Bangalore District Court
Punit Kumar Tiwari vs Eshwar Reddy M on 23 December, 2024
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CC No. 30651 / 2021
KABC030812692021
Presented on : 09-11-2021
Registered on : 09-11-2021
Decided on : 23-12-2024
Duration : 3 years, 1 months, 14 days
IN THE COURT OF XX ADDL.CHIEF JUDICIAL
MAGISTRATE AT BENGALURU CITY
PRESENT: SRI. SHRISHAIL BHIMASHEN BAGADI,
B.Com.,L.L.B.,
XX ADDL. C.J.M., Bengaluru.
Dated this the 23rd day of December 2024
C.C.No. 30651/ 2021
Complainant : Punit Kumar Tiwari,
s/o. Sri. Ram Narayan Tiwari,
Aged about 34 years,
No.23, F No.03, 3rd Floor,
Babu Reddy Layout, D C Halli,
N/R Mahaveer Apartment,
B G Road,
Bangalore - 560 076
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CC No. 30651 / 2021
(By Sri. Vijay Kumar -Advocate)
Accused : 1. Eshwar Reddy M,
Major,
Proprietor : Sri. Raghavendra Industries,
No.A-366, 6th Cross, 1st Stage,
Peenya Industrial Estate,
Bangalore - 560 058
2. Sri. Raghavendra Industries,
No.A-366, 6th Cross, 1st Stage,
Peenya Industrial Estate,
Bangalore - 560 058
(By Sri. H B Rudresh- Advocate)
Offence complained : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final Order : Accused is convicted.
Date of Judgment : 23.12.2024
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CC No. 30651 / 2021
JUDGMENT
The complainant has filed this complaint under
Section 200 of the Code of Criminal Procedure against the
accused, alleging that the accused has committed an
offense punishable under Section 138 of the Negotiable
Instruments Act.
02. The brief facts of the Complainant’s case are as
under;
The accused No.1 being the Proprietor of accused
No.2 and being well known to the Complainant from past
three years had approached the Complainant in the month
of January 2020 and had sought for hand loan of
Rs.1,35,000/- from the Complainant for urgent business
purposes. Accordingly the Complainant paid a sum of
Rs.1,35,000/- to the accused No.1 and 2 by way of cash as
loan on 27.01.2020 and accused No.1 and 2 executed on
demand promissory note and consideration receipt on
27.01.2020 for Rs.1,35,000/- in favour of complainant.
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The accused No.1 and 2 agreed to repay the total sum of
Rs.1,35,000/- along with interest to the Complainant. On
repeated demand and personal approaches made by the
Complainant, accused No.1 representing accused No.2 had
issued following 3 cheques
CHEQUE NO AMOUNT DATE DRAWN ON
005312 32000/- 22.12.2020 Bank of Baroda, Peenya
Industrial Area, Bangalore
005313 32000/- 22.12.2020 Bank of Baroda, Peenya
Industrial Area, Bangalore
005320 32000/- 22.12.2020 Bank of Baroda, Peenya
Industrial Area, Bangalore
in favour of complainant towards part payment. As per the
instructions of the accused, the complainant presented the
all the cheques on 12.01.2021 & on 22.01.2021 for
encashment through Lakshmi Vilas Bank now part of DBS
Bank India Limited, City Market Branch, Bengaluru, but
the aforesaid cheques returned with endorsement as
“Payment stopped by the drawer” as per the cheque
return memo dated 12.01.2021 and on 22.01.2021. The
factam of dishonour of a cheque duly communicated to the
accused through legal notice dated 30.01.2021. The
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CC No. 30651 / 2021
notice issued by the complainant was duly served on
02.02.2021. Despite the service of notice and lapse of the
statutory period of 15 days, the accused did not come
forward to pay the cheque amount nor issued a reply
notice. Therefore, the accused has committed an offence
punishable under Section 138 of the Negotiable
Instruments Act.
03. The complainant to prove the material allegations
made in the complaint examined himself as PW1 and got
marked the documents as per Ex.P1 to P13. The court
took cognizance of the offence under Section 138 of the
Negotiable Instruments Act based on the complaint
averments, sworn statement and marked documents and
also registered the criminal case and issued summons to
the accused. On receipt of summons, the accused
appeared before the court through his counsel and was
enlarged on bail. The substance of the accusation read over
and explained to him; he did not plead guilty and claimed
to be tried. In compliance with section 145(1) of the
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CC No. 30651 / 2021
Negotiable Instruments Act, the sworn statement affidavit
of the Complainant treated as chief examination and
posted the matter for cross examination of PW1, thereafter
the accused remained absent before the court, despite
issuing NBW the presence of accused could not be secured
before the court, consequently the cross of PW1 was taken
as Nil and also dispensed recording of statement of
accused under Section 313 of Cr.P.C. as per ratio laid
down by the Hon’ble High Court of Karnataka in Crl.Rev.
Pet.1333/2018 dated 02.02.2023 between Sri.B.N.
Ashwathnarayana V/s. Sri.Shankar, in this case, the
hon’ble High Court has held that, the offense under section
138 of NI Act, has to be tired summarily, and there is no
need to record the statement of the accused under section
138 of the Negotiable Instruments Act, when the accused
intentionally absent before the court to cause delay in
disposal of the case, accordingly the statement of the
accused dispensed with and posted the matter for defense
evidence, but the accused remained absent before the
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court, hence the defense evidence of the accused taken as
nil.
04. On perusal of the complaint averments and
documents produced along with complaint, the following
points that arise for my consideration;
POINTS FOR CONSIDERATION
1. Whether the complainant proves
beyond all reasonable doubt against
the accused that, the accused had
issued 3 following cheques
CHEQUE NO AMOUNT DATE DRAWN ON
005312 32000/- 22.12.2020 Bank of Baroda,
Peenya
Industrial Area,
Bangalore
005313 32000/- 22.12.2020 Bank of Baroda,
Peenya
Industrial Area,
Bangalore
005320 32000/- 22.12.2020 Bank of Baroda,
Peenya
Industrial Area,
Bangalore
to discharge legally recoverable
debt ?
2. Whether the court can dispense
the recording of the statement of the
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CC No. 30651 / 2021
accused under Section 313 of the
Cr.P.C. in the summary trial ?
3. What Order or sentence ?
05. Heard Arguments from the learned counsel for
Complainant.
06. The learned counsel for Complainant in
support of his arguments placed his reliance on the
judgment of the Hon’ble High Court of Karnataka decided
in Crl.Rev. Pet.1333/2018 dated 02.02.2023 between
Sri.B.N. Ashwathnarayana V/s. Sri.Shankar .
07. Upon hearing arguments and on perusal of oral
and documentary evidences made available by the
Complainant and on going through the ratio laid down in
the decision relied upon by the learned counsel for
Complainant, my answers to the above points are as
under.
1. Point No.1: In the Affirmative
2. Point No.2: In the Affirmative
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CC No. 30651 / 2021
3. Point No.3: As per final order
for the following;
REASONS
POINT No.1 & 2 :
08. These points are inter connected with each other,
hence to avoid repetition of facts and appreciation of
evidences, both points are taken together for common
discussion.
09. The complainant has filed this complaint against the
accused for the offense punishable under Section 138 of
the Negotiable Instruments Act. The accused No.1 being
the Proprietor of accused No.2 and being well known to
the Complainant from past three years had approached
the Complainant in the month of January 2020 and had
sought for hand loan of Rs.1,35,000/- from the
Complainant for urgent business purposes. Accordingly
the Complainant paid a sum of Rs.1,35,000/- to the
accused No.1 and 2 by way of cash as loan on 27.01.2020
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CC No. 30651 / 2021and accused No.1 and 2 executed on demand promissory
note and consideration receipt on 27.01.2020 for
Rs.1,35,000/- in favour of complainant. The accused No.1
and 2 agreed to repay the total sum of Rs.1,35,000/- along
with interest to the Complainant. On repeated demand
and personal approaches made by the Complainant,
accused No.1 representing accused No.2 had issued
following 3 cheques
CHEQUE NO AMOUNT DATE DRAWN ON
005312 32000/- 22.12.2020 Bank of Baroda, Peenya
Industrial Area, Bangalore
005313 32000/- 22.12.2020 Bank of Baroda, Peenya
Industrial Area, Bangalore
005320 32000/- 22.12.2020 Bank of Baroda, Peenya
Industrial Area, Bangalorein favour of complainant towards part payment. As per the
instructions of the accused, the complainant presented the
all the cheques on 12.01.2021 & on 22.01.2021 for
encashment through Lakshmi Vilas Bank now part of DBS
Bank India Limited, City Market Branch, Bengaluru, but
the aforesaid cheques returned with endorsement as
“Payment stopped by the drawer” as per the cheque
11
CC No. 30651 / 2021return memo dated 12.01.2021 and on 22.01.2021. The
factam of dishonour of a cheque duly communicated to the
accused through legal notice dated 30.01.2021. The notice
issued by the complainant was duly served on 02.02.2021.
Despite of service of notice the accused failed to discharge
his liability.
10. The complainant to prove his case examined
himself as PW1, in his examination in chief affidavit, he
has reiterated the averments made in the complaint. In
addition to the oral evidence, the complainant has
produced documents as per Ex.P1 to P13. Among these
documents, Ex.P1 to 3 are the cheques issued by accused
in favour of complainant and the signatures of the accused
is marked as Ex.P1(a) to 3(a). Ex.P4 to 6 are the cheque
return memos wherein it is mentioned that the cheque
issued by the accused came to be returned due to
“Payment stopped by the drawer”. Ex.P7 is the office copy
of the legal notice issued by the complainant in favour of
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CC No. 30651 / 2021
accused calling upon him to pay the cheque amount.
Ex.P.8 & 9 are the postal receipts, Ex.P10 and 11 are the
track consignment reports – 2, Ex.P12 is the letter sent to
post office, Ex.P13 is the DP note. The accused remained
absent before the court after recording his plea, thereafter,
the court took coercive steps by dispensing the statement
of accused under Section 313 of Cr.P.C. and also taking
the defense evidence of accused as Nil. Now the question
that arises before the court is whether the court can
dispense the recording of a statement under Section 313 of
Cr.P.C., In this regard, it is relevant to see the provisions of
law as contemplated under Section 143 of the Negotiable
Instruments Act, which starts with a non-obstante clause.
Section 143 of the Negotiable Instruments Act speaks that,
“notwithstanding anything contained
in the code of criminal procedure
1973, an offenses under this chapter
shall be tried by the Judicial
Magistrate of first class or by
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CC No. 30651 / 2021
Metropolitan Magistrate and the
provisions of section 262 to 265 (both
inclusive) of the said code shall, as
far as may be, apply to such trials,
provided that in the case any
conviction in summary trial under
this section, it shall be lawful for the
Magistrate to pass sentence of
imprisonment for a term not
exceeding one year and amount of
fine exceeding Rs.5,000/-“. Provided
further that, at the commencement
of, or in the course of, a summary
trial under this section, it appears to
Magistrate that the nature of the
case is such that, a sentence of
imprisonment for term exceeding one
year may have to be passed or that it
is, for any other reason, UN-desirable
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CC No. 30651 / 2021
to try the case summarily, the
Magistrate after hearing the parties
record the order to that effect and
thereafter recall any witnesses who
made have been examined and
proceeded to hear or rehear the case
in the manner provided by the said
code.
11. The provision of Section 143 of the Negotiable
Instruments Act makes it very clear that the offenses under
Section 138 of the Negotiable Instruments Act shall be
tried summarily as per Sections 262 to 265 of the Cr.P.C.
On going through sections 262 to 265 of the Cr.P.C., there
is no stage for recording the statement of the accused
under section 313 of the Cr.P.C. If for any other reason the
Magistrate forms an opinion that it is undesirable to try the
case summarily and upon passing orders and converting
the case into a summons trial, then only the Magistrate
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can record the statement of the accused under Section 313
of Cr.P.C. the same proposition of law has been discussed
in the decision of Hon’ble High Court of Karnataka decided
in Crl.Rev. Pet.1333/2018 dated 02.02.2023 between
Sri.B.N. Ashwathnarayana V/s. Sri.Shankar, wherein
Hon’ble High Court of Karnataka held that, if the accused
remained absent before the court at the time of recording
the statement under section 313 of Cr.P.C. and at the time
of processing judgment and in passing sentence, there is
no requirement of recording statement of the accused
under section 313 of Cr.P.C. as the matter of fact record of
summary trail under section 263 of Cr.P.C. does not
provide for recording of statement under section 313 of
Cr.P.C..
12. The statement of the accused under Section 313
of the Cr.P.C. in the negotiable instrument act is nothing
but verbatim reproduction of the plea of the accused; if the
accused contests the matter by cross-examining the
complainant and raises a new defence, then only the court
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can explain the incriminating circumstances to the
accused other than the verbatim reproduction of his plea.
But in this case, the learned counsel for the accused did
not come forward to cross-examine the PW.1, and the
accused has not established his defence. Under such
circumstances, postponing the matter for recording of his
statement under Section 313 of the Cr.P.C. is nothing but
wasting the precious time of the court and prolonging the
litigation. If the accused has any valid defense, then he
could have appeared before the court and cross-examined
the complainant; therefore, recording the statement of the
accused under Section 313 of the Cr.P.C. is not mandatory
when the accused is intentionally absent before the court.
13. The complainant, to fulfill the requirements of
Section 138 of the Negotiable Instruments Act, has
produced the documents as per Ex.P1 to P13. On perusal
of Ex.P1 to 3 discloses that the accused had issued the 3
cheques to discharge a legally recoverable debt of
Rs.32,000/- each in favour of the complainant. On perusal
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of Ex.P4 to 6 they discloses that the cheques in question
issued by the accused came to be returned with the
endorsement “Payment stopped by the drawer”. Further,
on perusal of Ex.P7, it discloses that the complainant has
demanded the cheques amount by issuing a legal notice to
the accused personally, calling upon him to pay the cheque
amount, failing which they will be liable to face criminal
prosecution under Section 138 of the Negotiable
Instruments Act. On perusal of Ex.P10 and 11 discloses
that the demand notice issued by the complainant in
favour of the accused duly served to the accused, despite of
service of legal notice, the accused did not come forward to
pay the cheque amount. Therefore, on perusal of
documentary evidence, it is clear that, the complainant has
complied with the mandatory requirements of Section 138
of the Negotiable Instruments Act. In order to bring the
accused persons into the purview of Section 138 of the
Negotiable Instruments Act, the complainant is required to
prove the issuance of a cheque by the accused to discharge
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CC No. 30651 / 2021
legally recoverable debt and also the issuance of demand
notice and failure on the part of the accused to pay the
cheque amount after the lapse of 15 days from the date of
receipt of legal notice. Section 139 of the Negotiable
Instruments Act speaks that, until the contrary is proved,
the court has to presume that the cheque in question was
issued by the accused to pay the legally recoverable debt.
Further, the accused has not challenged the issuance of a
cheque and signature appearing on the cheque, which
itself is sufficient to prove the guilt of the accused beyond
all reasonable doubt. Further, the accused remained
absent before the court after recording his plea, and his
counsel did not come forward to cross-examine PW1 to
challenge the validity of the documents marked in favour of
complainant, therefore, the accused persons have not
adduced rebuttal evidence.
14. The Hon’ble Supreme Court of India in the latest
decision reported in 2023 SCC Online SC 1275 between
Rajesh Jain Vs Ajay Singh, in this case the Hon’ble
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CC No. 30651 / 2021
Supreme Court of India has held that, the legal burden is
the burden of proof which remains constant throughout a
trial. On the other hand, the evidential burden may shift
from one party to another as the trial progresses, according
to the balance of evidence given at any particular stage. In
all trials concerning dishonour of cheque, the court are
called upon to consider whether the ingredients of the
offence enumerated in section 138 of the Act have been
met and if so, whether the accused was able to rebut the
statutory presumption contemplated by section 139 of the
Act, further, it said that section 139 is a reverse onus
clause and requires the accused to prove the non-existence
of the presumed fact, I,e that cheque was not issued in
discharge of a debt/ liability. Further held that, the NI Act
provides for two presumptions, one under section 118 of
the Act, which directs that it shall be presumed, until the
contrary is proved, that every negotiable instrument was
made or drawn for consideration. Further, under section
139, which stipulates that unless the contrary is proved, it
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CC No. 30651 / 2021
shall be presumed that the holder of the cheque received
the cheque for the discharge of, whole or part of any debt
or liability. The ‘presumed fact’ directly relates to one of the
crucial ingredients necessary to sustain a conviction under
section 138 of the NI Act. Further held that, section 139 of
the NI Act, which takes the form of a ‘shall presume’ clause
is illustrative of a presumption of law. It is obligatory for
the court to raise this presumption has been established.
But this does not preclude the person against whom the
presumption has been established. But this does not
preclude the person against whom the presumption is
drawn from rebutting it and proving the contrary, as is
clear from the use of the phrase ‘ unless the contrary is
proved’, after taking note of Bir Singh Vs Mukesh Kumar
(2019)4 SCC 197, wherein it was held that presumption
takes effect even in a situation where the accused contends
that ‘ a blank cheque leaf was voluntarily signed and
handed over by him to the complainant, without admitting
the execution of the entire contents in the cheque, is not
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CC No. 30651 / 2021
sufficient to trigger the presumption. Further held that, as
soon as the complainant discharges the burden to prove
that, the instrument was issued by the accused for
discharge of debt, the presumptive device under section
139 of the Act, that helps to shift the burden on the
accused of proving that the cheque was not received by the
bank towards the discharge of any liability. Until this
evidential burden is discharged by the accused, the
presumed fact will have to be taken to be true, without
expecting the complainant to do anything further. In the
case of Basalingappa Vs Mudibasappa (2019) 5 SCC 418
held that, to rebut the presumption and prove to the
contrary, it is open to the accused to raise a probable
defence, wherein the existence of a liability enforceable
debt or liability can be contested. The words ‘ until the
contrary is proved’ occurring in Section 139 do not mean
that accused must necessarily prove the negative that the
instrument is not issued in discharge of any debt/liability,
but the accused has two options. The first option is to
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CC No. 30651 / 2021
prove that the debt/liability does not exist and conclusively
establish the cheque was not issued in discharge of a
debt / liability. The second option is to prove the non
existence of debt / liability by a preponderance of
probabilities by referring to the circumstances of the case.
The nature of evidence required to shift the evidential
burden need not necessarily be direct I,e oral or
documentary evidence or admissions made by the opposite
party ; it may comprise circumstantial evidence or
presumption of law or fact.
15. Therefore, keeping in mind the ratio laid down
in the above-mentioned decision, it is clear that the
complainant has proved the initial burden as contemplated
under Section 139 of the Negotiable Instruments Act
regarding the issuance of cheque by the accused to
discharge legally recoverable debt and also proved the
statutory presumption as provided under Section 118(a) of
the Negotiable Instruments Act that he is the holder in due
course of the cheque issued by the accused to discharge
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CC No. 30651 / 2021
legally recoverable debt. On perusal of complaint
averments, it is disclosed that, the accused has received an
amount of Rs.1,35,000/-, and for discharge of part
payment of the principle amount, had issued the disputed
3 cheques for Rs.32,000/-each ; therefore, the accused is
liable to pay the additional compensation amount of
Rs.30,000/- and litigation expense of Rs.10,000/-.
Therefore, the complainant has proved his case beyond all
reasonable doubt. Further more, the accused has not
contested the matter by cross examining the PW1,
therefore it is a fit case to convict the accused.
Accordingly, I answer point No.1 and 2 in the Affirmative.
16. POINT NO.2: In view of the above findings, this
court proceed to pass the following;
ORDER
Acting under Section 255(2) of code
of criminal procedure, the accused No.1
and 2 are hereby convicted for the offense
punishable under Section 138 of
Negotiable Instruments Act.
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As per section 357(1)(b) of code of
criminal procedure, the accused No.1
shall pay a fine of Rs.1,41,000/-(Rupees
One Lakh Forty One thousand only)
(compensation amount and litigation
expenses ) out of that Rs.1,36,000/-
(Rupees One Lakh
Thirty Sixe thousand only) payable to the
Complainant as compensation and of
Rs.5,000/- (Rupees Five Thousand only)
is remitted to the state of government, in
default of payment of fine the accused
No.1 shall under go simple imprisonment
for a period of 3 months.
The bail bond and surety bond
executed by the accused No.1 stands
canceled.
The office is directed to supply free
copy of the judgment to the accused No.1.
{Dictated to the stenographer, transcribed and computerized by her, revised corrected
and then pronounced in the open court on this 23rd day of December 2024}.
(SHRISHAIL BHIMASHEN BAGADI)
XX A.C.J.M., Bengaluru.
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ANNEXURE
List of witnesses examined on behalf of complainant:
P.W.1 Punit Kumar Tiwari
List of documents produced on behalf of complainant:
Ex.P.1 to 3 Cheques
Ex.P.1(a) to 3(a) Signatures of the accused
Ex.P.4 to 6 Bankers Return Memos
Ex.P.7 Copy of the legal notice
Ex.P.8 & 9 Postal Receipts - 2 Nos.
Ex.P10 & 11 Track consignment report
Ex.P12 Letter sent to post office
Ex.P13 DP note
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List of witnesses examined on behalf of accused:
Nil
List of documents produced on behalf of accused:
Nil
XX A.C.J.M.,
Bengaluru.