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IN THE COURT OF THE ADDITIONAL CIVIL JUDGE AND
JMFC, PERIYAPATNA
PRESENT:
Smt. B.D.ROHINI. LL.M., Addl. Civil Judge & JMFC, Periyapatna
C.C. No: 764/
(Earlier C.C.No. 249/2019 and C.C. 437/2019)
DATED THIS THE 20
th DAY OF JULY 2019 COMPLAINANT:- Prathap.P.G S/o P.J.Gangadhara, Aged about 30 years, Business, R/at Gollara Beedi, Periyapatna Town, Mysuru district. ... .Rep.by.,Sri.T.N.Mahesha..Adv ocate.,
V/s.
ACCUSED:- Gagankumar S/o Chandrashekar, Aged about 30 years, Business, R/at # 103, Mugaloge village and Post, Kushalanagara hobli, Somavarapete taluk, Kodagu District.
….Rep.by.,Sri.K.R.Vijay Advocate., Date of Complaint 20-07- Offence alleged Section 138 of NI act. Evidence commenced on 21-12- Evidence closed on 22-08- Judgment pronounced on 20-07- Opinion of Presiding Officer Accused found guilty. (B.D.Rohini) Addl. Civil Judge & JMFC, Periyapatna.
J U D G M E N T
The present case arises out of the complaint filed U/s. 200 of Cr.P.C against the accused for the offence punishable U/s 138 of N.I. Act.
2. The complaint averments in brief are as under: (a) Accused in discharge of the liability had issued a cheque bearing No.597122 dated 20-05-2016 for a sum of Rs.3,00,000/- drawn on State Bank of Mysuru, Kushalanagara branch in favour of the complainant. The
- The complainant got examined himself as PW.1 and got marked 5 documents at Ex.P1 to P5 and closed his side evidence.
- The statement of the accused U/sec 313 of Cr.P.C was recorded. The accused has denied all the incriminating evidences appearing against him and submitted that he has defence evidence to make. But, has failed to examine any witnesses in his defence, in spite of several opportunities having tendered to him.
- Heard the arguments of both the sides.
- The points that would arise for the consideration of this court are as under: Points for consideration **_1. Whether the complainant proves beyond all reasonable doubts that, the accused in discharge of legally recoverable debt issued a cheque bearing No.597122, dated:20-05-2016, for Rs.3,00,000/- and the same was dishonored. Despite demand notice, the accused has failed to pay cheque amount and thereby committed an offence punishable U/Sec.138 of Negotiable Instruments Act?
- What order?_**
- My findings on the above said points as as under: Point no.1:- In the Affirmative Point no.2:- As per final order for the following: REASONS
- Point no.1:- Averments of the complaint are as under: (a) Accused in discharge of the liability had issued a cheque bearing No.597122 dated 20-05-2016 for a sum of Rs.3,00,000/- drawn on State Bank of Mysuru, Kushalanagara branch in favour of the complainant. The complainant has presented said cheque for encasement on 20-05-2016. Said cheque was returned unpaid on 24-05-2016 with an endorsement “funds insufficient” and it was communicated to the complainant on 24-05-2016. (b) The complainant issued a legal notice to the accused on 01-06-2016 calling upon him to pay the cheque amount. The legal notice has been duly served on the accused on 06-06-2016. Despite service of notice, the accused have not chosen to reply and to repay the cheque amount within the statutory period.
the cheque in question must have been issued towards a legally enforcible debt or liability.
- Under section 118 a presumption: of consideration, as to date, as to time of acceptance, as to time of transfer, as to order of endorsement and that a holder is a holder in due course of Negotiable Instruments, shall be raised. Even under section 139 a rebuttal presumption shall be raised that the cheque in question was issued towards discharge of a legally enforcible debt. These presumptions are mandatory presumptions that are required to be raised in case of Negotiable Instruments. These presumptions are rebuttable. It is for the accused to rebut the presumption under section 139 of Negotiable Instruments Act to show that the cheque in question was not issued towards any legally enforcible debt or liability.
- From the materials placed on record cheque as per Ex.P1 being drawn on the account of the accused at State Bank of Mysuru, Kushalanagara branch is not in dispute as the accused also has not denied his signature on the said cheque by stepping into evidence box. In the said circumstances U/sec. 139 of the N.I. Act there is an initial presumption in favour of the complainant that, the said cheque was issued to discharge in whole or in part of any debt or other liability.
- So also U/s 20 of the said Act, whenever any person admits having signed or delivered to another person, on a paper stamped in accordance with law, relating negotiable instruments either wholly in blank or having written thereon an incomplete negotiable instrument, he thereby gives prima-facie authority to such holder to make or complete as the case may be upon it a negotiable instrument for any amount specified therein. Therefore any person who signs an instrument though bank is liable to the holder in due course for such amount bearing therein. As the accused has not made any attempt to set up his case, such presumption is also not rebutted.
- In view of the above mentioned provisions the initial presumption that the cheque at Ex.P1 was issued for discharge of the loan in favour of the complainant. The accused has to rebut the said presumption by advancing some probable evidence in his defence. In this case in order to establish his defence, accused has neither chosen to cross examine the PW1 nor the accused has not chosen to examine himself. Even during his 313 statement no explanation has been offered by the accused except generally denying the incriminating evidence.
- Moreover immediately on the notice at Ex.P3 being served on the accused, no reply has been given by him denying the availment of the
- In view of the above discussion this court is of the opinion that the accused has failed to rebut the presumption available U/s 139 of N.I Act. Whereas the complainant has produced cogent evidence to prove that the cheque Ex.P1 was issued by the accused towards the discharge of legally enforcible debt. Accordingly the point no.1 is answered in the Affirmative.
- Point no.2:- In view of my above findings on point no.1 and 2, the complainant succeeded in proving that, Ex.P1 was issued by the accused for discharge of legally enforceable debt and also the complainant has proved the compliance of the mandatory requirement of section 138 N.I. Act. Accordingly, I proceed to pass the following: ORDER Accused is found guilty. Acting u/s. 255 (2) Cr.P.C. Accused is convicted for the offence punishable U/s 138 of N.I Act. The accused is sentenced to pay fine of Rs.3,05,000/- (Rupees Three Lakhs five Thousand Only). Out of the said fine amount an amount of Rs.3,00,000/- (Rupees Three Lakhs Only) shall be paid to the complainant as compensation U/s 357(1)b of Cr.P.C. The remaining amount of
Rs.5,000/-(Rupees Five Thousand) shall be confiscated to the State. In default to payment of the fine the accused shall under go Simple imprisonment for 6 months. Further, it is made clear that in view of proviso to section 421(1) OF Cr.P.C, the accused shall not be absolved of lis liability to pay compensation amount of Rs. Awarded U/ S.357 of CrPC, even if he under goes default sentence. The bail bonds and surety bonds stand canceled. The office supply the copy of judgments to the accused forthwith, free of cost. (Dictated to the Stenographer, transcribed and typed by her, script revised corrected and signed by me and then pronounced in the open court on this 20th day July 2019) (B.D.Rohini) Addl. Civil Judge & JMFC, Periyapatna. / ANNEXURES / LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION: PW 1 Prathap
