques drawn on his account. Further he has not
seriously denied the signatures. When the signatures is
not disputed, the presumption under section 139
N.I.Act is to be drawn in favour of the complainant. The
accused has failed to elicit anything in the cross
examination of P.W.1 to disbelieve the said evidence.
The defence have failed to rebut the presumption under
section 139 N.I.Act.
21. The counsel for the complainant has filed
written argument. In her written argument reiterated the
facts of the case. It is further submits that the
complainant is an unregistered partnership firm and the
partnership deed was reconstituted on 27.02.2013 and
as per clause 9 of the said deed, Mr.Narendra Hegde,
is the managing partner and he is incharge of day
today business of the firm. Further as per clause 15 of
C.C.NO.774/2021
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the Reconstitution deed “All other matters for which
there are no specific provisions in this deed, shall be
governed by the provisions of the partnership Act,
1932”. As per this clause, the complainant relies on
section 2(a), 4, 18, 19, 22 & 25 of the partnership Act,
1932. In her written argument she has reiterated the
said sections. Further submits that wherefore, in terms
of section 2(a) of the act, an act of the firm also means,
the act done by a partner or the agent of the firm. There
is no such provisions under the partnership act which
expressly bars a partner to act of behalf of the
partnership firm. Hence, section 2(a) of the Indian
Partnership Act, 1932 expressly authorizes the partner
to act on behalf of the partnership firm. Under section
18 of the said act, the partner has been bestowed with
character of an agent of the the firm for the purpose of
business of the firm and section 22, of the said act, in
order to bind a firm, an act or instrument done or
executed by a partner or other person on behalf of the
firm shall be done or executed in the firm name or in
any other manner expressing or implying an intention to
bind the firm under section 19, subject to the provision
of section 22, the act of a partner which is done to carry
on, in the usual way, business of the kind carried on by
the firm, binds the firm. The authority of a partner to
bind the firm conferred by this section is called his
“implied Authority”. There are some specific bars and
prohibition to the implied authority under sub-section
C.C.NO.774/2021
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clauses (a) to (h) section 19(a) of the Act, but there is
no bar for a partner to file a complaint under section
138 of N.I.Act. Therefore, an individual partner has
implied authority to sign, institute and prosecute the
complaint before criminal courts on behalf of the
complainant firm. Hence, contention of the accused
that PW.1 has no authorization and consent by other
partner to file complaint, depose or to lead evidence
before this court holds no water in the instant case.
22. Further contention is that the complainant,
who is unregistered firm is bared under law to file
complaint under section 138 of N.I.Act, to negate the
said contention, the Hon’ble Apex Court and various
High Courts have laid down the law that there is a bar
to file a civil proceedings under section 69(2) of the
partnership act, 1932, but there is no bar to file a
complaint under section 138 of N.I.Act. The
complainant relies the citations to that point : a) 2003
SCC Online Kar 580: Bhavani Agencies, Bangalore V/s
G.C.Colour Lab, Bangalore. b. ILR 2003 KAR 4325:
M/s Beacon Industries R/by its Partner Bangalore V/s
Anupam Ghose. c. 2019 (5) KCCR SN 79: M/s. Ajmera
Housing Corporation V/s. Mr.Ramachandra. Further the
other contention of the accused is that the complainant
firm is registered one, the said fact is false and the said
fact has not been addressed by the complainant at any
point of time. The complainant is unregistered firm
C.C.NO.774/2021
16
having no bar to file a criminal proceedings before the
court of law, as per the law laid down by various courts.
It is immaterial for the accused relating to profit and
loss sharing in the business amongst the partners of
the firm. Now the question before this court is whether
the accused is liable to pay the legally liable debt or not
and more so, the present case is filed under section
138 of N.I.Act and not under the civil proceedings to
create the suspicion/discrepancies in the financial
statement, profit and loss sharing of the partners, their
income, etc. Further the other contention is that at page
16 of the the financial statement for the year 2019-20,
there are many partners but, in the partnership deed
only two partners were mentioned, etc., are all the
contentions/submissions made/taken by the accused
only to mislead and confuse this court. In fact, the said
companies are all private limited companies and these
partners are directors in the said companies, the same
has been disclosed before the Income Tax Authorities
as true and law abiding citizens under section 40A(2)
(b) of IT Act. This court has to dismiss the said
contention of the accused that the companies
mentioned in Page 16 i.e., Bioshore Enzymes Pvt.Ltd.,
Crescent Polymers Pvt,Ltd., and Intech Apparels Pvt
Ltd., are also partners in the complainant firm is a
misleading and concocted story created by the accused
herein to confuse this court and the said contention will
not come into the aid to the accused get rid of the
C.C.NO.774/2021
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payment towards legally liable debt.
23. It is further submits that the accused has filed
to rebut the presumption under section 118(a) & 139 of
N.I.Act by producing the cogent and documentary
evidence. The Hon’ble High court of Karnataka has
held that bare denial of existence of debt would not
serve purpose for the accused in rebutting the
presumption-he has to bring on record something
probable for getting the burden of proof shifted to the
complainant-order of acquittal set aside. In her written
argument she relied upon the citations reported in 2022
(3) KCCR SN 277, Ashfaq Rasheed Sahik Vs Meena
Ullas, 2006 Crl.L.J 1, Gorantla Venkareswara Rao V/s
Kolla Veera Raghava Rao & Anr, 2005 Crl.L.J. 4297,
Polisetty Seetharamanjeneyulu & Ors. Vs. Public
Prosecutor, A.P. (Para 37, 39). Further other contention
of the accused is that the notice has not been served to
him. The said contention is negated by producing the
postal acknowledgment- which contains the seal of the
accused proprietorship/firm/company for having
received the legal notice relating to demand of amount
due from the accused, for which the accused has not
replied. Further submits the complainant has produced
the statement/ledger account of the accused
maintained in their firm, in which all the invoices
mentioned in legal notice and the same has been
produced before this court (Ex.P.2 to 4) has been
C.C.NO.774/2021
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reflected as a. 11.02.2019-476-342143.00, b.
20.04.2019-036-784833.00 and c. 07.05.2019-060-
604832.00. Further submits that the amount due by the
accused is Rs.16,20,937/- as on the date of issuance of
cheques. The various cheques issued by the accused
has been received by the complainant firm and the
same has been shown in the credit column of the
statement/ledger and later it was returned unpaid due
to insufficient funds, hence the same were shown in the
debit column in the statement/ledger maintained in the
firm. (The amount shown in the debit column is tallying
with 8 cheques issued by the accused herein. The
voucher type clearly states the four (4) job works done
by the complainant, for which bill/invoice has been
raised and the other nos. are relating to the discount
allowed, Tax deducted at source and cheques
returned).
24. Further financial year starts from 01.04.2018
to 31.03.2019 for accounting period for filing financial
statements before the income tax authorities. As on
31.03.2019, the balance amount due by accused is
legally liable debt which is amounting to a sum of
Rs.7,05,682/- which is arrived as a. 12.11.2018
Rs.8,63,567/-, b.11.02.2019 Rs.3,42,143/-, total as on
31.03.2019 Rs.12,05,710/- Less: Amount paid a.
29.12.2018 Rs.2,00,000/-, b. 28.02.2019 Rs.3,00,028/-
total Rs.5,00,028/- and grand total Rs.7,05,682/-.
C.C.NO.774/2021
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Further during the financial assessment year 2019-20
(previous year 2018-19), in Schedule-F Sundry Debtors
annexed to the Balance sheet, the amount due by the
Accused is shown as Rs.7,05,682/- and the same is
included in the total amount of Rs.2,95,73,642/- is
shown in sundry debtors-F in balance sheet as on
31.03.2019. The said fact is disclosed before the
Income Tax Authorities, as per the IT Returns filed by
the Firm’s Auditor. Further the Firm’s Auditors have filed
the FORM No.3CB as per Rule 6G(1)(b) of Income Tax
Act, 1961, before the Income Tax Authorities, in which
they have certified and disclosed the balance sheet,
profit and loss account for the said financial year from
01.04.2018 to 31.03.2019. As the complainant has
disclosed the amounts due by all the sundry debtors
including the amount due by the accused, as such the
accused herein. Further the Mr.Narendra Hegde,
Managing Partner has affixed his signature on the said
statement as “implied Authority” given to a partner as
per section 22 of the Indian Partnership Act, 1932 (for
the argument sake, if the amount due by the accused
has not been included in the total amount in schedule
F-Sundry Debtors and is not accounted for the said
financial year by the Registered Auditors and not
disclosed before the Income Tax Authorities, but
disclosed only before this court, then the accused have
raised the said contention). Based on the above stated
facts supra, the contention of the accused that the
C.C.NO.774/2021
20
complainant has committed a fraud and produced the
concocted document for illegal gain has to be
dismissed at threshold. In support of accused, they
have relied the citation AIR 2005 SC 2119: Iqbal Singh
Marwah & Anr. Vs. Meenakshi Marwah & Anr. The facts
in the said citation is entirely different from the instant
case and has no relevancy to the facts on hand as
there is no forgery has taken place in the instant case.
25. It is further submits that, DW-1 Perumal has
identified and admitted the signature of the accused
affixed on the cheque even on the Vakalathnama filed
by accused before this court are one and the same.
The said DW.1 is a person who is well acquainted with
the signature of the accused and who is assigned for
liasoning works with accused bank. When the signature
on the cheque is admitted by DW.1 the employee of the
accused, the accused is liable to pay the legally liable
debt due to the complainant. Moreso, this Court to
draw the inference relating to the conduct of the
accused, on the ground that:-1) the accused has not
replied to the notice; 2) not given any stop payment to
banker, if cheques are not found at the office of the
accused. 3) after service of notice, as a prudent man,
the accused has not filed any complaint before the
jurisdictional police. 4) after service of summons, the
accused has not lodged any private complaint before
any Hon’ble Court. 5) the accused has not produced
C.C.NO.774/2021
21
any iota of document to show that there is no
transaction taken place in between the complainant
and accused. 6) the accused has barely relied on the
financial statement filed before the IT Authorities by
creating the confusion in the minds of this court and
also misguiding and misleading the court without
producing any iota of document and cogent evidence
nor led the evidence by entering into the witness box
before this court. 7) the accused has failed to prove
that the cheques in question in the instant case does
not belong to him or issued by him. Further the
application filed by him u/s 45 of Evidence Act before
this court has been rejected on 20.06.2024 and the
same has not been challenged before the appellate
court, the said fact itself proves that the signature on
the cheque is admitted by the accused and the
accused is not disputing the signature on the cheque.
The Complainant is producing the citation reported in
AIR 208 SC 3601 T.P.Murugan (dead) through LRs., Vs
Bojan (Para 9). The other contention of the accused
that, the cheques were not filled by him in this regard
the Hon’ble Apex Court has laid down the law in AIR
2019 SC 2446, Bir Singh V/s Mukesh Kumar (para 37
& 40) and the same is squarely applicable to the instant
case.
26. Further submits that the accused states that
there is a difference in amount in claiming the amount
C.C.NO.774/2021
22
ie, the total amount mentioned in three invoices and the
total amount claimed in 8 cheques, in respect of this
the complainant has not failed to clarify. In respect of
this contention, the complainant has produced the
invoices as well as the statement of account/ledger, in
which it is crystal clear that from 2018 till the date of
issuance of cheque, discount is stated, tax deducted at
source is also mentioned, when such being the fact,
the allegation/contention of the accused is not proper.
The vouchers sought by the accused is an entries of
the voucher number in the books of account of the
complainant firm, when cheques has been received by
the accused and the invoices has been referred as job
work in the statement/ledger of the accused. The
complainant relies on the Hon’ble SC judgment
reported in AIR online 2019 1285: Uttam Ram Vs.
Devinder Singh Hudan and Anr. (para 27, 28 33).
Further the accused has to prove that there is no
commercial transaction in between the complainant
and himself and there is no legally debt and issuance
of cheque towards the same has to be proved by
producing the cogent and documentary evidence
before this court. The complainant has produced all the
relevant materials like IT Returns, Invoices and
statement of account/ledger before this court to prove
that the accused is due of legally liable debt. Further
the accused cannot contend that the complainant has
received a sum of Rs.26,92,494/- earlier to the three
C.C.NO.774/2021
23
invoices which is a misleading fact, infact, the
admission made by PW.1 relating to receipt of
Rs.26,92,494/- as per the ledger (Ex.P.5) against the
total amount of Rs.43,13,431/- the cheques were
issued to the difference between the debt and credit
column which is amounting to total Rs.16,20,937/-.
Further the transaction between the complainant and
accused is in nature of commercial transaction,
wherein complainant has incurred huge loss due to the
payment of interest on the amount due by the accused.
Hence, she prays to convicting the accused and grant
the compensation under section 357 of Cr.P.C.
27. The learned counsel for the accused has
argued that there was no legally enforceable
debt/liability to the complainant from the accused for
which the cheques-Ex.P.6 to 8 were issued. Further
argued that the accused had not issued alleged
cheques to the complainant for repayment of the
debt/liability. Further argued that the complainant have
taken the cheques from M.C.Reddy and same was
misused by the complainant. In order to attract the
offence punishable under section 138 of N.I.Act, the
complainant is firstly required to prove the existence of
a legally enforceable debt/liability, for which cheques
came to be issued. It is further argued that the
complainant is only in order give trouble to the accused
and with an intention to make illegal money from the
C.C.NO.774/2021
24
accused filed this false case. This is not permissible
under the law. Further argued that the entire cheques
were filled up by the complainant as their whims. The
complainant created all the documents and filed this
false case against the accused. Further argued that the
accused had already paid entire amount to the
complainant and there is no due from the accused to
the complainant.
28. The learned counsel for the accused has filed
detail written arguments and additional written
argument. In his written argument reiterated the brief
facts of the case. Further submits that the complainant
had examined himself as PW.1 and marked 14
documents and on the side of defence one witness by
name Perumal was examined as DW.1. The
complainant has to prove the main issues. a) The
complaint can be filed only the consent of the entire
partners of the partnership firm. b) There should be due
consideration for the issuance of the cheques in
question. c) The cheques in question should have been
given in discharge of the existing legal liability. d) The
complainant has to prove the execution of the cheques.
e) The cheques should have been presented and
verified by the bank officials properly before the said
cheque/cheques are declared as dishonored. f) The
presumption of law regarding the N.I.Act can be drawn
only if there is prima facie proof of execution of
C.C.NO.774/2021
25
cheques by the accused. g) The complainant should
plead and prove the basic ingredients in connection
with the issuance of cheques and its dishonor including
the liability. h) The complainant has to approach this
court with bonafide facts and documents and if the
complainant fabricate the documents and produce the
same before the court is order to gain illegally, the
same will amounts to abuse of the court proceedings
and nothing but perjury.
29. Further submits that the complainant had filed
the complaint in the name of partnership firm. The
complaint had marked Ex.P.1 which shows that there
are two partners. The complainant has not filed any
resolution of the partners authorizing the present
complainant to contemplate criminal proceedings
against the accused herein. It is the mandatory
requirement of law and as such the failure of the
complainant is not adducing any such resolution
authorizing the complainant to file the criminal
complaint before this court is not maintainable and
liable to be rejected in limine. Further even in
partnership deed marked as Ex.P.1 there is no
authorization or permission in the memorandum of
partnership deed to file any criminal complaint, on
behalf of the partnership and as such the present
complaint is not legally maintainable and there is no
locus standi for the complainant to file the complaint on
C.C.NO.774/2021
26
behalf of the partnership firm and as such the complaint
got to be dismissed in limine. The case of the
complainant is that there is a due of Rs.17,31,808/- as
per the three invoices. i) first of all there is no signature
acknowledging the liability in the invoices. ii) there is no
order placed by the accused and no such evidence was
filled by the complainant. iii) The amount fallen due as
per invoices are 11.02.2019 of Rs.3,42,143/-,
10.05.2019 of Rs.7,84,833/- and 10.05.2019 of
Rs.6,04,832/- totaling Rs.17,31,808/-. iv) The
complainant states at para No.3 of the complaint that
the total amount is Rs.16,20,937/- but there is no
explanation as to how the said sum is arrived at during
cross examination the complainant stated that the
accused had paid sum and the balance is
Rs.16,20,937/-. v) It is on record that the complainant
had received Rs.26,92,494/-, (Rs.2,00,000/-) on
29.12.2018 Rs.24,92,484/- from the accused as per
Ex.P.5. As such there can not be any outstanding by
the accused even as per Ex.P.5. vi) The contradictory
averment of the complainant that there was some other
due can not be pleaded by the complainant during the
cross examination particularly when the complainant
did not speak about the same in the legal notice
complaint or in sworn statement or in chief affidavit. vii)
The complainant had added in Ex.P.5 from 10.06.2019
for Rs.97,119/-, 10.01.2020 for Rs.2,00,000/-,
10.01.2020 for Rs.2,00,000/-, 10.01.2020 for
C.C.NO.774/2021
27
Rs.1,93,311/-, 15.01.2020 for Rs.2,50,000/-,
15.01.2020 for Rs.1,28,871/-, 15.01.2020 for
Rs.1,28,871/-, 15.01.2020 for Rs.2,69,884/- and
15.01.2020 for Rs.2,50,000 total for Rs.14,48,172/-
which are also due from the accused but not even a
single piece of documentary evidence is filed to aver
that the said sums were given to the accused, but
added in the ledger of the accused maintained by the
complainant.
30. It is further submits that the cheques amount
and Ex.P.2 to 5 does not tally which itself will prove that
there is no consideration for the cheques involved in 3
cases. The complainant had filed in CC.No.773/2021
relaying upon three cheques, cheque No.810246
Rs.1,93,311/- dated: 09.01.2020, cheque No.810248
Rs.2,00,000/- dated: 09.01.2020 and cheque
No.810247 Rs.2,00,000/- dated: 09.01.2020. Further
submits that the complainant filed in C.C No.774/2021
relaying upon 3 cheques with the following particulars:
cheque No.649350 for Rs.2,69,884/- dated:14.01.2020,
cheque No.649349 for Rs.2,50,000/- dated: 14.01.2020
and cheque No.649529 for Rs.1,28,871/- dated:
14.01.2020. Further the complainant had filed the three
complaints relaying upon 8 cheques but none of the
cheques were filed up by the accused and even the
signature borne in the said cheques were not witness
by the complainant, even according to his own
C.C.NO.774/2021
28
admission. According to the complainant all the
cheques were given on 09.01.2020, but the
complainant had not stated anywhere in the legal
notice, complaint or affidavit. The complainant admitted
during the cross examination that the accused had paid
a total sum of Rs.24,92,494/- between 11.02.2019 to
15.11.2020. This establishes that even according to the
complainant there exists no legal liability. The
complainant had fabricated Ex.P.11 to 14 and filed the
same before this court. The complainant could not
establish that the cheques were given in discharge of
the existing legal liability since even when the cheques
were presented in the bank, there was no due payable
by the accused at all. The complainant did not stated
that the cheque was executed by the accused in his
presence. It is the case of the complainant that his
workers had handed over the cheques and there was
no evidence by any such individuals to show that the
cheques were executed by the accused herein. The
complainant had submitted that the complainant’s
company staff by name Reddy has brought the
cheques. This prove that the complainant is totally
unaware about the execution of the cheques.
31. It is further submits that the case of the
complaint is doubtful since the date of receiving the
cheques was not given in the legal notice or in the
complaint. Even in the sworn statement or in the chief
C.C.NO.774/2021
29
affidavit the complainant had not stated the date on
which the cheques were received. But during the cross
examination the complainant stated that all the
cheques were received on 09.01.2020. But during the
cross examination for the 2nd time, the same witness
deposed that the cheques were received through
Mr.Reddy 15 days prior to the presentation of the
cheque with the bank. That means the cheques were
received on 30.12.2019. This contradictory statement
will prove that the complainant has not come before
this court with clean hands. The complainant had not
proved the execution of the cheques in question and as
such the complainant is not entitled for presumption of
law as contemplated either under the N.I.Act or the
Indian Evidence Act. Further submits that the
complainant had deliberately filed Ex.P.11 to 14
wherein the Ex.P.11(a) to 14(a) are all forged and that
seal of the auditor and equally the entries, in the name
of the accused company are inserted, thereby the
complainant abused the due process of law by filling
forged documents. The action of the complainant
amounts to perjury and the complainant got to be
prosecuted by this court since the complainant had
caused to create the above said documents
subsequent of the filing of the complaint and
particularly when the matter is pending before this
court. The complainant is not entitled to seek any
remedy from this court since fraud avoids all judicial
C.C.NO.774/2021
30
acts, ecclesiastical or temporal as absorbed by chief
justice Edward Coke of England about 3 centuries ago
and pointed out by out Hon’ble Supreme Court of India
reported in 1994 AIR 853. The complainant had
deliberately filed the criminal complaint with an intend
to gain illegally had forged documents and attempted to
abuse the due process of law and as such it is prayed
that dismiss the complaint lodged by the complainant
and it is also prayed that this court may be pleased to
order perjury proceedings against the complainant for
deliberately abusing the due process of law and to
order for this court acquittal of the accused from the
above charged leveled and to thus render justice.
32. It is further submits that the basic ingredients
for the criminal jurisprudence is that prosecution/
complainant was to prove his case and the complainant
did not prove the execution of the cheque filed in this
case. The complainant deposed that the complainant
do not know the signature of the accused. The
complainant further says he do not know whose
signature is in the cheque and not seen the accused
signing/executing the cheques. It is only one Mr.Reddy
the Assistant of the complainant handed over the
cheques to the complainant. The said Mr.Reddy was
not examined before this court to prove the said
averments. The complainant did not state the date on
which the cheques were received. Though in legal
C.C.NO.774/2021
31
notice complaint, sworn statement and in chief affidavit
the complainant states that the cheques were received
on 09.01.2020. But during cross examination the
complainant states that all cheques were post dated
cheques and were given 15 days before presenting for
encashment. This proves that there was no execution
of cheque by the accused and as such the complainant
can not claim “presumption of law” in his favour. It is
primary responsibility of the complainant to prove that
the complainant is “holder” of the cheques involved in
this case. A mere “payee” as well as “holder in due
course are not entitled to get “presumption” since
section 139 of the N.I.Act can be attracted only by the
“holder of the cheque” The accused had brought
various in consistences contradictions and forged
entries in the evidence of the complainant which itself
will establish that the complainant is not entitled to
claim any benefit as is being held in the Hon’ble
Supreme Court Judgments: Bharat Barrel and Drum
Manufacturing V/s Amin Chand Parelal on 18th
February 1999, M.S.Narayan Menon @ Mani V/s State
of Kerala & Anr on 4th July 2006 and Rangappa V/s Sri
Mohan on 7th May, 2010. The fraud committed by the
complainant, dis-entitles the complainant from claiming
any relief from this court. Our Hon’ble Supreme Court
of India had categorically held in Indian Bank V/s M/s
Satyam Fibres (India) Pvt.Ltd on 9th August, 1996 that
the complainant was not justified and accordingly he
C.C.NO.774/2021
32
prays to dismissed the complaint with cost.
33. In the case on hand the complainant and the
accused having some business transaction has not
been seriously disputed by the accused. Further the
accused has not seriously disputed cheques is belongs
to his bank. It is not disputed that the complainant is a
partnership firm and the accused is a proprietor and
businessman. Further it is not disputed that the
accused had sent the cloths materials/garments to the
complainant for washing/dying in various colours on job
work basis. The accused in order to repayment of the
said amount had issued the cheque-Ex.P.6 to 8 in
favour of the complainant. Whereas, the accused has
contended that he had not given the chaques to the
complainant for repayment of the amount. Further
contended that he has already paid entire amount to
the complainant and there is no due. The accused has
specifically denied having debt/liability had issued the
cheques towards the discharge of any debt/liability. He
contends that the blank cheques as was misused by
the complainant and a false complaint was filed against
the accused.
34. In order to attract the offence of the section
138 of N.I.Act, the main ingredients of the existence of
the legally enforceable debt/liability, for which the
cheques drawn on the account of the accused was
given for discharge of the same, are to be proved. The
C.C.NO.774/2021
33
complainant in order to prove its case, have examined
its Managing partner as PW.1 and 15(a) documents
were marked at Ex.P.1 to 15(a). In chief examination,
he has repeated the averments made by the
complainant in the complaint. In the present case, the
accused has not disputed Ex.P.6 to 8 being his
cheques drawn on the accused account. The said
presumption is available to the complainant. Further the
accused not proved how the cheques reached the
hands of the complainant.
35. Under section 139 of N.I.Act, there is a
presumption regarding the existence of legally
enforceable debt/liability. Such presumption is
rebuttable presumption and it is opinion to the accused
to raise defence discharging the existence of a legally
enforceable debt/liability. In the case on hand also the
accused has disputed the existence of legally
enforceable debt/liability, for which cheques-Ex.P.6 to 8
was issued.
36. Since, the presumption under section 139 of
N.I.Act is a rebuttable presumption the accused is firstly
required to produce some probable evidence to rebut
the same. Though in the criminal cases, the standard of
the proof required for the accused is not so strict as
required for the complainant to prove the case, further
the accused has to produce some probable evidence,
which creates doubt about the existence of legally
C.C.NO.774/2021
34
enforceable debt/liability. In the present case, as per
the defence taken by the accused that he had not given
the cheques to the complainant for repayment of
amount. Further he has taken the defence that he has
already paid entire amount to the complainant and
there is no due to the complainant. Except, the said
defence, he has not produced any materials to prove
such defence. Further he has not proved that how the
cheques reached the hands of the complainant. If the
accused had not given any cheques to the
complainant, what prevented the accused to file the
complaint immediately after the alleged illegal act made
by the complainant. Further what prevented the
accused to file the complaint against the complainant
for misusing of the said cheques. On which date the
accused came to knew about the alleged illegal act of
the complainant, he did not whisper about on what date
he came to know the alleged cheques illegally misused
by the complainant. Admittedly the accused is having
knowledge of the financial transaction. So also, he has
not stated anything as to what steps the accused took
to receive back the cheques. Moreover, immediately
after the alleged cheques misused by the complainant
he has not lodge any complaint before concerned
police station. No steps have been taken to receive
back the cheques, after he came to know about the
same. The accused has taken the defence that the
complainant have misused the alleged cheques in
C.C.NO.774/2021
35
collusion with one Mr.Reddy. If really the complainant
misused the alleged cheques in collusion with
Mr.Reddy definitely the accused given the complaint to
the jurisdictional police or any court. But the accused
after filing of this case also he has not taken any legal
action against the complainant. It shows that the
accused in order to escape from his legal liability he
has taken such defence.
37. Further the learned counsel for the accused
relied the aforesaid citations. I have gone through the
citations relied by him. With great respect to the dictum
laid by the Hon’ble courts, the same is not applicable to
the case on hand.
38. Once issuance of the cheques and signatures
are admitted, the statutory presumptions would arise
under sections 118 and 139 of the N.I.Act that the
cheque was issued by the drawer for legally payable
debt/liability and for valid consideration. The Hon’ble
Supreme Court has held in Rangappa V/s Mohan,
reported in 2010 AIR SCW 296, the presumption that
the cheque was drawn in discharge of legally
recoverable debt is a presumption of law that ought to
be raised in every case, though, it is a rebuttable
presumption. Of course, the presumption under section
139 and 118 of the N.I.Act, are rebuttal presumption.
Further it is also held that mere plausible explanation
by the drawer is not sufficient and proof of that
C.C.NO.774/2021
36
explanation is necessary. The principle of law laid-down
in the above decision is applicable to the facts of this
case. In the instant case, since the complainant is in
possession of the cheques-Ex.P.6 to 8 the court has to
draw the initial presumption that he is the payee of that
cheques. Once the initial burden is discharged by the
complainant, the onus shifts on the accused to rebut
the complainant’s case.
39. In the case of K.S.Ranganatha V/s Vittal
Shetty, reported in 2021 SCC Online SC 1191, the
Hon’ble Supreme Court held that once the cheque is
admitted to be that of the accused, the presumption
envisaged in section 118 of the Act can legally be
inferred that the cheque was made or drawn for
consideration on the date which the cheque bears.
Section 139 of the Act enjoins on the court to presume
that the holder of the cheque received it for the
discharge of any debt or liability. It is further held that
the position of law makes it crystal clear that when a
cheque is drawn out and is relied upon by drawee, it
will raise a presumption that it is drawn towards a
consideration which is a legally recoverable amount;
such presumption of course, is rebuttable by proving to
the contrary. The onus is on the accused to raise a
probable defence and the standard of proof for
rebutting the presumption is on preponderance of
probabilities.
C.C.NO.774/2021
37
40. In the case of Kalemani Tax and another V/s
P.Balasubramanian, reported in (2021) 5 SCC 283, the
Hon’ble Supreme Court has observed 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.
41. Applying the above said principles to the
present case and before considering the point whether
the accused succeeded to rebut the presumptions and
to establish his defence to the extent of probabilities, it
is just and necessary to accumulate undisputed facts
in this case.
42. On perusal of the entire documents placed on
record it is reveals that the complainant is an
unregistered partnership firm and partnership deed-
Ex.P.1 was reconstituted on 27.02.2013 and as per
clause 9 of the said deed PW.1 is the Managing
Partner and shall be in incharge of the day today
management of the affairs and business of the firm and
he shall draw a monthly remuneration of Rs.25,000/-
per month and the remuneration payable under this
clause shall treated has an expenditure in determining
the profits or losses of the firm under clause 8. Further
as per the clause 15 of the said deed all other matters
C.C.NO.774/2021
38
for which there are no specific provision in this deed.
Therefore, an individual partner has implied authority to
sign, institute and prosecute the complaint’s before
criminal courts on behalf of the firm. Hence, contention
of the accused that PW.1 has no authorization to file
complaint, depose or to lead evidence before this court
holds no water.
43. It is not in dispute that bounced cheques
belongs to the bank account of the accused. It is also
not in dispute that signatures appearing on the
bounced cheques is the signatures of the accused. It is
also not in dispute that the cheques presented by the
complainant came to be dishonored by the banker of
the accused for the reasons stated in the dishonor
memos. To consider whether the accused succeeded
to rebut the presumption and established the defence
to the extent of probabilities, the accused has not
produced any documents in this regard. If the accused
has paid the entire amount to the complainant, why he
has not produced any documents and further why he
has not taken any legal action against the complainant.
It shows that he is due to pay the amount to the
complainant. Hence, he has no legal action can be
taken against the complainant. It appears, just to
escape from his legal liability, he has taken such
contentions without any valid basis.
44. In the defence there is no ill-will between the
C.C.NO.774/2021
39
complainant and the accused. Further the accused has
not established any ill-will between the complainant and
the accused. Hence, misuse of cheques and filing false
case is not possible. The accused admittedly having
knowledge of business. It is implies, he is conversant
with financial transaction. If the complainant misused
the alleged cheques and had not return the same,
inspite of collecting cheques leaves from him, as a
prudent man, the accused should have inquired with
the complainant and demanded to return those
cheques. No ordinary prudent man would keep quite in
such circumstances, without taking any steps. The
conduct of the accused is very unusual, because he did
not take any legal action against the complainant, even
after filing of the complaint based on Ex.P.6 to 8.
Further he could have issued notice to his banker to
stop payment or legal notice to the complainant or he
could have given complaint to the police station
immediately. No such steps were taken by the accused.
He simply makes a bald allegation of misuse of
cheques against the complainant. It appears, just to
escape from his legal liability, he has taken such
contentions without any valid basis.
45. Moreover, the complainant have got issued a
legal notice to the accused by registered through its
counsel calling upon the accused to make repayment
to the complainant. Before a person is held to be guilty
C.C.NO.774/2021
40
of an offence punishable under section 138 of N.I.Act,
the complainant have to prove the compliance of the
requirement under section 138 of N.I.Act. It is not in
dispute that Ex.P.6 to 8 are the cheques drawn on
account of the accused. In view of the above
discussions, it is also held to be proved that its were
drawn for discharge of legally enforceable debt/liability.
From the evidence of P.W.1 and also cheques return
memos-Ex.P.6(b) to 8(b) it is established that the
cheques were dishonor for the reasons “Insufficient
Funds”. A legal notice being issued as per Ex.P.9 within
one month from the date of dishonor of the cheques is
also not in dispute. In the case on hand the accused
has seriously disputed regarding notice send by the
complainant on his address. But his contention was
that the said notice was not served on him. However,
the accused had never asserted that the address
mentioned in the notice is not his address. The
presumption under section 114 of the Evidence Act and
section 27 of the General Clauses Act is that the notice
was deemed to have been served. In the context of
section 138 of the Act, makes it clear that if once the
sender dispatches the notice by post with correct
address written the notice is deemed to have been
served by the sender. But, the accused failed to reply
the notice, immediately after he received the demand
notice. Thereby, he could have asserted his defence at
an earliest available opportunity. In the case on hand
C.C.NO.774/2021
41
the notice is sent to the accused at his address. When
the accused has not seriously disputed, the notice sent
to the correct address is sufficient compliance under
section 138 of N.I.Act. Therefore, there is sufficient
proof of due service of the legal notice.
46. It is not the contention of the accused that
thereafter he has repaid the cheques amount within
stipulated time of 15 days on receiving the notice.
Therefore, in the case on hand on perusal of the
evidence placed on record, all the essential ingredients
under section 138 N.I.Act, have been complied with. As
the accused has not paid the cheques amount within
stipulated period, as such the accused have committed
an offence punishable under section 138 of Negotiable
Instruments Act. The present complaint is filed before
this court within one month after the accused failed to
repay the cheques amount. Even the accused did not
whisper anything about the defence while his plea was
recorded under section 251 of Cr.P.C. In the judgment
of the Hon’ble Supreme Court in Indian Bank
Association V/s Union of India and others, (2010 (5)
SCC 590), it is clear that while recording the plea under
section 251 of Cr.P.C., it becomes the duty of the
accused to state whether he has any defence to make
or he pleads guilty. Thus, unlike under section 240 of
Cr.P.C., the accused has no option under section 251
of Cr.P.C., just to deny the allegations made against
C.C.NO.774/2021
42
him. If he is not willing to plead guilty, he must explain
what are the defences he wants to take. As such it has
to be considered, whatever defence raised by the
accused during the trial are all after thought, just to get
ride of statutory burden cast on him.
47. In addition to this in the case of T.P.Murugan
(Dead) through legal representatives V/s Bojan,
reported in 2018 (8) SCC 469, the Hon’ble Apex Court
held that once the cheque has been signed and issued
in favour of the holder of the cheque, there is statutory
presumption that the cheque is issued in respect of
legally enforceable debt or liability: rebuttal of such
presumption must be by adducing credible evidence.
Mere raising a doubt without cogent evidence with
respect to the circumstances, presumption under
section 139 of N.I.Act cannot be discharged. The
principle of law laid down in the above decisions are
applicable to the facts of this case. Except some bald
contentions, the accused has not been able to make
out a probable case on his behalf.
48. As per the version of the accused he has
nowhere denied business transaction. The accused
himself has admitted that he is the holder of alleged
cheques. It is sufficient hold that the accused had
issued the cheques and even after he has not repaid
the cheques amount the getting of receipt of notice.
However, in any manner as the complainant have
C.C.NO.774/2021
43
complied all the terms of ingredients of the provisions
of 138 N.I.Act. Hence, the accused is liable for dishonor
of cheques. Accordingly, P.W.1 has established the
case of the complainant. Therefore, the accused has
failed to probables the defence taken by him that
cheques-Ex.P.6 to 8 were not given to the complainant
for payment of the amount and the complainant have
misused the said cheques. Therefore, the accused has
failed to rebut the presumption under section 139 of
N.I.Act. In the said circumstances, the complainant is
not at all required to produce any materials as to the
business transaction between the complainant and the
accused, since the initial presumption is still available,
when there is no rebuttal evidence.
49. PW.1 in his evidence has specifically deposed
that the accused had sent the cloth materials/garments
to the complainant for washing/dying in various colours
on job basis as per the quantity mentioned in the
invoices. Further deposed that said materials has
already been delivered to the accused on the date
mentioned in the invoices and the accused had not
made any payments against the same. Further
deposed that on repeated personal requests, contacts
over phone and personal visits, the accused had issued
the cheques in question as part payment of total
amount of Rs.16,20,937/- and also promised that they
will be arranging the funds in their account. So also it is
C.C.NO.774/2021
44
not in disputed that the complainant and the accused
are known to each other, some point of period. But the
accused has failed to rebut the presumption under
section 139 of N.I.Act. Hence, non furnishing the details
of business transaction no consequences to disbelieve
the case of the complainant. The accused has failed to
probables his defence. With these reasons, I answer
point No.1 and 2 in the Affirmative.
50. POINT NO.3 AND 4: These two points are
inter-related to each other and finding given on any one
point will bearing on the another. Hence, in order to
avoid repetition of facts and evidence, I have taken
these two points together for common discussion
Before a person is held to have committed an offence
punishable under section 138 of N.I.Act, the
complainant have to prove all the requirements of
section 138 of N.I.Act. Ex.P.6 to 8 being his cheques
drawn on the account of the accused is not in dispute.
The said cheques having been dishonored for the
reasons “Funds Insufficient”, when its were presented
by the complainant before the bank for encashment is
also not seriously disputed by the accused. The
accused has not taken up any contention that
thereafter he had paid the cheques amount within
stipulated time of 15 days, after service of the notice.
As such, in the present case on perusal of the
documents, the essential requirements of section 138
C.C.NO.774/2021
45
of N.I.Act, have been complied with. In this case if the
accused had not issued the cheques in favour for
repayment of the amount and why he has not produced
any documents after service of the legal notice. After
service of notice the accused neither reply to the notice
nor paid the cheques amount. Hence, the present
complaint came to be filed before the court on
19.06.2020. While discussing the point No.1 and 2, this
court has already observed that the complainant have
proved that the cheques-Ex.P.6 to 8 were issued for
discharge of legally enforceable liability/debt and in
view of the mandatory requirements under section 138
of N.I.Act, being complied with. The accused is found to
have committed an offence punishable under section
138 of N.I.Act. With these reasons, I answer point No.3
and 4 in the Affirmative.
51. POINT NO.5: The accused is held to have
committed an offence punishable under section 138 of
N.I.Act. The complainant have proved its case. The
accused has failed to prove his rebuttal for the reasons
mentioned above and in view of the mandatory
requirements of section 138 of N.I.Act, being complied
with. The accused is found to have committed an
offence punishable under section 138 of N.I.Act. Since,
the said offence is an economic crime, the accused is
not entitled for the beneficial provisions of probation of
offenders Act. In view of the above discussions and the
C.C.NO.774/2021
46
findings on point No.1 to 4, I proceed to pass the
following;
:ORDER:
Acting under section 255(2) of Cr.P.C.
the accused is convicted for an offence
under section 138 of N.I.Act.
The bail bond executed by the
accused hereby stands canceled.
The accused is sentence to pay fine of
Rs.6,60,000/- (Rupees six lakhs sixty
thousand only) to the complainant.
It is further ordered that out of the said
fine amount an amount of Rs.6,50,000/-
(Rupees six lakhs fifty thousand only) shall
be paid to the complainant company as
compensation as per section 357(1)(b) of
Cr.P.C., and remaining amount of
Rs.10,000/- (Rupees ten thousand only)
shall be remitted to the State.
In default of the payment of fine
amount, the accused shall undergo simple
imprisonment of six months.
(Dictated to the stenographer directly on
computer typed by her, corrected by me and then
judgment pronounced in the open court on 29 th
day of January-2025)(Soubhagya.B.Bhusher)
XXVIII Addl. Chief Judicial
Magistrate, Bengaluru City.
C.C.NO.774/2021
47
ANNEXURE
List of witness examined on behalf of the complainant:
PW.1 : Sri.Narendra Hegde.
List of documents marked on behalf of the complainant:
Ex.P.1 : Certified copy of reconstitution of
partnership deed.
Ex.P.2 to 4 : Certified copies of tax invoices.
Ex.P.5 : Certified copy of ledger account.
Ex.P.6 to 8 : Cheques. Ex.P.6(a) to 8(a) : Signatures of the accused. Ex.P.6(b) to 8(b) : Bank endorsements. Ex.P.9 : Certified copy of the legal notice. Ex.P.9(a) : Certified copy of Postal receipt. Ex.P.10 : Postal acknowledgment. Ex.P.11 : Complaint. Ex.P.12 : Certified copy of the income tax returns. Ex.P.12(a) : Portion of Ex.P.12. Ex.P.13 : Certified copy of the income tax returns. Ex.P.13(a) : Portion of Ex.P.13. Ex.P.14 : Certified copy of the income tax returns. Ex.P.14(a) : Portion of Ex.P.14. Ex.P.15 : Certified copy of the income tax returns. Ex.P.15(a) : Portion of Ex.P.15.
List of witnesses examined on behalf of the accused:
DW.1 : Mr.Perumal.
List of documents marked on behalf of the accused:
-Nil-.
XXVIII Addl. Chief Judicial
Magistrate, Bengaluru City.
C.C.NO.774/2021
48
29.01.2025 (Judgment pronounced in the Open
Court Vide Separate Sheet)
:ORDER:
Acting under section 255(2) of
Cr.P.C. the accused is convicted for an
offence under section 138 of N.I.Act.
The bail bond executed by the
accused hereby stands canceled.
The accused is sentence to pay
fine of Rs.6,60,000/- (Rupees six lakhs
sixty thousand only) to the
complainant.
It is further ordered that out of the
said fine amount an amount of
Rs.6,50,000/- (Rupees six lakhs fifty
thousand only) shall be paid to the
complainant company as
compensation as per section 357(1)(b)
of Cr.P.C., and remaining amount of
Rs.10,000/- (Rupees ten thousand
only) shall be remitted to the State.
In default of the payment of fine
amount, the accused shall undergo
simple imprisonment of six months.
XXVIII Addl. Chief Judicial
Magistrate, Bengaluru City.