[ad_1]
Bangalore District Court
M/S. Ecaps Computers India Pvt Ltd vs M/S. Qualzen Systems on 21 April, 2025
C.C.NO.17348/2024
0
KABC030301492024
Presented on : 03-06-2024
Registered on : 03-06-2024
Decided on : 21-04-2025
Duration : 0 years, 10 months, 18 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.,Bangalore City.
DATED; THIS THE 21st DAY OF APRIL-2025
C.C.NO.17348/2024
Complainant: M/s. ECAPS Computers India Pvt Ltd.,
No.7/1, Ground Floor, 2nd Cross,
Raja Ram Mohan Roy Extension,
K.H.Road, Bengaluru-560027.
R/by Authorized representative,
Mr.Santhosh Kumar, Age: 45 years,
Senior Business Development Executive.
(By Sri.Chandrashekara.H.G.,Adv.,)
V/s
Accused: 1. M/s. Qualzen Systems,
A Proprietorship Firm, No.4/1,
Nishanth Nilaya, 3rd A Cross,
1st Main, Sir M.V.Layout, Thindlu,
Bengaluru-560097,
R/by its Proprietor, Mr.Umesh.P
Ph.No.080-41633789
Mob No.94487 48302/6363508132
Email: [email protected]
2. Mr.Umesh.P, Proprietor
C.C.NO.17348/2024
1
M/s.Qualzen Systems, No.4/1,
Nishanth Nilaya, 3rd A Coss,
1st Main, Sir MV Layout, Thindlu,
Bengaluru-560097, Ph.No.080-41633789
Mob No.94487 48302/6363508132
Email: [email protected]
Also at : No.1085, BEL Second Block,
4th Cross Road, Near BBMP Office,
Vidyaranyapura, Bengaluru North,
Bengaluru-560097.
(By Sri.Ajay.J.Nandalike & Ors.,Advs.,)
:JUDGMENT:
This case arises out of the 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 engaged in the trading business of
Information Technology products (IT products) and
supplying various IT products to various reputed
dealers/customers in Bengaluru and across the
country. The accused No.1 is a proprietorship firm and
the accused No.2 is a proprietor. The accused No.1 is
into IT product business and the accused No.2 is
completely responsible for day-today business
transactions of the accused No.1. Further stated that
the accused No.1 represented by its proprietor, the
accused No.2 have been interacting with the
C.C.NO.17348/2024
2
complainant since the year 2019 and the accused has
been buying IT products from the complainant from
time to time. Further the complainant has been
supplying the IT products based on the purchase
orders and sometime on verbal and e-mail confirmation
of the accused and the accused used to receive and
acknowledge the receipt of the materials as and when
the same was getting delivered. Further stated that the
accused has been making part payments and
sometime full payment against the invoices of the
supplied materials. It is further stated that during the
period of October and December 2022 the accused
has purchased certain IT products from the
complainant and he has also received the
billed/invoiced materials and acknowledged the same.
Further the accused has made the part payment
against one invoice/bill and did not pay other
invoices/bills as stated in para No.5 of the complaint.
3. Further stated that the total outstanding amount
payable by the accused to the complainant as on
26.12.2022 was Rs.31,29,088/- and the same has
been communicated to the accused and followed up for
the payment many times over e-mail and phone, but
the accused No.2 has requesting the complainant for
more time to make payment by giving one or the other
reasons. Further the complainant honored the request
of the accused many times, but he took undue
C.C.NO.17348/2024
3
advantage and never bothered to release the pending
payment to the complainant. Finally, after lot of follow-
ups the accused has issued the cheque No.000017
dated: 25.03.2024 for Rs.31,29,088/- drawn on
Standard Chartered Bank, Sadashiv Nagar, Ground
Floor, 14, Sankey Road, Sadashivnagar, Bangalore.
The complainant was presented the said cheque for
realization through one of its banker branches in
Bengaluru i.e., ICICI Bank, K.H.Road, Bangalore. But
the said cheque was dishonored on 26.03.2024 as
“Payment stopped by drawer”. Thereafter, on
18.04.2024 the complainant got issued a legal notice to
the accused through its counsel calling upon him to
make payment of the cheque within 15 days from the
date of receipt of the legal notice. The said notice was
duly served to the accused on 19.04.2024. After receipt
of the legal notice the accused neither reply to the
notice nor paid the cheque 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 13.05.2024.
4. After the complaint was filed, the cognizance of
the offence cited therein was taken. Sworn statement
of the complainant was recorded. Since there were
sufficient materials to proceed against the accused, an
order was passed on 30.05.2024 to register the case in
Register No.III and it was registered as a criminal case.
C.C.NO.17348/2024
4
5. Thereafter, summons was issued to the
accused and he has appeared before the court through
counsel 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
make a defence.
6. The complainant in support of its case, have
examined its Authorized Representative as PW.1 and
got marked 21 documents at Ex.P.1 to 21 and closed
its side.
7. After closer of the evidence of the complainant,
the statement of the accused under section 313 of
Cr.P.C, was recorded. He has denied the incriminating
evidence appearing against him. Inspite of sufficient
opportunity, the accused not lead defence evidence.
Hence, the defence evidence taken as nil.
8. I have heard the arguments on the complainant
side and also perused the material placed on record.
9. Inspite of sufficient opportunity, the learned
counsel for the accused did not address his argument.
Hence, the arguments on the defence side taken as nil.
On 09.04.2025 the learned counsel for the accused
has filed written argument.
C.C.NO.17348/2024
5
10. 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 cheque-Ex.P.3,
towards the discharge of the said legally
enforceable debt/liability.?
3.Whether the complainant further proves that
cheque-Ex.P.3 was dishonored for the
reasons “Payment stopped by Drawer” and
thereafter the accused had failed to repay the
same within the statutory period, inspite of
receipt of legal notice.?
4.Whether the accused have thus committed
an offence punishable under section 138 of
N.I.Act.?
5. What order?
11. 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:
12. POINT NO.1 AND 2: These two points are
inter-related to each other and findings given on any
one point will bearing on the another. Hence, in order to
avoid repetition of facts, I have taken these two points
C.C.NO.17348/2024
6
together for common discussion. The case of the
complainant is that he was acquainted with the
accused. Further the complainant is engaged in the
trading business of Information Technology products
and supplying various IT products to various reputed
dealers/customers in Bengaluru and across the
country. The accused No.1 is a proprietorship firm and
the accused No.2 is a proprietor. The accused No.1 is
into IT product business and the accused No.2 is
completely responsible for day-today business
transactions of the accused No.1. Further the accused
No.1 represented by its proprietor have been
interacting with the complainant since the year 2019
and the accused has been buying IT products from the
complainant. The complainant has supplying the IT
products based on the purchase orders of the accused
and he used to receive and acknowledge the receipt of
the materials as and when the same was getting
delivered. Further the accused has been making part
payments and sometime full payment against the
invoices of the supplied materials. During the period of
October and December 2022 the accused has
purchased certain IT products from the complainant
and he has also received the billed/invoiced materials
and acknowledged the same. But the accused has
made the part payment and did not pay other
invoices/bills as stated in para No.5 of the complaint.
C.C.NO.17348/2024
7
Further the total outstanding amount payable by the
accused to the complainant was Rs.31,29,088/- and
the same has been communicated to the accused, but
he not paid the pending payment to the complainant.
Finally, after lot of follow-ups the accused has issued
the cheque. The complainant was presented the said
cheque for realization through one of its banker
branches. But the said cheque was dishonored as
“Payment stopped by drawer”. Thereafter, the
complainant got issued a legal notice to the accused
through its counsel calling upon him to make payment
of the cheque. After receipt of the legal notice the
accused neither reply to the notice nor paid the cheque
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.
13. In support of the case, the complainant’s have
examined its Authorized Representative as P.W.1 and
21 documents were marked at Ex.P.1 to 21. In the chief
examination P.W.1 has repeated the contents taken by
the complainant in the complaint. Ex.P.1 is the board
resolution dated: 26.09.2011. Ex.P.2 is the resolution
dated: 02.05.2024. Ex.P.3 is the cheque issued by the
accused in favour of the complainant dated:
25.03.2024 for Rs.31,29,088/-. Ex.P.3(a) is the
signature of the accused No.2. Ex.P.4 is the bank
C.C.NO.17348/2024
8
memo dated: 26.03.2024 informing the dishonor of the
cheque as “Payment Stopped by the Drawer”. Ex.P.5 is
the office copy of legal notice dated: 18.04.2024. Ex.P.6
are the postal receipts. Ex.P.7 to 10 are the postal
acknowledgments. Ex.P.11 to 15 are the tax invoices.
Ex.P.16 and 17 are the ledger account statements.
Ex.P.18 is the purchase order. Ex.P.19 is the e-mail.
Ex.P.20 is the certificate under section 65(b) of Indian
Evidence Act. Ex.P.21 is the complaint.
14. In order to prove the defence, inspite of
sufficient opportunity, the accused not lead defence
evidence. Hence, evidence on the defence side taken
as nil.
15. 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 cheque came to be issued.
The learned counsel for the complainant has argued
that from the evidence placed on record reveals that
the complainant is engaged in the trading business of
Information Technology products and supplying various
IT products to various reputed dealers/customers in
Bengaluru and across the country. The accused No.2 is
a proprietor of the accused No.1. The accused is into IT
product business and the accused No.2 have been
interacting with the complainant since the year 2019
and he has been buying IT products from the
C.C.NO.17348/2024
9
complainant from time to time. Further argued that the
complainant has been supplying the IT products to the
accused based on the purchase orders by verbal and
e-mail confirmation and the accused used to receive
and acknowledge the receipt of the materials as and
when the same was getting delivered to the accused.
Further argued that the accused has been making part
payments and sometime full payment against the
invoices of the supplied materials from the complainant
company. It is further argued that the during the period
of October and December 2022 the accused has
purchased certain IT products from the complainant
company and he has also received the billed/invoiced
materials and acknowledged the same. Further the
accused has made the part payment against one
invoice/bill and did not pay other invoices/bills-Ex.P.11
to 15.
16. Further argued that the total outstanding
amount payable by the accused to the complainant as
on 26.12.2022 was Rs.31,29,088/- and the same has
been communicated to the accused and followed up for
the payment many times over email and phone, but the
accused have been requesting the complainant for
more time to make payment by giving one or the other
reasons. Further argued that after repeated requests
and reminders made by the complainant the accused
was issued the cheque-Ex.P.3. The complainant was
C.C.NO.17348/2024
10
presented the cheque for realization through its banker.
But the said cheque was dishonored as “Payment
stopped by drawer” as per Ex.P.4. Thereafter, the
complainant got issued a legal notice to the accused as
per Ex.P.5 calling upon him to make payment of the
cheque within 15 days from the date of receipt of the
said notice. The said notice was duly served to the
accused as per Ex.P.7 to 10. After receipt of the legal
notice the accused neither reply to the notice nor paid
the cheque amount. He further argued that the accused
has not denied Ex.P.3 being his cheque drawn on the
account of the accused No.1. When the signature is not
disputed, the presumption under section 139 N.I.Act is
to be drawn in favour of the complainant. Inspite of
cross examination of P.W.1, the accused has failed to
elicit anything in the cross examination to disbelieve the
said evidence. The defence have failed to rebut the
presumption under section 139 N.I.Act.
17. He further argued that the accused has failed
to produce any believable evidence that he had not
issued the cheque in favour of the complainant for
repayment of outstanding dues. Further also the
defence how the cheque was got the complainant and
why he has not returned back the same is not clear. He
further argued that under section 139 of N.I.Act, there
is a presumption that the cheque have been issued for
discharge of legally enforceable debt or liability. In the
C.C.NO.17348/2024
11
present case, the accused has not disputed Ex.P.3
being his cheque drawn on the account of the accused
No.1. The said presumption is available to the
complainant. Further argued that the accused has
failed to prove the very fact that the complainant have
misused the alleged cheque. Moreover, under section
118 of N.I.Act, there is a presumption that the
Negotiable Instruments is drawn on the date, for the
amount and in favour of the person as shown in it. It is
for the accused to rebut the said presumption. But, in
the case on hand no such evidence forthcoming.
Further argued that the complainant have produced all
the documents before this court and the complainant
have proved its case beyond reasonable doubts.
Hence, he prays to convict the accused.
18. The learned counsel for the accused has filed
detail written arguments. In the written argument it is
submits that the instant complaint, filed by the
complainant in relation to the alleged dishonor of
cheque is false and baseless allegations, and is,
therefore, liable to be dismissed. It is a well-established
principle of law that the presentation of a dishonored
cheque under section 138 of the N.I.Act, can only be
made in the event that the cheque was issued in
discharge of legally enforceable debt or liability. In the
present case, the subject cheque was neither issued in
discharge of any debt nor for any liability by the
C.C.NO.17348/2024
12
accused to the complainant. Further there is no factual
or legal basis for the complainant’s claim that any such
debt exists. The complainant has failed to substantiate
claim that the cheque was issued in discharge of a
legally enforceable liability, as required under section
138 of the Act. Further submits that it is a fundamental
requirement of law that a complaint under section 138
of the act must be based on a valid cause of action,
which means that there must be a legally enforceable
debt or liability. Further there is no cause of action in
the present case, as the subject cheque was issued in
trust and not for the payment of any debt. In the
absence of a valid cause of action renders the present
complaint not only legally untenable but also an abuse
of the process of this court. In the absence of a debt or
liability, the complaint is cannot be maintained. It is well
settled that mere dishonor of a cheque does not
automatically give rise to a valid cause of action unless
the cheque was issued for the discharge of a legally
enforceable debt or liability, as provided under section
138 of the Act.
19. It is further submits that it is pertinent to note
that the subject cheque was not issued as part of any
transaction involving the discharge of any debt or
liability. The accused had placed an order for electronic
goods from the complainant, and the complainant
demanded that the accused provide a blank cheque. It
C.C.NO.17348/2024
13
is pertinent to note that the accused was initially
hesitant to comply with this demand, but was eventually
compelled to hand over the blank cheque in trust, given
the nature of the business relationship and the
complainant’s insistence. Further the accused
specifically instructed the complainant not to present
the cheque for payment, as the same was provided
solely with the trust and not for the discharge of any
liability. It is well established law that a cheque given
merely based on trust and not for the discharge of a
debt cannot be enforced under section 138 of the Act.
In this regard, time and again, the Hon’ble Apex Court
held that where a cheque is given merely as trust, and
not for the discharge of a debt, no offence under
section 138 of the act would arise. The complainant’s
action of presenting the subject cheque for encashment
in violation of the accused’s express instructions
constitutes an abuse of process and cannot be
entertained by this court. It is further submits that the
complainant’s act of presenting the subject cheque for
payment is not only unlawful but also a clear violation
of the terms under which the cheque was given. The
accused had communicated to the complainant that the
subject cheque was not to be presented for
encashment. Further the accused has never
acknowledged any debt. The presentation of the
subject cheque by the complainant without informing
C.C.NO.17348/2024
14
the accused and without fulfilling the requirements of a
legally enforceable debt enables the instant complaint
as not maintainable. Therefore, the same is outside the
scope of section of the act and does not constitute an
offence punishable under the provisions of the act.
20. Further submits that the complainant has
failed to provide any documentation or evidence to
substantiate the amount specified in the subject
cheque. The amount in the subject cheque is contested
and was never agreed upon by the parties. Further the
accused has made all the payments required for the
goods ordered from the complainant though bank
transfer via RTGS, and all transactions have been duly
completed. The complainant has not produced any
contract, invoice or receipt to demonstrate the
existence of any outstanding amounts or obligations
that would justify the figure stated on the subject
cheque. Moreover, during the cross examination of the
complainant’s witness, it was disclosed that the
purchase orders produced by the complainant as
Ex.P.11 to 15 do not bear the seal of the accused’s
company, thereby forming significant doubts on the
genuineness of the complainant’s claim. This failure to
produce the valid documentation further supports the
accused’s contention that no agreed upon debt exists
between the parties, and as such, the subject cheque
cannot be considered as part of any legally enforceable
C.C.NO.17348/2024
15
transaction. Further submits that the complainant has
failed to produce any evidence establishing that the
goods were delivered to the accused or that the
accused received them. In the absence of any delivery
receipts or signed acknowledgments from the accused
further shows the complainant’s claim that the subject
cheque was issued to discharge a debt for goods
allegedly delivered. In the absence of such proof, the
complainant’s allegations remain unsubstantiated and
is liable to be dismissed. It is well established law that
the burden of proving the existence of a legally
enforceable debt rests entirely on the complainant. The
complainant having failed to discharge this burden by
producing adequate evidence, cannot seek to invoke
the provisions of the section 138 of the Act. In the
absence of such evidence, the complaint is not
maintainable and therefore, be dismissed. Further
submits that in the light of the foregoing facts and
circumstances, it is clear that the complainant has
failed to prove the essential elements required under
section 138 of the Negotiable Instruments Act. The
subject cheque was issued in trust as demanded by the
complainant, not in discharge of any debt or liability.
The complainant has failed to establish the existence of
a legally enforceable debt, and has not provided any
documentary evidence to substantiate the amounts
claimed in the complaint. Hence, he prays to acquit the
C.C.NO.17348/2024
16
accused and dismiss the complaint.
21. In the case on hand the complainant and the
accused having some transaction has not been
seriously disputed by the accused. Further the accused
has not seriously disputed he was a customer of the
complainant and he used to purchase the IT products
from the complainant on credit basis. Towards this
transaction, there is a outstanding balance due to the
complainant is for a sum of Rs.31,29,088/-. It is not
disputed that the complainant is a private limited
company and the accused No.2 is a proprietor of the
accused No.1 and he is a businessman. In order to
attract the offence under section 138 of N.I.Act, the
main ingredients of the existence of the legally
enforceable debt/liability, for which the cheque drawn
on the account of the accused was given for discharge
of the same, are to be proved. The complainant in
order to prove its case, have examined its Authorized
representative as PW.1 and 21 documents were
marked at Ex.P.1 to 21. In chief examination, he has
repeated the averments made by the complainant in
the complaint.
22. 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
C.C.NO.17348/2024
17
enforceable debt/liability. In the case on hand also the
accused has disputed the existence of legally
enforceable debt/liability, for which cheque-Ex.P.3 was
issued. In order to prove his defense, the accused has
not produced any oral or documentary evidence before
this court.
23. 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 produced some probable evidence,
which creates doubt about the existence of legally
enforceable debt/liability. In order to prove his defence,
he has not produced any materials before this court. If
the accused had not issued any cheque to the
complainant for repayment of the outstanding due and
if he had issued the blank cheque in trust, given the
nature of the business relationship and the
complainant’s insistence, 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 alleged cheque.
Admittedly the accused is a businessman having
knowledge of the financial transaction, why he has
C.C.NO.17348/2024
18
given a blank cheque to the complainant without
anticipating the consequence is not explained by him.
So also, he has not stated anything as to what steps he
took to receive back the cheque. Moreover,
immediately after the alleged blank cheque misused by
the complainant he has not lodge complaint before
concerned police station. No steps have been taken to
receive back the cheque, after he came to know about
the same.
24. Once issuance of the cheque and signature
are admitted, the statutory presumptions would arise
under sections 139 and 118 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
118 and 139 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
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 cheque-Ex.P.3 the court has to
C.C.NO.17348/2024
19
drawn the initial presumption that he is the payee of
that cheque. Once the initial burden is discharged by
the complainant, the onus shifts on the accused to
rebut the complainant’s case.
25. In the defence there is no ill-will between the
complainant and the accused. Hence, misuse of
cheque 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 cheque and had
not returned the same, inspite of collecting cheque
leaves from his, as a prudent man, the accused should
have inquired with the complainant and demanded to
return that cheque. 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
cheque-Ex.P.3. Further the accused issued the stop
payment in respect of cheque, but he has not issued
any notice to the complainant regarding stop payment.
Further he could have given complaint to the police
station immediately. No such steps were taken by the
accused. Further the accused did not produce a bank
statement to show that there was sufficient balance in
his account. The accused only for escape from his legal
liability he has given stop payment to the alleged
C.C.NO.17348/2024
20
cheque.
26. Moreover, the complainant have got issued a
legal notice to the accused by registered post through
its counsel calling upon the accused to make
repayment of the cheque amount to the complainant
within 15 days from the date of receipts of the legal
notice. Before a person is held to be guilty of the
offence punishable under 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.3 being his cheque drawn on account
of the accused No.1. In view of the above discussions,
it is also held to be proved that it was drawn for
discharge of legally enforceable debt/liability. From the
evidence of PW.1 and also cheque return memo-Ex.P.4
it is established that the cheque was dishonored for the
reasons “Payment Stopped by Drawer”. A legal notice
being issued as per Ex.P.5 within one month from the
date of dishonour of the cheque is also not in dispute.
In the case on hand the accused has not disputed the
receipt of the legal notice. But the accused has failed to
reply to the notice, immediately after service of the
demand notice. Thereby, he could have asserted his
defence at an earliest available opportunity. In the case
on hand the notice is sent to the accused at his
address. When the accused has not disputed, the
notice sent to the correct address is sufficient
C.C.NO.17348/2024
21
compliance of section 138 of N.I.Act. Therefore, there
is sufficient proof of due service of the legal notice.
27. It is not the contention of the accused that
thereafter he has repaid the cheque 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
of section 138 N.I.Act, have been complied with. As the
accused has not repaid the cheque amount within
stipulated period, the accused has committed an
offence punishable under section 138 of Negotiable
Instruments Act. The present complaint is filed within
the period of one month after the accused failed to
repay the cheque 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 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 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 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
C.C.NO.17348/2024
22
are all after thought, just to get ride of statutory burden
cast on him.
28. 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.
29. The accused has nowhere denied transaction.
The accused himself has admitted that the accused
No.1 is the holder of alleged cheque. It is sufficient hold
that the accused No.2 has issued the cheque-Ex.P.3
and even after he has not repaid the cheque amount
the getting of receipt of notice. However, in any manner
as the complainant have complied all the terms of
ingredients of the provisions of 138 of N.I.Act.
Accordingly, PW.1 has established the case of the
complainant, the accused had issued the cheque-
Ex.P.3 in order to repay the legally recoverable amount.
Therefore, the accused has failed to rebut the
C.C.NO.17348/2024
23
presumption under section 139 of N.I.Act. In the said
circumstances, the complainant is not at all required to
produce any material as to the business transaction
between the complainant and the accused, since the
initial presumption is still available, when there is no
rebuttal evidence.
30. PW.1 in his evidence has specifically deposed
that the accused in order to repayment of total
outstanding amount issued the cheque. The
complainant has presented the said cheque for
encashment. But the said cheque was dishonored for
the reason “Payment Stopped by Drawer”. So also it is
not in disputed that the complainant and the accused
are known to each other, some point of period. The
accused has failed to probables his defense. The
accused has failed to rebut the presumption under
section 139 of N.I.Act. With these reasons, I answer
point No.1 and 2 in the Affirmative.
31.POINT NO.3 AND 4: In order to avoid
repetition of facts, these two points are taken 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.3 being his
cheque drawn on the account of the accused No.1 is
not in dispute. The said cheque having been
dishonored, when it was presented by the complainant
C.C.NO.17348/2024
24
before the bank for encashment is also not seriously
disputed by the accused. Thereafter, the notice-Ex.P.5
being issued by the complainant further admitted. The
accused has not taken up any contention that
thereafter he had paid the cheque amount within
stipulated time of 15 days, after service of the notice.
As such, in the present case from perusal of
documents, the essential requirements of section 138
of N.I.Act, have been complied with. When the accused
immediately after service of the notice, he has not paid
the cheque amount. In this case the accused why he
has not replied the notice and initially why he has not
produced any documents. Hence, the present
complaint came to be filed before the court on
13.05.2024 within the period of one month from the
date cause action. While discussing the point No.1 and
2, this court has already observed that the complainant
have proved that the cheque was issued for discharge
of legally enforceable liability or debt 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. Accordingly, I answer point No.3 and 4 in the
Affirmative.
32.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
C.C.NO.17348/2024
25
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
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
punishable 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.31,50,000/- (Rupees thirty one lakhs fifty
thousand only) to the complainant.
It is further ordered that out of the said
fine amount an amount of Rs.31,40,000/-
(Rupees thirty one lakhs forty thousand only)
shall be paid to the complainant 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
C.C.NO.17348/2024
26
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 21 st day of April-
2025)(Soubhagya.B.Bhusher)
XXVIII Addl. Chief Judicial
Magistrate, Bengaluru city.
ANNEXURE
List of witness examined on behalf of the complainant:
PW.1 : Sri.Santhosh Kumar.R.
List of documents marked on behalf of the complainant:
Ex.P.1 : Board resolution. Ex.P.2 : Resolution. Ex.P.3 : Cheque. Ex.P.3(a) : Signature of the accused. Ex.P.4 : Bank endorsement. Ex.P.5 : Office copy of legal notice. Ex.P.6 : Postal receipts. Ex.P.7 to 10 : Postal acknowledgments. Ex.P.11 to 15 : Tax Invoices. Ex.P.16 & 17 : Ledger account statements. Ex.P.18 : Purchase order Ex.P.19 : E-mail. Ex.P.20 : Certificate U/s.65(b) of I.E.Act. Ex.P.21 : Complaint.
List of witnesses examined on behalf of the accused:
-Nil-
List of documents marked on behalf of the accused:
-Nil-
XXVIII Addl. Chief Judicial
Magistrate, Bengaluru City.
C.C.NO.17348/2024
27
21.04.2025 (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 punishable 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.31,50,000/- (Rupees thirty
one lakhs fifty thousand only) to the
complainant.
It is further ordered that out of the
said fine amount an amount of
Rs.31,40,000/- (Rupees thirty one lakhs
forty thousand only) shall be paid to the
complainant 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.
[ad_2]
Source link