IN THE COURT OF XX ADDL.

CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY

Dated this the 3rd day of December 2019

PRESENT: KALPANA.M.S.,
B.Sc., LL.M.,
XX ADDL. C.M.M.
Bengaluru.

C.C.No.27115/2017

Complainant : M/s. K.M.Cables and Conductors,

At No.234, 3rd Floor,
Garudchar Complex,
Chikpet, Bengaluru – 560 053.

Represented by its authorized signatory/

Proprietor,
Mr. Rishi Kansal,
Age about 42 years.

Vs.

Accused : Mrs. Manita Kumari,

Propritrix,
Aged about 60 years,
M/s. Safetech Services,
#7, 2 A Cross, 1st Main Road,
Kempapura- Hebbal,
Bengaluru – 560 024.
 2 C.C.27115/2017

Also at

No.27, II Cross,
Munikempanna Layout,
Dasarahalli – Hebbal,
Bengaluru – 560 024.

Offence complied of : U/S. 138 of N.I. Act.,

Plea of accused : Pleaded not guilty

Final Order : Accused is Convicted

Date of Order : 03-12-2019

JUDGMENT

The complainant has filed this complaint through

proprietor under section 200 of code of criminal procedure

read with section 138 of the Negotiable Instruments Act ( in

short referred as “N.I. Act”) against the accused alleging that,

she has committed the offence.

 3 C.C.27115/2017

02. The sum and substance of the complaint, is as follows;

The accused has placed the orders for supply of Core

Shd Cable of different sizes with the complainant and the

same were supplied through invoices and the accused has

acknowledged the same. As per the said invoice, the accused

is due a sum of Rs.9,71,392/- towards the supply of the said

materials. As per the terms, the accused has agreed to pay

the bill amount within 30 days from the date of receipt of the

materials, but failed and neglected to pay the said amount.

After several demands and requests, accused has issued a

cheque bearing No176033 dated 26.08.2017 for

Rs.1,50,000/-, drawn on Union bank of India,

Bhuvaneshwari Nagar Branch, Bengaluru. Complainant

presented the said cheque for encashment through his

banker and the said cheque returned with an endorsement

“Exceeds Arrangement”, dated 07.09.2017. Thereafter,

complainant got issued legal notice on 20.09.2017 to

 4 C.C.27115/2017

accused. The notice was duly served to the accused on

28.09.2017. Accused neither complied nor replied the notice.

It is contended that, accused intentionally not maintained

sufficient amount in her bank account to honour the cheque

issued in favour of the complainant towards discharge of

legally enforceable debt. On these allegations, present

complaint is filed.

03. After filing of complaint, this court perused the

documents and taken cognizance for the offence punishable

under section 138 of Negotiable Instrument Act, sworn

statement of complainant was recorded. Being satisfied that

there are prima-facie materials to proceed against accused,

summons was issued. After appearance, accused enlarged on

bail and plea was recorded as per section 251 of Cr.P.C.

Accused has not stated the defence.

 5 C.C.27115/2017

04. Learned Counsel for complainant prays to treat sworn

statement as examination-in-chief and to consider the

documents marked as Ex.P.1 to 11. The statement under

section 313 of code of criminal procedure is recorded, read

over and explained to the accused. The defence of the accused

is total denial. Further accused herself examined as DW.1

and not let in documentary evidence.

05. In this case, the evidence on record shows that

summons trial procedure was adopted instead of summary

trial. As per the judgment passed by Supreme Court reported

in 2014 Cr.L.J. 1953, in a case of Mehsana Nagarik Sahakari

Bank Limited V/s. Shreeji CAB Company Limited and others,

conducting Denova trial does not arises.

 6 C.C.27115/2017

06. Heard the Learned Counsel for complainant and

accused. Perused the materials on record.

07. The points that arise for my consideration are as

follows;

POINTS

1. Whether the complainant proves that,

accused issued a cheque bearing
No176033 dated 26.08.2017 for
Rs.1,50,000/-, towards discharge of
her liability, which was returned
unpaid on presentation and also not
complied the notice issued by the
complainant and thereby committed
an offence punishable under section
138 of Negotiable Instruments Act?

2. What Order?

08. My answer to the above points is as follows;

1. Point No.1: In the Affirmative

2. Point No.2: As per final order
for the following;
 7 C.C.27115/2017

REASONS

09. POINT No.1: Complainant has filed this complaint

alleging that accused has committed offence under section

138 of N.I. Act. He pleads and asserts that, towards discharge

of her liability, accused has issued a cheque bearing

No176033 dated 26.08.2017 for Rs.1,50,000/-. The said

cheque came to be dishonoured on presentation.

Complainant has issued notice within time stipulated calling

upon the accused to pay the amount covered under cheque.

Inspite of service of notice, accused has not paid the amount

within 15 days, which gave raise cause of action to file this

complaint. He further relied on the documents from Ex.P.1 to

11. This witness was subjected to cross examination.

10. In this scenario, let us scrutinize the documents relied

by complainant in order to examine the compliance of

statutory requirements envisaged under section 138 of N.I.

Act. Ex.P.1 is cheque dated 26.08.2017, the said cheque

 8 C.C.27115/2017

returned with an endorsement "Exceeds Arrangement",

Ex.P.2 is bank endorsement dated 07.09.2017, Ex.P.3 is legal

notice dated 20.09.2017, the said notice was duly served on

the accused on 28.09.2017, Ex.P.4 & 5 are postal receipts,

Ex.P.6 Postal acknowledgement, Ex.P.7 returned postal cover,

Ex.P.8 & 9 are the ledger accounts, Ex.P.10 Bill wise details,

Ex.P.11 is the tax invoices. This complaint came to be filed on

09.11.2017. A careful scrutiny of the documents relied by the

complainant goes to show that, statutory requirements of

section 138 of N.I. Act is complied with and this complaint is

filed within time. Thus, complainant relied on the statutory

presumptions enshrined under section 118 read with section

139 of N.I. Act.

11. No doubt, the said presumptions of law are rebuttable in

nature. The accused can take probable defence and rebut the

presumption available to the complainant. Let us examine

whether accused has successfully rebutted the presumptions

 9 C.C.27115/2017

of law. It is pertinent to note that, in her evidence, accused

has un-equivocally admitted the issuance of the cheque

towards payment of the cable fee. Further, she admits her

liability and states that, she came forward to pay

Rs.1,50,000/- by way of Demand Draft to the complainant.

He failed to receive the Demand Draft. Now, she is ready to

pay Rs.1,50,000/- to the complainant. To endorse this

contention, accused examined herself as DW.1, but not let in

documentary evidence. .

12. In this scenerio, this court has given anxious

consideration to the case papers. At the outset, accused has

admitted in her evidence that, the cheque in question

belongs to her and it bears her signature. For better

appreciation the relevant portion of cross examination of

DW.1 is culled out as under;

É É ¤¦.1-«ªÁ¢vÀ ZÉPÀÄÌ £À£Àß PÀA¥À¤AiÀÄ ¨ÁåAPï SÁvÉUÉ

¸ÀA§A¢¹zÉ, ¸ÀzÀj ZÉQÌ£À°è £À£Àß ¸À» EzÉ……. £Á£ÀÄ
 10 C.C.27115/2017

ªÁ¸À«gÀĪÀ C¥ÁmïðªÉÄAmï ±ÀÄ®Ì ¥ÁªÀw¸ÀĪÀ ¸À®ÄªÁV gÀÆ.

1.50 ®PÀëzÀ r.r.AiÀÄ£ÀÄß F £ÁåAiÀÄ®AiÀÄzÀ°è zÀÆgÀÄzÁgÀjUÉ
PÉÆqÀ®Ä ºÉÆÃVzÉÝ. DvÀ ¹éÃPÀj¸À°®è. rrAiÀÄ£ÀÄß zÀÆgÀÄzÁgÀjUÉ
PÉÆqÀ®Ä ¥ÀæAiÀÄwß¹ ¢£ÁAPÀ £É£À¦®è. r.r.AiÀÄ ¢£ÁAPÀ
ªÀÄÄPÁÛAiÀÄUÉÆAqÀ PÁgÀt, rrAiÀÄ£ÀÄß »A¢gÀÄV¹ ºÀtªÀ£ÀÄß £À£Àß
SÁvÉUÉ dªÉÄ ªÀiÁrzÉÝãÉ. ¢.23.07.2018gÀ r.r.AiÀÄ ¸ÀASÉå
898468 zÁR¯ÉAiÀÄ bÁAiÀiÁ ¥ÀæwAiÀÄ£ÀÄß ºÁdgÀÄ¥Àr¹zÉÝãÉ.
FUÀ®Æ ¸ÀºÀ gÀÆ. 1.50 ®PÀë ºÀtªÀ£ÀÄß zÀÆgÀÄzÁgÀjUÉ PÉÆqÀ®Ä
¹zÀÞ½zÉÝãÉ.É É

From this part of evidence, it goes without saying that,

accused has not disputed the cheque in question. When the

drawer has admitted the issuance of the cheque as well as the

signature present therein, the presumptions envisaged

under section 118 read with section 139 of NI Act, would

operate in favour of the Complainant. The said provisions lays

down a special rule of evidence applicable to negotiable

instruments. The presumption is one of law and thereunder

 11 C.C.27115/2017

court shall presume that the instrument was endorsed for

consideration. So also, in the absence of contrary evidence on

behalf of the accused, the presumption under section 118 of

the NI Act, goes in favour of the complainant.

13. This proposition of law is laid down by the Hon’ble

High Court of Karnataka in the decision reported in ILR

2006 KAR 4672 - J.Ramaraj V/s Iliyaz Khan, wherein it is

held that;

“Mere denial of issuing cheque would

not be sufficient as it is time and again
noted that once the cheque is issued
duly signed by the petitioner, the
presumption goes against him as per
Sec.139 of the Negotiable Instruments
Act.”

Said statutory presumptions are rebuttable in nature. It

is for the accused to place cogent and probable defence to

rebut the presumptions raised in favour of the Complainant.

 12 C.C.27115/2017

14. In view of this un-equivocal admission, nothing remains

for this court except holding that, accused has admitted the

guilt punishable under the invoke provision of the offence.

No doubt, accused has put forth the plea that, she attempted

to pay the cheque amount by way of Demand Draft, but

complainant has not received the same. However, there was

no hurdles for the accused to deposit the cheque amount to

the bank account of the complainant. Suitable reply was also

not issued after service of the legal notice.

15. Further, complainant relied on the admissions elicited

from the mouth of the accused and contend that, she is liable

to pay Rs.9,71,392/- by virtue undisputed invoices at

Ex.P.11. This line of argument is not acceptable, because, the

disputed cheque involved in this case is for an amount of

Rs.1,50,000/-. Therefore, the claim of the complainant for

grant of compensation to an extent of Rs.9,71,392/-, does not

inspire the confidence of this court.

 13 C.C.27115/2017

16. Moreover, in the latest judgment decided on 15th March

2019, the Hon’ble Supreme Court of India, AIR 2019

Supreme Court 1876; Rohitbhai Jivanlal Patel V/s State

of Gujarat & Another, it is observed in para 12 that;

“ 12. For determination of the point as to

whether the High Court was justified in
reversing the judgment and order of the
Trial Court and convicting the appellant for
the offence under section 138 of the NI Act,
the basic questions to be addressed to are
two – fold: as to whether the complainant –
respondent No.2 had established the
ingredients of Sections 118 and 139 of the
NI Act, so as to justify drawing of the
presumption envisaged therein; and if so, as
to whether the accused –appellant had been
able to displace such presumption and to
establish a probable defence whereby, the
onus would again shift to the
complainant?........”

It is further observed in 18.6 that;

“ 18.6. The fact of the matter remains

that the appellant could not deny his
signatures on the said writing but
attempted to suggest that his signatures
were available on the blank stamp paper
 14 C.C.27115/2017

with Shri Jagdishbhai. This suggestion is

too remote and too uncertain to be accepted.
No cogent reason is available for the
appellant signing a blank stamp paper. It is
also indisputable that the cheques as
mentioned therein with all the relevant
particulars like cheque numbers, name of
bank and account number are of the same
cheques which form the subject matter of
these complaint cases. The said document
bears the date 21.03.2007 and he cheques
were postdated, starting from 01.04.2008
and ending 01.12.2008. There appears
absolutely no reason to discard this writing
from consideration….”

It is further observed in para No.19 that;

“ 19. Hereinabove, we have examined in

detail the findings of the Trial Court and
those of High Court and have no hesitation
in concluding that the present one was
clearly a case where the decision of the
Trial Court suffered from perversity and
fundamental error of approach; and the
High Court was justified in reversing the
judgment of the Trial Court. The
observations of the Trial Court that there
was no documentary evidence to show the
source of funds with the respondent to
advance the loan, or that the respondent
did not record the transaction in the form of
 15 C.C.27115/2017

receipt of even kachcha notes, or that there

were inconsistencies in the statement of the
complainant and his witness, or that the
witness of the complaint was more in know
of facts etc. would have been relevant if the
matter was to be examined with reference to
the onus on the complaint to prove his case
beyond reasonable doubt. These
considerations and observations do not
stand in conformity with the presumption
existing in favour of the complainant by
virtue of Sections 118 and 139 of the NI Act.
Needless to reiterate that the result of such
presumption is that existence of a legally
enforceable debt is to be presumed in favour
of the complainant. When such a
presumption is drawn, the factors relating
to the want of documentary evidence in the
form of receipts or accounts or want of
evidence as regards source of funds were
not of relevant consideration while
examining if the accused has been able to
rebut the presumption or not. The other
observations as regards any variance in the
statement of complainant and witness; or
want of knowledge about dates and other
particulars of the cheques; or washing away
of the earlier cheques in the rains though
the office of the complainant being on the
8th floor had also been or irrelevant factors
of consideration of a probable defence of the
appellant.….”
 16 C.C.27115/2017

The ratio laid down in the cited decisions are aptly

applicable to the case on hand.

17. In this case plea of the accused was recorded as per

section 251 of Cr.P.C. Accused pleaded not guilty. As per

section 251 of Cr.P.C. accused has to state about his defence.

Here, except pleading not guilty accused has not stated his

defence at the time of recording plea. As per the decision

reported in AIR 2014 SC 2528 (Indian Bank Association

V/s Union of India), Crl. Petition No.8943/2010 M/s.Mess

Transgare Pvt V/s Dr .R. Parvathareddy and in Rajesh

Agarwals case, Wherein, it is held that; “ Accused cannot

simply say “ I am innocent ” or “ I pleaded not guilty ”.

The proposition of law laid down in the aforesaid decision is

squarely applicable to the facts and circumstances of this

case. As such, it cannot be taken that accused has rebutted

the presumption of law enshrined under section 139 and 118

of N.I. Act, by mere pleading not guilty.

 17 C.C.27115/2017

18. From the discussion made supra, it is clear that,

accused has neither taken probable defence nor taken steps to

prove the same. To put it other way, accused has not proved

the relationship of employer and employee between him and

the accused and also not proved the misuse of cheques issued

to the complainant for the purpose of extending discounts to

the customers. Thus, this court opined that, accused has not

rebutted the presumption of law available in favour of the

complainant, envisaged under section 118 read with section

139 of N.I. Act. Accordingly, the case of the complainant is

believable. Complainant has proved that, accused has

intentionally not maintained sufficient amount in his account

to honour the disputed cheque. Hence, this point No.1 under

consideration is answered in the affirmative.

19. POINT NO.2: In view of the reasons stated and

discussed above, the complainant has proved the guilt of the

accused punishable under section 138 of N.I. Act It is worth

 18 C.C.27115/2017

to note that, the offence is of the nature of civil wrong.

Hence, it is proper to award sentence of fine, instead of

awarding sentence of imprisonment. Hon’ble Supreme Court

of India in a decision reported in, (2015) 17 SCC 368, in a case

of H.Pukhraj Vs. D.Parasmal, observed that, having regard to

the length of trial and date of issuance of the cheque, it is

necessary to award reasonable interest on the cheque

amount along with cost of litigation. Considering all these

aspects, this court proceed to pass the following;

ORDER

Acting under section 255 (2) of

Criminal Procedure Code, accused is
hereby convicted for the offence
punishable under section 138 of
Negotiable Instrument Act and sentenced
to pay fine of Rs.2,05,000/- (Two Lakhs
Five Thousand Rupees only). In
default thereof accused shall undergo
simple imprisonment for 1 (One) month.
 19 C.C.27115/2017

Acting under section 357(1) (b) of

code of criminal procedure, it is ordered
that, Rs.2,00,000/- (Two Lakhs Rupees
only), there from shall be paid to the
complainant as a compensation,
remaining fine amount of Rs.5,000/-
(Five Thousand Rupees only) is
defrayed to the state for the expenses
incurred in the prosecution.

The bail bond of the accused stands

cancelled.

Office to supply the copy of this

Judgment to the accused immediately on
free of cost.

{Dictated to the stenographer, transcribed and computerized by her,

revised corrected and then pronounced in the open court on this 3rd day of
December 2019}.

(KALPANA.M.S.)
XX ACMM, Bengaluru.
 20 C.C.27115/2017

ANNEXURE
List of witnesses examined on behalf of complainant:

P.W.1 M/s. K.M.Cables and

Conductors,

Represented by its authorized

signatory/
Proprietor,
Mr. Rishi Kansal,

List of documents produced on behalf of complainant:

Ex.P.1 Cheque

Ex.P. 1(a) Signature of the accused

Ex.P. 2 Bank endorsement

Ex.P. 3 Copy of the legal notice

Ex.P. 4 & 5 Postal receipts

Ex.P. 6 Postal acknowledgement

Ex.P.7 Returned postal cover

Ex.P.8 & 9 Lender accounts

 21 C.C.27115/2017

Ex.P.10 Bill details

Ex.P.11 Tax invoices

List of witnesses examined on behalf of accused:

D.W.1 Mrs. Manita Kumari

List of documents produced on behalf of accused:

-Nil-

XX A.C.M.M.,
Bengaluru.